By Will Tao
In the recent decision of Ouansa v. Canada (Citizenship and Immigration), 2020 FC 632 (CanLII), Justice Favel allowed the judicial review of Mr. Ouansa, an Algerian national, on the basis that the refusal of his Temporary Resident Permit (“TRP”) Application was not reasonable.
The Applicant (as commonly done in the course of judicial reviews either at the pre-leave or post-leave stage) introduced affidavit evidence. In this case, the affidavit evidence included materials relating to the Applicant’s mental health and other material circumstances that were not in the Certified Tribunal Record (commonly also called the ‘CTR’) produced by the Respondent Minister.
As a quick refresher for those newer to judicial review, recall that the Certified Tribunal Record is provided to the Applicant’s counsel and the Federal Court by the Tribunal following the granting of leave per Rule 17 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules (SOR/93-22).
Obtaining Tribunal’s Record
17 Upon receipt of an order under Rule 15, a tribunal shall, without delay, prepare a record containing the following, on consecutively numbered pages and in the following order:
- (a) the decision or order in respect of which the application for judicial review is made and the written reasons given therefor,
- (b) all papers relevant to the matter that are in the possession or control of the tribunal,
- (c) any affidavits, or other documents filed during any such hearing, and
- (d) a transcript, if any, of any oral testimony given during the hearing, giving rise to the decision or order or other matter that is the subject of the application for judicial review,
and shall send a copy, duly certified by an appropriate officer to be correct, to each of the parties and two copies to the Registry.
Justice Favel writes, in granting the judicial review:
 As stated above, the Applicant and the Respondent focused their oral submissions on the TRP application. I find that the TRP decision favours allowing the judicial review. The reason is that the CTR is deficient. I am unable to assess the merits of the Applicant’s complaints regarding evidence, as I am unable see what evidence was actually before the Officer.  The documents attached to the affidavit of the Applicant’s father include a cover letter from the Applicant’s then-counsel, dated August 16, 2018, requesting that the Applicant be granted a permanent residence visa on human and compassionate grounds or a TRP. Included in this material is a statement of the Applicant discussing his mental health issues, his immigration history and his travel to the Dominican Republic. Respecting his mental health issues, there are materials from medical professionals referencing some treatment. This material is not included in the CTR. (emphasis added)  The Officer makes several references to the Applicant’s submissions in support of his application, specifically related to his mental health issues, yet these documents cannot be found within the CTR. Togtokh v Canada (Citizenship and Immigration), 2018 FC 581 (Togtokh) provides on overview of the three kinds of anomalies that sometime occur with a CTR. I find that the present situation involves an example of the second type of CTR anomalies as set out Togtokh at para 16:
A document is known to have been properly submitted by an applicant but is not in the CTR, and it is not clear whether that document, for reasons beyond an applicant’s control, was before the decision-maker. In this situation, the case law suggests that the decision should be overturned (see Parveen v Canada (Minister of Citizenship and Immigration) (1999), 1999 CanLII 7833 (FC), 168 FTR 103 at para 8 to 9, 88 ACWS (3d) 452 (Fed TD) [Parveen]; Vulevic at para 6; Agatha Jarvis c Canada (Citoyenneté et de l’Immigration), 2014 FC 405 at paras 18 to 24, 240 ACWS (3d) 955 [Jarvis]).[Emphasis in the original]
Justice Favel gives some indication that this would have been better framed as a procedural fairness argument as it was in Togtokh (para 28) and cites Kong v Canada (Minister of Employment and Immigration),  FCJ No 101 [Kong] at para 21 for the authority that a lack of evidence from the CTR can be sufficient to reverse a decision. He concludes at paras 30-31:
 As stated above, the Decision letter is somewhat vague in terms of how each
application is specifically dealt with. The Officer, in the “decision text”, commented that, “The information in support of the TRP indicates that he has some mental health issues that were a contributing factor”. This information may have come from the Applicant’s additional submissions as set out above. However, this is not certain. The CTR contains a “use of a representative” form that refers to a TRV/TRP/H&C application but the CTR appears to be missing information related to the TRP/H&C application. Adding more confusion to the matter is the choice of the wording used in the notice of application for judicial review prepared by the Applicant’s former counsel, which also was not clear as to what aspect of the decision was being judicially reviewed. Therefore, in accordance with Togtohk and Kong and in light of my finding that the CTR is deficient, it follows that the application for judicial review should be granted. I take no position on the Applicant’s other claimed errors. I am unable to assess what was actually before the Officer.
In addition to Justice Favel’s decision, I would suggest also reading the decision Togtokh that he leans heavily on within his decision for the way it sets out the applicable law.
In Togtokh, Justice Boswell allowed the judicial review of an applicant whose Pre-Removal Risk Assessment (“PRRA”) application was refused. Again, the Certified Tribunal Record in this case appeared to strip counsel’s submission, in this case with respect to a 29-page 2015 PRRA submission. The applicant’s counsel had also made submissions in 2016, which the Respondent Minister argued subsumed the earlier evidence in 2016 and therefore was an omission of not prejudice to the Applicant. The Respondent cited Torales Bolanos v Canada (Citizenship and Immigration), 2011 FC 388 at para 52, 199 ACWS (3d) 1267 for this proposition.
At paragraph 16 of his decision, Justice Boswell sets out there are three distinct types of scenarios raised by a deficient CTR which are relevant to the question of whether procedural fairness was breached. :
- A document does not appear in the CTR and it is unknown whether it was submitted by an applicant. In cases such as these, the Court will presume that the materials in the CTR were the materials before the immigration officer, barring some evidence to the contrary (see Adewale v Canada (Citizenship and Immigration), 2007 FC 1190 at para 11; 161 ACWS (3d) 790; Varadi v Canada (Citizenship and Immigration), 2013 FC 407 at paras 6 to 8, 431 FTR 198; El Dor c Canada (Citoyenneté et de l’Immigration), 2015 FC 1406 at para 32, 263 ACWS (3d) 187; and Ogbuchi v Canada (Citizenship and Immigration), 2016 FC 764 at paras 11 to 12, 268 ACWS (3d) 420).
- A document is known to have been properly submitted by an applicant but is not in the CTR, and it is not clear whether that document, for reasons beyond an applicant’s control, was before the decision-maker. In this situation, the case law suggests that the decision should be overturned (see Parveen v Canada (Minister of Citizenship and Immigration) (1999), 1999 CanLII 7833 (FC), 168 FTR 103 at para 8 to 9, 88 ACWS (3d) 452 (Fed TD) [Parveen]; Vulevic at para 6; Agatha Jarvis c Canada (Citoyenneté et de l’Immigration), 2014 FC 405 at paras 18 to 24, 240 ACWS (3d) 955 [Jarvis]).
- A document is known to have been before the tribunal but is not before the Court and cannot be reviewed. In such a case, unless the document is otherwise available to the Court, such as in an applicant’s record (see Torales Bolanos at para 52; Patel v Canada (Citizenship and Immigration), 2013 FC 804 at paras 29 to 32, 437 FTR 138; and Aryaie v Canada (Citizenship and Immigration), 2013 FC 469 at paras 19 to 27,  FCJ No 498), the Court will be unable to determine the legality of the decision and the decision will be set aside if the missing document was central to the finding under review (see Kong v Canada (Minister of Employment & Immigration),  FCJ No 101 at para 21, 73 FTR 204 (Fed TD); Ahmed v Canada (Minister of Citizenship and Immigration), 2003 FCT 180 at paras 24 and 25, 120 ACWS (3d) 1023; Gill v Canada (Minister of Citizenship and Immigration), 2003 FC 1003 at paras 8 and 9, 125 ACWS (3d) 130; Machalikashvili v Canada (Minister of Citizenship and Immigration), 2006 FC 622 at para 9, 149 ACWS (3d) 482; Li at para 15).
Concluding it was unknown whether or not the 2015 Submissions were considered or even reached the Officer, Justice Boswell, in Togtokh, concludes that he is unclear on whether the missing submission would have had a determinative effect upon the decision in review, but that it was not up to the Court to decide this or speculate (para 21, 23). He ultimately held that it would not be fair to uphold a decision where those submissions were apparently not considered.
Raising it Early
Both Ouansa and Togtokh suggest that a complete Certified Tribunal Record is a foundation of procedural fairness at judicial review, one that can be easily overlooked especially during the narrowness of some judicial review enquiries. My suggestion is that Counsel spend a significant time going over with their client what they expect to see on a Tribunal Record and what may not be captured by the Rule 9 Reasons, and asking them to fill the factual gap.
It is not impermissible to file an affidavit as part of an Applicant’s Record that duplicates what is on the Tribunal Record, in anticipation that it will be there. Indeed, oftentimes without these materials, the Federal Court judge granting leave may have difficulty piecing together your leave request and relevant legal submissions just on the basis of the short electronic notes that often make up Rule 9 Reasons.
Another common approach on judicial review is to instead argue that on the basis of the limited Rule 9 Reasons alone, there is insufficient material, and given these materials will be on the Certified Tribunal Record, leave should not be prematurely denied.
Differentiating Where it Is a Mistake
Mistakes also do happen in the process of the tribunal preparing the Certified Tribunal Record. I am a big proponent of where it was a mistake (for example where it is clear that a document was accidentally included by the Tribunal or a mistake has arisen out of the sometimes complex process of combining two matters or separating two matters) to work with the Department of Justice Counsel assigned to the matter to resolve these before the hearing and by way of consents where possible.
I am guided in this approach by our professional/regulatory obligations not to engage in sharp practices (see for example Law Society of British Columbia Chapter 7, Rule 7.2-2 which states:
7.2-2 A lawyer must avoid sharp practice and must not take advantage of or act without fair warning upon slips, irregularities or mistakes on the part of other lawyers not going to the merits or involving the sacrifice of a client’s rights.
A question may come as to whether the disclosure of a mistake made to Counsel at the Department of Justice could go against a client’s best interests and is removing a possible leverage for success at judicial review.
I tend to take a bigger picture approach to this question. Many times, technical mistakes can themselves diminish and take away from the time required to address other substantial issues. The successful allowing of a judicial review alone is not the end of the file. Upon reconsideration and correctional of procedural fairness issues, other outstanding issues may still be on the table and if sent back on technical grounds alone, may remain unresolved.
In the recent decision of S v. Canada (Minister of Public Safety and Emergency Preparedness) 2020 FC 718 (CanLII), I took this approach upon the Minister disclosing that they would be taking concern with affidavit content that was not within the Certified Tribunal Record. At the same time, the Certified Tribunal Record was itself the product of a complicated splitting of a Federal Court matter.
I disclosed to the Court this mistake, but did not argue it was done in bad faith, but rather due to the murkiness of the file and the complexities. In this case, I was confident in the substantive merits and felt that fighting too hard on this preliminary procedural fairness could detract on an issue I was frankly weaker – the fact that the same affidavit should not have been utilized in what was then two judicial reviews. The court ended up striking the additional affidavit of the Officer (along with most of the Applicant’s affidavit), but quickly moved on [see para 15 of Justice Walker’s decision].
Spending Time With and Understanding the Certified Tribunal Record
Certified Tribunal Records are becoming more and more important. With the Federal Court proposing to require red-lining (think track changes) of Applicant’s Memorandums and Final Memorandums, it will be even more crucial to predict how you will respond to an incomplete CTR.
As a recap, you will need to consider what will happen when affidavit information you disclose is missing from the Certified Tribunal Record – holding the Government to account when these documents are insufficient, determining how to both balance professional obligations (obligations to other lawyers/the Court) and to push forward your client’s best interests.
Ultimately, you need to consider how to consider success on a judicial review with a wider lens to what happens when files are re-opened.
Alas, no easy answers and no blueprints (probably not the best area of law if you want those)- but always lots to chew on.
Will Tao, BA, JD, is a Canadian immigration and refugee lawyer at Edelmann & Co. He provides legal services in all areas of Canadian immigration and refugee law, with a focus on complex refusals, appeals and judicial reviews. Will also provides strategic advice and consulting to government, media, educational institutions, and businesses on immigration/refugee, decolonization and race/inclusion-related issues.