2020 FCA 196, 2020 FCA 196

A-382-19 2020 FCA 196 Canadian Association of Refugee Lawyers ( Appellant ) v. The Minister of Immigration, Refugees and Citizenship ( Respondent ) and The Immigration and Refugee Board ( Intervener ) Indexed as: Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship) Federal Court of Appeal, Near, de Montigny and LeBlanc JJ.A.—By videoconference, September 16; Ottawa, November 13, 2020.

Citizenship and Immigration –– Immigration Practice –– A ppeal, cross-appeal from Federal Court decision granting in part two applications for judicial review challenging designation of four Jurisprudential Guides (JG) by Chairperson of Immigration and Refugee Board (IRB) –– First application concerning designation of three decisions from Refugee Appeal Division (RAD) pertaining to Pakistan, India, China, respectively, as JGs while second application to same effect but with respect to JG pertaining to Nigeria –– Federal Court finding that impugned JGs validly enacted pursuant to Immigration and Refugee Protection Act, s. 159(1) (h); that not unreasonable for Chairperson to implicitly construe provision as conferring upon him authority to issue JGs that include factual considerations –– Moreover, finding statement of expectation included in policy notes accompanying JGs for Pakistan, India, China unlawful, inoperative –– However, Federal Court not finding any issue with JG for Nigeria; also certifying two serious questions of general importance –– Main issues whether Chairperson of IRB having authority pursuant to Act, s. 159(1)(

h) to issue JGs that include factual determinations (first certified question); whether JGs that Chairperson issued respecting Nigeria, Pakistan, India, China unlawfully fettering discretion of Refugee Protection Division, RAD members to make their own factual findings or improperly encroach upon their adjudicative independence (second certified question); whether cumulative effect of facts, context surrounding promulgation of Nigeria JG giving rise to reasonable apprehension of bias –– Federal Court properly finding that Chairperson having authority to issue JGs on issues of fact in accordance with plain words of statutory provision –– Chairperson implicitly interpreting Act, s. 159(1)(

h) as conferring upon him authority to issue JGs on factual issues, which

interpretation reasonable –– In case at bar, express statutory grant of authority to Chairperson existing, no limitation confining scope of s. 159(1)(

h) to issues of law or mixed fact, law –– None of impugned JGs improperly encroaching on Board members’ adjudicative independence, not unlawfully fettering Board members’ independence –– Regarding Nigeria JG, Federal Court properly dismissing arguments raised by appellant –– Manner in which Nigeria JG selected not giving rise to reasonable apprehension of bias –– Appellant failing to demonstrate that Federal Court wrong in concluding that decision independently made –– Federal Court therefore not erring in answering first certified question affirmatively but did so in answering second certified question affirmatively to extent Pakistan, India, China JGs concerned –– Appeal dismissed, cross-appeal allowed.

This was an appeal and cross-appeal from a decision of the Federal Court granting in part two applications for judicial review challenging the designation of four Jurisprudential Guides (JG) by the Chairperson of the Immigration and Refugee Board of Canada (Board or IRB). The first application concerned the designation of three decisions from the Refugee Appeal Division (RAD) pertaining to Pakistan, India and China, respectively, as JGs. The second application was to the same effect but with respect to a JG pertaining to Nigeria.

The Federal Court found that the impugned JGs had been validly enacted pursuant to paragraph 159(1) (

h) of the Immigration and Refugee Protection Act . In other words, it was not unreasonable for the Chairperson to implicitly construe that provision as conferring upon him the authority to issue JGs that include factual considerations. However, the statement of expectation included in the policy notes accompanying the JGs pertaining to Pakistan, India and China was found to be unlawful and inoperative to the extent only that it pressured Board members to adopt the RAD’s own findings on issues that went beyond the evidence specific to claimants.

The Federal Court saw no issue, however, with the JG pertaining to Nigeria which, given its particular emphasis on each claim’s specific circumstances, did not fetter the discretion of Board members or improperly interfere with their independence. The Federal Court also certified two serious questions of general importance. The first question was whether the Chairperson of the IRB has the authority pursuant to paragraph 159(1)(

h) of the Act to issue jurisprudential guidelines that include factual determinations and the second question was whether the JGs that the Chairperson issued respecting Nigeria, Pakistan, India and China unlawfully fetter the discretion of members of the Refugee Protection Division (RPD) and the RAD to make their own factual findings or improperly encroach upon their adjudicative independence.

With respect to the Chairperson’s decision to identify four decisions of the RAD as JGs, three of these guides were issued in 2017 and involved an RAD decision concerning a Pakistani refugee claimant (Pakistan Guide); an RAD decision concerning a Chinese refugee claimant (China Guide); and an RAD decision concerning an Indian refugee claimant (India Guide). The fourth guide, which was issued in 2018, concerned an RAD decision involving a Nigerian refugee claimant (Nigeria Guide).

At the time the Federal Court rendered its decision, the JGs pertaining to India and China had been revoked (in 2018 and 2019 respectively). The JG pertaining to Nigeria was later revoked in light of developments in the country of origin information. As a result, of the four JGs that were the subject of the appeal, only the JG pertaining to Pakistan was still in force.

The main issues were whether the Chairperson of the IRB has the authority pursuant to paragraph 159(1)(

h) of the Act to issue JGs thatinclude factual determinations (first certified question); whether the JGs that the Chairperson issued with respect to Nigeria, Pakistan,India, and China unlawfully fetter the discretion of members of the RPD and the RAD to make their own factual findings or improperlyencroach upon their adjudicative independence (second certified question); and whether the cumulative effect of the facts and contextsurrounding the promulgation of the Nigeria JG give rise to a reasonable apprehension of bias. Held, the appeal should be dismissed and the cross-appeal should be allowed.

The Federal Court properly found that the Chairperson had the authority to issue JGs on issues of fact in accordance with the plain wordsof the statutory provision. The Chairperson implicitly interpreted paragraph 159(1)(

h) of the Act as conferring upon him the authority toissue JGs on factual issues, and that implicit

interpretation was reasonable. In the case at bar, there is an express statutory grant ofauthority to the Chairperson. Moreover, as properly noted by the Federal Court, there is no limitation confining the scope of paragraph159(1)(

h) to issues of law or mixed fact and law. On the contrary, the authority of the Chairperson to issue JGs is conferred in thebroadest terms, as long as their purposes are to assist members in carrying out their duties, and with the only requirement that theirissuance be preceded by consultation with the Deputy Chairperson. The breadth of this power aligns with the context in which paragraph159(1)(

h) is found. As well, sections 170 and 171 provide guidance to members in conducting proceedings and make clear thatParliament’s intention was to promote efficiency and consistency while taking into account considerations of fairness and natural justice.Paragraph 159(1)(

h) cannot be interpreted in a vacuum. The legislative context in which it is found is consistent with the broadinterpretation that the Chairperson has given to that provision, namely to ensure that Board members carry out their duties efficiently andwithout undue delays. Thus, the first certified question was answered in the affirmative. None of the impugned JGs improperly encroach upon Board members’ adjudicative independence. This is so, in particular, becauseBoard members remain free to decide cases on the basis of their own assessment of the facts and the evidence before them.

The FederalCourt’s finding of improper pressure on Board members rested on a constellation of factors but some of the comments made weredisputable. The evidence, as it was presented by the Federal Court, did not establish on a balance of probabilities that Board membersfeel pressured as to how they should conduct themselves.

The impugned JGs do not unlawfully fetter the Board members’ independence.They simply put claimants on notice that the current existing conditions seem to suggest certain conditions in a given country, withoutproviding a definitive assessment of the facts and without preventing claimants and their counsel from distinguishing their particularcircumstances. JGs on findings of fact are fraught with risks and difficulties, as the repeal of three of them abundantly showed. Countryconditions, by their very nature, are bound to change with potentially dramatic consequences for refugee claimants.

This is why thedecision to designate a JG should be taken with the utmost caution. With respect to the Nigeria JG, the arguments raised by the appellant, which for the most part were arguments made before the FederalCourt, were properly dismissed by the Federal Court, and the manner in which the Nigeria JG was selected did not give rise to areasonable apprehension of bias. When viewed from the objective perspective of the reasonable person, the circumstances referred to bythe appellant would not create a reasonable apprehension of bias.

The Federal Court appropriately found that there was no evidence tosuggest that the Chairperson made any attempt to identify the decision as a JG before it was finalized or to interfere with the Boardmember’s discretion in coming to her own conclusions. Indeed, the decision was identified as a JG long after the member issued herdecision. There was no evidence that the Board member in question did not reach her decision independently of any influence or thatthere was improper consultation.

Thus, the appellant failed to demonstrate that the Federal Court was wrong in concluding that thedecision was independently made and that the Board member at issue was not the subject of any kind of pressure or influence in arrivingat her conclusions. There was also no indication in the record tending to show that the Board member improperly consulted othermembers while she was deliberating or that the circulation of draft reasons to other members for their comments was not voluntary. TheChairperson’s objectives in issuing the Nigeria JG were perfectly legitimate and rationally linked to the selected decision.

As found bythe Federal Court, nothing suggested that the expressly stated goal of conducting “more focused hearings”, in particular, were a disguisedattempt at reducing the rate of acceptance of refugee claims by persons of Nigerian origin. There was no evidence that the Board waslooking for quick dismissals of refugee claims by persons of Nigerian origin as opposed to streamlining the process. As well, the lack ofconsultation with the immigration and refugee bar prior to the issuance of the Nigeria JG was not contributive of an appearance of bias.

Therefore, the Federal Court did not err in answering the first certified question affirmatively but did so in answering the second certifiedquestion affirmatively to the extent that the Pakistan, India and China JGs were concerned. STATUTES AND REGULATIONS CITED Bill C-86,

An Act to Amend the Immigration Act and Other Acts in Consequence Thereof, 34th Parl., 3rd Sess., 1992. Immigration Act, R.S.C., 1985, c. I-2. Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 72, 74(d), 159(1)(g),(h), 162(2), 170, 171. CASES CITED APPLIED: Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344; Agraira v. Canada (Public Safety andEmergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Canada(Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1; Thamotharem v.

Canada (Minister ofCitizenship and Immigration), 2007 FCA 198, [2008] 1 F.C.R. 385; Maple Lodge Farms Ltd. v. Government of Canada, (SCC), [1982] 2 S.C.R. 2, (1982), 137 D.L.R. (3d) 558. DISTINGUISHED: IWA v. Consolidated-Bathurst Packaging Ltd., (SCC), [1990] 1 S.C.R. 282, 73 O.R. (2d) 676; Ellis-Don Ltd. v.Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221; Kozak v. Canada (Minister of Citizenship and Immigration), 2006

FCA 124, [2006] 4 F.C.R. 377. CONSIDERED: Canadian Association of Refugee Lawyers v. Canada (Citizenship and Immigration), IMM-3433-17, Aalto P., order dated November 14,2017 (F.C.); Canada (Minister of Citizenship and Immigration) v. Edwards, 2005 FCA 176, 335 N.R. 181; HD Mining International Ltd.v. Construction and Specialized Worker Union, Local 1611, 2012 FCA 327, 442 N.R. 325; C.U.P.E. v. Ontario (Minister of Labour),2003 SCC 29, [2003] 1 S.C.R. 539; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523; Domtar Inc. v.

Quebec (Commission d’appel enmatière de lésions professionnelles), (SCC), [1993] 2 S.C.R. 756, (1993), 105 D.L.R. (4th) 385; Barrantes v. Canada(Minister of Citizenship and Immigration), 2005 FC 518, 272 F.T.R. 164; Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2S.C.R. 259. REFERRED TO: Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342, (1989), 57 D.L.R. (4th) 231; Kanthasamy v.Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909; Apotex Inc. v. Canada (Health), 2018 FCA 147, 15 C.P.R.(4th) 289; Oceanex Inc. v.

Canada (Transport), 2019 FCA 250, 439 D.L.R. (4th) 159; Budlakoti v. Canada (Citizenship andImmigration), 2015 FCA 139, 35 Imm. L.R. (4th) 1; Canada (Attorney General) v. Rapiscan Systems, Inc., 2015 FCA 96, 385 D.L.R.(4th) 170; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230; Alberta(Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Mouvement laïquequébécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3; Edmonton (City) v.

Edmonton East (Capilano) Shopping Centres Ltd.,2016 SCC 47, [2016] 2 S.C.R. 293; Stemijon Investments Ltd. v. Canada (Attorney General), 2011 FCA 299, 341 D.L.R. (4th) 710;Danyi v. Canada (Public Safety and Emergency Preparedness), 2017 FC 112; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1S.C.R. 190; Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502; Re:Sound v. Fitness Industry Council of Canada, 2014 FCA48, [2015] 2 F.C.R. 170; Wsáneć School Board v. British Columbia, 2017 FCA 210, [2018] 4 C.N. L.R. 295; Johnny v. Adams LakeIndian Band, 2017 FCA 146; Therrien v.

Canada (Attorney General), 2017 FCA 14, 24 Admin. L.R. (6th) 46; El-Helou v. Canada(Courts Administration Service), 2016 FCA 273; Arsenault v. Canada (Attorney General), 2016 FCA 179, 11 Admin. L.R. (6th) 187;Henri v. Canada (Attorney General), 2016 FCA 38, 395 D.L.R. (4th) 176; Abi-Mansour v. Canada (Foreign Affairs and InternationalTrade Canada), 2015 FCA 135; Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2019] 1 F.C.R. 121;Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, (1998), 36 O.R. (3d) 418; Canada (Canadian Human RightsCommission) v.

Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; Tervita Corp. v. Canada (Commissioner ofCompetition), 2015 SCC 3, [2015] 1 S.C.R. 161; Canadian Broadcasting Corp. v. Canada (Labour Relations Board), (SCC), [1995] 1 S.C.R. 157, (1995), 121 D.L.R. (4th) 385; Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v.Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706; Legault v. Canada (Minister of Citizenship andImmigration), 2002 FCA 125, [2002] 4 F.C. 358 AUTHORS CITED Canada. Citizenship and Immigration.

Bill C-11: Clause by Clause Analysis, Ottawa: Citizenship and Immigration, 2001. Canada. Immigration and Refugee Board. Policy on the Use of Jurisprudential Guides, Policy No. 2003-01, as amended December 2016. Canada. Immigration and Refugee Board. Policy on the Use of Jurisprudential Guides, Policy No. 2003-01, as amended December 2019. Canada. Parliament. House of Commons. Minutes of Proceedings and Evidence of Legislative Committee on Bill C-86, 34th Parl., 3rdSess., Issue No. 10 (September 15, 1992). Canada. Parliament. Senate.

Proceedings of the Standing Senate Committee on Social Affairs, Science and Technology, 34th Parl., 3rdSess., Issue No. 17 (September 4, 1992). APPEAL and CROSS-APPEAL from a Federal Court decision (2019 FC 1126, [2020] 1 F.C.R. 273) granting in part two applications forjudicial review challenging the designation of four Jurisprudential Guides by the Chairperson of the Immigration and Refugee Board ofCanada (X (Re), ; X (Re), ; X (Re), ; X (Re), ). Appealdismissed, cross-appeal allowed. APPEARANCES Lorne Waldman, Steven Blakey and Lobat Sadrehashemi for appellant. James Todd and Margherita Braccio for respondent.

Darren McLeod and Keith Reimer for intervener. SOLICITORS OF RECORD Waldman & Associates, Toronto, and Embarkation Law Corporation, Vancouver, for appellant. Deputy Attorney General of Canada for respondent. Immigration and Refugee Board of Canada, Vancouver, for intervener. The following are the reasons for judgment rendered in English by [1] de Montigny J.A.: The Canadian Association of Refugee Lawyers (CARL or the appellant) appeals, and the Minister ofCitizenship and Immigration (the respondent) cross-appeals, from a decision of the Federal Court (per Chief Justice Crampton) dated

September 2019 (2019 FC 1126, [2020] 1 F.C.R. 273) (Reasons), which granted in part, two applications for judicial review challengingthe designation of four Jurisprudential Guides (JG) by the Chairperson of the Immigration and Refugee Board of Canada (the Board orthe I.R.B.). The first application (IMM-3433-17) concerned the designation of three decisions from the Refugee Appeal Division (RAD)pertaining to Pakistan, India and China, respectively, as JGs. The second application (IMM-3373-18) was to the same effect, but withrespect to a JG pertaining to Nigeria. [2] The Federal Court found that the impugned JGs had been validly enacted pursuant to paragraph 159(1)(

h) of the Immigration andRefugee Protection Act, S.C. 2001, c. 27 (IRPA). In other words, it was not unreasonable for the Chairperson to implicitly construe thatprovision as conferring upon him the authority to issue JGs that include factual considerations. [3] That said, the statement of expectation included in the policy notes accompanying the JGs pertaining to Pakistan, India and Chinawas found to be unlawful and inoperative to the extent only that it pressured Board members to adopt the RAD’s own findings, on issuesthat went beyond the evidence specific to claimants.

The Court saw no issue, however, with the JG pertaining to Nigeria which, given itsparticular emphasis on each claim’s specific circumstances, did not fetter the discretion of Board members or improperly interfere withtheir independence. [4] The Federal Court [at paragraph 240] certified the two following serious questions of general importance, as contemplated byparagraph 74(

d) of the IRPA: 1. Does the Chairperson of the Immigration and Refugee Board have the authority pursuant to paragraph 159(1)(

h) of the Immigrationand Refugee Protection Act to issue jurisprudential guidelines that include factual determinations? 2.

Do the Jurisprudential Guides that the Chairperson issued with respect to Nigeria, Pakistan, India and China unlawfully fetter thediscretion of members of the Refugee Protection Division and the Refugee Appeal Division to make their own factual findings, orimproperly encroach upon their adjudicative independence? [5] For the reasons that follow, I am of the view that the Federal Court did not err in answering the first question affirmatively, butdid so in answering the second question affirmatively, to the extent that the Pakistan, India and China JGs were concerned.

Accordingly,I would dismiss the appeal and grant the cross-appeal. I. Factual background [6] This appeal concerns the Chairperson’s decision to identify four decisions of the RAD as JGs, pursuant to paragraph 159(1)(

h) ofthe IRPA. Three of these guides were issued on July 18, 2017: RAD decision TB7-01837 [X (Re), (I.R.B.)],concerning a Pakistani refugee claimant (Pakistan Guide); RAD decision TB6-11632 [X (Re), (I.R.B.)], concerninga Chinese refugee claimant (China Guide); and RAD decision MB6-01059/MB6-01060 [X (Re), (I.R.B.)],concerning an Indian refugee claimant (India Guide).

The fourth guide, which was issued on July 6, 2018, concerned RAD decisionTB7-19851 [X (Re), (I.R.B.)] involving a Nigerian refugee claimant (Nigeria Guide). [7] The policy notes accompanying the issuance of the JGs stress that the fair and efficient determination of refugee claims beforethe Refugee Protection Division (RPD) and the RAD is of “great importance” to the Board, and is “essential” to the Board dealing with a“significant backlog” in the refugee determination continuum.

They go on to state that these JGs are meant to facilitate decision making“in a manner that meets the twin requirements of fairness and efficiency”. Indeed, it is clear from internal memos that significantbacklogs and growing intake volumes were part of the rationale for issuing the disputed JGs. [8] All of the policy notes also explain that “RPD and RAD members are expected to apply [JGs] in cases with similar facts orprovide reasoned justifications for not doing so” (appeal book, pages 1735, 1755, 1776 and 1793).

They add that the JGs are meant toassist RPD and RAD members in narrowing the issues to be determined, and to promote fairness, consistency and efficiency in writingreasons.

Finally, the policy notes accompanying the issuance of the China, India and Pakistan JGs specifically set out the requirementthat the Research Directorate of the Board must monitor and report to the RAD Deputy Chairperson any developments in the country oforigin information that could have an impact on the factual foundation of the JGs. [9] The Policy Note accompanying the identification of TB6-11632 as a JG for China (Policy Note China) states that the decisionwas chosen for its detailed, clear, and sound analysis of Chinese exit control procedures and the ability for those being sought by theauthorities to exit China via an airport using a genuine passport.

That issue had given rise to conflicting jurisprudence both at the Boardlevel and at the Federal Court. The analysis at paragraphs 12–22 and 25–34 of the RAD decision forms the basis of this JG. The PolicyNote specifies that the key determination “is one of fact that may be applicable to a large number of claims … in relation to an aspect ofthe Chinese government’s public security infrastructure and how it operates” (appeal book, page 1756).

After reviewing evidence withrespect to China’s Golden Shield Project and security apparatus, the RAD found on a balance of probabilities that it was unlikely that awanted person could have left China from an international airport using a passport with his own name, date of birth and photograph. [10] The Policy Note accompanying the designation of decision TB7-19851 as a JG (Policy Note Nigeria) recognized the decision,and more particularly its paragraphs 13–30, as a detailed, clear and sound analytical framework to address the viability of an internalflight alternative (IFA) in Nigeria, for individuals fearing non-state actors.

The Policy Note provides that the JG deals with a question ofmixed fact and law, and establishes that there are several large, multilingual, multiethnic cities in south and central Nigeria wherepersons fleeing non-state actors may be able to safely establish themselves, depending on their own particular circumstances.

The PolicyNote also encourages RPD and RAD members, in appropriate circumstances, to proceed directly to an IFA analysis without having firstto decide the credibility of a claimant’s allegations of persecution. [11] The JG with respect to decision MB6-01059/MB6-01060 was issued with respect to the issue of whether Sikh refugee claimantsfrom Punjab have a viable IFA. As in the case of Nigeria, the Policy Note identifying that decision as a JG (Policy Note India) reinforcesthe objective of conducting more focused hearings and issuing more focused reasons.

RPD and RAD members are encouraged toproceed directly, in appropriate circumstances, to an IFA analysis within India. Given that the existence of an IFA would bedeterminative, members would not necessarily have to decide first the credibility of the claimant’s allegations of persecution. After

reviewing the evidence, the RAD member determined in that decision that Punjab police would only track an individual from state tostate in extreme cases, and that neither India’s tenant registration system, nor the Zipnet police computer system, would facilitate theinter-state tracking of a wanted person. [12] Finally, the Policy Note identifying decision TB7-01837 as a JG for Pakistan (Policy Note Pakistan) formally identifies the keydetermination as one of mixed law and fact, the scope of which being whether the treatment experienced by Ahmadis from Pakistanamounted to persecution, and whether state protection and an IFA are available.

In that case, the RAD member found that the claimantfaced a serious possibility of persecution because of her Ahmadi religion and could not expect state protection or avail herself of a viableIFA. [13] At the time the Federal Court rendered its decision, the JGs pertaining to India and China had been revoked on November 30,2018 and June 28, 2019 respectively. The former had been revoked due to developments in the Board’s country of origin information.

Itappears that the JG was not revoked because of actual changes that had occurred in India since its issuance, but rather as a result ofchanges in the documentation available on the issue. As for the latter, it was revoked because a finding of fact drawn from the Board’sNational Documentation Package (NDP) was ultimately found to be unsupported by the same document, as it stood at the time of thedecision. [14] The Chairperson has subsequently announced that the JG pertaining to Nigeria was revoked as of April 6, 2020, in light ofdevelopments in the country of origin information.

As a result, of the four JGs that are the subject of this appeal, only the JG pertainingto Pakistan is still in force. II. The Impugned Decision [15] Before the Federal Court, the respondent raised two preliminary issues. First, the Attorney General submitted that the appellantlacked standing to bring the two applications for judicial review, since the central issues were not evasive of review and could have beenpursued by a litigant with a more direct stake in the issues.

Second, the respondent took the position that the JG pertaining to India (andsubsequently China) should no longer be part of the application in IMM-3433-17 [Canadian Association of Refugee Lawyers v.

Canada(Citizenship and Immigration) (November 14, 2017)], to the extent that the issue of their validity was now moot as a result of theirrevocation. [16] With respect to the public interest standing issue, the Court found the question to be res judicata as it pertained to IMM-3433-17,to the extent that a motion to strike the appellant as a party from that proceeding was rejected in an interlocutory order of ProthonotaryAalto. The respondent was precluded from appealing this decision by virtue of paragraph 72(2)(

e) of the IRPA, but claimed that anappeal from Prothonotary Aalto’s decision was available if, pursuant to paragraph 74(

d) of the IRPA, the Federal Court certifies a seriousquestion of general importance in the ultimate judgment relating to the application. Relying on a decision of this Court in Canada(Minister of Citizenship and Immigration) v. Edwards, 2005 FCA 176, 335 N.R. 181 (Edwards), the Federal Court rejected that argumentand concluded that the appeal contemplated in paragraph 74(

d) is an appeal only of the judgment issued in respect of the application forjudicial review, and not of interlocutory matters. The Federal Court also rejected the respondent’s argument that a decision with respectto standing constitutes a separate and divisible judicial act, this Court having explicitly dismissed that argument in HD MiningInternational Ltd. v. Construction and Specialized Worker Union, Local 1611, 2012 FCA 327, 442 N.R. 325 (HD Mining).

CARL havingbeen granted standing in IMM-3433-17, also ought to be granted standing in IMM-3373-18. [17] On the issue of mootness, the Federal Court found that the China Guide, though it had been revoked, could still be a factor inongoing litigation concerning past refugee decisions in which the China Guide was followed. The same reasoning would presumablyapply to India. In any event, the Chief Justice determined that the factors to be considered in exercising his discretion to address theChina JG in spite of the matter being moot, as set out in Borowski v.

Canada (Attorney General), (SCC), [1989] 1S.C.R. 342, (1989), 57 D.L.R. (4th) 231, weighed in favour of doing so. Specifically, the ongoing adversarial relationship between theparties, judicial economy and the public interest in resolving the uncertainty regarding those issues were of particular relevance, in hisview. [18] Turning next to the substantive issues, the Chief Justice first considered whether the Chairperson had the authority to issue JGson questions of fact.

Applying the standard of reasonableness, he found that it was not unreasonable for the Chairperson to haveimplicitly interpreted paragraph 159(1)(

h) of the IRPA as conferring upon him the authority to issue JGs on factual determinations. TheChief Justice first noted that, in light of the plain wording of the provision, the Chairperson’s authority was not formally restricted to theissuance of JGs on issues of law or mixed fact and law. Such a reading was supported, in his view, by the legislative history and statedpurpose of that provision, and by the purpose identified by the Chairperson, all of which reflected an intent both to enhance consistencyin decision making, while at the same time facilitating more focused hearings and reasons. [19] Regarding the statutory context, the Chief Justice saw in paragraph 159(1)(

g) and subsection 162(2), which respectively set forththe Chairperson’s broad authority and the Board’s general objective, further support for the authority to issue JGs that include factualdeterminations. He also noted that the difficulty to distinguish between issues of fact and issues of mixed fact and law, and the fact thatfindings on the latter cannot be made without first making findings on the former, favoured the implicit

interpretation given by theChairperson to paragraph 159(1)(h). [20] Finally, he rejected CARL’s argument that the term “jurisprudential guide” cannot be interpreted as contemplating a guide onissues of fact because the term “jurisprudence” refers to legal principles only and does not encompass factual findings.

While notdisputing that factual disputes must be determined on their merits in each case, the Federal Court expressed the view that the ordinarymeaning of the term “jurisprudence” contemplates decisions issued by a court in respect of both factual issues and issues of law and ofmixed fact and law. [21] The next substantive issue examined by the Federal Court was CARL’s submission that the four JGs at issue unlawfully fetteredthe discretion of the Board members.

On that issue, the Chief Justice declined to determine whether the standard of review was that ofcorrectness or reasonableness because, in any case, fettering of a decision maker’s discretion is per se unreasonable. He then summarized

the requirements of adjudicative independence, which at its root means that judges and quasi-judicial decision makers must be at libertyto hear and decide cases without interference. Relying on IWA v. Consolidated-Bathurst Packaging Ltd., (SCC), [1990]1 S.C.R. 282, 73 O.R. (2d) 676 (Consolidated-Bathurst) and Ellis-Don Ltd. v.

Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1S.C.R. 221 (Ellis-Don), he stated [Reasons, at paragraphs 93 and 95]: Put differently, in the administrative law context, it can be entirely appropriate to embrace tools such as guidelines to influence, in ageneral way, the manner in which decisions are reached. In this regard, a legitimate type of general influence can include identifyingfactors, sources of information, and even particular information that can be helpful to consider.

Indeed, I consider it to be permissible togo further and encourage such information to be taken into account, so long as it is made clear that decision makers remain completelyfree to reach their own conclusions, based on the facts of each particular case. … However, the line would be crossed when the language used in guidelines may be reasonably apprehended by decision makers ormembers of the general public to have the likely effect of either pressuring independent decision makers to make particular factualfindings or attenuating their impartiality in this regard.

The same is true where such language may be reasonably apprehended to make itmore difficult for independent decision- makers to make their own factual determinations.

This is so even if it has been stated that theguidelines are not binding. [Emphasis in original.] [22] Applying these principles to each of the JGs, the Chief Justice found that the Nigeria JG did not unlawfully fetter Boardmembers’ discretion to make their own factual findings or improperly constrain their freedom to decide cases that may come beforethem, given how it was made abundantly clear that each claim was to be decided on its particular facts. [23] The same could not be said, in his view, of the JGs pertaining to Pakistan, India and China.

In all of these cases, the Chief Justicefound that the facts that are specific to the particular claimant do not pose a potential problem nor do the facts that are characterized ashaving been reported in the country documentation. The former are unique to the refugee claimant, and the latter are not presented asfactual findings made by the RPD or the RAD, but rather as information in the country documentation that was relevant and that shouldbe taken into account in future cases.

It is the facts that are presented as the RAD’s own findings on issues that go beyond the evidencespecific to the claimant that were considered more problematic. In the Chief Justice’s view, the statement of expectations in the policynotes that accompanied the issuance of these three JGs, by which “RPD and RAD members are expected to apply [JGs] in cases withsimilar facts or provide reasoned justifications for not doing so”, are troubling.

At the very least, some Board members would not feelcompletely free to decide cases with similar facts according to their own conscience, and some members of the public would likely havea reasonable apprehension that those members of the Board would feel pressured and would therefore not be entirely impartial. As theChief Justice stated [at paragraph 141]: ….

It is the imposition of this expectation [to apply the JGs] and corresponding obligation to justify a decision to not follow the JG incases with similar facts that gives rise to the improper pressure on Board members to adopt the factual determinations made by the RAD… as their own.

This is particularly so given the extent to which the communication of this expectation has been repeated, and theabsence of any clear statement that each case must be decided based on its specific facts. [24] It bears noting that in the Chief Justice’s opinion, encouraging Board members to take the JGs into account or to follow them incases with similar facts would be entirely legitimate, “so long as it was also made very clear that they are completely free to depart fromthe JG based on the particular facts of the case before them” (Reasons, at paragraph 142). [25] The third issue in dispute before the Federal Court was whether the impugned JGs unfairly enhanced the burden of proof forapplicants for refugee protection.

To the extent that the problem relates to the statement of expectation made in the policy notes withrespect to the factual findings that go beyond the facts specific to a refugee claimant, the Court considered that this argument is justanother way to say that the impugned JGs unlawfully fetter the discretion of the Board members. Apart from that specific problem, theCourt found that any increase in the burden that claimants for refugee protection may face as a result of having to buttress their narrativeto deal with facts referenced from the Board’s NDP is not unfair.

By providing the Chairperson the authority to issue JGs, Parliamentmust be understood to have recognized, by necessary implication, the authority to reference country documentation and other objectivesources in a JG. [26] With regard to the issue of whether the Chairperson was required to engage in external consultation before identifying thedecisions in question as JGs, I need not say much as this aspect of the Federal Court decision has not been appealed.

Suffice it to say thatthe Federal Court quickly disposed of that argument by referring to paragraph 159(1)(h), according to which the Chairperson is given theauthority to identify decisions of the Board as JGs “after consulting with the Deputy Chairpersons”. This provision, in the Court’s view,could reasonably be interpreted as implicitly indicating that consultation with any other persons or organizations was not considered to berequired by Parliament. [27] The last issue to be decided by the Federal Court had to do with the Nigeria JG.

CARL submitted that the decision in respect ofwhich the Nigeria JG was identified was impermissibly pre-selected to be the subject of a JG before it was finally decided, therebycontravening paragraph 159(1)(

h) and compromising the independence of the refugee determination process. The Federal Courtdisagreed, and held, on a standard of reasonableness, that there was no evidence to suggest that the Chairperson had de facto designatedthe decision in question as a JG before the issuance of that decision.

The Court further found that there was no evidence that theconcerned Board member’s impartiality had been undermined by exchanges preceding the finalization of the decision, or that any of theprinciples established in Consolidated-Bathurst had been breached as a result of the exchanges that took place internally in relation to theNigeria JG. III. Issues [28] As previously mentioned, the Federal Court certified two questions, one pertaining to the Chairperson’s authority to issue JGs onfactual determinations under paragraph 159(1)(

h) of the IRPA, and the other pertaining to the alleged unlawful interference with theBoard members’ discretion. While the certification of these questions served a “triggering” function by which the appeal was permitted

( Kanthasamy v. Canada (Citizenship and Immigration) , 2015 SCC 61 , [2015] 3 S.C.R. 909 ( Kanthasamy ) , at paragraph 44 ), this Court is not restricted to their determination and may further consider any issues affecting the validity of the judgment under appeal. The case law establishing this principle has been well summarized in Mahjoub v.

Canada (Citizenship and Immigration) , 2017 FCA 157 , [2018] 2 F.C.R. 344 at paragraph 50 : Once an appeal has been brought to this Court by way of certified question, this Court must deal with the certified question and all other issues that might affect the validity of the judgment under appeal …. The certification of a question “is the trigger by which an appeal is justified” and, once triggered, the appeal concerns “the judgment itself, not merely the certified question” ….

Simply put, “once a case is to be considered by the Federal Court of Appeal, that Court is not restricted only to deciding the question certified”; instead, the Court may “consider all aspects of the appeal before it” …. [ 29 ] In my view, and taking into account the parties’ submissions, this appeal and this cross-appeal raise four issues, two of which consist of the certified questions. They can be formulated as follows: A. Does the appellant have the requisite public interest standing? B. Does the Chairperson of the I.R.B. have the authority pursuant to paragraph 159(1) (

h) of the IRPA to issue JGs that include factual determinations? C. Do the JGs that the Chairperson issued with respect to Nigeria, Pakistan, India, and China unlawfully fetter the discretion of members of the RPD and the RAD to make their own factual findings, or improperly encroach upon their adjudicative independence? D. Does the cumulative effect of the facts and context surrounding the promulgation of the Nigeria JG give rise to a reasonable apprehension of bias? IV. Standard of review [ 30 ] The parties are broadly in agreement with respect to the applicable standard of review.

It is now well established that, on appeal from a decision of the Federal Court sitting in judicial review of an administrative decision, this Court must “‘step[ping] into the shoes’” of the Federal Court, and determine whether it appropriately selected and properly applied the standard of review: Agraira v. Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559, at paragraphs 45–47 .

When, however, the Federal Court makes findings of fact or mixed fact and law on the basis of the evidence before it, rather than on a review of the administrative decision, it is the appeal framework developed in Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 ( Housen ) that applies: Apotex Inc. v. Canada (Health) , 2018 FCA 147 , 15 C.P.R. (4th) 289, at paragraphs 57–58 ; Oceanex Inc. v.

Canada (Transport) , 2019 FCA 250 , 439 D.L.R. (4th) 159, at paragraph 18 . [ 31 ] Applying this matrix, I am of the view that the first question pertaining to the Federal Court’s finding with respect to the question of standing is to be reviewed on the Housen standard. This is clearly a decision made by the Federal Court, not the administrative decision maker: Budlakoti v. Canada (Citizenship and Immigration) , 2015 FCA 139 , 35 Imm. L.R. (4th) 1, at paragraphs 37–39 ; Canada (Attorney General) v. Rapiscan Systems, Inc. , 2015 FCA 96 , 385 D.L.R. (4th) 170, at paragraph 21 .

Since the decision to grant CARL standing is clearly a question of mixed fact and law, it ought to be reviewed on the standard of palpable and overriding error. [ 32 ] On the second issue relating to the authority of the Chairperson to issue JGs that include factual determinations, the Federal Court properly applied the reasonableness standard. Although determined by the Chief Justice with reference to Canada (Canadian Human Rights Commission) v.

Canada (Attorney General) , 2018 SCC 31 , [2018] 2 S.C.R. 230, the applicable standard of review is still that of reasonableness under the framework laid out by the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , 441 D.L.R. (4th) 1 ( Vavilov ).

Indeed, the Supreme Court stated that when reviewing an administrative decision, a court “should start with the presumption that the applicable standard of review for all aspects of that decision will be reasonableness” ( Vavilov , at paragraph 25 ). [ 33 ] The same standard of reasonableness applies to the issues of consultation and pre-selection of the Nigeria JG. Both of these issues turn on the Chairperson’s

interpretation of his home statute. The presumption of reasonableness review in such cases was already well established in cases such as Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654, at paragraph 30 ; Mouvement laïque québécois v. Saguenay (City) , 2015 SCC 16 , [2015] 2 S.C.R. 3, at paragraph 46 ; and Edmonton (City) v.

Edmonton East (Capilano) Shopping Centres Ltd. , 2016 SCC 47 , [2016] 2 S.C.R. 293, at paragraph 22 , and was reiterated in Vavilov (at paragraph 25 ). [ 34 ] As for the issue raised by the second certified question (the third issue before this Court), the Federal Court stated that it was unnecessary to determine whether the applicable standard of review was that of correctness or reasonableness. In so doing, the Court pointed to the fact that fettering of a decision maker’s discretion is per se unreasonable and relied for that proposition on Stemijon Investments Ltd. v.

Canada (Attorney General) , 2011 FCA 299 , 341 D.L.R. (4th) 710, at paragraphs 23–24 and Danyi v. Canada (Public Safety and Emergency Preparedness) , 2017 FC 112 , at paragraph 19 . [ 35 ] Neither Vavilov nor, for that matter, Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190, have addressed the standard for determining whether the decision maker complied with the duty of procedural fairness.

In those circumstances, I prefer to rely on the long line of jurisprudence, both from the Supreme Court and from this Court, according to which the standard of review with respect to procedural fairness remains correctness: see Mission Institution v. Khela , 2014 SCC 24 , [2014] 1 S.C.R. 502, at paragraph 79 ; Thamotharem v. Canada (Minister of Citizenship and Immigration) , 2007 FCA 198 , [2008] 1 F.C.R. 385 ( Thamotharem ), at paragraph 33 ; Re:Sound v. Fitness Industry Council of Canada , 2014 FCA 48 , [2015] 2 F.C.R. 170 , at paragraph 34 ; Wsáneć School Board v.

British Columbia , 2017 FCA 210 , [2018] 4 C.N.L.R. 295, at paragraphs 22–23 ; Johnny v. Adams Lake Indian Band , 2017 FCA 146 , at paragraph 19 ; Therrien v. Canada (Attorney General) , 2017 FCA 14 , 24 Admin. L.R. (6th) 46, at paragraph 2 ; El-Helou v. Canada (Courts Administration Service) , 2016 FCA 273 , at paragraph 43 ; Arsenault v. Canada (Attorney General) , 2016 FCA 179 , 11 Admin. L.R. (6th) 187, at paragraph 11 ; Henri v. Canada (Attorney General) , 2016 FCA 38 , 395 D.L.R. (4th) 176, at paragraph 16 ; Abi-Mansour v.

Canada (Foreign Affairs and International Trade Canada) , 2015 FCA 135 , at paragraph 6 ; Canadian Pacific Railway Company v.

Canada (Attorney General), 2018 FCA 69, [2019] 1 F.C.R. 121 at paragraphs 33–56. In fact, it is not at all clear to me why we keepassessing procedural fairness within the framework of judicial review, considering that it goes to the manner in which a decision is maderather than to the substance of the decision, as Justice Binnie aptly observed in C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29,[2003] 1 S.C.R. 539, at paragraph 102. What matters, at the end of the day, is whether or not procedural fairness has been met. V. Analysis A.

Does the appellant have the requisite public interest standing? [36] In its memorandum of fact and law, the respondent devotes only one paragraph to this issue, and merely reiterates its positionbefore the Federal Court that CARL lacked the requisite public interest standing without setting out how the Court below erred, oradducing any new arguments in support of its thesis.

At the hearing, the respondent appeared to accept the authority of Edwards and HDMining for the proposition that questions of standing are matters arising under the IRPA and cannot be challenged on judicial reviewbecause of the constraints imposed by

section 72 of that legislation. [37] In any event, I am of the view that it is very late in the day to challenge CARL’s standing to bring applications for judicial reviewquestioning the legality of the impugned JGs. Moreover, the Prothonotary provided cogent reasons to grant standing, and the respondenthas failed to show any reviewable error in the Federal Court’s reasoning that could justify interfering with its decision to the effect thatthe Prothonotary’s decision could not be appealed. B. Does the Chairperson of the I.R.B. have the authority pursuant to paragraph 159(1)(

h) of the IRPA to issue JGs that include factualdeterminations? [38] Paragraph 159(1)(

h) of the IRPA provides as follows: Chairperson 159(1) The Chairperson is, by virtue of holding that office, a member of each Division of the Board and is the chief executive officer ofthe Board. In that capacity, the Chairperson … (

h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, afterconsulting with the Deputy Chairpersons, to assist members in carrying out their duties; and [39] The appellant contends that the Chairperson’s implicit

interpretation of paragraph 159(1)(

h) as conferring upon him the authorityto issue JGs on factual determinations is unreasonable in two respects. First, such reading of the provision is unsupported, says theappellant, by basic principles of statutory

interpretation.

Second, the Chairperson’s reasons appear to be internally inconsistent, giventhat the policy on which he relied in the first place is circumscribed to the issuance of JGs on questions of law and mixed fact and law. [40] Referring to the text of paragraph 159(1)(h), the appellant reiterates that the term “jurisprudential” cannot plausibly beinterpreted as contemplating guidance on factual issues, because “jurisprudence” consists of case law establishing legal precedents. [41] Turning to the purpose of paragraph 159(1)(h), the appellant first argues that promotion of consistency in administrative decisionmaking, which lies at the heart of the provision, is understood to be in relation to questions of law and policy, and that nothing in thedebates surrounding the adoption of the IRPA suggests otherwise.

While the provision contains no express and unequivocal languageousting principles of natural justice, the Chairperson’s reading of paragraph 159(1)(h), argues the appellant, is to this effect. In makingthis second submission, the appellant essentially relies on the cases of Consolidated-Bathurst and Ellis-Don which, in its view, must beread as preventing an institutionalized decision maker to influence a panel member’s findings of fact, and therefore as prohibitingfindings of fact to be part of the Board’s JGs. In my view, this

interpretation of Consolidated-Bathurst and Ellis-Don is entirely withoutmerit, as I will endeavour to show in the next

section of these reasons. Finally, the appellant submits that guidance on constantlychanging country conditions, for which there is no central database, inevitably leads to imperfect and necessarily delayed monitoring, aswell as to eventual revocation of JGs after they have been relied upon in numerous cases. [42] As part of its submissions on the first certified question, the appellant also takes issue with the Chairperson’s reliance on theBoard’s Policy on the Use of Jurisprudential Guides, Policy No. 2003-01 (as amended December 2016) in its formal designation of theJGs.

The policy states that “[a] decision may be identified as a [JG] on either a question of law or a question of mixed law and fact”, yetthe Chairperson’s decision goes well beyond and concerns questions of fact. In the appellant’s view, the Chairperson’s reasons areinternally inconsistent, and for that reason the decision to issue the impugned JGs on factual determinations is unreasonable. [43] I am unable to agree with the appellant’s submissions.

On the contrary, I find that the Court properly found that the Chairpersonhad the authority to issue JGs on issues of fact in accordance with the plain words of the statutory provision. The Chairperson implicitlyinterpreted paragraph 159(1)(

h) as conferring upon him the authority to issue JGs on factual issues, and that implicit

interpretation wasreasonable. [44] In Vavilov, the Supreme Court held that “whatever form the interpretive exercise takes, the merits of an administrative decisionmaker’s

interpretation of a statutory provision must be consistent with the text, context and purpose of the provision” (at paragraph 120),thereby referring to the usual principles of statutory

interpretation as set out in Rizzo & Rizzo Shoes Ltd. (Re), (SCC),[1998] 1 S.C.R. 27, (1998), 36 O.R. (3d) 418, at paragraph 21. Although the Chairperson did not formally engage in such an exercise,there is no doubt in my mind that his implicit

interpretation is consistent with that approach. [45] I would start by noting that administrative agencies do not require an express grant of statutory authority in order to use “softlaw” such as policy statements, guidelines, manuals and handbooks to structure the exercise of their discretion. As this Court found inThamotharem (at paragraph 56):

Through the use of “soft law” an agency can communicate prospectively its thinking on an issue to agency members and staff, as well asto the public at large and to the agency’s “stakeholders” in particular. Because “soft law” instruments may be put in place relativelyeasily and adjusted in the light of day-to-day experience, they may be preferable to formal rules requiring external approval and,possibly, drafting appropriate for legislation. Indeed, an administrative agency does not require an express grant of statutory authority inorder to issue guidelines and policies to structure the exercise of its discretion or the

interpretation of its enabling legislation…. [46] In the case at bar, there is an express statutory grant of authority to the Chairperson. Moreover, as properly noted by the ChiefJustice, there is no limitation confining the scope of paragraph 159(1)(

h) to issues of law or mixed fact and law. On the contrary, theauthority of the Chairperson to issue JGs is conferred in the broadest terms, as long as their purposes are to assist members in carryingout their duties, and with the only requirement that their issuance be preceded by consultation with the Deputy Chairperson. [47] The breadth of this power aligns with the context in which paragraph 159(1)(

h) is found. Not only does paragraph 159(1)(g)authorize the Chairperson to take “any action that may be necessary to ensure that the members of the Board carry out their dutiesefficiently and without undue delay”, but subsection 162(2) requires the I.R.B. to deal with proceedings “as informally and quickly asthe circumstances and the considerations of fairness and natural justice permit”.

To this end, sections 170 and 171 provide guidance tomembers in conducting proceedings, and make clear that Parliament’s intention was to promote efficiency and consistency while takinginto account considerations of fairness and natural justice. [48] To achieve that mandate as a tribunal with a large, diverse body of members adjudicating a high volume of cases, the I.R.B. hasbeen provided with an arsenal of tools including not only JGs, but also guidelines and persuasive decisions.

Various policy instruments,such as instructions, three-member panels, and training, are also available to the I.R.B., through the initiatives of its Chairperson.Paragraph 159(1)(

h) cannot be interpreted in a vacuum. The legislative context in which it is found is consistent with the broadinterpretation that the Chairperson has given to that provision, namely to ensure that Board members carry out their duties efficiently andwithout undue delays. [49] The only limitation to the plain wording of paragraph 159(1)(

h) to which the appellant can point is the use of the word“jurisprudential”. For the appellant, the term “jurisprudence” can only refer to legal principles as they are set out in the case law or courtdecisions. Much like the Federal Court, I find little support for this narrow reading of this concept.

The appellant cites the case of R. v.Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, in which the Supreme Court held that “the answer to a question of fact, as it rests wholly onthe evidence in a particular case, cannot be presumed to be true for any situation outside the specific one before the trial court” (atparagraph 86). While undoubtedly true, this principle does not entail that decisions entirely or largely based on factual determinations areexcluded from a tribunal’s jurisprudence.

On the contrary, the Supreme Court does not seem to operate such a distinction, as pointed outby the respondent, when referring to decisions of tribunals and boards as “jurisprudence”: see Canada (Canadian Human RightsCommission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471, at paragraph 13; Tervita Corp. v. Canada(Commissioner of Competition), 2015 SCC 3, [2015] 1 S.C.R. 161, at paragraph 199; Canadian Broadcasting Corp. v. Canada (LabourRelations Board), (SCC), [1995] 1 S.C.R. 157, (1995), 121 D.L.R. (4th) 385, at paragraph 67.

In any event, it wouldtake more than such an oblique reference to limit the plain meaning of the broad power conferred on the Chairperson by paragraph159(1)(

h) of the IRPA. [50] Furthermore, the issuance of JGs on factual issues is not tantamount to the establishment of binding legal precedents. To use thewords of the Chief Justice, the impermissibility of factual precedents “is a far cry from the respondent’s more modest position thatparagraph 159(1)(

h) permits non-binding JGs to be issued for the purposes that were identified by the Chairperson” (Reasons, atparagraph 77). Whether those JGs unlawfully fetter the Board members’ discretion, on the other hand, is an entirely different issue thatwill be addressed further on in this analysis. [51] Regarding the legislative history and purpose of paragraph 159(1)(h), it appears that the idea of vesting the Chairperson with theauthority to issue JGs on questions of fact such as country condition has been around for quite some time.

Commenting on the 1992legislation, Professor Goodwin-Gill proposed that the relevance, timeliness, and authority of information relating to specific countriescould be the subject of chairpersons’ guidelines: House of Commons, Minutes of Proceedings and Evidence of Legislative Committee onBill C-86 [34th Parl., 3rd Sess., Issue No. 10] (September 15, 1992), at pages 10:33, 10A:14; Senate of Canada, Proceedings of theStanding Senate Committee on Social Affairs Science and Technology [34th Parl. 3rd Sess., Issue No. 17] (September 4, 1992), at page17:32.

Similarly, a former Chairman of the Law Reform Commission of Canada opined that country condition information should be thesubject of chairpersons’ guidelines and Board members deciding a case at variance with the information should be required to providereasons for doing so: John Frecker, Brief to the Legislative Committee on Bill C-86 (An Act to Amend the Immigration Act and otherActs in consequence thereof) [34th Parl., 3rd Sess.], August 1992 (appeal book, pages 475–476). [52] At paragraph 70 of his Reasons, the Chief Justice also referred to the Clause by Clause Analysis of Bill C-11, which repealed andreplaced the Immigration Act, R.S.C., 1985, c.

I-2. There, the rationale for the introduction of the Chairperson’s authority to identify JGswas succinctly set out in the following terms: “The provision gives authority to the Chairperson to identify decisions that would serve asjurisprudential guides that would not be binding on members but would enhance consistency in decision-making”: Citizenship andImmigration Canada, Bill C-11: Clause by Clause Analysis (September 2001), page 127.

I agree with the Chief Justice that “it is notimmediately apparent why JGs addressed to factual issues would not be as helpful as JGs addressed to issues of law or mixed fact andlaw in assisting Board members to carry out their duties” (Reasons, at paragraph 69). [53] As for the appellant’s argument that the Chairperson’s

interpretation of paragraph 159(1)(

h) is inconsistent with the I.R.B.’sPolicy on the Use of Jurisprudential Guides (as amended December 2016), it is without merit. It is no doubt true that this Policy notablystates that “[a] decision may be identified as a [JG] on either a question of law or a question of mixed law and fact”. However, as theChief Justice rightly found, the Policy only “provides some indication of the manner in which the Chairperson interpreted his authorityunder paragraph 159(1)(h)” [emphasis in original] (Reasons, at paragraph 63).

It is well established that such a policy, as other soft lawtools upon which administrative tribunals rely in their daily operations, cannot supersede the authority given to the Chairperson under thelaw and fetter his or her discretion: Maple Lodge Farms Ltd. v. Government of Canada, (SCC), [1982] 2 S.C.R. 2,(1982), 137 D.L.R. (3d) 558 (Maple Lodge), at pages 6–7. This principle has been reiterated in the immigration context on a number ofoccasions: see, for example, Kanthasamy, at paragraphs 30–33; Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong

v. Canada (Minister of Citizenship and Immigration) , 2005 SCC 57 , [2005] 2 S.C.R. 706, at paragraph 94 ; Legault v. Canada (Minister of Citizenship and Immigration) , 2002 FCA 125 , [2002] 4 F.C. 358 , at paragraph 20 . [ 54 ] As a result, it is perfectly reasonable to understand the words of the Policy as referring to a description of the past and current practice with respect to which the Chairperson may consider exercising his or her authority to identify a decision as a JG. They cannot, by any means, be interpreted as constraining or circumscribing the statutory authority conferred by Parliament.

To paraphrase the Supreme Court in Maple Lodge (at page 7), giving the Policy the effect contended for by the appellant would be to elevate the Chairperson’s directions to the level of law and fetter his or her discretion.

Consistent with this approach, I note that the Policy has been amended after the decision of the Federal Court and now explicitly mentions that a decision may be identified as a JG “on either a question of law, fact, or mixed law and fact” ( Policy on the Use of Jurisprudential Guides (as amended December 2019); appeal book, page 1865). [ 55 ] Finally, a word need be said regarding the practical problems raised by the appellant with respect to factual JGs.

It is argued that the promulgation of JGs on factual determinations have led to the replications of errors, as illustrated by the revocation of the India Guide and the China Guide (and the Nigeria Guide subsequent to the decision of the Federal Court). In my view, what happens to a JG once it has been adopted in terms of its application and eventual revocation is irrelevant for the purpose of determining whether it is authorized by paragraph 159(1) (h).

At one level, as submitted by the respondent, the revocation of a particular JG demonstrates to some extent that the I.R.B. monitoring of JGs is effective in ensuring the JGs remain useful and accurate. More importantly, the authority of the Chairperson to adopt a JG cannot be measured by its effectiveness nor even its accurateness, much like regulations whose validity do not depend on their usefulness nor on their advisability.

The mere fact that JGs dealing with country conditions are frequently revoked may be a signal that they ought to be used with caution, especially if that revocation came as result of later discovery undermining their accuracy, but it can be of no impact on their conformity with the IRPA . [ 56 ] For all of the foregoing reasons, I am of the view that the first certified question (i.e. the second issue on this appeal) should be answered in the affirmative. C.

Do the JGs that the Chairperson issued with respect to Nigeria, Pakistan, India and China unlawfully fetter the discretion of members of the RPD and the RAD to make their own findings, or improperly encroach upon their adjudicative independence? [ 57 ] The appellant agrees with the Chief Justice that the statement of expectation in the accompanying policy notes for China, India and Pakistan interferes with the Board members’ independence, but is of the view that it is no less true of the accompanying Policy Note for Nigeria.

The appellant’s position is that the distinction between a statement of expectation and a mere encouragement to take into account the factual determinations provided by the JGs is meaningless, because in both cases the Chairperson uses an institutional mechanism to communicate preferred findings of fact. In doing so, the Chairperson infringes on the independence of decision makers to the extent that they have the burden to explain why they do not follow the applicable JG.

The problem is further compounded by the fact that the JGs are based on a factual record that is not disclosed to the public or other adjudicators. [ 58 ] The appellant’s thesis is broadly based on its reading of Consolidated-Bathurst and Ellis-Don , according to which the Supreme Court apparently left no room for institutional guidance in respect of a decision maker’s findings of fact.

Yet, a careful reading of these decisions, in my opinion, leads to a more nuanced conclusion. [ 59 ] At issue in Consolidated-Bathurst was a decision of the Ontario Labour Relations Board to the effect that the appellant had failed to bargain in good faith by not disclosing, during negotiations for a collective agreement, that it planned to close the plant covered by the collective agreement. In the course of deliberating over this decision, a meeting of the full Board was held to discuss a draft of the reasons.

The meeting was conducted in accordance with the Board’s longstanding and usual practice to limit the discussion to the policy implication of a draft decision, and to accept the facts as contained in the decision.

When the appellant learned of that meeting to which neither parties were invited to participate, it challenged the Board’s decision on the ground that it violated the rules of natural justice. [ 60 ] The Supreme Court first noted that two distinct rules of natural justice were at stake: that an adjudicator be disinterested and unbiased, and that the parties be given adequate notice and opportunity to be heard.

With respect to the former, Justice Gonthier (writing for the majority) held that an institutional consultation procedure in itself does not create an apprehension of bias or lack of independence, provided it is designed to safeguard the ability of the decision maker to decide independently both on facts and law in the matter. In so doing, he reiterated that the “criteria for independence is not absence of influence but rather the freedom to decide according to one’s own conscience and opinions” ( Consolidated-Bathurst , at paragraph 84 [page 334]).

On the basis of the procedure followed by the Board in that case, the Supreme Court found that the full Board meeting was “an important element of a legitimate consultation process and not a participation in the decision of persons who had not heard the parties” ( Consolidated-Bathurst , at paragraph 84 [page 335]). [ 61 ] The Supreme Court revisited the same issue ten years later in Ellis-Don, and summarized in the following manner the requirements laid down by Justice Gonthier for an institutional consultation not to create a reasonable apprehension of bias: (1) the consultation proceeding cannot be imposed by a superior level of authority within the administrative hierarchy, and can only be requested by the adjudicators themselves; (2) the consultation has to be limited to questions of policy and law, and the members who have not heard the evidence cannot be allowed to re-assess it; (3) even on questions of law and policy, the decision makers must remain free to come to whatever decision they deem right and not be compelled to adopt the views expressed by other members ( Ellis-Don , at paragraph 29). [ 62 ] Turning to the application of the audi alteram partem rule, the Court in Consolidated-Bathurst [at paragraph 86 (pages 335– 336)] found that discussions on factual issues, to the extent that persons who have not heard all the evidence are involved, generally constitute a breach of the principles of natural justice.

It bears reproducing the relevant excerpt of the Court’s reasoning on that question: For the purpose of the application of the audi alteram partem rule, a distinction must be drawn between discussions on factual matters and discussions on legal or policy issues. In every decision, panel members must determine what the facts are, what legal standards apply to those facts and, finally, they must assess the evidence in accordance with these legal standards. In this case, for example, the Board

had to determine which events led to the decision to close the Hamilton plant and, in turn, decide whether the appellant had failed tobargain in good faith by not informing of an impending plant closing either on the basis that a “de facto decision” had been taken or onsome other basis. The determination and assessment of facts are delicate tasks which turn on the credibility of the witnesses and anoverall evaluation of the relevancy of all the information presented as evidence.

As a general rule, these tasks cannot be properlyperformed by persons who have not heard all the evidence and the rules of natural justice do not allow such persons to vote on the result.Their participation in discussions dealing with such factual issues is less problematic when there is no participation in the final decision.However, I am of the view that generally such discussions constitute a breach of the rules of natural justice because they allow personsother than the parties to make representations on factual issues when they have not heard the evidence. [63] Having ruled out the discussion of factual issues and the introduction of any new evidence in the absence of the parties, the Courtwent on to add that the parties must also be informed of “any new ground” on which they have not had the opportunity to makerepresentations (Consolidated-Bathurst, at paragraph 92 [page 338]).

The Court drew a distinction between factual and legal matters,stating that the parties must be given a fair opportunity for correcting or contradicting any relevant piece of evidence prejudicial to theirview, whereas the rule with respect to legal or policy arguments not raising issues of fact is “more lenient” and only gives the parties theright to state their case adequately and to answer contrary arguments (Consolidated-Bathurst, at paragraph 93 [page 339]). [64] This dichotomy between factual matters and legal/policy issues is echoed in the penultimate paragraph of the majority’s analysis[at paragraph 94 (pages 339–340)], which reads as follows: I therefore conclude that the consultation process described by [the] Chairman … in his reconsideration decision does not violate theaudi alteram partem rule provided that factual issues are not discussed at a full board meeting and the parties are given a reasonableopportunity to respond to any new ground arising from such a meeting.

In this case, an important policy issue … was at stake and theBoard was entitled to call a full board meeting to discuss it. There is no evidence that any other issues were discussed or indeed that anyother arguments were raised at that meeting and it follows that the appellant has failed to prove that it has been the victim of anyviolation of the audi alteram partem rule.

Indeed, the decision itself indicates that it rests on considerations known to the parties uponwhich they had full opportunity to be heard. [65] I am unable to agree with the appellant that Consolidated-Bathurst and Ellis-Don leave no room for internal guidance on factualissues of the type found in the impugned JGs.

While I recognize that the plain words of the Supreme Court in these cases may lead to anunderstanding that administrative bodies’ institutional processes are restricted to questions of law and policy, I am loathe to adopt such astrict reading of the principles established by the Court and to infer that JGs dealing with particular aspects of country conditionsnecessarily infringe the principles of natural justice.

As stated in Consolidated-Bathurst, institutional constraints faced by anadministrative tribunal inform the rules of natural justice, which “do not have a fixed content” (at paragraph 69 [pages 323–324]). [66] I start with the proposition that coherence in decision making is a legitimate goal for administrative boards and tribunals. While alack of unanimity may be the price to pay for the decision making freedom and independence given to administrative decision makers, asnoted by the Supreme Court in Domtar Inc. v.

Quebec (Commission d’appel en matière de lésions professionnelles), (SCC), [1993] 2 S.C.R. 756, (1993), 105 D.L.R. (4th) 385 (Domtar), at page 800, persons affected by administrative decisions areentitled to expect that like cases will generally be treated alike, and that outcomes will not depend merely on the identity of the individualdecision maker.

This objective was recognized as a valid one in Consolidated-Bathurst, where Justice Gonthier wrote [at paragraph 74(pages 327–328)]: The second rationale for the practice of holding full board meetings is the fact that the large number of persons who participate in Boarddecisions creates the possibility that different panels will decide similar issues in a different manner. It is obvious that coherence inadministrative decision making must be fostered.

The outcome of disputes should not depend on the identity of the persons sitting on thepanel for this result would be [translation] “difficult to reconcile with the notion of equality before the law, which is one of the maincorollaries of the rule of law, and perhaps also the most intelligible one” …. Given the large number of decisions rendered in the field oflabour law, the Board is justified in taking appropriate measures to ensure that conflicting results are not inadvertently reached in similarcases.

The fact that the Board’s decisions are protected by a privative clause … makes it even more imperative to take measures such asfull board meetings in order to avoid such conflicting results. [Citation omitted.] [67] These considerations apply with equal force in the context of the I.R.B. Just like the Ontario Labour Relations Board, the I.R.B.is a high volume tribunal that annually receives and decides thousands of claims and appeals. There are hundreds of decision makersacross various regions of the country. Moreover, judicial review is subject to leave from the Federal Court.

In that context, the need forconsistency is even more obvious, and as this Court recognized in Thamotharem, the use of guidelines and other soft law techniques toachieve an acceptable level of consistency is particularly important for large tribunals exercising discretion such as the I.R.B. [68] The Supreme Court reiterated its concern for consistency in Vavilov. Referring to the above-quoted excerpts from Domtar andConsolidated-Bathurst, the Court found that administrative bodies may resort to guidelines and other soft law techniques to address thisconcern.

It even went so far as stating that a departure from longstanding practices or established internal authority without anyexplanation for so doing may be a badge of unreasonableness (Vavilov, at paragraph 131). [69] Of course, consistency should not be reached at the expense of natural justice, and must not compromise the judicialindependence of panel members and their capacity to decide on the basis of the particular facts of each case and of their opinions:Consolidated-Bathurst, at paragraph 74 [pages 327-328].

In the case at bar, the appellant argues that the impugned JGs do just that. [70] Before turning to the thrust of the appellant’s argument, which is to the effect that the JGs fetter the Board members’ discretionon questions of fact, a word must be said about the presumed violation of the audi alteram partem rule resulting from the fact that theentire record upon which the JGs are based is not disclosed to the public and to other adjudicators.

Counsel for the appellant submits thatrefugee claimants do not know the case they have to meet. [71] Admittedly, the entire record on the basis of which is made the decision designated as a JG is not disclosed. However, this is afar cry from the position that a refugee claimant is in the dark with respect to the rationale of that decision or as to the relevant factors

that may appropriately be taken into consideration to distinguish his or her situation. First of all, many of the documents in the record are cited in the decision and available for future decision makers and the public alike. As pointed out by the intervener, that documentary evidence would form part of the relevant NDP. Of course, the available record would not contain the facts that are specific to the particular claimant who was the subject of the JG, and that were adduced in his or her evidence.

However, the JGs are clearly not meant to address those particularized personal facts, but only those issues that are extraneous to a claimant’s specific circumstances. [ 72 ] The real focus of the appellant’s submission, which the Federal Court countenanced to a large extent, is the interference that the impugned JGs would have with the Board members’ independence.

As previously mentioned, the Chief Justice agreed with the appellant that the China, Pakistan and India JGs appear to encroach on the discretion of the Board members and effectively pressure them to either adopt factual conclusions or provide a reasoned justification for not doing so.

He reached that conclusion on the basis of the language used in the policy notes that accompanied the identified decisions to the effect that RPD and RAD members were “expected to apply [JGs] in cases with similar facts or provide reasoned justifications for not doing so”, without any cautionary instructions about the non-binding nature of these JGs. [ 73 ] I wholeheartedly agree that judges and quasi-judicial decision makers alike must be free to come to their own findings of fact, without any external pressure. This is one of the most sacred principles of natural justice, and a cornerstone of our legal system.

With all due respect for the contrary view, however, I fail to see how any of the impugned JGs improperly encroach upon Board members’ adjudicative independence. I come to this conclusion essentially for three reasons. [ 74 ] First, I would note that the type of factual issues set forth by the impugned JGs must be distinguished from the ones contemplated by the Supreme Court in Consolidated-Bathurst and Ellis-Don .

In Consolidated-Bathurst , for example, the Board had to determine, in light of the events that led to the decision to close a plant, whether the appellant’s failure to inform of the impending plant closing breached the duty to bargain in good faith. This exercise solely required consideration of evidence specific to the circumstances of the parties, hence the prohibition for Board members who had not heard this type of evidence, to re-assess it. [ 75 ] The same cannot be said of the reviews of country condition evidence or analytical frameworks found in the impugned JGs.

While these can be characterized as factual findings, they are of a special nature to the extent that the

[…]