Liao v Saskatchewan (Economy), 2022 SKCA 137

Court of Appeal for Saskatchewan Docket: CACV3761 Citation: Liao v Saskatchewan (Economy) , 2022 SKCA 137 Date: 2022-11-28 Between: Duoxiu Liao Appellant (Applicant) And The Government of Saskatchewan (Ministry of the Economy) Respondent (Respondent) Before: Richards C.J.S., Leurer and McCreary JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr.

Justice Leurer In concurrence: The Honourable Chief Justice Richards The Honourable Madam Justice McCreary On appeal from: 2020 SKQB 329 , Saskatoon Appeal heard: November 16, 2022 Counsel: Jacob Watters for the Appellant Johnna Van Parys for the Respondent Leurer J.A. I. INTRODUCTION [ 1 ] Duoxiu Liao is an applicant under the Saskatchewan Immigrant Nominee Program [Program]. She is dissatisfied with two decisions taken by the Saskatchewan ministry that was, at the time, responsible for its administration [Ministry].

Her application for judicial review of these decisions was dismissed by a Court of Queen’s Bench judge sitting in Chambers: Liao v Saskatchewan (Economy) , 2020 SKQB 329 , 97 Admin LR (6th) 58 [ Chambers Decision ]. [ 2 ] Ms. Liao appeals from the Chambers Decision . I have concluded that her appeal must be dismissed. These are my reasons. II. BACKGROUND [ 3 ] The Program provides an avenue for immigration to Saskatchewan based on criteria that include the economic priorities of the province and labour market conditions.

The details of the Program have varied over time. [ 4 ] Between 2012 and 2019, four applications were submitted under the Program by Ms. Liao or under her name, as follows: (

a) Application 1: In this application, submitted in January of 2012, Ms. Liao sought nomination as an accountant in connection with an offer she received to fill a bookkeeper position. In it, she said she was an accountant, employed by China Mobile Group Sichuan Co. Ltd. [China Mobile], in the People’s Republic of China. This application was denied in 2015 because the job offer with which it was associated was no longer valid, and an alternative job opportunity was determined to be invalid. (

b) Application 2: Ms. Liao applied in June of 2017 under the Program stream that was available for workers who were skilled in an in-demand occupation. Ms. Liao identified herself as a statistician. As part of her application, she provided a business card that indicated that she was a “Statistician” in China Mobile’s statistics department. She also submitted a reference letter dated February 27, 2017, signed by Yanqi Zhao, which provided information about various positions that she had held with China Mobile, including, for a time, that of a full-time statistician. This application was denied in late 2017 because statistician was not an in-demand occupation in this province. (

c) Application 3: This application was submitted in January of 2018. In it, Ms. Liao’s then-current occupation was listed as a financial analyst. The application was accompanied by a reference letter on China Mobile letterhead dated October 25, 2017, translated into English and signed by Mr. Zhao. The letter stated, in part, that Ms. Liao had been employed “ as Statistical Analyst in our new established Statistic Department”. Later, another letter was provided by Yingwei Chen, who was identified as the General Manager, Human Resources Department at China Mobile. Mr. Chen’s letter stated that, since 2010, Ms.

Liao has been “working as full time Analyst in Accounting Department and Statistic Department (after the Statistic Department was separated from Accounting Department in January 2012)”. Ms. Liao contends that Application 3 was submitted without her knowledge or authority. As I will explain, the Ministry has determined that if it was not submitted by her, this was done by an agent on her behalf and with her knowledge. (

d) Application 4: This application was submitted by Ms. Liao’s legal counsel in November of 2018. In it, Ms. Liao’s then-current occupation was listed as accounting and bookkeeping, and her intended occupation in Saskatchewan was stated to be bookkeeping clerk. The application provided a history of various positions Ms. Liao has held at China Mobile.

These include from July 1999 to December 2009 as an accountant, from January 2010 to February 2017 in a “financial statistics post”, from March 2017 to March 2018 in a “fund settlement accounting post”, and from March 2018 forward as a cashier and at a “fund management post”. [ 5 ] Ministry staff noticed the differences in the employment experience claimed by Ms. Liao in these four applications. Its

Program Integrity Unit became involved. Ms. Liao was advised of this fact in February 2019. Requests for additional information werecommunicated to an email address identified in Application 3, as well as to her counsel, as identified in Application 4. [6] Ms. Liao’s counsel provided some information. However, the Ministry was not satisfied. This led to a series of furthercommunications between the Ministry, Ms. Liao and her counsel. These included letters from the Ministry to Ms.

Liao dated June 21,2019, and July 25, 2019, in which the Ministry detailed its concerns with the information provided in the four applications. [7] In a December 20, 2019 letter, written with reference to Application 3 and Application 4, the Ministry advised Ms. Liao that ithad concluded she had had made several misrepresentations to the Ministry in Application 3 and in her subsequent communications withthe Ministry. In this regard, it pointed out that, in Application 3, she had stated her occupation as “Statistical Analyst with work experiencein the Statistics Department at China Mobile”.

Its letter noted that it had asked her to substantiate this claim but that the documents she hadprovided “did not satisfy [the Ministry’s] concerns because they were inconsistent and could not be verified by the alleged authors ofthose documents”. The Ministry then summarized conversations its employees had had with Xiaodong Wu (Ms. Liao’s manager at ChinaMobile), Mr. Zhao and Mr. Chen. The letter also stated that, as part of Application 2, Ms. Liao had provided a business card indicatingthat she was “a Statistician working in the Statistics Department at China Mobile”.

However, the Ministry stated that when it contactedMr. Wu, he indicated that the business card “was not issued by China Mobile because business cards were not issued to employees of[Ms. Liao’s] level”. The letter then addressed Ms. Liao’s contention that Application 3 was not submitted on her behalf or with herknowledge and stated that it had determined that Ms. Liao was “either aware of Application [3] or [she was] aware of the person whosubmitted it on [her] behalf”. [8] Having found that Ms.

Liao had made these misrepresentations, the December 20, 2019 letter concluded by stating that shehad been “deemed ineligible for [Program] nomination with a suspension from applying to [the Program] for a period of two (2) years”starting from that date and that Application 4 “will not be processed further and is now closed”. [9] Ms. Liao was dissatisfied with this decision. She asked for a secondary review of both Application 3 and Application 4. Thisrequest was denied by the Ministry.

In an email to her counsel on February 10, 2020, it stated that, as “the decision was on the basis ofmisrepresentation finding [sic], there is no process for Second Review”. [10] Ms. Liao applied for judicial review of the decisions communicated in the December 20, 2019 letter and the February 10, 2020email. She argued that the December 20, 2019 decision should be quashed because the Ministry had not followed a procedurally fairprocess and because it was unreasonable. She also submitted that the February 10, 2020 decision was unreasonable. [11] The Chambers judge rejected these arguments.

In the result, he dismissed Ms. Liao’s application and awarded the Ministrytaxable costs. III. ISSUES [12] Ms. Liao appeals from the refusal by the Chambers judge to quash the Ministry’s decisions. She also argues that, even if theChambers Decision is upheld, the costs should not have been awarded against her because this is a matter involving immigration. [13] Broadly speaking, an appeal from a first-level judicial review decision involves two issues. The first is whether the Chambersjudge identified the correct standard of review.

The second is whether the Chambers judge correctly applied the applicable standard ofreview: see, Dr. Q v College of Physicians and Surgeons of British Columbia, 2003 SCC 19 at paras 43–44, [2003] 1 SCR 226. Takentogether, this means that, once the correct standard of review is identified, this Court “steps into the shoes” of the Chambers judge andreviews the administrative decision through the application of that standard (Teamsters Canada Rail Conference v Canadian NationalRailway Company, 2021 SKCA 62 at para 41, 327 LAC (4th) 322). In this case, Ms.

Liao agrees that the Chambers judge employed thecorrect standard in his review of the Ministry’s two decisions. Therefore, the issues in this appeal require us to focus on the Ministry’sdecisions. [14] Considering Ms. Liao’s arguments in the context of this framework, I have identified four questions as requiring an answerfrom this Court: (

a) Did the Ministry follow a procedurally unfair process in the making of its December 20, 2019 decision? (

b) Was the Ministry’s December 20, 2019 decision unreasonable? (

c) Was the Ministry’s February 10, 2020 decision unreasonable? (

d) Did the Chambers judge err in ordering that Ms. Liao pay taxable costs to the Ministry? IV. ANALYSIS A. Did the Ministry follow a procedurally unfair process in the making of itsDecember 20, 2019 decision? [15] The content of procedural fairness in any given case is “eminently variable” and fact and context specific (Knight v IndianHead School Division No. 19, (SCC), [1990] 1 SCR 653 at 682). In Feng v Saskatchewan (Economy), 2020 SKCA 6, 70Admin LR (6th) 237, Schwann J.A. described what is required in circumstances of a review of a decision under the Program, in a contextnot unlike that here.

She found that the duty of fairness owed was “at the lower end of the procedural fairness spectrum” (at para 70),although it would require that “a person affected by a decision be told of the case he or she has to meet and be given an opportunity to

respond” (at para 52). [ 16 ] In this case, Ms. Liao’s principal complaint is that the Ministry failed to disclose to her that Application 3 remained open. She says, therefore, she was not informed of the case she had to meet or given an opportunity to respond to it. [ 17 ] In my view, the Ministry’s process was fair. The reason I say this is tied to the connection between Ms. Liao’s argument under this head and her submission that she was not aware that Application 3 had been submitted to the Ministry and therefore did not know it was still active in the Ministry’s queue.

She maintained this position in the face of repeated references to that application in the Ministry’s June 25, 2021 and July 25, 2021 letters. As the Chambers judge explained, with specific reference to the second of these two letters, the information provided by the Ministry to Ms. Liao “ made it clear that all information provided by Ms. Liao in any application was being assessed and that [the Ministry] had serious concerns about Ms.

Liao’s honesty, including concerns about the authenticity of signatures and what appeared, on the basis of the information available to it, the forgery of a business card that described Ms. Liao as a statistician in a statistics department” ( Chambers Decision at para 40). [ 18 ] The Chambers judge found that Ms. Liao’s suggestion that Application 3 had been submitted without her knowledge or approval was “simply not credible” (at para 37).

He gave reasons for this finding, tied to the information found in Application 3, the use of the same email address in both Application 2 and Application 3, and the detail of the communications between the Ministry and Ms. Liao’s counsel, following which he found “that Ms. Liao was, in fact, effectively informed that Application 3 was active and that [the Program] was looking to her and, in fact, gave her reasonable opportunities to address its concerns and she did not” (at para 41).

Because the point was not argued by either party, I prefer to leave unaddressed whether this finding of fact is to be reviewed against the standard of palpable and overriding error or whether, since this case involves judicial review, the correctness standard applies. Even applying the correctness standard, which allows this Court to more closely scrutinize the Chambers Decision , I can see no error in the Chambers judge’s analysis of this issue. In this regard, I agree with the Chambers judge’s reasons set out at paragraphs 37 to 41 of the Chambers Decision . [ 19 ] In any event, even if Ms.

Liao did not know that the Ministry considered Application 3 to be open, she has not identified what information she would have provided to the Ministry even if she had been expressly told that Application 3 was still in play before the Ministry issued its December 20, 2019 decision letter. [ 20 ] In oral argument, counsel acknowledged that Ms. Liao was aware from the Ministry’s June 21, 2019 and July 25, 2019 letters that it was actively investigating whether she had made misrepresentations in connection with Application 3. Although counsel alluded to the possibility that Ms.

Liao might have provided additional information if she had also been told that Application 3 was being considered as an open application, no such information is identified in the affidavits she filed in connection with her judicial review application. Her counsel said, in argument, that if she had been told Application 3 was open, she could have withdrawn it pursuant to the Ministry’s policy respecting multiple active applications. However, as the Ministry points out, the option to withdraw an application applies only when there are no concerns about its integrity.

In any event, as I see it, this would not cure the fact that she had made the misrepresentations in her other communications with the Ministry. [ 21 ] In

summary, I see no basis to conclude that the Ministry’s process was unfair. B. Was the Ministry’s December 20, 2019 decision unreasonable? [ 22 ] Ms. Liao also argues that the December 20, 2019 decision was unreasonable. This argument requires us to assess the Ministry’s reasons, since at its core, “ a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” ( Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at para 85 , [2019] 4 SCR 653 ). [ 23 ] Ms.

Liao’s principal attack is against the Ministry’s finding that she submitted Application 3 or, at least, that she was aware of who had submitted it on her behalf. In this regard, the Ministry began its explanation for its conclusion by noting that the email address used in Application 3 was the same as the email address used in Application 2.

It observed that the same email address was not only used for uploading documents, but also for registering the application and corresponding with the Ministry, and that the personal information found on Application 3 was consistent with that found on Application 2, which she had not disowned. Finally, it reminded Ms. Liao that it had asked her to identify the person who had submitted these applications on her behalf, but she had not provided a reply. All of this presents an internally coherent and rational analysis that is specifically tied to what was before the Ministry. Ms.

Liao obviously disagrees with the Ministry’s conclusion – however, that does not translate it into being one that was unreasonable on the record the Ministry was asked to review. [ 24 ] Ms. Liao also takes aim at the Ministry’s finding that she had misrepresented her occupation in Application 3. As part of this, she states that the notes of the Ministry employee who interviewed Mr. Zhao, Mr. Chen and Mr. Wu do not align with some of the statements made in the December 20, 2019 letter. The strongest example that she provides is that the notes do not show that Mr.

Zhao had “confirmed” that she was not employed as a Statistician or Statistical Analyst. The Ministry acknowledges that Mr. Zhao had not confirmed this fact. It argues, however, that this error does not affect the reasonableness of the decision. I agree with the Ministry on this point. There are, again, several reasons for this conclusion. [ 25 ] First, although the December 20, 2019 letter did not accurately summarize the conversation with Mr. Zhao, and in several smaller details may be questioned, a review of the notes of the conversations with Mr. Chen and Mr.

Wu easily satisfies me that the substance of the Ministry’s conclusions is borne out in them. For example, Mr. Wu and Mr. Chen advised the Ministry that China Mobile had never had a statistics department, contrary to the suggestion that Ms. Liao had worked as a statistician in it. While Ms. Liao observed that the Ministry’s letter did not correspond with some parts of the notes of the conversations with these two individuals, I can see no ambiguity about this point. [ 26 ] Second, the December 20, 2019 letter makes clear that the Ministry relied on other sources of information than the interviews with Mr.

Wu and Mr. Chen in arriving at the conclusion that Ms. Liao did not work as a statistician. This ties to the third point I would

make about all this. [ 27 ] The misrepresentation that the Ministry found Ms. Liao to have made about her occupation was only one of several that the Ministry found that she had committed. For example, another was the submission of a business card identifying herself as a statistician working in China Mobile’s statistics department, in the face of information – that Ms. Liao did not challenge – that business cards were not issued by China Mobile to employees of her level. This is a finding by the Ministry that Ms. Liao had fabricated a business card to support her assertion that she was a statistician.

Again, that finding is one that was available to it on the record. Another identified misrepresentation was Ms. Liao’s position about who had prepared and submitted Application 3. [ 28 ] Finally, Ms. Liao suggests that the decision was unreasonable because the Program, as it existed at the time, did not contain an express definition of “misrepresentation”. I could see some room for this argument if the facts that the Ministry found left some room for debate about whether they amount to misrepresentations. However, that is not the case here.

Occupation and job description lie at the core of what the Program is about. Moreover, there is nothing subtle or nuanced about presenting a business card that is not genuine. [ 29 ] In overall

summary on this issue, I see no basis to conclude that the Ministry’s December 20, 2019 decision was unreasonable. C. Was the Ministry’s February 10, 2020 decision unreasonable? [ 30 ] Ms. Liao’s argument under this head is that the Ministry’s decision not to grant her a review is unreasonable because the Program guidelines do not expressly state that a secondary review is not available when an application has been rejected because of a misrepresentation. [ 31 ] However, this has things backwards.

The question is not whether the Program expressly excluded applications rejected for misrepresentation from receiving a secondary review, but whether there was a basis for a reasonable expectation that she would be entitled to a review in this circumstance. In this regard, as the Chambers judge explained, the Program’s guidelines contemplate that an applicant can request a second review if the applicant is deemed to be ineligible for one of several specifically identified reasons.

In this case, the Ministry “did not deem either Application 3 or Application 4 as ineligible for any of these reasons” ( Chambers Decision at para 44). In other words, because the Program guidelines do not contemplate a secondary review when an application is dismissed because of an applicant’s misrepresentations, Ms. Liao’s expectation that one would be available to her is unreasonable. It follows that the February 10, 2020 decision is reasonable. D. Did the Chambers judge err in ordering that Ms. Liao pay taxable costs to the Ministry? [ 32 ] Ms.

Liao argues that, even if this Court upholds the decision of the Chambers judge not to quash the Ministry’s decisions, it should set aside the costs award. [ 33 ] Rule 11-1(1) of The Queen’s Bench Rules confirms the expansive discretion given to trial courts over matters of costs: Discretion of Court 11-1

(1) Subject to the express provisions of any enactment and notwithstanding any other rule, the Court has discretion respecting the costs of and incidental to a proceeding or a step in a proceeding, and may make any direction or order respecting costs that it considers appropriate.

The remainder of Rule 11-1 defines certain principles applicable to the general discretion recognized in Rule 11-1(1). [ 34 ] Because of the discretionary nature of a costs award, this Court must look to see if the Chambers judge misapplied some governing principle or rule, or disregarded some critical fact or other consideration, or whether the costs award is itself so obviously unjust as to invite intervention.

I see no such error here. [ 35 ] T he Chambers judge awarded costs to the Ministry because it had “elected to participate in the judicial review through counsel and such representation was … appropriate and of assistance to the Court” ( Chambers Decision at para 48). Ms. Liao does not say that this evinces error. Instead, she points to decisions of the Federal Court of Canada and the Federal Court of Appeal, which she says support that costs should only be awarded in exceptional circumstances in judicial review applications of immigration cases.

However, Rule 22 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules , SOR/93-22 , was at play in the cases referred to by Ms. Liao. That Rule provides that costs should only be awarded if there are “special reasons” for a costs order. There is no analogous provision in The Queen’s Bench Rules . [ 36 ] Finally, although Ms. Liao suggests that individuals seeking to immigrate to Canada may lack financial resources, there is no evidence of that here. There is also nothing on the record suggesting that this was raised with the Chambers judge as a reason not to award costs.

Therefore, this is not a ground upon which to interfere with his costs order. V. CONCLUSION [ 37 ] For the reasons I have given, I would dismiss Ms. Liao’s appeal. I would also order that Ms. Liao pay costs in relation to this appeal to the Ministry, taxed in the usual way. “Leurer J.A.” Leurer J.A.

I concur. “Richards C.J.S.” Richards C.J.S. I concur. “McCreary J.A.” McCreary J.A.