Docket: A-247-19
Citation: 2020 FCA 176
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WEBB J.A.
NEAR J.A.
LASKIN J.A.
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BETWEEN:
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MATTHEW G. YEAGER
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Appellant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT
LASKIN J.A.
I.
Introduction
[1]
Dr. Matthew Yeager appeals from a judgment of the Federal Court (2019 FC 774, Gleeson J.) dismissing, on redetermination, his application for judicial review. The decision he challenged was that of Correctional Services Canada, through Miguel Costa, a senior officer of CSC, denying Dr. Yeager access to the John Howard Society pre-release fairs held at a number of federal correctional institutions in Ontario in June 2016. Dr. Yeager was denied access on the basis that the services he proposed to offer were not consistent with the purpose of the fairs.
[2]
Dr. Yeager submits that the application judge erred in three respects: in excluding certain expert evidence and a portion of Dr. Yeager’s affidavit, in failing to find the decision unreasonable, and in failing to find it procedurally unfair.
[3]
For the reasons that follow, I would dismiss the appeal.
II.
Dr. Yeager’s applications to participate in the 2015 and 2016 fairs
[4]
Dr. Yeager, a criminologist and teaching professor in criminology and sociology, participated intermittently in the annual pre-release fairs, sponsored by the John Howard Society of Kingston, from 2000 to 2013. He last participated in 2013.
[5]
When Dr. Yeager applied to attend the 2015 fairs, CSC denied him access. When he complained to CSC, he was advised that access had been denied on security grounds. He also received a letter from the warden of Warkworth Institution, one of the institutions at which the fairs are held, describing the fairs as an “opportunity for offenders to meet with community halfway houses and other community support services,”
and advising of the warden’s view that his attendance “did not fall within the intent and purpose”
of the fairs. In response to a letter Dr. Yeager sent to his member of Parliament expressing concern about the denial of access, the Minister of Public Security wrote to Dr. Yeager describing the purpose of the fairs as “to provide incarcerated offenders with an opportunity to establish contact with representatives of community support services that can provide support upon release,”
and stating that Dr. Yeager’s attendance was “[not] viewed as meeting the intent and purpose of such an event.”
[6]
Dr. Yeager subsequently applied to participate in the 2016 fairs. In his application, he described the services he offers at the fairs as “[providing] convicts with information about parole, parole preparation, representation at parole hearings, and collateral matters which impact on release; disciplinary charges, segregation, classification, security scores, and ISO matters.”
III.
The first application for judicial review and the injunction motion
[7]
After applying to participate in the 2016 fairs, Dr. Yeager, together with an inmate at Warkworth, brought an application for judicial review seeking declaratory and injunctive relief. Within that application, they sought an interlocutory mandatory injunction requiring that Dr. Yeager be given access to the 2016 fairs.
[8]
The Federal Court dismissed the injunction motion: Madeley v. Canada (Minister of Public Safety and Emergency Preparedness, 2016 FC 634 (Roy J.). On the evidence before him, which included affidavit evidence from Mr. Costa as to the purpose of the fairs, the motion judge concluded (at paragraph 11) that “Dr. Yeager wishes to participate [in] those fairs for a purpose different than the one associated with these events.”
He found none of the elements of the test for interlocutory injunctive relief were made out, though he recognized that the strength of Dr. Yeager’s case on the merits might look different on a fuller record.
IV.
The CSC decision
[9]
The day after the dismissal of the injunction motion, CSC, in a brief letter from Mr. Costa, denied Dr. Yeager’s application to participate in the 2016 fairs on the ground that the services he proposed to offer were not consistent with the purpose of the fairs. The decision on the injunction motion was before Mr. Costa when this decision was made. The body of the letter read in full:
Your application for access to the 2016 John Howard Society Pre-Release Fairs to be held at various Federal Institutions in the Ontario region has been reviewed.
The services you propose to offer offenders is [sic] not consistent with the purpose of the Pre-Release fair. As such your application for clearance to attend is denied.
Please do not hesitate to contact me if you have further questions or wish to discuss the matter further.
V.
The further application for judicial review
[10]
After joining in the discontinuance of the judicial review application in which the injunction had been sought, Dr. Yeager commenced a further application for judicial review, of the CSC decision denying him access to the 2016 fairs. The application was commenced several weeks after the 2016 fairs had been held. In it, Dr. Yeager sought an order setting aside the decision, and an order of mandamus directing CSC to accept his applications to participate in future pre-release fairs provided he complies with normal security measures.
[11]
The Federal Court dismissed the application (Yeager v. Canada (Attorney General), 2017 FC 577, Gleeson J.). The application judge found the application moot, and found no sufficient justification to exercise his discretion to hear it. He ruled inadmissible two affidavits filed by Dr. Yeager – one of Lisa Finateri, an employee of the John Howard Society in Kingston from 2000 to 2009, and the other of Dr. Dawn Moore, a professor specializing in criminology. He found, among other things, that they did not come within any of the exceptions identified in Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at para. 20, to the general rule that evidence not before the decision-maker will not be considered on judicial review. He also found that Dr. Yeager failed to meet the prerequisites for an order of mandamus.
[12]
Dr. Yeager appealed to this Court. It allowed the appeal, and returned the matter, including the question of admissibility of the affidavits, to the application judge for redetermination: Yeager v. Canada (Attorney General), 2018 FCA 187.
[13]
With respect to mootness, the Court concluded that the application judge had identified the correct test, but that information he did not have before him – that Dr. Yeager’s requests to attend the 2017 and 2018 fairs had also been denied – would have affected the exercise of his discretion. This information showed that an ongoing dispute remained between the parties. Since access decisions were made only shortly before the fairs took place, the dispute would likely be evasive of review unless the discretion to hear a moot case was exercised.
[14]
With respect to the affidavit evidence, the Court stated that the test for admissibility of expert evidence set out in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at paras. 23-24, should apply to the Moore affidavit, and left it to the application judge to determine admissibility and weight of the affidavits on the applicable legal tests, including the test in AUCC.
VI.
The decision on redetermination
[15]
On redetermination, the application judge again dismissed the application. He found the Finateri affidavit admissible on the basis that it provided historical context and was relied on for Dr. Yeager’s procedural fairness arguments. He found the Moore affidavit inadmissible as neither relevant nor necessary, and thus not meeting two of the threshold requirements for admissibility of expert evidence set out in White Burgess. He also struck out the words “and offender reintegration in community”
from the portion of Dr. Yeager’s affidavit in which he described the purpose of his participation in the fairs as “to offer inmates knowledge, resources and tools relevant to parole and offender reintegration in community.”
He did so on the basis that the words struck out put forward a new purpose, one not set out in Dr. Yeager’s application to participate in the 2016 fairs.
[16]
The application judge went on to reject Dr. Yeager’s submissions that CSC’s decision to deny him access to the 2016 fairs was unreasonable, and that the process in reaching it was unfair.
[17]
In concluding that the decision was reasonable, the application judge found that despite its brevity, the basis and reasons for the decision were evident – that the services offered by Dr. Yeager in 2016 did not align with the purpose or intent of the fairs – and that the Corrections and Conditional Release Act, S.C. 1992, c. 20, gave CSC a broad discretion to provide and determine the purpose of rehabilitation programming. Applying the factors for determining the content of procedural fairness identified in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 22-28, the application judge assessed the level of procedural fairness CSC owed to Dr. Yeager as low. He proceeded to explain why, in his view, none of Dr. Yeager’s fairness arguments could be given effect.
[18]
First, he observed that Dr. Yeager was relying on the Finateri affidavit and section 74 of the Act to argue that the purpose of the fairs had changed, and that inmates had a procedural right to consultation before this change was implemented. Section 74 states:
| 74 The Service shall provide inmates with the opportunity to contribute to decisions of the Service affecting the inmate population as a whole, or affecting a group within the inmate population, except decisions relating to security matters.
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74 Le Service doit permettre aux détenus de participer à ses décisions concernant tout ou partie de la population carcérale, sauf pour les questions de sécurité.
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[19]
The application judge declined to decide whether there had been a breach of section 74, holding that if this right existed it belonged to the inmates, not Dr. Yeager. There was, he noted, nothing in the record to suggest that any inmates believed there had been a failure to consult.
[20]
Second, the application judge rejected Dr. Yeager’s argument that the decision-maker had failed to consider his entire application package. Among other things, the decision refusing the injunction request, which formed part of the record before CSC when it made the decision to deny access, made it clear that the information contained in the application package was known to the decision-maker when the decision was made. Third, he disagreed that Dr. Yeager was entitled to an opportunity to submit additional documentation to the decision-maker, particularly when the process did not provide for supplementary material and the procedural fairness owed was at the lower end of the spectrum. Fourth, and finally, he found no basis for Dr. Yeager’s assertion that CSC was biased against him or had a closed mind.
VII.
Issues and standard of review
[21]
Based on the parties’ written and oral submissions, the issues that call for decision in this appeal are whether the application judge made a reviewable error in
(1)
finding the Moore affidavit inadmissible;
(2)
striking out a portion of Dr. Yeager’s affidavit;
(3)
failing to find the CSC decision unreasonable; or
(4)
failing to find the decision procedurally unfair.
[22]
As the parties acknowledge, this Court’s role in an appeal from a decision on the merits of an application for judicial review is to determine whether the reviewing court identified the correct standard of review and, if it did, whether it properly applied that standard: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47. This is the determination the Court must make in deciding the third and fourth issues listed above. It requires, as a practical matter, that the Court “step into the shoes”
of the reviewing court and focus on the administrative decision: Agraira at para. 46.
[23]
On the third issue, the application judge correctly identified reasonableness as the applicable standard of review. On the fourth, the application judge correctly concluded that it required an assessment of whether the process was fair in all of the circumstances. This reviewing exercise is “‘best reflected in the correctness standard,’ even though, strictly speaking, no standard of review is being applied”
: Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69 at para. 54.
[24]
However, the Agraira approach does not apply to the first and second issues in this appeal. The questions of admissibility that they raise were not part of the CSC decision, but arose only after the filing of the application for judicial review. The application judge’s decisions on these issues are therefore reviewable on the ordinary appellate standard – absent error on a question of law or extricable legal principle, the highly deferential standard of palpable and overriding error: Apotex Inc. v. Canada (Health), 2018 FCA 147 at paras. 57-58; Housen v. Nikolaisen, 2002 SCC 33 at para. 36. As this Court stated in Roher v. Canada, 2019 FCA 313 at para. 30, “[a]ppellate courts owe deference to trial courts respecting the admission of experts or any other evidence. In the absence of a legal error, determining whether to exclude evidence is case and fact-specific.”
VIII.
Analysis of the issues
A.
Did the application judge make a reviewable error in finding the Moore affidavit inadmissible?
[25]
As instructed by this Court in its decision on Dr. Yeager’s first appeal, the application judge applied to Dr. Moore’s evidence the test for admissibility of expert evidence in White Burgess. That test establishes (at para. 23) four threshold requirements for admissibility – relevance, necessity, absence of an exclusionary rule, and a properly qualified expert. He found that while Dr. Moore had the expertise, knowledge and experience to speak to the matters addressed in her affidavit, the affidavit was neither relevant nor necessary. The affidavit spoke to the importance and scope of pre-release education generally, matters not in dispute. It did not state, and it would not be logical to conclude, that specific educational events could not focus on a single aspect of pre-release education. He went on to find that even if the affidavit was relevant to the issues in the proceeding, it was not necessary, since there were other statements in the record as to the purpose of the fairs.
[26]
In coming to his conclusion on admissibility of the affidavit, the application judge applied the governing test. There was, accordingly, no legal error or extricable error in principle. Nor do I see any palpable and overriding error in the application judge’s consideration of relevance and necessity. The application was not a review of what the purpose of the fairs ought to have been, or of CSC’s decision as to their scope. Rather, the target of the application was CSC’s decision to deny access to Dr. Yeager on the basis that the services he proposed to provide did not fit within the purpose that had already been determined.
[27]
The decision on admissibility requires deference by this Court. There was no reviewable error in finding the Moore affidavit inadmissible.
B.
Did the application judge make a reviewable error in striking out a portion of Dr. Yeager’s affidavit?
[28]
As noted above, the application judge struck out the words “and offender reintegration in community”
from Dr. Yeager’s statement in his affidavit as to the purpose of his participation in the fairs. The application judge did so on the basis that these words described a new purpose, one not put forward in Dr. Yeager’s application to participate in the 2016 fairs. He had earlier in his reasons referred to this Court’s statement in AUCC (at paras. 18-19) of the general rule that new evidence that was not before the administrative decision-maker should not be admitted on judicial review, lest the court be drawn into re-deciding the merits, a function vested in the decision-maker and inconsistent with the proper judicial role.
[29]
Dr. Yeager submits that the words the application judge struck out should have been found admissible on the basis of two of the exceptions to the general rule recognized in AUCC (at para. 20). The first is the exception for evidence that in a neutral way provides general background information that might assist the court in understanding the issues. The second (listed third in AUCC) is for evidence that highlights the complete absence of evidence before the decision-maker in relation to a particular finding.
[30]
In my view, the application judge made no palpable and overriding error in his disposition of this evidentiary issue. The words that he struck out went well beyond general background information, and bore directly on the merits of the CSC decision. As for the second exception on which Dr. Yeager relies, it concerns “evidence relevant to an issue of natural justice, procedural fairness, improper purpose or fraud that could not have been placed before the administrative decision-maker and that does not interfere with the role of the administrative decision-maker as merits-decider […]”
: Bernard v. Canada (Revenue Agency), 2015 FCA 263 at para. 25. The words the application judge struck out were simply not of that nature.
C.
Did the application judge make a reviewable error in failing to find the CSC decision unreasonable?
[31]
The decision under appeal was rendered before the landmark decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, in which the Supreme Court re-examined the proper approach to judicial review of administrative decisions. In argument before this Court, Dr. Yeager relies heavily on certain passages from Vavilov in support of his submission that the CSC decision was unreasonable. He emphasizes the statement (at paragraph 86 of Vavilov) that for an administrative decision for which reasons are required to be reasonable, its outcome must not only be justifiable, but must also be justified by the decision-maker, through those reasons, to those to whom the decision applies.
[32]
Dr. Yeager goes on to submit, more particularly, that CSC’s decision to deny him access failed to take into account and address three contextual factors that, according to Vavilov (at paras. 105-107), constrain a decision-maker in the exercise of its powers, and may show that their exercise is unreasonable. These are (1) the requirement to justify not treating like cases alike (Vavilov at para. 129), (2) the requirement to justify a departure from long-standing practice (at paragraph 131), and (3) the requirement, where the consequences of a decision for the affected party are particularly severe or harsh, to demonstrate that the decision-maker has considered those consequences (at paras. 133-135).
[33]
I will discuss these constraints in turn. In my view, Dr. Yeager fails to show that any of them renders CSC’s decision unreasonable. As I will explain, he fails to establish the factual predicate for their application, and fails to meet the onus to demonstrate unreasonableness that rests on him as an applicant for judicial review.
(1)
Is the decision unreasonable because it fails to justify not treating like cases alike?
[34]
Vavilov recognizes (at para. 129) that administrative decision-makers are not bound by their previous decisions in the same sense that courts are bound by stare decisis. It nonetheless states that “administrative decision makers and reviewing courts alike must be concerned with the general consistency of administrative decisions,”
and that “[t]hose affected by administrative decisions are entitled to expect that like cases will generally be treated alike […].”
[35]
According to Dr. Yeager, Vavilov requires that where like cases are not treated alike, the decision-maker must provide justification for the different treatment. In submitting that CSC ignored this constraint on the exercise of its decision-making authority, Dr. Yeager identifies two “like cases” – the cases of Queen’s Prison Law Clinic and Innocence Canada Foundation. He says that both were approved to participate in the 2016 fairs, even though neither provides post-release rehabilitation programming or services.
[36]
The only evidence before us of the programming and services that these two entities provide comprises a page from each of their websites, exhibited to Dr. Yeager’s affidavit. Under the heading “What We Do,”
the Queen’s Prison Law Clinic website states that it “provides legal advice, assistance and representation in all aspects of prison law to prisoners in Kingston-area penitentiaries.”
A list of six more specific services follows; it includes “Represent clients at hearings before the Parole Board of Canada”
and “Conduct test case litigation.”
The page from the Innocence Canada Foundation website indicates that the focus of its services is on wrongful convictions.
[37]
There is, however, no evidence as to whether the statements on the two websites concerning the services provided are exhaustive, and no evidence as to the nature of the services these entities proposed to provide at the 2016 fairs. In my view, the evidence falls well short of showing that Queen’s Prison Law Clinic and Innocence Canada Foundation presented “like cases” so as to engage the concern expressed in Vavilov.
[38]
In oral argument, Dr. Yeager acknowledged that the evidentiary base for his “like cases” submission was thin. But he submitted that CSC still bore the burden of justifying, in its reasons, any differential treatment.
[39]
In my view, this submission misconceives where the burden lies in an application for judicial review in which the reasonableness of a decision is in issue. As Vavilov confirms (at para. 100), the burden rests with the applicant to show that the decision is unreasonable:
The burden is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside on this basis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. […] [T]he court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable.
[40]
I conclude that Dr. Yeager fails on the record to show a significant shortcoming in the CSC decision based on a failure to justify treating like cases alike.
(2)
Is the decision unreasonable because it fails to justify a departure from longstanding practice?
[41]
Vavilov teaches (at para. 131) that “[w]hether a particular decision is consistent with the administrative body’s past decisions is also a constraint that the reviewing court should consider when determining whether an administrative decision is reasonable.”
It states that where a decision-maker departs from a longstanding practice, it bears the justificatory burden of explaining that departure in its reasons. If it does not meet this burden, the decision will be unreasonable.
[42]
Dr. Yeager argues that CSC had a longstanding practice of granting him access to the fairs. He submits that CSC’s decision is unreasonable because it did not meet its justificatory burden when it departed from that practice by denying him access to the fairs in 2016.
[43]
To make out a longstanding practice in the context of this case, Dr. Yeager would, in my view, have to show through evidence that CSC consistently granted him access in substantially identical circumstances. This would entail showing, at a minimum, that the purpose of the fairs remained the same throughout the period of the practice on which he relies, and that there were no material differences between the applications and statements of services to be provided that he submitted to CSC in 2016, and those submitted in earlier years in which access was consistently granted: see, for example, Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64 at paras. 36, 39-40.
[44]
But in these respects, the evidence is limited and incomplete. In written and oral argument, Dr. Yeager describes his attendance at the fairs as “intermittent.”
He deposes that he attended the fairs “on a frequent basis”
between 2000 and 2013, his most recent attendance. He does not provide any applications or statements given to CSC of the services he proposed to provide at the fairs during this period, or explain why he did not attend in the years in which he did not participate. In her affidavit, Ms. Finateri states that Dr. Yeager attended the fairs during her tenure at the John Howard Society from 2000 to 2009, but she does not specify whether he attended every year, whether the services he proposed to provide remained the same, or whether CSC raised any concerns during this period. And as set out above, CSC denied Dr. Yeager access to the fairs in 2015, both for security reasons and because the services he would provide were inconsistent with the purpose of the fairs. There appears to be no information on the record as to what occurred in 2014.
[45]
On the record before us, I cannot conclude that Dr. Yeager has shown a departure from a longstanding practice that CSC was required to justify when it denied him access in 2016.
(3)
Is the decision unreasonable because it fails to show consideration of its particularly harsh consequences?
[46]
Vavilov states (at para. 133) that “if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention.”
This constraint extends to decisions with consequences that threaten life, liberty, security, dignity, or livelihood. It requires that the reasons demonstrate that the decision-maker has considered the consequences of the decision and concluded that they are justified (at para. 135).
[47]
Dr. Yeager submits that the CSC decision is unreasonable because it fails to respect this constraint. In making this submission, he focuses on the potential impact of the decision not on him, but on inmates of the institutions at which the 2016 fair was held. He argues that the decision had the potential to impair inmates’ ability to obtain assistance for parole hearings, and in this way threatened to impose on them particularly harsh consequences – consequences for their liberty. He relies on Baker as authority for considering the impact of a decision on non-parties, pointing out that in Baker (at para. 65), the Supreme Court found an immigration officer’s decision unreasonable because of the officer’s failure to consider the interests of the appellant’s children.
[48]
But assuming that the potential impact on inmates is to be considered in determining whether this Vavilov constraint applies, here too Dr. Yeager’s submission fails, in my view, for want of an adequate evidentiary basis.
[49]
There is no evidence from any inmate as to the consequences of Dr. Yeager’s non-attendance at the fairs. In his affidavit (at para. 34), Dr. Yeager deposes that inmates are entitled to have him provide them with information and advice relating to parole and to represent them at parole hearings. He states that the information he would provide at the fairs “is largely a public service that is done to apprise inmates of their rights leading to their release.”
[50]
However, there is nothing in Dr. Yeager’s affidavit or anywhere else in the record to suggest that his attendance at the fairs is the only means through which inmates may obtain this type of information and advice, or to indicate the relative importance of his attendance at the fairs in comparison to other sources. The record therefore does not enable us to determine the existence or gauge the severity of any consequences for inmates the decision threatens to impose.
[51]
If anything, the record suggests that other means are readily available. In dismissing the injunction motion, the motion judge noted (at para. 19 of his reasons) that Dr. Yeager and his co-applicant, an inmate, had spoken by telephone 47 times, and that Dr. Yeager had not applied to visit him, as it was open to him to do. Given the available alternative means of communication, the motion judge (at para. 43) found no harm in the inability of Dr. Yeager to speak with his co-applicant about parole at a fair.
[52]
There is no need, in my view, to go so far as to determine that the 2016 decision did not have consequences. It is sufficient to conclude, and I would conclude, that the record does not establish that the “harsh consequences”
constraint discussed in Vavilov is engaged.
D.
Did the application judge make a reviewable error in failing to find the decision procedurally unfair?
[53]
Dr. Yeager submits, as he did before the application judge, that the CSC’s decision is procedurally unfair because CSC failed to fulfill its duty to consult under section 74 of the Act, quoted above in paragraph 18. He relies for this submission on the decision of the Federal Court in William Head Institution v. Canada (Corrections Service), [1993] F.C.J. No. 821, 66 F.T.R. 262. In that case, the Court set aside, on a judicial review application brought by the inmates of a federal institution, CSC’s decision to terminate a university program offered to inmates because there had been no consultation with the inmate committee before the decision was made. Dr. Yeager also asserts that, in applying section 74, the Court should take into account that on the factors set out in Baker, CSC owed those affected by its decision in this case a high level of procedural fairness.
[54]
The application judge was not convinced that section 74 or William Head applied in the circumstances here. But as noted above, he rejected the submission grounded in section 74 on the basis that any procedural rights arising from the provision accrued to the affected inmates, and not to Dr. Yeager. He also observed that there was nothing on the record to suggest that any inmates believed there had been a failure to consult.
[55]
In my view, there is no need to address the question whether Dr. Yeager has standing to allege a breach of section 74. I see deeper problems with his section 74 submission.
[56]
First, its premise is that at some point CSC made a decision to change the purpose of the fairs, and that it did not consult with inmates before this change was effected. But the record does not establish that there was a decision to make a change, or if there was, when the decision was taken and whether or not any consultation preceded it. Second, and in any event, the decision Dr. Yeager challenged on judicial review was the decision to deny him access to the 2016 fairs, not the decision (assuming there was a decision) to change the purpose of the fairs.
IX.
Proposed disposition
[57]
I would dismiss the appeal. In accordance with the parties’ agreement on costs, I would order Dr. Yeager to pay to the respondent costs fixed at $3,000.
“J.B. Laskin”
“I agree.
Wyman W. Webb J.A.”
“I agree.
D. G. Near J.A.”
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