HASSAN NAGI MOHAMED KALLAB ROAA ASHRAF MOHAMED KALLAB Applicants v. THE MINISTER OF, 2019 FC 706

Date: 20191004 Docket: IMM-5130-17 Citation: 2019 FC 706 Ottawa, Ontario, October 4, 2019 PRESENT: Mr. Justice Annis BETWEEN:HASSAN NAGI MOHAMED KALLAB ROAA ASHRAF MOHAMED KALLABApplicantsandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent AMENDED JUDGMENT AND REASONS I. Introduction [1] This is an application pursuant to section72 of the Immigration and Refugee Protection Act, SC 2001, c.27 [IRPA or Act] forjudicial review under the Federal Courts Act, RSC 1985, c.

F-7 [FCA] of a decision rendered by the Refugee Protection Division of theImmigration and Refugee Board of Canada [Board or RPD] dated October 25, 2017. The RPD determined that the Applicants were notcredible and therefore are not Convention refugees or persons in need of protection under sections 96 and 97(1)(

a) and (

b) of the IRPA. [2] The Applicants are stateless Palestinians who hold Egyptian travel documents issued to Palestinians. The principal Applicantbases his claim on membership in a particular social group, namely stateless Palestinians coerced into acting as informants for theKingdom of Saudi Arabia [KSA] government. [3] The female Applicant bases her claim on that of the principal Applicant and membership in a particular social group, namelywomen subject to a male employer’s unwanted touching.

Moreover, she does not want to adhere to the strict dress code and otherdiscriminatory government policies against women in the KSA. Furthermore, she politically opposes restrictions on women in the socialsphere, including the ban on women driving or being out in public without a male escort. [4] The RPD decision dismissing the claims for refugee protection focused almost entirely on adverse credibility findingsrelating to the Applicants’ testimony.

For the most part, the credibility findings consisted of the RPD’s factual inferences that refuted theApplicants’ statements upon which their claims of risk were founded. [5] In Jean Pierre v Canada (Immigration and Refugee Board), 2018 FCA 97 at paras 51-53 [Jean Pierre], the Federal Court ofAppeal held that the same considerations apply to the review of an administrative tribunal’s role as a finder of fact and a maker ofinferences of fact as those discussed in the Supreme Court decision of Housen v Nikolaisen, 2002 SCC 33 [Housen].

In Housen, theSupreme Court established that Courts should adopt a highly non-interventionist approach for the review of facts and inferences of fact.The Housen standard of review did not permit Courts to resort to a reasonability analysis of factual findings, as such an assessment wouldnot be sufficiently strict as a standard of review. [6] In the analysis that follows, I apply the considerations of Housen to the RPD’s findings of fact as a quasi-judicial truth-seeking tribunal in accordance with the standard of review principles in Housen. [7] For the purposes of this discussion, a truth-seeking tribunal is one that holds hearings to determine both the credibility andtrustworthiness of facts.

The level of deference owed to such a truth-seeking tribunal is the antipode to the correctness standard whichaffords no deference to the decision-maker on review. The factual findings of truth-seeking tribunals are owed the highest possibledeference of any administrative tribunal because they most resemble trial courts, and because factual findings are their core function, incontrast to the core function of appellate courts or judicial review courts. It is not yet apparent where to situate the Refugee AppealDivision [RAD] in its finding of facts on the deference continuum when it does not hold a hearing.

Its relationship with the RPD remainsto be clarified as questions have been certified for appeal in Rozas del Solar v Canada (Citizenship and Immigration), 2018 FC 1145. [8] Among the ratio decidendi of the matter before me is that the rule in Housen corroborates the rule in Canada (Citizenshipand Immigration) v Khosa, 2009 SCC 12 , [2009] 1 SCR 339 at paras 61, 64-67 [Khosa] that a reviewing Court should notreweigh the evidence before the RPD in search of a fact-finding error. [9] A second issue of high importance considered in this matter is whether the RPD should only make implausibility findings ofadverse credibility “in the clearest of cases.” This principle was first enunciated in Valtchev v Canada (Citizenship and Immigration),2001 FCT 776, [2001] FCJ No. 1131 (TD) at para 7 [Valtchev and the Valtchev rule] and has since gained considerable traction in thejurisprudence of this Court. [10] I conclude that the reasoning in Valtchev impermissibly raises the threshold required for the Board to make a finding ofinferential implausibility or credibility to a greater probative standard than that of a probability.

It would appear to be common ground, atleast from the Respondent’s perspective, that if so, this likely lowers the strictness of the standard of review applied to implausibility

findings and thereby fetters the Board’s authority to make findings of fact under paragraph 170(

h) of the IRPA. [11] In order to receive appropriate input with respect to these issues, I issued a Direction to the parties requesting theirsubmissions. Mr. Waldman represented the Applicants; in Valtchev, this Court relied on his text, Waldman, Immigration Law andPractice (Markham, ON: Butterworths, 1992).

I consider the parties’ submissions when addressing the standard of review and theprinciples enunciated in Valtchev. [12] In response to my Direction, the Applicants addressed the presumption of truthfulness of a sworn statement established in theFederal Court of Appeal decision Maldonado v MEI, (FCA), [1980] 2 FC 302 (CA) [Maldonado] which is anadditional factor applied in Valtchev. [13] After considering the scope of the Maldonado rule, I found that, when interpreted contextually, it applies only to thecredibility of evidence factor set forth in paragraph 170(

h) of the IRPA, and not the factor relating to the trustworthiness of that evidence. [14] Rather than a presumption of a sworn statement’s trustworthiness, which applies at the commencement of an RPD hearing, Iconclude that the “benefit of the doubt rule” in the UNCHR Handbook and Guidelines on Procedures and Criteria for DeterminingRefugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Reissued Geneva, December 2011,at paragraphs 203 to 205, [UNHCR refugee handbook] applies.

The benefit of the doubt rule has effect at the conclusion of the hearing,and only if the refugee claimant made a genuine effort to substantiate the sworn statement, which is otherwise found to be credible. II. Facts [15] The principal Applicant is a 32-year-old stateless Palestinian born and raised in the KSA.

He holds a university degree inengineering and has been employed by Naizal Global Engineering Company, first as a System Engineer from August 2010 to October 3l,2014, and then promoted to the position of Engineering Manager before leaving the KSA in July 2017. [16] The principal Applicant alleges that his problems began after he returned from a business trip to Spain. On June 20, 2017, hereceived an unusual telephone call from a man who identified himself as Nasir Al-Kabtany from the Bureau of Investigation andProsecution. Mr.

Al-Kabtany stated that he knew the principal Applicant’s history and that he was a well-regarded employee. Herequested to meet the principal Applicant one week later. After discussing with his father and brother, the principal Applicant met Mr.Al-Kabtany who asked him to inform on three colleagues. The principal Applicant informed his father about the encounter with Mr. Al-Kabtany, after he departed for Canada, where some of his relatives reside. [17] The female Applicant is a dentist. She was educated in the KSA but received her dental training in Egypt. She and theprincipal Applicant had an arranged marriage.

Her family has lived successfully in the KSA for at least three generations and her fatheris a well-established electrical engineer. The RPD found that while the family may not hold citizenship in the KSA, they have been ableto work and enjoy a remarkable lifestyle there. Her mother is also university educated and has four brothers who immigrated to Canadashortly after the Applicants. They also advanced separate refugee claims. The principal Applicant’s father remains in the KSA. [18] The female Applicant claims that she was a victim of discrimination in the KSA.

She alleges that she could not attenduniversity in the KSA and therefore studied dentistry in Egypt. She alleges that she had difficulty finding work in the KSA. Thediscrimination she experienced in the KSA required her to adhere to a strict dress code and other restrictions on women in the socialsphere, including the ban on women driving or going out without a male escort. [19] The Applicants left the KSA on July 9, 2017, first traveling to the United Arab Emirates and thereafter to the United States.They both filed refugee claims at the Canadian border on July 13, 2017.

Their son was born in Canada in August 2017, one month afterthey arrived. [20] The RPD rejected the Applicants’ claims on implausibility findings of adverse credibility. Essentially, the RPD judged theirevidence to not be reasonable on a balance of probabilities.

The decision is summed up at paragraphs 17 and 20 to 22 of the RPD’sreasons: [17] … The panel finds, on a balance of probabilities, that the principal claimant fabricated the story in order to support a fraudulentrefugee claim… […] [20] … The female claimant has not provided a reasonable explanation for her not reporting this incident to the authorities or thelicensing body of dentists in KSA… [21] … The panel finds, on a balance of probabilities, that the female claimant does know why her mother and brothers have maderefugee claims and that she knows why her father is remaining in KSA. [22] When all of the above is taken into consideration, the panel finds, on a balance of probabilities, that the claimants’ evidence isnot credible.

III. Relevant legislation [21] The relevant portions of

section 170 of the IRPA, with my emphasis, read as follows:

170. The Refugee Protection Division, in any proceeding before it, (

a) may inquire into any matter that it considers relevant to establishing whether a claim is well-founded; (

b) must hold a hearing; (

c) must notify the person who is the subject of the proceeding and the Minister of the hearing; […] (d.1) may question the witnesses, including the person who is the subject of the proceeding; (

e) must give the person and the Minister a reasonable opportunity to present evidence, question witnesses and make representations; […] (

g) is not bound by any legal or technical rules of evidence; (

h) may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances ; and (

i) may take notice of any facts that may be judicially noticed, any other generally recognized facts and any information or opinion that is within its specialized knowledge. 170. Dans toute affaire dont elle est saisie, la

Section de la protection des réfugiés :

a) procède à tous les actes qu’elle juge utiles à la manifestation du bien-fondé de la demande;

b) dispose de celle-ci par la tenue d’une audience;

c) convoque la personne en cause et le ministre; […] d.1) peut interroger les témoins, notamment la personne en cause;

e) donne à la personne en cause et au ministre la possibilité de produire des éléments de preuve, d’interroger des témoins et de présenter des observations; […]

g) n’est pas liée par les règles légales ou techniques de présentation de la preuve;

h) peut recevoir les éléments qu’elle juge crédibles ou dignes de foi en l’occurrence et fonder sur eux sa décision;

i) peut admettre d’office les faits admissibles en justice et les faits généralement reconnus et les renseignements ou opinions qui sont du ressort de sa spécialisation. IV. Issues [ 22 ] I find that this matter raises the following issues for consideration: 1. What is the standard of review for the Board’s findings of fact, and inferential findings of fact, including questions of mixed fact and law, in light of the direction from the Federal Court of Appeal in Jean Pierre that the considerations discussed in Housen apply in the administrative law context? 2.

Is the rule in Valtchev that the Board may only make implausibility findings of adverse credibility in the clearest of cases good law? 3. Whether, in this case, the RPD erred by making implausibility findings of adverse credibility? 4. Whether, in this case, the RPD made reviewable fact-finding process errors by ignoring crucial evidence, and by relying on immaterial evidence? 5. Whether, in this case, the RPD breached the Applicants’ right to procedural fairness by denying them an opportunity to respond to its concerns about their residency documents? V.

Standard of review [ 23 ] The first issue, regarding the appropriate standard of review to be applied by the Federal Court to the Board’s factual findings, is a question of pure law going to the jurisdiction of the Court to discharge its functions. This issue must therefore be reviewed on a correctness standard.

To make this determination, the Court must determine if Jean Pierre , which introduced the Housen principles with respect to the review of factual findings to the administrative context, has modified the standard of review presently followed by the Court. [ 24 ] The parties submitted that the second issue of this Court’s disagreement with the Valtchev rule, established in previous Federal Court jurisprudence, is a matter to be decided in accordance with the principles of judicial comity.

Recall that judicial comity calls upon judges not to depart from the conclusions of law of other judges of the same Court, unless he or she is convinced that the departure is necessary and can articulate cogent reasons for doing so, such as when the preceding jurisprudence was wrong: Apotex Inc. v

Allergan Inc., 2012 FCA 308, paras 43-48. [25] I agree that the principle of judicial comity applies with respect to a Court’s differences of opinion with previous rulings of thesame Court.

This implies that the Court should be held to a standard of correctness in its reasoning as a ground for not following the ruleof judicial comity. [26] With respect to the third issue, regarding the credibility findings of implausibility, these are to be reviewed on areasonableness standard to be defined by the conclusion of the first issue. [27] With respect to the fourth and fifth issues, regarding whether the RPD ignored crucial evidence, relied on immaterialevidence, and breached the Applicants’ right to procedural fairness by failing to provide them with an opportunity to respond to concernsabout a document, these are all alleged process errors and shall be reviewed on a correctness standard.

A. Standard of review of facts and inferential facts

(1) Fact-finding fundamentals (

a) An inferential finding of fact [28] The concept of interpreting the primary evidence in the inference drawing process and the requirement that the inductiveconclusion only must follow with some degree of probability, rather than of necessity, is explained in the decision of R. v Munoz, 86 OR(3d) 134, (ON SC) at para 23, as follows with my emphasis: [23] While the jurisprudence is replete with references to the drawing of "reasonable inferences", there is comparatively littlediscussion about the process involved in drawing inferences from accepted facts.

It must be emphasized that this does not involvedeductive reasoning which, assuming the premises are accepted, necessarily results in a valid conclusion. This is because the conclusion[in a deduction] is inherent in the relationship between the premises. Rather, the process of inference drawing involves inductivereasoning which derives conclusions based on the uniformity of prior human experience. The conclusion is not inherent in the offeredevidence, or premises, but flows from an

interpretation of that evidence derived from experience. Consequently, an inductive conclusionnecessarily lacks the same degree of inescapable validity as a deductive conclusion. Therefore, if the premises, or the primary facts, areaccepted, the inductive conclusion follows with some degree of probability, but not of necessity. Also, unlike deductive reasoning,inductive reasoning is ampliative as it gives more information than what was contained in the premises themselves.

(2) Distinguishing fact-finding weight and process errors [29] The Law of Evidence, authored by Ontario Court of Appeal Justice David Paciocco and Professor Lee Stuesser [PacioccoText], provides some useful explanations of terms to bear in mind when considering the distinction between fact-finding errors relatingto the process followed to determine a fact, as opposed to the weighing and assessment of evidence to find a fact, in its

chapter “TheBasics of Admissibility and the Evaluation of Evidence”. The Paciocco Text is also useful to demarcate the distinction between thecredibility and trustworthiness aspects of fact-finding. [30] The Paciocco Text notes that as a condition for admissibility, evidence must be relevant (whether the evidence makes a fact itis directed to more or less likely) and material (directed to a material issue in the proceedings) [together often described as logicalrelevance].

These conditions being satisfied, the question becomes what probative value or weight to accord the evidence (beingbelievable or informative, i.e. credible or trustworthy). [31] The Board’s fact-finding errors may generally arise in two different circumstances. The first arises out of the manner in whicha tribunal conducts the fact-finding process. It is described as a fact-finding process error [“process error”]. Issues of relevance andmateriality of evidence typify a process error, among others.

The second form of fact-finding error occurs in the weighing or assessmentof the probative value of evidence to form a fact. This is described as a fact-finding assessment error [“assessment error”]. [32] Process errors are not to be treated with deference. They raise issues of fairness to be considered on a correctness standard.Process errors are well described in Judicial Review of Administrative Action in Canada, D. J. M. Brown & The Honourable J. M.

Evans,14:3520 [Judicial Review of Administrative Action], at 4:3420 under the heading “Other Fact-Finding Process Errors”, as follows withmy emphasis: As well, the duty of fairness imposes certain limitations on the manner in which an agency can conduct the fact-finding process. Forinstance, the agency may not prevent a party from tendering evidence that is relevant to the issues in dispute, nor can it receive evidenceex parte without disclosing it to the other party for rebuttal.

In addition, whether a tribunal has erred either by admitting and relying uponirrelevant evidence, by purporting to take judicial notice of facts that were not notorious, by failing to make necessary factual findings tosupport a constitutional challenge, by wrongly drawing adverse inferences, by excluding relevant evidence, by failing to considerrelevant evidence, including expert evidence, by failing to make relevant inquiries, by failing to resolve conflicts in the evidence or bygenuinely misunderstanding the evidence, will usually all be decided by the reviewing court without deference to the decision of theadministrative agency.

Similarly, questions as to the burden and standard of proof are matters on which a reviewing court will usuallysubstitute its conclusion for that of the agency, as it will where evidence is weighed without apparent regard to statutory presumptions. [33] To clear up any confusion that may be attributed to the term “wrongly drawing adverse inferences” referred to in the abovepassage, the following cases were cited in support of this reference.

They indicate that this form of process error does not involve theweighing of evidence, but rather entails issues of fairness: • Audmax Inc. v Ontario Human Rights Tribunal, 2011 ONSC 315 (Superior Court of Justice, Divisional Court) at para 43:(adverse inference drawn from the employer’s failure to call a witness);

• Bajwa v Canada (Immigration, Refugees and Citizenship), 2017 FC 202 at para 70: (failure to provide a reasonable opportunityto disabuse the Visa Officer of her credibility concerns); and • Walton v. Alberta (Securities Commission), 2014 ABCA 273 at paras: 143-7 (failure to follow Browne v Dunn (1893) 6 R 67,H.L. in cross-examination seriously weakens the Alberta Securities Commission’s inference as to credibility). [34] The excerpted passage above sets forth the most common process errors encountered in Board decisions.

They include:admitting and relying on irrelevant evidence, failing to consider relevant evidence that a party specifically raises, including expertevidence (which, as a pre-condition, must be initially admissible, per R v Mohan, [1994] 2 SCR 9, ), genuinelymisunderstanding the evidence (i.e. clearly misapprehending the evidence as opposed to interpreting or arguing as to its meaning). Whenthe Board makes a factual finding without any supporting evidence at all, this might be classified under either heading as a weight-basederror or a process error depending on the circumstances.

In either case, the error is plain to see. [35] In this matter, the Applicants submit that the RPD committed a process error by failing to consider relevant evidence and byrelying on immaterial evidence. These issues are reviewed on a correctness standard. [36] Likewise, it will be seen that Valtchev raises the requirement to consider cultural factors as a rationale for its rule thatimplausibility findings of credibility should only be made in the clearest of cases.

In this Court’s respectful view, issues relating to theconsideration of cultural factors would most likely fall under the process error rubric, on the contention that the Board did not considerrelevant evidence that a party brought forward. This type of error should be reviewed on a correctness standard as it raises fairnessissues. Otherwise, cultural factors might contribute to the probative value accorded to some aspect of the evidence.

This is a matter ofweight attributed to the finding of a fact at issue, and is therefore subject to the highest deference possible in the review of such findings,even more so if they relate to a witness’s credibility. [37] Unless otherwise specifically mentioned, the following discussion of issues is limited to assessment-findings of fact, notprocess-findings of fact.

(3) Mixed findings of fact and law [38] To complete the survey of the standard of judicial review of the Board’s factual determinations, Housen is again helpful in itsdescription of the distinction between findings of fact and mixed findings of fact and law at paragraph 26 and

summary at paragraphs 36and 37, as follows with my emphasis: 26 At the outset, it is important to distinguish questions of mixed fact and law from factual findings (whether direct findings orinferences). Questions of mixed fact and law involve applying a legal standard to a set of facts: Canada (Director of Investigation andResearch) v. Southam Inc., (SCC), [1997] 1 S.C.R. 748, at para. 35. On the other hand, factual findings or inferencesrequire making a conclusion of fact based on a set of facts.

Both mixed fact and law and fact findings often involve drawing inferences;the difference lies in whether the inference drawn is legal or factual. Because of this similarity, the two types of questions are sometimesconfounded. This confusion was pointed out by A. L.

Goodhart in “Appeals on Questions of Fact” (1955), 71 L.Q.R. 402, at p. 405: The distinction between [the perception of facts and the evaluation of facts] tends to be obfuscated because we use such a phrase as “thejudge found as a fact that the defendant had been negligent,” when what we mean to say is that “the judge found as a fact that thedefendant had done acts A and B, and as a matter of opinion he reached the conclusion that it was not reasonable for the defendant tohave acted in that way.” […] 36 To summarize, a finding of negligence by a trial judge involves applying a legal standard to a set of facts, and thus is a questionof mixed fact and law.

Matters of mixed fact and law lie along a spectrum. Where, for instance, an error with respect to a finding ofnegligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similarerror in principle, such an error can be characterized as an error of law, subject to a standard of correctness. Appellate courts must becautious, however, in finding that a trial judge erred in law in his or her determination of negligence, as it is often difficult to extricate thelegal questions from the factual.

It is for this reason that these matters are referred to as questions of “mixed law and fact”. Where thelegal principle is not readily extricable, then the matter is one of “mixed law and fact” and is subject to a more stringent standard. Thegeneral rule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge’s

interpretation of theevidence as a whole, it should not be overturned absent palpable and overriding error. 37 In this regard, we respectfully disagree with our colleague when he states at para. 106 that “[o]nce the facts have beenestablished, the determination of whether or not the standard of care [a term in negligence law] was met by the defendant will in mostcases be reviewable on a standard of correctness since the trial judge must appreciate the facts within the context of the appropriatestandard of care.

In many cases, viewing the facts through the legal lens of the standard of care gives rise to a policy-making or law-setting function that is the purview of both the trial and appellate courts”. In our view, it is settled law that the determination of whetheror not the standard of care was met by the defendant involves the application of a legal standard to a set of facts, a question of mixed factand law.

This question is subject to a standard of palpable and overriding error unless it is clear that the trial judge made some extricableerror in principle with respect to the characterization of the standard or its application, in which case the error may amount to an error oflaw. [39] To precis the conclusions from paragraph 36 of Housen, it is first necessary to distinguish the situation as one of mixed factand law, and thereafter determine whether it is possible to extricate the legal questions from the factual ones.

If so, and the error isfundamentally legal in nature, it is reviewed on a correctness standard, subject to the principles in Dunsmuir v New Brunswick, [2008] 1SCR 190, 2008 SCC 9, that direct many of these questions to the tribunal’s expertise. If the legal principle is not extricable, then theentire mixed question of fact and law is reviewed on the highly deferential, non-interventionist standard applying to findings of fact thatcan only be overturned in the clearest of cases.

(4) The standard of review of the Board’s findings of fact [40] This Court’s decision in Njeri v Canada (Minister of Citizenship and Immigration), 2009 FC 291 [Njeri] describes the leastinterventionist standard of review for findings of fact at paragraph 11 where Justice Phelan stated, with my emphasis as follows: [11] On credibility findings, I have noted the reluctance that this Court has, and should have, to overturn such findings except in theclearest case of error (Revolorio v. Canada (Minister of Citizenship and Immigration), 2008 FC 1404 ).

The deference owedacknowledges both the contextual circumstances and legislative intent, as well as the unique position that a trier of fact has to assesstestimonial evidence. That deference is influenced by the basis upon which credibility is found.

The standard is reasonableness subject toa significant measure of deference to the Immigration and Refugee Board. [41] I understand that in Odia v Canada (Citizenship and Immigration), 2018 FC 363 at para 6 [Odia], Justice Boswell is the onlyother judge of this Court to rely on Njeri for that principle, apart from myself: Ramos Aguilar v Canada (Citizenship and Immigration),2019 FC 431at para 29; Abiobun v Canada (Citizenship and Immigration), 2019 FC 299 at para 10; Amin v Canada (Citizenship andImmigration), 2019 FC 295 at para 17; Gamez Barrientos v Canada (Citizenship and Immigration), 2018 FC 1220 at para 14.

Otherwise,this Court generally applies an interventionist standard of review of the Board’s factual findings based on the reasonability principles ofDunsmuir. [42] For the numerous reasons that follow, I conclude that the statement in Jean Pierre that “the same considerations apply equallyto the review of an administrative tribunal’s role as a finder of fact and a maker of inferences of fact” should supplement Justice Phelan’sstatement in Njeri regarding the standard of review applied to the Board’s factual findings.

This precludes a reasonability analysis inconsideration of an alleged error of fact. [43] The standard of review applied to factual findings in Housen precludes a reasonability analysis of factual findings, whichwould amount to an insufficiently strict standard of review that involves reweighing evidence. For that reason, I equate “clearest case oferror” in Njeri to the term “plain to see” adopted by the Supreme Court in Housen to describe a “palpable” error arising from a factualfinding.

More significantly, I conclude that Housen’s preclusion of a reasonability analysis to assess alleged errors of factual findingsequally applies to the Court’s assessment of the Board’s findings of fact, as apparently held by the Federal Court of Appeal in JeanPierre at paras 51-53. [44] This is in opposition to the Court’s standard of review of facts adopted throughout its jurisprudence based upon a reasonabilityanalysis as prescribed by the Supreme Court in Dunsmuir, with a reference to Khosa that the Court is not to reweigh the evidence.

Thisanalysis invariably requires an examination of every aspect of how the fact was found. The result is then expressed, in the context of anoverall decision, that it fall within the range of possible acceptable outcomes, and be expressed by justified, transparent, and intelligiblereasons. Reviewing Courts very rarely state that “some evidence” supporting the Board’s factual finding is a reason not to interfere withthe finding in question. [45] In my respectful view, this leads the Court to determine, in its own mind, if the decision is reasonable.

Frequently, this Courtdoes so without recognizing that it is weighing the evidence, which is what the Supreme Court in Housen implies invariably happenswhen a reasonability analysis is applied to factual findings. In my view, this follows from the fact that once the Court starts areasonability analysis of facts, it will take that analysis to its logical conclusion, which necessarily entails weighing the evidence thatwas before the administrative tribunal. It is also because it is difficult for judges to constrain themselves when it comes to reviewingfacts.

This was the opening statement that the Court made in Housen at para 4: “While the theory [not to interfere unless there is apalpable and overriding error] has acceptance, consistency in its application is missing”. [46] The parties’ response to my Direction on these issues confirms my understanding of the approach that this Court generallyadopts in reviewing factual findings. The Applicants’ response, with my emphasis, reads as follows: The Applicant agrees that Dunsmuir sets out the proper test for the standard of review to be applied in this case.

The applicant agreesthat the standard of review requires that the Court defer to the findings of fact of the tribunal. However, in each case the Court has theobligation of reviewing the record and the reasons to ensure that the decision is within the range of possible outcomes in order todetermine whether or not the decision is reasonable.” [47] The Respondent’s proposal of the appropriate standard of review is somewhat more ambiguous. Eventually, it comes back tothe same standard that the Applicants propose.

The Respondent initially recognizes that “Housen is equally applicable to guide standardsof judicial review to truth-seeking quasi-judicial tribunals such as the RPD”.

The Respondent further submits that Housen supports thestandard of review expressed in Njeri. [48] But then, the Minister turns around and declares that “the ’clearest of cases of error’ terminology in Njeri may be hyperbole,similar to the language of ’in the clearest of cases’ expressed in Valtchev.” Thereafter, the Respondent submits that Dunsmuir hasreplaced the “patently unreasonable” standard, apparently with the view that Dunsmuir was intended to render less strict the test foradministrative tribunals’ findings of fact.

The Minister concludes that “given that patent unreasonableness is no longer a standard ofreview … The standard of review to be applied is simply reasonableness with deference to the RPD.” [49] I respectfully disagree with the Respondent’s implied conclusion that in Dunsmuir, the Court’s intention was to establish amore interventionist standard of review of facts than the previous patently unreasonable standard. The opposite conclusion would bemore appropriately measured by the ratio decidendi of Housen that this Court directed the parties to consider.

If it is impermissible toapply a reasonability analysis on review of the trial Judge’s inferences of fact because that amounts to reweighing the evidence, giventhe universal nature of inferential findings of fact, this rule should equally apply to the review of all forms of factual findings made bythe Board, which is a quasi-judicial tribunal. [50] Moreover, I am not aware of a precedent to the effect that the factual findings of a quasi-judicial truth-seeking tribunal, likethe Board, should be owed amongst the highest degrees of deference with respect to its findings of fact, in comparison to other

administrative decision-makers.

In respect of these findings, there has been no attempt to crystallize and state in clear, practical and appropriate terms “Dunsmuir's recognition that reasonableness must be assessed in the context of the particular type of decision making involved and all relevant factors ” : Catalyst Paper Corp v North Cowichan (District) , 2012 SCC 2 , [2012] 1 SCR. 5, at para 18 [my emphasis]. [ 51 ] In other words, the Board’s factual findings are not yet understood to be at the polar opposite end of the lowest “intervention scale” from findings reviewable on the correctness standard at the highest end.

In my view, factual findings should be subject to a similar, but opposite form of “bright line” , non-interventionist review. This is the ineluctable conclusion that flows from Housen . [ 52 ] Finally, it should be understood that the procedure of fact-finding analysis is distinct from that used to determine the decision’s outcome. The review of facts is a prerequisite to be completed before applying the principles of Dunsmuir . By this process, the fact-finding element of review is not in conflict with the principles of Dunsmuir .

Rather, it is simply recognized as a separate specialized task that the Board must undertake which requires a specialized contextual standard of review as outlined in Housen . Once the conclusions on the facts are completed, if found to be in error, there remains the issue of applying the principles in Dunsmuir to determine whether the decision should be set aside, or not. B. Housen principles of the standard of review of factual findings

(1) The rule in Housen precludes a reasonability analysis of the weight of a factual finding because the reasonability standard is insufficiently strict [ 53 ] The veritable debate among Housen Court members was whether the minority view correctly held that in reviewing an inferential finding of fact “the appeal court will verify whether it can reasonably be supported by the findings of fact that the trial judge reached.” The five-member majority concluded that any reasonability analysis of the inference drawing step was impermissible.

The reviewing court could only determine whether the alleged error was “plain to see” (ie. palpable). [ 54 ] Two rationales underlay the majority conclusion that a reasonability analysis is not permitted as a standard of review for the step that entails drawing an inference of fact. The first rationale is explained in this section. It relates to the (universal) nature of the process employed to draw an inferred fact from the primary evidence and facts. The process involves assessing the weight of the primary facts based on the uniformity of human experience and logic (ie. an inductive process).

A reasonability analysis is an insufficiently strict standard of review that is inconsistent with a highly non-interventionist approach required for the review of factual findings. [ 55 ] This rationale is described in Housen at paras 19 and 21 to 23 .

In these passages, the majority first refers to and ultimately rejects the minority’s contention that an appellate court may conduct a reasonability analysis of the trial Judge’s inference drawing process because the test is not sufficiently strict: 19 We find it necessary to address the appropriate standard of review for factual inferences because the reasons of our colleague suggest that a lower standard of review may be applied to the inferences of fact drawn by a trial judge .

With respect, it is our view, that to apply a lower standard of review to inferences of fact [my emphasis] would be to depart from established jurisprudence of this Court, and would be contrary to the principles supporting a deferential stance to matters of fact. [My emphasis] […] 21 In discussing the standard of review of the trial judge’s inferences of fact, our colleague states, at para. 103, that: In reviewing the making of an inference, the appeal court will verify whether it can reasonably be supported by the findings of fact that the trial judge reached and whether the judge proceeded on proper legal principles...

While the standard of review is identical for both findings of fact and inferences of fact, it is nonetheless important to draw an analytical distinction between the two. If the reviewing court were to review only for errors of fact, then the decision of the trial judge would necessarily be upheld in every case where evidence existed to support his or her factual findings . In my view, this Court is entitled to conclude that inferences made by the trial judge were clearly wrong, just as it is entitled to reach this conclusion in respect to findings of fact. With respect, we find two problems with this passage.

First, in our view, the standard of review is not to verify that the inference can be reasonably supported by the findings of fact of the trial judge, but whether the trial judge made a palpable and overriding error in coming to a factual conclusion based on accepted facts, which implies a stricter standard [my emphasis]. [Emphasis of the Supreme Court.] [ 56 ] First and foremost, it is not the reviewing court’s role to verify whether an inference can reasonably be supported by the findings of fact that the trial Judge reached; this would result in the application of an insufficiently strict standard.

Therefore, if this reasoning of Housen is applied by the Federal Court in the context of judicial review, the Court would not be permitted to conduct a reasonability analysis of an inference drawn by the RPD or any other similar quasi-judicial administrative tribunals. On this basis alone, Valtchev , and all of the subsequent accompanying jurisprudence that the Applicants put forward with respect to implausibility findings of credibility, are incorrect in law. Rather, the Court is limited to determining whether the alleged error, the tribunal’s finding of the inferential fact, is plain to see.

As the Federal Court of Appeal held in Jean Pierre by relying on the principles of Housen , this Court’s role on judicial review is to “examine the legality of the tribunal’s decision in light of its reasons and the presence of evidence in the record capable of supporting its conclusions ” (at para 52) with my emphasis. [ 57 ] It is very simple to apply this test: is there any evidence that could support the tribunal’s finding? Alternatively, does the Court find that it is evaluating the evidence’s weight, as opposed to asking whether some evidence supports the factual finding?

Obviously, the Court is not referring here to process-findings of fact, which are reviewed on a correctness standard. This test is also

commensurate with the applicable ground of review set forth in paragraph 18.1(4) (

d) of the FCA , which permits the reviewing Court to intervene if it is satisfied that the tribunal “based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it ” [my emphasis] ( “a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose” ), (See Khosa at paras 45-46 ). Plainly, the grounds for judicial review provided in the FCA and the Supreme Court’s

interpretation thereof in Khosa expressly ousted this Court’s ability to weigh evidence, while the Court may find a reviewable error arising from conclusions drawn that are not supported by the evidentiary record at all. [ 58 ] Second, the statement in Housen that “the reasons of our [minority] colleague suggest that a lower standard of review may be applied to the inferences of fact drawn by a trial judge” [my emphasis] refers to the standard of review of a direct fact, i.e. one that is drawn directly from the evidence, such as from a statement that is believed truthful.

In effect, another way to state the ratio decidendi of Housen is that the same standard applies to all findings of fact howsoever found. [ 59 ] Third, the majority in Housen also adopts, to some extent, the minority’s rationale, when in discussing the step of drawing inferences, which it relies on to uphold its argument that a reasonability analysis was permitted because “[i]f the reviewing court were to review only for [primary] errors of fact, then the decision of the trial judge would necessarily be upheld in every case where evidence existed to support his or her factual findings” .

The majority basically agrees with this outcome in paragraph 22 (and in paragraph 23), at least when it holds that if the primary facts are not in dispute, the reviewing court will be “ hard-pressed ” to overturn the inference. This is described in paragraph 22, with my emphasis as follows: 22 Second, with respect, we find that by drawing an analytical distinction between factual findings and factual inferences, the above passage may lead appellate courts to involve themselves in an unjustified reweighing of the evidence .

Although we agree that it is open to an appellate court to find that an inference of fact made by the trial judge is clearly wrong, we would add the caution that where evidence exists to support this inference, an appellate court will be hard pressed to find a palpable and overriding error. As stated above, trial courts are in an advantageous position when it comes to assessing and weighing vast quantities of evidence. In making a factual inference, the trial judge must sift through the relevant facts, decide on their weight, and draw a factual conclusion.

Thus, where evidence exists which supports this conclusion, interference with this conclusion entails interference with the weight assigned by the trial judge to the pieces of evidence. [ 60 ] Fourth, and of importance, because it refers to the universality of how an inference is drawn, at para 22 the Housen Court explains that the rationale for precluding a reasonability analysis of factual findings is that it would entail “an unjustified reweighing of the [primary] evidence” .

This is similar to the Supreme Court’s conclusion in Khosa at para 61 , that it was not “the function of the reviewing court [the Federal Court] to reweigh the evidence before the IAD [Immigration Appeal Division]” . [ 61 ] It is my understanding that while the Court in Khosa held that, in accordance with the principles of Dunsmuir , reasonableness was the applicable standard of review for the outcome of the decision, assessment of factual findings was nevertheless exempted from this form of review because the court was not to reweigh the evidence. [ 62 ] When the Court in Dunsmuir held that reviewing courts must determine, by a reasonability analysis, if the outcome falls within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law” [my emphasis] , the finding of those facts based on the weight given the evidence by the tribunal was not subject to challenge by a reasonability analysis, because the reviewing court was not to reweigh the evidence which necessarily involves an analysis of this nature. [ 63 ] This Direction of the majority in Khosa was made in specific response to Justice Fish’s conclusion.

The Court accepted that the reasonableness standard applied, but it remains that such a standard does not permit the reviewing court to reweigh the evidence before the tribunal, as follows: [61] My colleague Fish J. agrees that the standard of review is reasonableness, but he would allow the appeal. He writes: While Mr.

Khosa’s denial of street racing may well evidence some “lack of insight” into his own conduct, it cannot reasonably be said to contradict — still less to outweigh, on a balance of probabilities — all of the evidence in his favour on the issues of remorse, rehabilitation and likelihood of reoffence. [para. 149 with my emphasis] I do not believe that it is the function of the reviewing court to reweigh the evidence . [ 64 ] It is my understanding that Housen simply amplifies what the Supreme Court meant by holding that reviewing courts shall not reweigh the evidence.

The practical application of this direction can be reformulated into the rule that the reviewing Court is not to intervene “if there was some evidence upon which he or she [the trial Judge] could have relied to reach that conclusion” : Housen at para 1 [emphasis added].

Thus, the restated rule in Housen only permits the reviewing court to determine whether there is some evidence to support the finding, which should be plain to see. [ 65 ] Going beyond the limited search for some evidence, will likely lead the Court to reassess the evidence as a whole, which necessarily entails a reasonability analysis of the facts. Thus, in my understanding, the rule in Khosa may be described by three statements intended to limit this Court’s jurisdiction to intervene in a finding of fact: not to reweigh the evidence; only some supporting evidence is required; and the error must be plain to see.

They reflect the highest standard of deference that can possibly be afforded to a quasi-judiciary tribunal’s findings of fact. [ 66 ] Fifth, in Housen the Court further stated at para 23 in that “it is only where the inference-drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion” . This refers to a process error discussed above, for example where the primary facts are not relevant to the ampliative inferred fact. Again, this is another lesson for reviewing courts that, short of a process error, it will be “hard-pressed” to intervene.

Paragraph 23 reads as follows, with my emphasis: 23 We reiterate that it is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference-drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion . The

appellate court is not free to interfere with a factual conclusion that it disagrees with where such disagreement stems from a difference ofopinion over the weight to be assigned to the underlying facts. …. [67] Although perhaps not necessary given the Federal Court of Appeal’s endorsement of Housen principles, recall that a “palpableerror” is defined in Housen, in more prosaic language at paragraphs 5 and 6, as an error that is “clear to the mind or plainly seen”, asfollows with my emphasis: 5 What is palpable error?

The New Oxford Dictionary of English (1998) defines “palpable” as “clear to the mind or plain to see” (p.1337). The Cambridge International Dictionary of English (1996) describes it as “so obvious that it can easily be seen or known” (p.1020). The Random House Dictionary of the English Language (2nd ed. 1987) defines it as “readily or plainly seen” (p. 1399). 6 The common element in each of these

definitions is that palpable is plainly seen. Applying that to this appeal, in order for theSaskatchewan Court of Appeal to reverse the trial judge the “palpable and overriding” error of fact found by Cameron J.A. must beplainly seen.

As we will discuss, we do not think that test has been met. [68] In this regard, it bears mentioning that time after time, appellate Courts have employed exceedingly strict, and oftenmetaphorical, language to describe the palpable and overriding error standard of review: Palpable and overriding error is a highly deferential standard of review . . . . “Palpable” means an error that is obvious. “Overriding”means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pullat leaves and branches and leave the tree standing.

The entire tree must fall. (Benhaim v. St-Germain, 2016 SCC 48 , [2016] 2SCR 352 at para 38 [Benhaim], citing Canada v. South Yukon Forest Corporation, 2012 FCA 165 at para 46). “[Translation]…a palpable and overriding error is in the nature not of a needle in a haystack, but of a beam in the eye. And it isimpossible to confuse these last two notions” (Benhaim at para 39, citing J.G. v.

Nadeau, 2016 QCCA 167 at para 77). [69] Looking ahead to my analysis of the rule in Valtchev, the Respondent submits that the phrase “in the clearest of cases” as arequirement for the Board to draw an adverse credibility finding, does not describe a higher standard of the weight of evidence than thatof a probability. I disagree. The grammatical meaning of those words clearly imposes a higher evidentiary threshold on the Board to drawan inferential plausibility finding. Moreover, these words have a well-established definition in Canadian jurisprudence to that effect.

ThisCourt consistently applies Valtchev in support of a highly interventionist approach to overturn implausibility findings of fact. [70] The principle in Housen that drawing inferences involves weighing evidence is also described in Judicial Review ofAdministrative Action in Canada at paragraph 14:3520, as follows with my emphasis: In essence, drawing an inference amounts to a process of reasoning by which a factual conclusion is deduced as a logical consequencefrom other facts established by the evidence.

And although it is sometimes said that "weighing" the evidence is distinct from drawinginferences, drawing inferences from the primary facts will generally involve making judgments about the weight or significance of theevidence. In any event, today it is clear that whatever the task involved, the facts as found are subject to the same standard of review. [71] Thus, the Supreme Court decision in Khosa implicitly supports the rule in Housen that precludes a reasonability analysis onreview of the inference drawing process.

This rule has come to be recognized as applicable to the review of factual findings ofadministrative tribunals generally. Seen in this light, I conclude that in Jean Pierre the Federal Court of Appeal restated that theprinciples in Khosa should be applied as intended by the Supreme Court in Housen. [72] The final point I would make is one of nomenclature. In this Court, an inferential finding of fact relating to credibility is calleda plausibility finding. With respect, a slightly more appropriate phrase would be an “implausibility finding”, because the inference isused to deny a fact as stated by a witness.

However, it would be even more appropriate to describe the impugned fact as “animprobability”.

This would better reflect that the threshold of evidence, as a likelihood, that is required to find the inference that deniesthe impugned statement of fact. [73] In closing out this section, I think psychologically for judges reviewing inferential findings that in some measure the mostdifficult aspect of accepting the principles set forth in both Khosa and Housen by the limitation of a reasonableness standard in thereview of facts, is that while the Board should only draw reasonable inferences, the standard of review for reasons of policy, onlypermits intervention when “plain to see” errors of fact are made by the board (or by synonymic phrases, “wholly unreasonable to do so”,or “in the clearest of cases”).

Policy issues are addressed below.

(2) The reviewing court is not just as well situated as the Board in making inferential credibilityfindings, nor is a tribunal required to provide a clear rationalization process to support its inferences. [74] The above title describes two different concepts. The first speaks to the reviewing court’s capacity and authority to draw thesame inference on the primary facts as the Board. The minority Judges in Housen attempted to argue this point, which the majorityultimately rejected.

The principle that the Court is often just as capable as the Board in drawing an inference is found throughout the caselaw that the Applicants cite in their initial memorandum, with particular emphasis on implausibility findings: Cao v Canada (Citizenshipand Immigration), 2007 FC 819 at para 7 [Cao]; see also Martinez Giron v Canada (MCI), 2013 FC 7, at paras 17-19, citing Divsalar vCanada (MCI), 2002 FCT 653 at para 22; Yada v Canada (MEI), [1998] FCJ No 37 (QL), (FC) at para 25.

I concludethat, in the face of Khosa and Housen (and now Jean Pierre), this jurisprudence should have no application; those cases precludereviewing courts from conducting a reasonability analysis of a finding of fact. [75] The second principle of concern is taken from the case of Santos v Canada (Citizenship and Immigration), 2004 FC 937 atparas 14-16 [Santos] that the Applicants put forward.

In Santos, the Court stated that “implausibility determinations must be based onclear evidence, as well as a clear rationalization process supporting the Board’s inferences, and should refer to relevant evidence whichcould potentially refute such conclusions.” [My emphasis.] The last mentioned principle of referring to relevant evidence in the reasons

is not at issue. Otherwise, this statement is problematic in light of Housen and Khosa . In speaking to the need for “a clear rationalization process” , I understand that this refers to the “inference drawing process” that creates the ampliative fact from the primary evidence.

This “rationalization process” is also at the heart of what makes the statement of a witness “implausible” or “plausible” . [ 76 ] Requiring a “clear rationalization process” leads to the second requirement that the Board must provide reasons formulated in “clear and unmistakable terms” [my emphasis] : Hilo v Canada (Minister of Employment and Immigration) [1991] FCJ. No. 228, 130 N.R. 236 ( FCA ) [ Hilo ] at para 6 .

I note that there is a difference between clear evidence [a content issue] and clear reasons [an explanatory issue]. [ 77 ] On a somewhat related topic of appropriate legal phraseology, I am not aware of any rule of evidence that requires a finding of fact to be based on clear evidence, as opposed to persuasive evidence or evidence of sufficient probative value to prove the fact. Clarity of evidence may enhance its probative value which could affect its impact. However, I do not believe that the clarity of evidence is a requirement to form a fact.

At least where there is conflicting evidence in a trial, often little is clear. Sometimes a trial Judge will accept fairly ambiguous evidence as the preferred version, based primarily on logic and context rather than on the words used by the witness. [ 78 ] Regardless of whether it is incorrect to state that evidence should be clear, reliance on “clarity” has a tendency to raise the probative value required of evidence to prove a fact, thereby encouraging the reviewing Court’s intervention.

Given that the discussion pertains to the balance of probabilities standard, it is respectfully suggested that the Court should adhere to the use of traditional evidentiary terms such as “persuasive” or “probative” , without adding more confusion to an already challenging process of determining facts from the evidence. Conversely, words such as “clear” should be reserved for describing some concept heading towards an exceptional standard such as where the error that must be clear, obvious, and plain to see in setting aside a finding of fact.

The terms are fairly synonymous in suggesting a superlative of some degree to whatever the norm is that must be enhanced. [ 79 ] Two points arise with respect to the adequacy of the Board’s reasons in terms of clarity. [ 80 ] First, if the description of the content of the rationalization process of weighing evidence to form an inference is at issue [not the same issue as “clear” adding to the probative content of the evidence], in my respectful view, there is simply not much for the tribunal to describe in this process. [ 81 ] Second, demanding an explanation of the rationalization process to form an inference cannot be reconciled with the principles of Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), [2011] 3 SCR 708, 2011 SCC 62 at para 12 [ Newfoundland Nurses ] that “the court must first seek to supplement them [the reasons] before it seeks to subvert them” .

Demanding such an explanation is also contradicted by the practical example provided in Housen , where the Court filled in the blanks between identifying the primary evidence and finding the inference. [ 82 ] A brief description of the facts in Housen is necessary to understand this point. The plaintiff, who was intoxicated, failed to navigate a curve in a road that was both unsigned and unexpected. Although the plaintiff had been speeding, the trial Judge considered that the lack of signage presented a risk to drivers, who were not warned to slow down before entering the curve.

The municipality enjoyed statutory protection from claims in negligence alleging a lack of signage unless the plaintiff could demonstrate that the municipality had knowledge of the risk . The trial Judge inferred that the municipality had such knowledge.

The relevant passage from the trial decision is set out at paragraph 64 of Housen , along with the Supreme Court’s explanation upholding the trial Judge’s inferential finding, as follows with my emphasis: 64 It is in this context that we view the following comments of the trial judge, at para. 90: If the R.M. [Rural Municipality] did not have actual knowledge of the danger inherent in this portion of Snake Hill Road, it should have known.

While four accidents in 12 years may not in itself be significant, it takes on more significance given the close proximity of three of these accidents, the relatively low volume of traffic, the fact that there are permanent residences on the road and the fact that the road is frequented by young and perhaps less experienced drivers. I am not satisfied that the R.M. has established that in these circumstances it took reasonable steps to prevent this state of disrepair on Snake Hill Road from continuing.

From this statement, we take the trial judge to have meant that , given the occurrence of prior accidents on this low-traffic road, the existence of permanent residents, and the type of drivers on the road, the municipality did not take the reasonable steps it should have taken in order to ensure that Snake Hill Road did not contain a hazard such as the one in question. Based on these factors, the trial judge drew the inference that the municipality should have been put on notice and investigated Snake Hill Road, in which case it would have become aware of the hazard in question.

This factual inference, grounded as it was on the trial judge’s assessment of the evidence , was in our view, far from reaching the requisite standard of palpable and overriding error , proper. [Emphasis added] [ 83 ] The trial Judge provided no description of the rationalization process, beyond laying out the primary facts that could be used to construe the inference that the municipality should have been put on notice of the dangerous road conditions, requiring it to investigate the risk.

Considering the content relied on by the judge to draw an inference, it is not clear what other information the trial Judge would have had to provide in her reasons to demonstrate that she undertook a “clear rationalization process” (ie. an explanation). [ 84 ] The other point is that the Supreme Court described the rationalization process [ “drew the inference that the municipality should have been put on notice” ] linking the municipality’s knowledge to the trial Judge’s finding that the municipality had not acted reasonably.

The Court in Housen supplemented the trial Judge’s reasons by making the assumption [ “we take the trial judge to have meant that” ] by her reference to the primary facts to draw the inferred factual conclusion that [ “the municipality did not take the reasonable steps it should have taken” ].

As long as the reviewing Court is not rewriting the decision, but providing the rational explanation joining the primary facts and the new inferred fact, I would understand that the reasons given in the decision under review are sufficient. [ 85 ] In particular, I conclude for this reason that dwelling on these requirements of the clarity of evidence, or the explanation of the

rationalization process are really intended to convey an attitude that implausibility findings should generally only be made with caution – that “[i]mplausibility findings are dangerous at the best of times” : Jung v Canada (Citizenship and Immigration) , 2014 FC 275 at para 74 [my emphasis]. This similarly conveys an interventionist attitude that the Court may take in reviewing what it refers to as implausibility findings.

Overall, when such an interventionist approach is employed by a reviewing Judge, his or her attitude is the most important factor predicting how a court will review a fact when approaching the task. [ 86 ] What comes through clearly in Valtchev , and the jurisprudence applying it, is what I would describe as a disrespectful and interventionist attitude in respect of the Board’s implausibility findings – even if they are factual inferences “supported by some evidence” . The appropriate attitude should be that overturning an assessment finding of fact, including an inferential fact, is fairly exceptional.

The judge should exercise caution that he or she is not unconscionably and impermissibly stepping into the Board member’s shoes. [ 87 ] If the findings with respect to the primary facts are not in contention, the question arises therefore, as to what is left over for the reviewing Court. There may remain some process errors.

Issues of the relevance of the primary facts to a given inferred fact would fall within the Court’s purview, and on a correctness standard at that. [ 88 ] Similarly, it could also be plain to see that the primary facts simply cannot support the inferred fact because it would be a wholly unreasonable finding. This represents a standard that does not require a reasonability analysis of factual findings, but where the Court is taken aback when first confronting the inference as simply being beyond the ken of any reasonable connection, such that the error is plain to see.

However, to achieve this result, it must be obvious that the inference drawn was not supported by the evidence and not simply that, in the Court’s mind, the inference drawn was unreasonable, rather than wholly unreasonable. This would amount to an insufficiently strict standard of review that ultimately entails an impermissible reweighing of the primary evidence. C.

Underlying policies strongly favour a stricter, non-interventionist approach rather than reasonableness for the review of factual findings [ 89 ] In Housen , policy considerations inform the true rationale that motivates a non-interventionist approach of a stricter standard of review of findings of fact than a reasonability analysis. The Supreme Court’s statement on the relevant policies is set out with headings at paragraphs 16 to 18 of Housen , as follows with my emphasis:

(1) Limiting the Number, Length and Cost of Appeals 16. Given the scarcity of judicial resources , setting limits on the scope of judicial review is to be encouraged. Deferring to a trial judge’s findings of fact not only serves this end, but does so on a principled basis. Substantial resources are allocated to trial courts for the purpose of assessing facts. To allow for wide-ranging review of the trial judge’s factual findings results in needless duplication of judicial proceedings with little, if any improvement in the result. In addition, lengthy appeals prejudice litigants with fewer resources, and frustrate the goal of providing an efficient and effective remedy for the parties .

(2) Promoting the Autonomy and Integrity of Trial Proceedings 17. The presumption underlying the structure of our court system is that a trial judge is competent to decide the case before him or her, and that a just and fair outcome will result from the trial process. Frequent and unlimited appeals would undermine this presumption and weaken public confidence in the trial process. An appeal is the exception rather than the rule .

(3) Recognizing the Expertise of the Trial Judge and His or Her Advantageous Position 18. The trial judge is better situated to make factual findings owing to his or her extensive exposure to the evidence, the advantage of hearing testimony viva voce, and the judge’s familiarity with the case as a whole.

Because the primary role of the trial judge is to weigh and assess voluminous quantities of evidence, the expertise and insight of the trial judge in this area should be respected . [ 90 ] For the most part, the policies described in Housen that support a non-interventionist approach to reviewing factual findings speak for themselves.

Similarly, these policy rationales apply to the review of factual findings of quasi-judicial administrative truth- finding tribunals, including the RPD. [ 91 ] However, it is arguable that a more forceful case can be made for a non-interventionist approach in reviewing the Board’s factual findings than applies to trial courts, to effectively “[l]imi[t] the number, length and cost of appeals” . In fact, the first policy ground’s title does not really speak to the true nature of the problem in immigration matters.

The problem of interventionist review in this area is in large part about undermining the refugee regime itself .

Moreover, the refugee regime is problematic in that many provisions of the IRPA , that provide for alternative means to obtain permanent residence, are significantly leveraged by the untoward delays created by judicial review proceedings, which in turn prevents the removal of failed refugee claimants. [ 92 ] The alternative or collateral permanent residence applications consist of the Pre-Removal Risk Assessment [PRRA] (using the same test applied at the RPD hearing, based on new evidence) or applications for an exemption from certain requirements under the IRPA or the Regulations that must be fulfilled to obtain permanent residence in Canada on Humanitarian and Compassionate [H&C] grounds, on alleged changed personal circumstances while or due to living in Canada.

These include allegations of hardship that would be suffered if removed (which can include consideration of country conditions and discrimination sometimes involving the same risk evidence considered in refugee claims such as the less serious harm contributing to persecution, i.e. discrimination and annoyances), marriage in Canada, the best interests of directly affected children or BIOC, establishment in Canada since the refugee claim was dismissed, and new medical conditions.

Many of these developments tend to arise while the failed refugee claimant is living in Canada. [ 93 ] In other words, permanent residence originating from a refugee claim may be obtained through success in any number of applications heard by different decision-makers granted authority under the IRPA (i.e. those of the RPD/RAD panels, or from PRRA or

H&C officers). The first two applications refer to the same risk criteria, while the H&C application refers to hardship criteria not entailing risk factors (see subsection 25(1.3) of the IRPA ). In addition, just prior to removal, a failed refugee claimant may apply for the judicial review of an enforcement officer’s decision refusing to defer removal (see

section 48 of the IRPA ). Each time one of these judicial review applications is successful, the matter is returned to a different officer for reconsideration, whose decision may also be judicially reviewed and so on. The multiplicity of procedures subject to judicial review plays into the refugee system's weakest component: the longer a refugee claimant remains in Canada, the greater the opportunity for the claimant to succeed in achieving a permanent residence by recourse to these alternative processes. [ 94 ] Parliament has attempted to respond to this problem by establishing one-year and three-year bars in 2012, under paragraphs 25 (1.2) (

c) and 112 (2) (b.1) of the IRPA , respectively in the context of H&C applications and PRRA applications. The distinction between the lengths of time of the bars was originally contingent upon the perceived risk or hardship factors based upon differing country conditions. The three-year bar has been found wanting in this Court, although questions have recently been certified for the Court of Appeal to consider: Feher v Canada (Public Safety and Emergency Preparedness) , 2019 FC 335 .

These bars are intended to prevent recourse to PRRA or H&C applications if insufficient time has elapsed since an unfavourable decision was rendered by the RPD or RAD, leaving only the enforcement officer’s decision as a possible ground for further judicial review to prevent the removal of failed refugee claimants to their country of origin. [ 95 ] If the one-year bar is exceeded, then failed refugee claimants have access to the PRRA and H&C applications and judicial review of these applications.

These may be repeated thereafter, depending upon the extent of delay in removal that is occasioned by these applications, always backstopped by a final challenge of the enforcement officer’s decision to refuse to defer the removal. Again, delay may be replicated throughout the system, increasing the backlog and thereby further adding to the delay to the point of overwhelming the regime. [ 96 ] In this gamut of decisions subject to judicial review proceedings, the effective early removal of failed refugee claimants comes down to the leave application of the original RPD or RAD decision.

If this Court grants leave for judicial review, the one-year bar to the collateral permanent residence applications is overridden by the time it takes to complete the reconsideration by the Board, which is subject to a further judicial review. [ 97 ] Bearing in mind that the RPD and RAD decisions principally relate to factual findings following paragraph 170 (

h) of the IRPA , made “on evidence adduced in the proceedings and considered credible and trustworthy in the circumstances” , the Court’s standard of review of facts tends to be the fulcrum issue. This standard of review directly impacts whether a relatively early removal of failed refugee claimants will occur (i.e. unless overly backlogged, one to two years before engaging the removal process, as opposed to several more years by recourse to judicial review proceedings of the collateral decisions that may provide permanent residence status).

That said, I do not believe that statistics have been collected and recorded to assist in understanding the extent of these issues and their impact on the regime as a whole, or at least none have been published, if they exist, which for the sake of transparency, they should be. [ 98 ] In light of these issues, the standard of review of facts is an important policy issue. If the error must be plain to see without a reasonability analysis for judicial review decisions, that error would be equally visible at the leave stage.

Similarly, the further issues discussed below of sensibly moderating the Maldonado rule on the impact of sworn statements by refugee claimants, and eliminating the Valtchev rule to bring inferential fact finding on credibility issues back in line with standard principles, would similarly reduce inappropriate leave granting rates. Conversely, if a reasonability analysis based only on some declaration of deference is the standard for the review of assessment facts, the leave application will be more readily forthcoming, just because there is no bright line set at a non- interventionist level.

The other advantage of a “plain to see” standard for assessment facts is that it will bring consistency to the leave process in that every applicant will be judged on the same unequivocal standard of a “plain to see” error. [ 99 ] All of these issues arise from concerns about undermining the Rule of Law by not applying policies and rules put in place to allow for fair and efficient hearings accompanied by the prompt removal of unsuccessful refugee claimants.

The greatest threat to our refugee and immigration regime is that effective and efficient determination processes that deliver decisions serve little purpose because they cannot be executed in a timely fashion. In addition to driving up cost and delay, they are a backdoor which allow refugee claimants to obtain permanent residence status by other means. To the extent that this happens, it encourages more unfounded betterment claims to be brought.

This concatenating effect is detrimental to the entire refugee and immigration regime by increasing the cost and backlog of decisions, thereby imperiling the regime and support for legitimate claims for refugee protection. [ 100 ] For the most part, reasonable and empathetic Canadians strongly support our immigration and refugee policies which have greatly benefited the country. No one is suggesting that they be radically changed, or that the number of foreign nationals, including refugees, entering Canada be reduced. It is essential however, that these policies be applied as Parliament intended. D.

Conclusion on the principles that apply to the standard of review and accompanying rules of evidence concerning implausibility findings of credibility and presumptions as to the truth of sworn statements [ 101 ] On the basis that the principles in Housen apply to the standard of review of Board decisions, their application may be summarized as follows: 1. If a mixed question of fact and law, determine whether the legal principle is extricable, and, if so, whether it represents the error being considered and should be reviewed on the basis of correctness in accordance with the principles of Dunsmuir.

If not extricable, the mixed question will be reviewed as a finding of fact, similar to direct and inferred findings of fact. 2. Delineate the nature of the alleged fact-finding errors. If a process error, it should be reviewed on a correctness standard. 3. If an assessment fact-finding error, a reasonableness standard should be adopted according the factual finding the highest deference such that a reasonability analysis is precluded as it is sufficient that only some evidence supports the finding. Otherwise, intervention is

permitted only if the error is plain to see or was made in the clearest of cases (ie. palpable). 4. With respect to the inference drawing step, assuming that the primary evidence and primary findings of fact are not in dispute, the Court will be hard-pressed to intervene absent a process error, or if the inference drawing error was made in the clearest of cases (ie. palpable). 5. It is impermissible to conduct a reasonability analysis of the inference drawing process, because it involves the weighing and assessment of primary evidence.

Moreover, the rationalization process of the inference is sufficiently described if the primary evidence and facts are identified and could be said to support the inferred fact, unless the error was made in the clearest of cases (ie. palpable). 6.

Once the Court has concluded its review of the Board’s findings of fact, it can then turn its attention to determining the impact of its factual conclusions on the decision in terms of whether it falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law and if the decision is justified with transparent and intelligible reasons. VI. The Board is not limited to making implausibility findings of credibility only in the clearest of cases A.

Introduction [ 102 ] In the 2001 Valtchev decision, this Court declared, in rule-like fashion, that in matters of credibility “plausibility findings should be made only in the clearest of cases” (at para 7). By such language, the Court requires the Board to make negative inferences at a threshold of probative value above that of a probability or likelihood. [ 103 ] Since first declared, numerous Federal Court decisions have cited the rule in Valtchev (referred to in 255 cases in the Federal Court according to Lexis-Nexis). Moreover, this rule is constantly cited in leave memoranda, as it was in this matter.

More importantly, the Federal Court tends to caution against relying on plausibility findings and has generally adopted the distrustful attitude conveyed towards plausibility findings in Valtchev . [ 104 ] At first blush, the Valtchev rule appears to relate only to the probative value of evidence required to formulate a plausibility finding. However, less evident is that the rule also affects the standard of review applied to plausibility findings because the rule heightens the probative value required of evidence to make the finding.

If this Court adopts the principles of Housen , stressing a non- interventionist approach of the Court to findings of fact, this should end any further reference to the Valtchev rule. If nothing else, the Valtchev rule turns these principles of Housen on their head: as the Court has been applying a “plain to see” rule, not as a limitation to its

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