Docket: A-490-12
Citation: 2014
FCA 14
CORAM: PELLETIER J.A.
GAUTHIER J.A.
TRUDEL J.A.
|
|
|
BETWEEN:
|
|
DESGAGNÉS TRANSARCTIK INC.
|
|
Appellant
|
|
and
|
|
THE ATTORNEY GENERAL OF CANADA
|
|
Respondent
|
REASONS FOR JUDGMENT
GAUTHIER J.A.
[1]
This is an appeal by Desgagnés Transarctik Inc.
(Desgagnés) of a decision by Justice Pinard of the Federal Court (the judge)
dismissing with costs its application for judicial review of the refusal by the
Minister of Finance to recommend to the Governor in Council, pursuant to
subsection 115(1) of the Customs Tariff, S.C. 1997, c. 36 (the
Tariff) (see Annex A),a remission of
customs duties with respect to three vessels (dry bulk self-unloaders) imported
to Canada by Desgagnés before January 1, 2010.
[2]
In his letter dated March 11, 2011, the
Minister indicated that his refusal was motivated by the need to ensure fair
and equitable treatment that takes into account past decisions on customs duty
remission requests concerning vessels competing in the same market as the three
vessels that were the subject of the requests by Desgagnés (Appeal Record [A.R.],
page 243).
[3]
Desgagnés alleges that the judge committed
numerous errors warranting this Court’s intervention. Essentially, Desgagnés
submits that the judge erred:
(i)
in finding that the Minister had not breached
his duty to act fairly, and
(ii)
in finding that the Minister’s decision was
reasonable.
[4]
For the reasons set out below, the appeal should
be dismissed.
1. BACKGROUND
[5]
Given the arguments put forward on appeal, the
following facts should be highlighted.
[6]
The duty remission requests relating to the
importation of Desgagnés’s three vessels were assigned to two Department of
Finance officials on August 13, 2009. They involved vessels that had been
imported before that date.
[7]
On August 29, 2009, Nunavut Eastern Arctic
Shipping (NEAS), Desgagnés’s principal competitor in the Arctic market,
submitted a written opposition to these requests.
[8]
In its letter of opposition, NEAS indicated that
in 2000 its own customs duty remission request with respect to the importation
of a vessel to be used in the same Arctic market had been opposed by Desgagnés.
The Minister thus denied the request of NEAS. According to NEAS, it would
therefore be unfair to grant Desgagnés’s requests. NEAS also indicated that if
the remissions were to be granted, it would ask the Minister to recommend that
remissions be granted with respect to the duty paid on three vessels used in
the same market that NEAS had imported before 2009.
[9]
It is mainly because of the opposition by NEAS that
the Department of Finance officials, in a memorandum to the Minister dated
April 22, 2010, suggested that it would be unfair to grant Desgagnés’s
remission requests.
[10]
After the Minister had decided to deny
Desgagnés’s requests, it was also decided that any decisions involving outstanding
remission requests for vessels imported before January 1, 2010, would be
announced in the fall, at the same time as the unveiling of a new tariff policy
favouring the replacement of Canada’s aging fleets.
[11]
On October 24, 2009, the Government had
invited all interested parties to submit comments on a proposal to amend tariff
policies in this regard. The notice published in the Canada Gazette clearly
indicates that the Government would maintain its practice of looking at customs
duty remission requests on a case-by-case basis for vessels imported before
January 1, 2010, taking into account the views of stakeholders (A.R.,
page 559), and that any new policy governing the general remission of customs
duties on the importation of certain vessels would be applicable only to vessels
imported on or after January 1, 2010.
[12]
It was on October 1, 2010 that the Minister
publicly announced the implementation of new tariff measures with respect to
certain vessels imported on or after January 1, 2010 (A.R., pages 230 and
235). At the same time, the Minister indicated as well that certain duty
remission requests for vessels imported before that date had been granted,
including in particular requests made by Algoma Central Corporation (Algoma)
regarding two tankers operating on the Great Lakes and the St. Lawrence River.
[13]
At the time of this announcement, Desgagnés’s remission
requests were not among those that had been granted. The precise date on which
Desgagnés was verbally informed that its requests had been rejected is disputed,
but on October 8, 2010, the Chairman of the Board and Chief Executive
Officer of Desgagnés (the CEO) wrote a detailed letter to the Minister
indicating, among other things, that refusing the requests would be unfair in
light of the new policy announced on October 1, since the three vessels in
question met all of the objectives of the new policy. The requests should
therefore have been included in the list of approved requests, such as Algoma’s.
Desgagnés also indicated that Algoma’s requests were contemporaneous with its
own and that they involved vessels imported within the same time frame.
[14]
In its letter, Desgagnés emphasizes that it is
being twice penalized by the decisions made, for the following reasons:
(i)
its own tankers on which duty had been paid will
be competing with the two tankers that had benefited from customs duty relief; and
(ii)
Desgagnés’s competitors will be able, with
respect to dry cargo transport, to benefit immediately from the new policy to
replace and modernize their fleets, while Desgagnés, which has already begun
modernizing its fleet, finds itself in a different position as a result of the
refusal of its requests (see A.R., page 239, lines 25 to 29).
[15]
On page 3 of the letter (A.R., page 240, lines 15
to 20), Desgagnés also refers to the fact that the Minister had been told that about
10 years earlier Desgagnés had opposed a specific remission request. Desgagnés
notes that, at the time, this opposition was fully supported by the industry
and that it was consistent with the Government’s policy of encouraging Canadian
shipyards.
[16]
According to Desgagnés, the current situation
(in 2010) is totally different, because the Government now wants to foster the
renewal of the fleets of all shipowners without distinction. It would therefore
be unfair for only one company (Desgagnés) to have to pay customs duty while
the others are exempted. Desgagnés also notes that, in light of their common
interests and the interest of the industry in general, it had supported the requests
for remission filed by its competitor Algoma.
[17]
The letter dated October 8, 2010, was seen
by the departmental officials as a request for reconsideration.
[18]
On November 2, 2010, NEAS reiterated in
writing its opposition to Desgagnés’s requests.
[19]
On November 5, 2010, the departmental
officials prepared a new memorandum to the Minister in which it was concluded that
the new information received from Desgagnés did not justify any change to the
initial conclusion that the Minister should refuse to recommend the duty
remissions.
[20]
Desgagnés stressed at the hearing that the
memorandum of November 5, 2010, contained errors and was incomplete.
However, it is important to point out that the letter of October 8, 2010,
and the memorandum of April 22, 2010, described above, were annexed to the
memorandum of November 5, 2010.
[21]
On November 25, 2010, at Desgagnés’s
request, the departmental officials met with the CEO of Desgagnés, who gave
them an elaborate presentation covering in greater detail the points raised in
the letter of October 8, 2010.
2. JUDGE’S
DECISION
[22]
In his reasons (2012 FC 1224), the judge deals
first with Desgagnés’s argument that the Minister breached his duty to act
fairly in this case.
[23]
He refers to Desgagnés’s argument that the Minister’s
decision was based on “extrinsic evidence”, namely, the objections of NEAS,
which were not disclosed to it, and that Desgagnés was therefore unable to make
specific representations addressing the factors that led to its requests being
rejected (paragraph 21 of his reasons).
[24]
The judge then indicates that Desgagnés was
arguing that “the Department did not notify it of the first decision, the
underlying reasons or the reconsideration of the applications” (paragraph 22
of the reasons).
[25]
As for the scope of the Minister’s duty of procedural
fairness, the judge begins by concluding that the Federal Court of Appeal’s
decision in Waycobah First Nation v. Canada (Attorney General), 2011 FCA
191, which establishes that the Minister’s duty of procedural fairness is
minimal in the context of an application under subsection 23(2) of the Financial
Administration Act, R.S.C. 1985, c. F-11 (see Annex A), is relevant
and that the Minister’s duty in the context of a request made under
subsection 115(1) of the Tariff should not be more onerous.
[26]
The judge then analyzes the relevant factors set
out in Baker v. Canada (Minister of Citizenship and Immigration), [1999]
2 S.C.R. 817, at paragraphs 21 and 23 to 28, in order to determine the scope of
the duty to act fairly. In that regard, he adopts the following arguments of
the Minister at paragraph 25 of his reasons:
1.
Remitting duties is an exception to the Tariff’s general principle that customs
duties are payable on imported goods. The process for making a decision is left
to the Minister’s complete discretion and is ad hoc in nature since the
Minister has not limited the decision-making process through a policy or
directive;
2.
The Tariff does not limit the discretion of ministers or of the Governor in
Council to remit customs duties;
3.
The amount at issue is significant, but [Desgagnés] must have known that it
would pay customs duties on its three vessels at the time they were imported;
4.
[Desgagnés] could not legitimately expect to receive a remission of customs
duties because it knew it had successfully opposed the duty remission
application by its competitor NEAS in 2000, and the same assessment practice
was still in force for vessels imported prior to January 1, 2010;
5.
The Minister’s choice of procedure for applications under subsection 115(1)
of the Tariff should be respected because the Act gives the Minister the
ability to choose the applicable procedure.
[27]
It should be noted that the parties are not calling
into question the judge’s finding that the Minister’s duty in this case was minimal.
What Desgagnés is arguing is that, while the duty to act fairly is minimal, it
does include a duty to allow Desgagnés to make specific representations
regarding the grounds of opposition of NEAS.
[28]
On this point, the judge concludes at paragraph 26
of his reasons:
It
is important to indicate that, in this case, the . . . written
representations [of Desgagnés] sent to the [Minister]
on November 25, 2010, show that [Desgagnés] knew about NEAS’ opposition to its
remission applications and that it had the opportunity to make written and oral
representations in this regard.
[29]
As for Desgagnés’s second argument, the judge
notes at paragraph 27 of his reasons that Desgagnés had failed to persuade
him that it was not aware of the Minister’s first decision to reject its
request. Nor does he accept the claim that Desgagnés was not aware of the
Minister’s decision to reconsider its requests.
[30]
In light of the above, the judge held that there
had been no breach of the duty of procedural fairness.
[31]
As regards the validity of the decision being
challenged by Desgagnés, the judge decided first that the standard of
reasonableness applied. He then held that fairness towards a competitor was a
relevant and serious ground that in itself could justify the Minister’s
conclusion. According to the judge, the Minister’s decision fell “within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” (paragraph 34 of his reasons).
3. ANALYSIS
[32]
I have already set out the issues in broad terms
at paragraph 3 above. I will address in my analysis, after stating the role
of this Court in this appeal, the most important arguments raised before us.
[33]
While this Court may intervene in the case of a
breach with regard to procedural fairness (standard of correctness), this assessment
must be made in the light of the judge’s findings of fact. Indeed, this Court
is bound by those findings in the absence of a palpable and overriding error.
[34]
As for the validity of the Minister’s decision,
this Court’s role in an appeal of a decision rendered on an application for
judicial review is well established: it is to determine whether the judge used the
appropriate standard of review and applied it correctly (see, for example, Dr.
Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, at
paragraphs 43-44; Canada (Revenue Agency) v. Telfer, 2009 FCA 23, at
paragraph 18; Canada (Revenue Agency) v. Slau Limited, 2009 FCA 270, at
paragraph 26; and Public Service Alliance of Canada v. Canada Post
Corporation, 2010 FCA 56, at paragraph 84).
A. Procedural fairness
[35]
The parties agree that, as determined by the
judge, the Minister’s duty of procedural fairness in this case is minimal. Desgagnés
presented three arguments in support of its view that this Court’s intervention
is nevertheless warranted.
[36]
First, Desgagnés argues that the judge ignored
the fact that the Minister applied different tariff policies to the review of
its requests and those of Algoma. According to Desgagnés, this constitutes a
breach of his duty to act fairly.
[37]
Second, Desgagnés submits that the judge erred
in finding that it was aware of the opposition by NEAS and that it could have
made appropriate written and oral representations. In particular, Desgagnés says
that it was not informed of the precise grounds of the opposition by NEAS.
[38]
Third, Desgagnés emphasizes that the Minister
could not have reached an [translation]
“independent” decision (paragraph 90 of Desgagnés’s Memorandum) given the
many errors contained in the recommendation notes submitted to him.
(i) Differential treatment of the requests of Algoma and
Desgagnés
[39]
As counsel for Desgagnés acknowledged at the
hearing, in order to succeed with respect to its first argument—the one on
which it placed the most emphasis—, Desgagnés had to persuade us that its
requests had indeed been dealt with under a different policy than that applied
to Algoma’s requests.
[40]
Desgagnés recognized before this Court that its
requests should have been and were in fact dealt with in accordance with the case-by-case-review
procedure applied prior to the adoption of the new policy for vessels imported after
January 1, 2010, even though it had argued in its letter dated
October 8, 2010, that its requests were also consistent with the spirit
and rationale of the new policy applicable to vessels imported after
January 1, 2010.
[41]
Desgagnés is therefore asking this Court to
infer that, contrary to what was announced on October 24, 2009, in the
notice published in the Canada Gazette (A.R., page 559, and paragraph 11
above), Algoma’s requests were granted by virtue of the application of the
policy unveiled on October 1, 2010, which provided for a general remission
of customs duties for certain vessels.
[42]
According to Desgagnés, the Court may draw such
an inference from the following circumstances.
[43]
First, Desgagnés is relying on an excerpt from
the memorandum of November 5, 2010 (A.R., page 446), under the heading
“Background”, which provides a very general description of that which is dealt
with in detail in the memorandum of April 22, 2010, which, as I have mentioned,
was annexed to the memorandum of November 5. In particular, Desgagnés refers
to a sentence indicating that decisions relating to outstanding requests with
respect to vessels imported before January 1, 2010, were made following a
case-by-case review and in a manner consistent with the underlying rationale of
the new remission framework.
[44]
Desgagnés adds that, when one considers the
nature of Algoma’s requests and the fact that the two tankers in question compete
with Desgagnés’s tankers for which no remission of customs duties was granted,
it becomes clear that these requests were not assessed using the same criteria
(fairness between two competitors) as those that resulted in the rejection of
Desgagnés’s requests. Desgagnés notes that the rejection of its requests is also
inconsistent with the rationale of the new tariff policy announced in October
2010.
[45]
Desgagnés also argues that, in this case, the
onus is on the respondent to explain on what basis Algoma’s requests were
analyzed and granted, since Desgagnés did not have access to all of the
confidential documents relating to those requests.
[46]
There is sufficient evidence in the record to
decide this issue. That evidence does not support the inference that Desgagnés
would have this Court draw; quite the contrary, which explains why the judge
did not consider it necessary to deal with that argument.
[47]
As Desgagnés has said, the procedure applicable
to vessels imported before January 1 was clearly set out in the notice
published in the Canada Gazette (A.R., page 559). The process that was
in fact followed and that led to the granting of the remissions requested by
Algoma is described in the order dated September 23, 2010, confirming the
granting of the remissions in question (A.R., pages 651 and following). The
order clearly indicates under the heading “Consultation” that (i) consultations
were held with stakeholders, (ii) the duty remission for Algoma was supported
by the industry in general and (iii) there was “no opposition” to the
remission (see A.R., page 653).
[48]
In my view, this confirms that the traditional
procedure was indeed followed, since the new policy creates a general remission
system under which the views of stakeholders are no longer relevant.
[49]
Moreover, in the announcement made by the
Department of Finance on October 1, 2010 (A.R., page 235), the Minister of
Finance indicates the following:
To
complement the new duty remission framework, which will be retroactive to
January 1, 2010, the Government of Canada also made decisions on outstanding
company-specific duty relief requests made by BC Ferries and Algoma Central
Corporation before January 1, 2010. The duties remitted in these requests
amount to $119.4 million and $15 million, respectively. The vessels covered
by these remission orders would now qualify for duty relief under the tariff
framework announced today.
[Emphasis
added.]
This necessarily
implies that the new policy was not applied to these requests.
[50]
This is quite consistent with the memorandum of
April 22, 2010, in which it was recommended that Algoma’s requests be
granted and that Desgagnés’s requests be rejected (A.R., pages 449 and
following). Under the heading “Existing Duty Remission Requests with the
Department”, it was reiterated that outstanding requests were to be examined in
accordance with the notice that appeared in the Canada Gazette in October
2009 (A.R., page 454). It was then noted that under this ad hoc approach
each request would be evaluated on its merits, taking into account all relevant
factors such as the views of shipyards, shipowners and Industry Canada.
[51]
Therefore, although the particular excerpt from
the memorandum of November 5, 2010, on which Desgagnés placed great
emphasis, could have been more specific, it does not, when the context is taken
into account, support an inference that Algoma’s requests were evaluated under
the new policy rather than the old one.
[52]
I agree with the respondent that there was
nothing incongruous, unfair or unlawful about pointing out that requests
recommended to the Governor in Council in accordance with the former policy
would also have been recommended under the new policy. However, it would be
completely absurd to interpret the passage as meaning that requests that were unacceptable
under the former policy would automatically become acceptable because they were
consistent with the new policy.
[53]
As for the so-called inconsistency of accepting
Algoma’s requests and rejecting Desgagnés’s requests, in my view, it simply does
not exist. As is shown by the documentation in the record, the Canadian market
in which Algoma’s vessels were to be used was not the same market as that in
which the vessels that were the subject of Desgagnés’s requests were to
operate.
[54]
A plain reading of Desgagnés’s opposition in
2000 (A.R., pages 564 and following) indicates that Desgagnés was well aware
that the vessels for which a remission had been requested were being evaluated
on the basis of their impact on the Canadian market in which they were to
operate.
[55]
There was therefore an essential difference
between Desgagnés’s requests, which were opposed by NEAS, Desgagnés’s principal
competitor in the Arctic market, and Algoma’s requests, which even Desgagnés, a
competitor of Algoma’s on the St. Lawrence River and the Great Lakes, had
supported. An opposition was filed against the former, while no such opposition
was filed against Algoma’s requests.
[56]
In my view, the judge was not required to deal
explicitly with this argument that he had rejected implicitly. He therefore
committed no error, since there is no basis for Desgagnés’s argument that
different policies were applied to its requests than were applied to Algoma’s.
(ii) Opportunity to make representations
regarding opposition of NEAS
[57]
As for this second argument, Desgagnés could not
have been unaware, as it alleges, of the name of its principal competitor (if
not the only one in 2009-2010) in the Arctic market, especially considering
that this competitor had been the target of a specific opposition by Desgagnés
10 years earlier. There is no indication that Desgagnés had opposed any
other remission request relating to a vessel operating in the Arctic market at
that time.
[58]
As I have already mentioned, Desgagnés knew full
well that the opposition could only have related to issues involving
competition in the Arctic market. Desgagnés had itself confirmed that the three
vessels for which it had submitted requests were operating in the proportion of
40% in that market to 60% internationally and that any customs duties paid had
to be absorbed in the Arctic market, as they could not be absorbed in the
international market.
[59]
It is clear from the presentation made by the
CEO of Desgagnés on November 25, 2010, to which the judge referred (A.R., pages
713 and 715 in particular), that Desgagnés was well aware of the key argument
raised in the opposition, namely, that the vessels for which the requests had
been made would be in competition with those of NEAS, without NEAS having been
able to benefit from a customs duty remission.
[60]
Even assuming, without so deciding, that the
Minister’s minimal duty included informing Desgagnés of the specific grounds of
its competitor’s opposition, I am of the view that the judge did not err in
finding that Desgagnés did in fact have the opportunity to put forward its
arguments both orally and in writing. Therefore, no consequences flowed from
the alleged breach.
[61]
The presentation of November 25, 2010, read
in the context of the arguments brought forward in the letter dated
October 8, 2010, confirms that Desgagnés set forth fully the contextual
differences between the years 2000 and 2010, as well as the underlying objectives
of the policies in place in 2000 as compared to those of the 2010 policies.
[62]
Whatever the scope of the Minister’s duty of
fairness might be in this case, it does not include a requirement that the Minister
allow an adversarial debate concerning the strategy adopted by NEAS. NEAS was
attempting to position itself with respect to customs duty remission requests
that it might submit at some point. At that time, no such request had been submitted,
and no decision had been made by the Minister, Desgagnés’s assertions
notwithstanding.
[63]
This brings me to Desgagnés’s third series of
arguments.
(iii) Determinative errors in the memorandum of
November 5, 2010
[64]
Desgagnés is relying on various errors that it
characterizes as sufficiently determinative for the Minister not to have been
able to reach an independent decision. Desgagnés adds that the incorrect
information was significant enough to have negatively influenced the Minister’s
judgment as to the merits of the requests.
[65]
I have chosen to deal at this stage with the
arguments grouped under this heading in Desgagnés’s memorandum, even though it
is not clear that all of them truly raise issues of procedural fairness. The
“fettering of discretion” is a separate ground from that of procedural fairness
even if it may warrant the quashing of a decision. Moreover, procedural
fairness does not come into play where an error of fact relates to an element regarding
which no adversarial debate is required (see paragraph 62 above). In such
a case, it is rather a matter of determining whether such an error renders the
decision unreasonable.
[66]
Desgagnés notes first that the memorandum of
November 5, 2010, suggests that the Minister would be exposing himself to
a request from NEAS for the remission of customs duties paid by the latter on
three vessels imported before January 2010 if he granted Desgagnés’s request.
[67]
According to Desgagnés, this information is false,
since the NEAS vessels did not meet the conditions of the Government’s new
tariff policy. Moreover, as formulated, the statement that, in order to be
fair, the Government would then also have to reimburse NEAS [translation] “nullified the
decision-maker’s power and served, because of these untruths, to determine in
advance the outcome of the requests without any examination of their merit”
(paragraph 95 of Desgagnés’s Memorandum).
[68]
Desgagnés relies on Maple Lodge Farms Ltd. v.
Canada, [1982] 2 S.C.R. 2 (Maple Lodge), in submitting that a
departmental directive or policy cannot be made into an obligatory rule
fettering the Minister’s discretion (paragraph 96 of Desgagnés’s Memorandum).
[69]
As I have said, it is clear that NEAS had not
filed any requests and that the Minister did not have any decisions to make
with respect to NEAS. Regardless of the language used or the preliminary
opinion expressed by the departmental officials at that stage, nothing in the
memorandum could have been binding on the Minister in this regard. In the circumstances,
there is no purpose in discussing more fully the potential merits of requests
that never materialized.
[70]
However, it was open to the departmental
officials to warn the Minister that NEAS was very likely to try to take
advantage of the granting of Desgagnés’s requests in order to obtain its own
remission on the basis of unfairness.
[71]
I note that the statement referred to in
paragraph 67 above did not appear in the memorandum dated April 22,
2010, and that the Minister nevertheless reached the same decision. I am
satisfied that the Minister made his decisions regarding Desgagnés’s requests
after examining them on their merits.
[72]
Moreover, these so-called errors do not constitute
grounds for overturning the Minister’s decision if, as the judge determined, that
decision was reasonable in that it was supported by at least one reason that
could stand up to a quite thorough examination, such as the reason expressly
cited in the decision dated March 11, 2011 (see Canada (Director of
Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at
paragraph 56; and Law Society of New Brunswick v. Ryan, 2003 SCC
20, [2003] 1 S.C.R. 247, at paragraphs 48, 49 and 55).
[73]
Desgagnés’s next allegation is that the departmental
officials failed to provide, in the memorandum of November 5, 2010, the
background of and the reasons for Desgagnés’s opposition to the request of NEAS
in 2000. Desgagnés further asserts that the departmental officials falsely
represented that its requests had been assessed on the same basis as those of
Algoma, and that the memorandum falsely suggests that its requests were
inconsistent with the spirit or the rationale of the new tariff policy.
[74]
As I have already noted, the letter of
October 8, 2010, attached to the memorandum of November 5, 2010, stated
in terms that could not have been clearer that Desgagnés’s requests were
consistent with the spirit and rationale underlying the new tariff policy applicable
to vessels imported after January 1. It also very clearly sets out how the
context in which Desgagnés had opposed NEAS’s request in 2000 differed from the
current context. The Minister therefore had the relevant information before
him.
[75]
In conclusion, Desgagnés has failed to persuade
me that the judge erred in holding that there was no breach of procedural
fairness in this case. There is no error with respect to the issues described
above that might warrant the intervention of this Court.
B. Is the decision reasonable?
[76]
Desgagnés submits that the judge erred in
concluding that the Minister’s refusal was reasonable because he failed to
consider the fact that the decision was not transparent and comprehensible. Again,
I disagree.
[77]
As the Supreme Court of Canada indicates in Newfoundland
and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708, at paragraph 14, there is no
precedent supporting the argument that the adequacy of reasons is a stand-alone
basis for quashing a decision, or advocating that a reviewing court undertake
two discrete analyses—one for the reasons and a separate one for the result.
The judge was therefore not required to deal with this issue separately in his
reasons once he had made a general finding that the decision fell within a
range of possible outcomes.
[78]
The letter of March 11, 2011, is clear and
does state the principal reason on which the decision was based. The judge seems
to have had no difficulty understanding the decision-maker’s reasoning and
assessing whether the outcome was one that was possible having regard to the
facts and applicable law in this case.
[79]
In this regard, I note that the parties agree
that the judge applied the appropriate standard of review. I am satisfied that
he in fact applied it correctly as the very specific reason stated by the
Minister in his letter of March 11, 2011 (see paragraph 2 above) is in
itself sufficient to justify the Minister’s refusal.
[80]
In the circumstances, I propose that the appeal
be dismissed with costs.
“Johanne
Gauthier”
“I agree.
J.D.
Denis Pelletier J.A.”
“I agree.
Johanne
Trudel J.A.”
Certified true
translation
Erich Klein
Email this Content