Docket: A-68-14
Citation:
2015 FCA 168
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CORAM:
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DAWSON
J.A.
STRATAS J.A.
SCOTT J.A.
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BETWEEN:
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CANADIAN ARAB
FEDERATION (CAF)
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Appellant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT
DAWSON J.A.
[1]
For a number of years, the Canadian Arab
Federation (Federation) provided language instruction to newcomers to Canada through the federal government’s Language Instruction for Newcomers to Canada (LINC)
program. The contribution agreement that governed the relationship between the
Federation and the Department of Citizenship and Immigration Canada (CIC) from
2007 to 2009 expired on March 31, 2009. While the Federation and CIC entered
into negotiations for the subsequent funding cycle, the then Minister of
Citizenship and Immigration, the Honourable Jason Kenney, decided that CIC
would not enter into a further contribution agreement with the Federation. The
letter advising the Federation of this decision explained that:
[…] serious concerns have arisen with
respect to certain public statements that have been made by yourself or other
officials of the CAF. These statements have included the promotion of hatred,
anti-semitism and support for the banned terrorist organizations Hamas and
Hezbollah.
The objectionable
nature of these public statements — in that they appear to reflect the CAF’s
evident support for terrorist organizations and positions on its part which are
arguably anti-Semitic — raises serious questions about the integrity of your
organization and has undermined the Government’s confidence in the CAF as an
appropriate partner for the delivery of settlement services to newcomers. As a
result, CIC will not be entering into a further funding agreement with the CAF
upon the expiry of the above-noted agreement.
[2]
For reasons cited as 2013 FC 1283, the Federal
Court dismissed an application for judicial review of the Minister’s decision.
This is an appeal from the judgment of the Federal Court.
[3]
On this appeal, the Federation asserts that the
Federal Court erred in law by finding that:
i)
The Federation was not owed a duty of procedural
fairness by the Minister when he decided that his department would not enter
into a further contribution agreement with the Federation;
ii)
The Federation’s freedom of expression was not
infringed by the decision not to enter into a further contribution agreement
with it; and
iii) The Minister’s decision was reasonable.
[4]
For the reasons that follow, I find that the
Federation was not owed a duty of procedural fairness by the Minister, that its
freedom of expression was not infringed and that the Minister’s decision was
reasonable. It follows that I would dismiss this appeal with costs.
I.
Was the Federation owed a duty of procedural
fairness by the Minister?
[5]
The threshold issue of whether the Minister owed
the Federation a duty of procedural fairness when he decided that his
department would not enter into a new contribution agreement with it is a
question of law, reviewable on the standard of correctness.
[6]
The primary basis for the Federal Court’s
conclusion that no duty of fairness arose was that the nature of the
relationship between the Federation and CIC was strictly commercial. Neither a
statutory nor a contractual provision imposed any procedural fairness
obligations on the Minister; accordingly, no duty of fairness arose (reasons at
paragraph 38). In the alternative, the Federal Court found that the Federation did
not have a right, privilege or interest that was affected by the decision
sufficient to impose a duty of fairness on the Minister (reasons at paragraph
54).
[7]
During oral argument, counsel for the Minister
candidly acknowledged that the Federal Court’s primary ground for finding no
duty of fairness to exist is problematic. This is because the Court’s analysis
placed the relationship between the Federation and CIC completely in the realm
of private law when, as a matter of law, the relationship contained a mix of
public and private law elements.
[8]
As further acknowledged by counsel for the
Minister, the required analysis in this case is that articulated in cases such
as Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643 and Martineau
v. Matsqui Institution, [1980] 1 S.C.R. 602. In Cardinal, at page
653 of the reasons, the Supreme Court affirmed, as a general common law
principle, that a duty of procedural fairness lies on every public authority
making an administrative decision when the decision affects the rights,
privileges or interests of an individual.
[9]
The Federal Court relied upon the following
factors to find that the Federation did not possess sufficient rights,
privileges or interests to engage an obligation of fairness:
i)
The Federation had no right to receive LINC
funding (reasons paragraph 56);
ii)
Any added legitimacy the Federation received as
a result of its contractual relationship with CIC was not a sufficient interest
to attract procedural fairness obligations. Otherwise, any party that contracts
with the government would by virtue thereof acquire procedural rights (reasons
paragraph 57); and
iii) The sharing of infrastructure costs with the Federation’s other
operations was insufficient to trigger a duty of fairness. Funding for the LINC
program was provided on a cost-recovery basis for recoverable costs related to
the LINC program (reasons paragraph 58).
[10]
On this appeal, the Federation does not
seriously challenge these findings. Indeed, it concedes that the contribution
agreement conferred no commercial benefit upon it. Rather, the Federation
argues that the decision amounted to a condemnation of it – the Federation was
effectively labelled a supporter of terrorism and anti-Semitic. Reputational
harm is of particular significance for a non-profit community organization;
therefore, the Federation asserts that this is a sufficient interest to attract
the duty of procedural fairness.
[11]
I disagree for the following reasons.
[12]
First, the Federation is unable to point to any
authority that has found a reputational interest to be sufficient to trigger
duties of procedural fairness. While counsel referred to the obligation of a
public inquiry to give notice and an opportunity to be heard before making a
report against an individual, the source of this obligation is statutory:
section 13 of the Inquiries Act, R.S.C. 1985, c. I-11. As this duty does
not flow from the common law, this example does not assist the Federation.
[13]
Second, when courts have found a common law duty
of procedural fairness to apply, the rights, privileges or interests that were
implicated were qualitatively more substantial than the reputational interest here
asserted (for examples, see Donald J.M. Brown and John M. Evans, Judicial
Review of Administrative Action in Canada, looseleaf (Toronto: Carswell,
2014) at 7-53 to 7-55).
[14]
Finally, I agree with the Federal Court that if
the Federation were afforded procedural rights in this context, every failed
applicant for a contribution agreement would be entitled at least to notification
that their proposal was not going to be accepted and an opportunity to address
the Minister’s concerns. This would significantly constrain the Minister’s
ability to make broad, policy-based decisions on an expeditious basis. As the
Federal Court wrote at paragraph 58 of its reasons
“[a]ny incidental interest [the Federation] may have had was heavily outweighed
by the public’s interest in a Minister with the discretion to make decisions
swiftly, instead of one who is paralyzed by procedure”.
II.
Was the Federation’s freedom of expression
infringed by the decision?
[15]
In the Federal Court the Minister acknowledged,
and the Court found, that the Federation’s advocacy activities are protected expression.
In the view of the Federal Court, the governing authority is the decision of the
Supreme Court in Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673.
Applying Baier, the Federal Court characterized the Federation’s claim
to be a claim for positive rights because it sought a positive entitlement to
funds for its LINC program and, by extension, its expression (reasons paragraph
84). The Federal Court went on to find there was not a positive entitlement to
funding because the right to administer the LINC program is not grounded in a
fundamental freedom. As well, there was no substantial interference with the
Federation’s advocacy efforts because it continues to express its views
concerning the Israel-Palestine conflict (reasons paragraph 93). It followed
that there was no breach of section 2(b) of the Charter.
[16]
On this appeal, the Federation argues that once
the Federal Court found its advocacy activities to be protected expression, the
relevant inquiry was whether the government’s action in purpose or intent
unduly interfered with the Federation’s expressive activity. The Federation
relies upon the American doctrine of “unconstitutional
conditions” to argue that, even where a person has no “right” to a valuable government benefit, there are
some reasons upon which the government cannot rely when denying a benefit. A
government cannot deny a benefit to a person on a basis that infringes the
person’s constitutionally protected interests, especially the person’s freedom
of speech (see, for example, Perry v. Sinderman, 408 U.S. 593 (1972)).
[17]
In my view, recourse to American jurisprudence
is not necessary.
[18]
For the purpose of my analysis I am prepared to
assume, without deciding, that the Federation’s advocacy activities are
expressive activity and so section 2(b) of the Charter is engaged.
[19]
The Supreme Court has held that administrative
decision-makers must act consistently with the values underlying the grant of
discretion to them. These values include Charter values
(Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395). In assessing whether a decision violates the Charter, a court asks
whether a decision-maker disproportionately, and therefore unreasonably, limited
a right protected by the Charter.
[20]
In order to apply Charter values in the exercise
of discretion, the decision-maker must first consider the legislative
objectives that are at play and the nature of the decision. Then, the
decision-maker is to ask how the Charter values will be best protected in view
of the legislated objectives. The decision-maker is to balance the severity of
the interference with the protected right against the statutory objectives. The
proportionality test is satisfied if the measure selected falls within a range
of reasonable alternatives.
[21]
On judicial review, the question is whether “in assessing the impact of the relevant Charter
protection and given the nature of the decision and the statutory and factual
contexts, the decision reflects a proportionate balancing of the Charter
protections at play” (Doré at paragraph 57). The standard of
review to be applied is reasonableness (Doré at paragraph 45).
[22]
Applying these principles to the present case,
the Charter value at issue is expression.
[23]
As for the statutory objectives and the nature
of the decision, the objectives of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 with respect to immigration include promoting the
successful integration of permanent residents into Canada (paragraph 3(1)(e)).
The Minister is responsible for the administration of the Act (subsection 4(1)).
The Minister is also responsible for implementing the Canadian
Multiculturalism Act, R.S.C. 1985, c. 24 (4th Supp.). Paragraph
3(1)(c) of that Act declares it to be the policy of the Government of
Canada to promote the full and equitable participation of individuals and
communities of all origins in the evolution of all aspects of Canadian society
and to assist them in the elimination of any barrier to that participation.
[24]
Sections 3 and 4 of the Immigration and
Refugee Protection Act and the Treasury Board Policy on Transfer Payments
confer a broad discretion on the Minister without prescribing criteria to guide
his decision whether to enter into contribution agreements. Neither requires
the Minister to enter into a new contribution agreement with an entity after
the expiry of an existing, contribution agreement. Further, LINC serves a dual
purpose: it provides language training but it also facilitates the social,
economic and civic integration of newcomers into Canadian society. This latter
purpose requires that lessons be taught in an environment that demonstrates
that tolerance and mutual respect are core aspirational values of Canadian
society.
[25]
When considering the severity of the
interference with the Federation’s expressive activity, it is relevant that the
funding provided by the contribution agreement was intended for eligible costs
actually incurred in carrying out to the LINC program. As the Federation
acknowledges, the contribution agreement conferred no commercial benefit upon
it. Further, the Federal Court found that there was no substantial interference
with the Federation’s advocacy efforts because it continued to express its
views surrounding the Israel-Palestine conflict, notwithstanding it was not
approved for entry into a new contribution agreement.
[26]
In my view, whether the allegations made against
the Federation that it appeared to promote hatred and anti-Semitism, and to support
the banned terrorist groups Hamas and Hezbollah were true or not, the Minister
was reasonably entitled to be concerned that its association with LINC could be
perceived by the public to be such that the integrity of, and public confidence
in, the LINC program would be jeopardized.
[27]
In this context, I find the decision not to
enter into a new contribution agreement with the Federation was a proportionate
response that addressed the Minister’s concern while balancing the Charter
value of expression.
III.
Was the Minister’s decision reasonable?
[28]
The Federal Court determined the proper standard
of review of the Minister’s decision to be reasonableness and went on to find
the Minister’s decision fell within the range of reasonable outcomes.
[29]
On appeal from this aspect of the decision, this
Court is required to consider whether the Federal Court selected the proper
standard of review and applied it appropriately (Agraira v. Canada (Public
Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at
paragraph 45).
[30]
On this appeal, the parties agree that the
Federal Court selected the proper standard of review. I agree as well. The
Federation argues, however, that the decision was not reasonable because:
•
The decision was arbitrary and an abuse of
authority.
•
The decision was required to be constrained by
the purpose and object of the legislation.
•
“Cutting funding” for a language training program run by the Federation is unrelated
to legitimate state concern about preventing violence and protecting Canada’s security.
•
The “funding cuts”
were a blatant attempt to suppress criticism of Israel.
•
The Federation is not anti-Semitic.
[31]
Before addressing the Federation’s arguments, it
is important to consider the context in which the Minister’s decision was made.
This is so because the Supreme Court has emphasized that, while reasonableness
is a single standard, it “takes its colour from the
context” (Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at paragraph 59).
[32]
As Justices Rothstein and Moldaver explained in Communications,
Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper,
Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458 at paragraph 74 (in dissent but
not on this point), the “factual and legal context in
which a decision is made is critical to assessing its reasonableness for the
simple reason that ‘[r]easonableness is not a quality that exists in isolation’
[citation omitted]”. Therefore, the context
“shapes” the range of reasonable outcomes.
[33]
In the present case, the context is shaped by
the nature of the decision: the Minister decided whether his department would
use the Federation or another service provider to deliver, in the future, the
LINC program. The decision was discretionary; there were no enumerated factors
the Minister was required to consider. It was a decision based upon the
Minister’s policy view that the federal government should not fund certain
organizations. As the Minister’s Communications Director swore in his
affidavit:
[W]hile private citizens and organisations
are free to express their opinions, no individual or organisation is entitled
to a financial subsidy from taxpayers. To that end, groups that promote hatred,
including anti-Semitism, or excuse terrorism and violence should not receive
any official recognition or subsidy from the state.
[34]
This type of decision is one which courts afford
a wide margin of appreciation to the decision-maker. As Lord Neuberger
(concurring in the result) wrote in R (on the application of Rotherham
Metropolitan Borough Council and others) v. Secretary of State for Business,
Innovation and Skills, [2015] UKSC 6, at paragraph 78 — an appeal from an
application for judicial review concerning government funding decisions — policy
based decisions of this type are “particularly
difficult for a court to evaluate and therefore to criticise, and therefore to
condemn.”
[35]
At the same time, as the majority observed in Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R 190, at paragraph 27,
judicial review is “intimately connected with the
preservation of the rule of law”. Judicial review addresses the
underlying tension between the rule of law and, in this case, the exercise of a
discretion conferred by federal legislation. Courts must uphold the rule of law,
while not unduly interfering with functions delegated by Parliament. It follows
that while decisions of this type are given a wide margin of appreciation, they
are not immune from review.
[36]
Having reviewed the context, I now turn to the
reasonableness of the Minister’s decision. The Federal Court’s reasonableness
analysis is found at paragraphs 101 to 108 of the Court’s reasons. I see no error
in the Court’s analysis.
[37]
I deal as follows with the Federation’s
arguments on appeal.
[38]
First, a decision authorized by statute is
unreasonable if it is made for arbitrary reasons or for reasons unrelated to
the objects of the statute (Roncarelli v. Duplessis, [1959] S.C.R. 121,
at pages 140-143 and 156). While the Federation asserts that the decision was
contrary to the purpose and object of the legislation, it does not demonstrate
how this is so.
[39]
The Treasury Board Policy on Transfer Payments
underscores that payments of the type made under the contribution agreement are “key instruments in furthering [the government’s] broad
policy objectives and priorities”.
[40]
More importantly, the appropriateness of a
service provider must be an inherent component of the LINC selection process.
This is particularly the case when, as the Federation acknowledges, the program
is to orient newcomers to the Canadian way of life. This is evidenced in the
LINC Curriculum Guidelines. “Topic Development Ideas”
include teaching more about:
•
the advantages of diversity;
•
the connection between multiculturalism and the
Canadian identity;
•
respect for cultural distinctiveness; and
- ways to combat racism and intolerance.
[41]
The decision not to select the Federation as a
service provider because public statements made by its representatives appear
to support terrorism and positions which are arguably anti-Semitic cannot be
said to be contrary to the purpose and object of the relevant legislation.
[42]
Further, the Federation’s reliance upon Roncarelli
is misplaced. There, the decision-maker revoked a generally available privilege
on a basis unconnected with the legislation. In this case, as the Federal Court
found, the Minister acted within his mandate to further the education of, and
the inculcation of Canadian values in, newcomers to Canada.
[43]
Next, the Federation asserts that its funding
was “cut” for improper purposes. However, no
error has been shown in the finding of the Federal Court that the Minister
decided not to distribute finite resources to fund the Federation because it
was not an appropriate service provider.
[44]
Finally, as the Minister argues, there are mixed
views about what constitutes anti-Semitism and whether the Federation’s conduct
could be perceived to be anti-Semitic. The Federal Court found the record was “replete” with articles and statements that supported
the Minister’s characterization of the Federation (reasons paragraph 107). This
clash of views demonstrates the Minister’s decision was within the margin of
appreciation of reasonable outcomes, defensible in light of the law and the
facts.
IV.
Conclusion
[45]
For these reasons, I would dismiss the appeal
with costs.
“Eleanor R. Dawson”
“I
agree.
David
Stratas J.A.”
“I
agree.
A.F.
Scott J.A.”
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