Docket: IMM-7131-19
Citation: 2020 FC 346
Ottawa, Ontario, April 20, 2021
PRESENT: Madam Justice Pallotta
| BETWEEN:
|
| REBECCA NEKPEN OGIEMWONYI
AISOSA OGIEMWONYI
ODUWARE OGIEMWONYI
OTASOWIE OGIEMWONYI
OSAZEE LEXY OGIEMWONYI
|
| Applicants
|
| and
|
| THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
| Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
This application for judicial review relates to a decision of the Refugee Appeal Division (RAD) confirming the Refugee Protection Division’s (RPD) determination that the applicants are neither Convention refugees nor persons in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
The applicants Rebecca Nekpen Ogiemwonyi, her husband Osazee Lexy Ogiemwonyi, and their three minor children are citizens of Nigeria from Benin City. They allege a fear of kidnapping, abuse, and death at the hands of political gangsters who mistake them for relatives of a former Nigerian politician and cabinet minister who has the same last name. Between 2009 and 2014, the applicants allege their home was robbed, Ms. Ogiemwonyi’s father was attacked by armed robbers and died soon thereafter, and Mr. Ogiemwonyi was kidnapped at gunpoint by assailants who treated him as if he were the nephew of the former minister, releasing him only after a ransom was paid. The applicants allege they received a series of threatening calls in 2017, with some callers threatening to kidnap the children; as a result, the applicants decided to leave Nigeria. After they left Nigeria, the kidnappers allegedly searched for Mr. Ogiemwonyi in September 2018 and assaulted his brother.
[3]
The applicants entered the United States in 2017 with visitor visas and then travelled to Canada to seek refugee protection. The RPD determined that the applicants are neither Convention refugees nor persons in need of protection because they have internal flight alternatives (IFAs) in Lagos and Abuja. The applicants appealed to the RAD, and the RAD dismissed their appeal. The RAD considered the issues on appeal in the context of section 97 of the IRPA—whether the applicants would face a risk of torture or a risk to their lives or of cruel and unusual punishment if they were to return to Nigeria—and not section 96. This was because the RAD held that the applicants failed to establish a connection or “nexus”
between their alleged persecution and the requirement under section 96 that such persecution must be based on a Convention ground of race, religion, nationality, membership in a particular social group or political opinion. The RAD disagreed with the applicants’ assertion that they would be targeted for political reasons. Based on the evidence, the RAD found that the applicants were victims of crime, targeted for their perceived wealth due to their last name, and that wealth or perceived wealth would not constitute membership in a particular social group within the meaning of section 96 of the IRPA. The RAD went on to consider the applicants’ arguments regarding the IFAs under section 97, and found that the applicants failed to establish that they were likely to face a risk to life, of torture, or of cruel and unusual treatment or punishment in Lagos or Abuja. Furthermore, the RAD determined it would not be unreasonable for the applicants to move to either city.
[4]
The applicants submit that the RAD’s decision is unreasonable. They allege the RAD erred in concluding there was no nexus to a Convention ground when Mr. Ogiemwonyi’s kidnapping was motivated by imputed family membership and imputed political opinion. Also, they allege the RAD erred by accepting only 3 of 24 new items of evidence submitted on appeal, and by denying the applicants’ request for an oral hearing. According to the applicants, the RAD improperly refused to admit evidence on the basis that it was self-serving, not new, or already in evidence before the RPD. The applicants submit the refusal to admit relevant evidence contributed to the main error, which they allege to be the RAD’s unreasonable analysis of whether the applicants have viable IFAs in Lagos and Abuja. They argue that the RAD’s IFA analysis is unreasonable because the RAD failed to properly consider the evidence, failed to consider whether there would be adequate state protection for the family in the IFAs, and failed to consider that their deportation would violate section 12 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the Charter], as well as international law as a result of “a consistent pattern of gross, flagrant or mass violations of human rights”
in Nigeria, contrary to article 3 of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [Convention Against Torture].
[5]
For the reasons below, the applicants have not established that the RAD’s decision is unreasonable on the basis of the alleged errors. Accordingly, this application for judicial review is dismissed.
II.
Issue and Standard of Review
[6]
The issue on this application for judicial review is whether the RAD’s decision is reasonable, and in particular:
Did the RAD err in concluding that the claims do not have a nexus under a Convention ground?
Did the RAD err by rejecting new evidence presented on appeal, and refusing the request for an oral hearing?
Did the RAD err in its IFA analysis by failing to have proper regard to evidence of the threat to the applicants’ lives, the inadequacy of state protection in Nigeria, and/or a human rights crisis in Nigeria?
[7]
Under the revised framework set out in the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], the applicable standard of review is reasonableness (see also Akinyemi-Oguntunde v Canada (Citizenship and Immigration), 2020 FC 666 at para 15; Armando v Canada (Citizenship and Immigration), 2020 FC 94 at para 31; Singh v Canada (Citizenship and Immigration), 2020 FC 350 at para 17).
[8]
Reasonableness is a deferential but robust form of review: Vavilov at paras 12-13, 75 and 85. A reviewing court must determine whether the decision bears the hallmarks of reasonableness—justification, transparency and intelligibility: Vavilov at para 99. A reasonable decision is based on an internally coherent and rational chain of analysis and it is justified in relation to the facts and law that constrain the decision maker: Vavilov at para 85. The party challenging the decision bears the onus of demonstrating that it is unreasonable: Vavilov at para 100.
III.
Preliminary Issues
A.
Respondent’s objection regarding applicants’ list of authorities
[9]
On the day of the hearing, the applicants submitted a list of 18 authorities. Copies of the authorities were not provided to the Court or to opposing counsel. The respondent objected on the basis that none of the listed authorities were referred to in the applicants’ memorandum.
[10]
I referred the parties to this Court’s practice notice regarding books of authorities. The practice notice states that books of authorities should be limited to authorities referred to in the party’s factum, and none of the authorities in the applicants’ list were referred to in the applicants’ factum. Also, the list was delivered late, did not include pinpoint references, and copies of the authorities were not provided, making it very difficult for the respondent’s counsel to prepare. The applicants did not explain the lateness or other deficiencies, stating that the jurisprudence of the Court should be admissible as long as no new issues are raised.
[11]
I reserved on the respondent’s objection to consider the list of authorities in light of the arguments made based on the authorities, and whether they materially impact the respondent’s ability to respond.
[12]
During oral argument, the applicants referred to passages from the authorities in the list, without tying them to the RAD’s reasons or to the facts of this case. The applicants did not explain how the principles in those authorities are material to this application for judicial review. I have reviewed the passages that were referred to in oral argument, and in my view, they are not material as they relate to principles that are not applicable to this case or they are distinguishable from the present case on their facts. I accept that the manner of providing the list of authorities was unfair to the respondent (and it was also unhelpful to the Court); however, it is not necessary for the Court to seek additional submissions from the respondent.
B.
The application for leave was filed late
[13]
The respondent submits that the leave application was filed late, and there is no order expressly granting an extension of time. The respondent acknowledges that the applicants requested an extension and the request was not opposed, as it was missed. As such, the respondent makes no submissions opposing an extension of time, but rather, submits that the matter should be left to the Court’s discretion.
[14]
I have reviewed the notice of application for leave and judicial review (ALJR). As the applicants correctly point out, and as the respondent concedes, the applicants clearly requested an extension of time. As noted above, the respondent did not oppose the request. In my view, it is implicit in the Court’s order granting leave that the extension of time was also granted. If I am mistaken in that regard, I find that the test set out in Canada (Attorney General) v Hennelly, [1999] FCJ No. 846 (FCA) is met, and I would grant an extension of time to file the ALJR, nunc pro tunc.
IV.
Analysis
A.
Did the RAD err in concluding that the claims do not have a nexus under a Convention ground?
[15]
In their memorandum of fact and law on appeal to the RAD, the applicants argued that they were targeted by criminal groups in Nigeria for political reasons, and not perceived wealth. The RAD did not agree that the applicants would be targeted for political reasons, finding instead that Mr. Ogiemwonyi was kidnapped because the kidnappers thought he could pay a ransom. The RAD noted that Mr. Ogiemwonyi’s ordeal ended after a ransom was paid. The RAD referred to country documentation indicating a high crime rate in Nigeria and found, based on the country evidence, that “criminals are not generally targeting people because of their real or implied political opinions, but because of their perceived societal position and ability to pay ransom.”
[16]
Although they are not politically involved, the applicants allege they were targeted due to perceived political or familial ties with the former minister based on their shared surname, and that this former minister had enemies because he had changed political parties. The applicants argue that this falls within the scope of the Convention refugee definition and they submit the RAD erred in applying a narrow and literal approach to the definition under section 96 of the IRPA. I disagree. Mr. Ogiemwonyi claims that when he was kidnapped, the kidnappers asked if he was the politician’s nephew. The RAD considered this in reaching its conclusion, and also considered the objective country documentation. The applicants do not point to any evidence overlooked by the RAD that would indicate Mr. Ogiemwonyi was kidnapped due to his real or perceived political opinion. The kidnappers’ question does not establish that their motives were political, and in my view, it was open to the RAD to conclude that the criminals targeted the applicants due to their perceived wealth and ability to pay ransom.
[17]
This Court has consistently held that perceived wealth does not, without more, constitute membership in a particular social group: Navaneethan v Canada (Citizenship and Immigration), 2015 FC 664 at para 53. Furthermore, as the respondent correctly notes, victims of criminal activity do not meet the definition of a Convention refugee: Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 [Ward]; Étienne v Canada (Citizenship and Immigration), 2007 FC 64 at paras 15-17; and Cius v Canada (Citizenship and Immigration), 2008 FC 1 at paras 17-20. Thus, the RAD’s conclusion that the applicants fear harm that is criminal in nature, with no nexus between the applicants’ claims and a Convention ground, is reasonable.
B.
Did the RAD err by rejecting new evidence presented on appeal, and refusing the request for an oral hearing?
[18]
Out of the 24 items of evidence submitted on appeal, the RAD admitted two articles, one dated March 21, 2019 and one dated April 21, 2019, as well as a psychotherapist’s report dated March 22, 2019. All three post-date the RPD’s decision. The RAD refused to admit the remaining items of evidence, finding that most of them did not meet the criteria under section 110(4) of the IRPA, and one was irrelevant.
[19]
The applicants submit the RAD erred. They argue most of the evidence did not exist at the time of the RPD hearing, and the RAD’s reasons do not respect “basic common sense”
. They submit that the evidence responded to doubts that the RPD raised about the applicants’ credibility. According to the applicants, the RAD unfairly rejected new evidence from family members in Nigeria solely because it came from individuals who knew them. They rely on Gonzalez Perea v Canada (Citizenship and Immigration), 2008 FC 432 at paragraph 7, where the Court found the officer took an unfair approach by assigning no value to evidence that came from an interested party. The applicants also argue the RAD attacked their credibility and erred in disregarding highly probative evidence based on the timing of the newly filed evidence.
[20]
The applicants conceded during oral argument that the RAD did not, in fact, refuse to admit seven documents that were before the RPD. The RAD held that it did not need to consider admitting seven of the documents because they were already a part of the RPD record. Also, as the respondent correctly notes, the RAD did not reject any new evidence on the basis that it was “self-serving”
, and the applicants have not identified any items of evidence that were purportedly rejected on this basis. Furthermore, there is no merit to the applicants’ argument that the RAD attacked their credibility and erred in disregarding highly probative evidence.
[21]
Of the remaining documents that the applicants sought to tender as new evidence on appeal, one item that post-dated the RPD decision was reasonably rejected on the basis that it was not relevant to the appeal (see Rule 29(4)(a) of the Refugee Appeal Division Rules, SOR/2012-257) and the other items were properly refused because they did not meet the statutory requirements of section 110(4) of the IRPA: Canada (Citizenship and Immigration) v Singh, 2016 FCA 96, [2016] 4 FCR 230. According to section 110(4) of the IRPA, the RAD could only accept new evidence that (a) arose after the rejection of the RPD claim, (b) was not reasonably available at the time of the RPD’s rejection, or (c) the applicants could not reasonably have been expected in the circumstances to have presented at the time of the RPD’s rejection.
[22]
These other items were not new in that they did not arise after the RPD’s decision of February 12, 2019, and they related to events that pre-dated the RPD decision, such as Mr. Ogiemwonyi’s kidnapping and his brother’s assault in 2018. For example, a statement from Ms. Ogiemwonyi, which did not contain any new information post-dating the RPD decision, was reasonably rejected. Other documents were publicly available country condition documents that pre-dated the RPD decision, or they were already a part of the National Documentation Package (NDP) for Nigeria. With respect to whether the documents were not reasonably available, or could not reasonably have been expected to be presented prior to the RPD’s decision, the applicants had argued before the RAD that they were never asked for other evidence, and no one had clearly explained what kind of evidence was expected. The RAD considered these arguments and found them unpersuasive. The RAD noted that the applicants had been represented by counsel before the RPD, and had produced a long list of documents to the RPD, indicating an awareness that corroborating documentation would assist in establishing their claims. These findings were open to the RAD. The applicants have not established that the RAD’s decision to admit only 3 of the 24 tendered documents is unreasonable.
[23]
The RAD denied the applicants’ request for an oral hearing on the basis that none of the newly admitted documents raised a serious issue regarding the applicants’ credibility. The applicants have not put forward any basis to support their argument that the RAD erred in refusing an oral hearing. The RAD properly considered whether the newly admitted evidence raised a serious issue with respect to the applicants’ credibility, and reasonably found that they did not. With respect to the two articles dated March 21, 2019 and April 21, 2019, tendered as evidence of high crime and kidnapping rates and admitted on appeal, the RAD noted that the crime rates and large number of kidnappings in Nigeria was not disputed. With respect to the psychotherapist’s report dated March 22, 2019, the RAD did not see the relevance of the psychological assessment, which diagnosed Ms. Ogiemwonyi with postpartum mood disorder, and noted that the applicants did not explain its relevance. The applicants have not established that the RAD erred in refusing to convoke an oral hearing.
C.
Did the RAD err in its IFA analysis?
[24]
As noted above, the applicants submit that the RAD’s IFA analysis is unreasonable because the RAD failed to properly consider the evidence of the threat to the applicants’ lives, failed to consider whether there would be adequate state protection for the family in the IFAs, and failed to consider whether their deportation would violate the Charter and international law as a result of “a consistent pattern of gross, flagrant or mass violations of human rights”
contrary to article 3 of the Convention Against Torture.
[25]
The applicants submit the RAD failed to properly consider the evidence in the following ways:
(1)
questioning the credibility of the applicants’ story because they do not know exactly who is threatening them;
(2)
giving no weight to evidence that effectively corroborated the allegations of risk due to the family name, i.e. that the political gangsters believe Mr. Ogiemwonyi is related to a former federal minister and that Mr. Ogiemwonyi has been targeted in a political dispute;
(3)
engaging in arbitrary and capricious decision-making without regard to the fact that political gangsterism is common in West Africa;
(4)
doubting Mr. Ogiemwonyi’s testimony based on doubts about the attack on his brother;
(5)
failing to consider the objective situation in Edo State, and rejecting highly pertinent evidence of the objective situation in Edo State and the danger to the applicants;
(6)
impugning the applicants’ credibility without providing justified reasons;
(7)
rejecting documentary evidence of extra-judicial assassinations, kidnappings, false criminal cases, and great political violence on an almost daily basis in Nigeria, which support that the family was under “severe attack”
in Nigeria;
(8)
failing to explain why the RAD did not take into consideration some of the documentation supporting the applicants’ allegations, citing Bains v Canada (Minister of Employment and Immigration), [1993] FCJ No 497, 63 FTR 312 for the proposition that a tribunal should provide reasons explaining why relevant evidence is rejected; and
(9)
engaging in an ex post facto search for reasons not to believe the applicants’ testimony, which renders the decision unintelligible.
[26]
I am not persuaded by the applicants’ various arguments that the RAD erred by failing to properly consider the evidence. It is well within the RAD’s discretion and expertise to weigh the evidence: Vavilov at paras 83-87, 93, and 125-126. The burden is on the applicants to show that there are sufficiently serious shortcomings in the RAD’s decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency: Vavilov at para 100. They have not done so. While the applicants disagree with the RAD’s findings, they have not pointed to specific facts in the record or arguments presented on appeal that were overlooked, nor have they demonstrated how the RAD’s reasons are deficient in the ways noted above.
[27]
The RAD justified its conclusion based on a transparent and intelligible analysis of whether the applicants would face a risk to life or of cruel and unusual treatment or punishment in the proposed IFAs, and whether those IFA locations were reasonable.
[28]
The RAD assessed the risk from the kidnappers who previously targeted the applicants. Based on the evidence, the RAD determined the kidnappers would not have the motivation or ability to find the applicants in another city, agreeing with the reasons provided by the RPD in this regard. The RAD noted that the former minister—who shares the same surname as the applicants—had been retired for eight years, and the applicants did not explain how the kidnappers would find them in the IFAs. The RAD agreed with the RPD that the 2018 incident, in which Mr. Ogiemwonyi’s brother was allegedly attacked by the kidnappers who were looking for Mr. Ogiemwonyi, had not occurred, since neither the applicants’ basis of claim form nor the brother’s affidavit referred to the incident.
[29]
The RAD also considered and assessed the applicants’ risk from new or unknown kidnappers, in response to their arguments raised on appeal. The RAD accepted that crime and kidnapping are common in Nigeria, and found that while Lagos and Abuja are not free from the risk of crime, they are generally safer than other parts of Nigeria. The RAD considered the applicants’ newly-submitted evidence regarding a Canadian travel advisory, finding that the warning to avoid travel to a number of northern and Middle-Belt states of Nigeria excluded the cities of Abuja, Calabar, and Lagos, and that Lagos and Abuja were subject to a “low/moderate level 2 warning”
. The RAD considered the alleged reason behind the kidnapping in Benin City—a connection with the former minister due to a shared surname—and found the applicants presented no evidence that criminals in Lagos or Abuja would be familiar with a former minister from Benin City. The RAD also found there was no evidence the former minister remains politically engaged or that random unknown criminals in Lagos or Abuja would link the applicants to this minister. In my view, it was open to the RAD to conclude, looking at the applicants’ specific circumstances, that the applicants had not established they would face a risk to life, of torture, or of cruel and unusual treatment or punishment in Lagos or Abuja.
[30]
The applicants argue that the RAD’s determination of Lagos and Abuja as viable IFAs is unreasonable because the RAD failed to apply the proper criteria on state protection. They argue that a proper analysis must consider the nature of the risk and state protection. The applicants argue that simply stating Lagos and Abuja are relatively low risk compared to other parts of Nigeria is insufficient to show that the applicants have serious alternatives for relocation, since state protection is not “a serious consideration when it comes to Nigeria”
. The applicants’ memorandum indicates that the applicants “intend to develop these ideas further”
in reply. The respondent correctly points out that the applicants’ stated intention to present additional arguments in reply was improper and beyond the scope of a reply (see Rules 10 and 11 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22; Zhou v Canada (Minister of Citizenship and Immigration), 2003 FC 1060 at para 10).
[31]
The applicants did not file a reply memorandum. During oral argument, they made submissions that Sabaratnam v Canada (Minister of Employment and Immigration), [1992] FCJ No. 91 [Sabaratnam] sets down a principle, at paragraphs 3-4, that a proposed IFA does not exist unless there is adequate state protection, and that more recent cases of this Court, which focus on whether agents of persecution have the means and motivation to locate an applicant in a proposed IFA, were incorrectly decided. The applicants’ position appears to be that the RAD was obliged to conduct a state protection analysis as part of its IFA analysis, despite the RAD’s finding that the applicants failed to establish that they face a risk to their lives or a risk of cruel or unusual treatment or punishment in Lagos or Abuja.
[32]
The respondent submits the RAD was not required to conduct a separate state protection analysis, given its finding that the applicants do not face a risk in the proposed IFA locations, as the alleged agents of persecution do not have the motivation or ability to pursue them there: Adams v Canada (Citizenship and Immigration), 2018 FC 524 [Adams] at para 35.
[33]
In my view, the applicants have not established that the RAD committed a reviewable error by failing to make specific findings regarding the adequacy of state protection in Lagos or Abuja.
[34]
I can find no discussion in Sabaratnam about state protection, and I fail to see how the IFA determination made by the Court in that case assists the applicants. In Sabaratnam, the Federal Court of Appeal overturned the tribunal’s IFA determination on the basis that the proposed IFA was within a territory of conflict for the applicant’s agents for persecution, which is not at all similar to the applicants’ circumstances. I note that the applicants do not identify the cases of this Court that they allege to have been incorrectly decided.
[35]
I agree with the respondent that the RAD was not required to conduct a separate state protection analysis: Adams at para 35. In this case, the IFA analysis relates to section 97 of the IRPA, which provides that a person in need of protection is someone whose removal to their country of nationality would subject them personally to a risk to their life or to a risk of cruel and unusual punishment if, among other things (i) the person is unable or, because of that risk, unwilling to avail themselves of the protection of that country, and (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country: sections 97(1)(b)(i) and (ii) of the IRPA. The applicants bear the onus of demonstrating that they face a risk under section 97 in the proposed IFAs, or alternatively, that it would be unreasonable in the circumstances for the applicants to relocate there, under the two-prong test as established in Rasaratnam v Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (CA) and Thirunavukkarasu v Canada (Minister of Employment and Immigration), 1993 CanLII 3011 (FCA), [1994] 1 FC 589 [Thirunavukkarasu].
[36]
Since the applicants failed to establish that they face a risk to their lives or a risk of cruel or unusual treatment or punishment in Lagos or Abuja, they have failed to meet the requirement of section 97(1)(b)(ii). Therefore, it was not necessary for the RAD to consider the adequacy of state protection in respect of a risk the applicants had not proved they would face in these cities. In any event, it was also the applicants’ onus to establish an inability or unwillingness to avail themselves of state protection in accordance with section 97(1)(b)(i). A state is presumed capable of protecting its citizens in the absence of evidence to the contrary: Ward at para 57. The applicants have not explained to this Court how the evidence before the RAD (and the RPD) establishes that state protection would not be available to them in Lagos or Abuja, or that state protection “is not a serious consideration when it comes to Nigeria”
.
[37]
The applicants argue the RAD did not engage in an analysis of whether it would be reasonable to relocate to Lagos or Abuja, under the second prong of the IFA test as established in Thirunavukkarasu. They submit the RAD simply asserted that Lagos and Abuja were relatively low risk compared to other areas in Nigeria. I disagree. The RAD reasonably found that the crime rates in Lagos and Abuja did not render them unreasonable IFAs, for the reasons summarized above. The RAD also considered and disagreed with the applicants’ arguments that the RPD erred in the second prong of the IFA analysis by failing to consider factors such as religion and employment. The RAD affirmed the RPD’s “thorough examination of reasonableness factors”
in the proposed IFA locations, and agreed with the RPD’s findings and conclusions on the reasonableness of the proposed IFA locations. The RPD had examined factors including education, employment, religion, language, and the ability to secure accommodation, and the RAD upheld these findings. The applicants have not established that the RAD’s (or the RPD’s) determination on the second prong of the IFA analysis was unreasonable.
[38]
Finally, the applicants argue that the RAD erred by failing to consider the human rights situation in Nigeria, and they submit that their deportation would violate section 12 of the Charter and article 3 of the Convention Against Torture.
[39]
The RAD was not dealing with an issue of the applicants’ removal from Canada, and the argument is premature: Kikina Biachi v Canada (Minister of Citizenship and Immigration), 2006 FC 589 at para 23. The applicants have not established that the RAD committed a reviewable error by failing to consider whether their deportation would violate section 12 of the Charter and article 3 of the Convention Against Torture.
[40]
In summary, the RAD reasonably concluded that the applicants have viable IFAs in Lagos and Abuja, based on their personal circumstances and the country condition documentation. The RAD’s determination was justified, transparent and intelligible.
V.
Conclusion
[41]
The applicants have not established that the RAD’s decision was unreasonable. Accordingly, this application for judicial review is dismissed.
[42]
Neither party has proposed a question for certification and no such question arises in this case.
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