i don't think the judge expected this ruling to hold.
[70] The Applicants say that the FCA in CCR 2008, did not consider whether section 102(3) created a condition precedent to the validity of the ongoing designation. They argue that the FCA did not make any finding on whether ongoing review is actually required. They argue that the FCA did not find subsequent factors are irrelevant, and that, as such, the FCA has not decided the vires issue they raise now. The Applicants further note that, unlike in CCR 2008, they are seeking a remedy for the alleged failure to review (see: CCR 2008 at para 83).
Analysis – Ultra Vires
[71] I begin the analysis of this issue by reference to the following statement from the FCA in CCR 2008, at para 57:
An attack aimed at the vires of a regulation involves the narrow question of whether the conditions precedent set out by Parliament for the exercise of the delegated authority are present at the time of the promulgation…
[72] Further, at paragraph 89, the FCA states:
There is one key date that the Applications judge had to be mindful of: December 29, 2004 when the Regulations came into force, the last relevant date for the assessment of the vires issue. Regardless of the conditions precedent which one wishes to apply, the vires of the Regulations could not be assessed on the basis of facts, events or developments that are subsequent to the date of the promulgation…
[73] On the decision to designate the US, the FCA found that “[o]nce …the GIC has given due consideration to these four factors, and formed the opinion that the candidate country is compliant with the relevant Articles of the Conventions, there is nothing left to be reviewed judicially” (CCR 2008 at para 78).
[74] Considering the clear statements from the FCA in CCR 2008, and notwithstanding the able arguments of counsel for the Applicants, I am bound by CCR 2008. While the Applicants have somewhat reframed the vires arguments on these judicial review applications, in my view, the FCA decision is a full answer to the vires argument even as the Applicants now present them.
[75] I have considered the cases relied upon by the Applicants (Katz, Thorne’s, Wildlands League v Ontario (Natural Resources and Forestry), 2016 ONCA 741), however I do not read these cases as opening the door for this Court to take post-promulgation facts into consideration to determine the vires of the regulation. These cases specify that judicial review of regulations is “usually restricted to the grounds that they are inconsistent with the purpose of the statute or that some condition precedent in the statute has not been observed” (Katz at para 27). This issue was addressed in CCR 2008.
[76] In CCR 2008, the FCA notes in paragraphs 74, 75, 76 and 78 that s. 101 of the IRPA does not require “actual compliance” or compliance in absolute terms. Further, the wording of s. 102(3) does not reference actual compliance with the Refugee Convention or the Convention against Torture, rather, it is compliance with the factors set out in s. 102(2) of the IRPA that is assessed.
[77] The Applicants’ arguments regarding the sufficiency of the ongoing review were also addressed by the FCA in CCR 2008 at paragraphs 92-97. For the timeframe post CCR 2008, in his Affidavit, Mr. Baril confirms that reporting on the STCA continued. Mr. Baril states that the IRCC prepared reports in December 2016, March 2017, and February 2018, although he acknowledges that these reports were not submitted to the Governor in Council (GIC).
[78] Redacted versions of the reports to the Minister were marked as exhibits to Mr. Baril’s cross-examination. Although the content of these reports was not in evidence, they do provide evidence that reporting continued after the 2015 OIC. Therefore, I am satisfied that the obligation to review and to report “when circumstances warrant” as noted in the 2015 OIC continued. Furthermore, the Applicants’ arguments regarding the 2015 OIC are an attempt to challenge the OIC itself, which is beyond the mandate of this judicial review.
[79] Overall, in my view, the Applicants have not convinced me that the threshold to revisit the binding nature of the FCA decision on the vires issue is met here. Notwithstanding that the factual circumstances of the Applicants here may differ from the circumstances before the FCA in 2008, what does not differ are the legal arguments aimed at the same legislative provisions as determined by the FCA in 2008.
[80] I therefore find that the issue of whether s.159.3 of the IRPR is ultra vires of the IRPA was determined by in CCR 2008 and I see no grounds to depart from binding authority.
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she admits she doesn't have jurisdiction, then essentially ignores herself. so, what she's done instead is try to frame the issue for the next court up.
that happens frequently, when a judge knows she's out of jurisdiction, but wishes she wasn't.