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Fairness - Failure to Consider Argued Issue. Zhu v. Ontario (Minister of Labour, Immigration, Training and Skills Development)
In Zhu v. Ontario (Minister of Labour, Immigration, Training and Skills Development) (Ont Divisional Ct, 2025) the Divisional Court dismissed a JR, here against "a decision by an Internal Reviewer of the Ministry of Labour, Immigration, Training and Skills Development ... confirming a decision made by the director appointed under the Ontario Immigration Act, 2015, S.O. 2015, c. 8 (“the Act”) to cancel the Applicant’s nomination approval under the Ontario Immigrant Nominee Program (“the OINP”)".
Here the court considers the applicant's argument that the adjudicator "unreasonably dismiss[ed] probative evidence":68. The Applicant argues that the Internal Reviewer discounted the letters that he and the Employer submitted, stating that no evidence to support the explanations had been provided. The failure of the Internal Reviewer to discuss the probative value of those letters can be understood to mean that the Internal Reviewer implicitly questioned the reliability of the letters. In the absence of any analysis, this renders the Internal Reviewer’s decision a veiled credibility finding against the Applicant. If the Internal Reviewer had concerns about the credibility of the letters, the Applicant should have been given the opportunity to respond. He was not given such an opportunity and, as a result, the Internal Reviewer’s decision breached procedural fairness. To support his position, the Applicant relies on the Federal Court decisions in Chera (cited above); Diallo v. Canada (Minister of Citizenship and Immigration), 2019 FC 1324; and JKL v. Canada (Minister of Citizenship and Immigration), 2021 FC 1166.
69. In Chera, the applicant was denied a temporary resident visa because the officer was not satisfied that he would leave Canada at the end of his stay. The Federal Court found that the officer’s concern was “rooted in the credibility” of the applicant and constituted a veiled credibility finding and, accordingly, the officer had an obligation to offer the applicant “the possibility to clarify the issues arising from his application”. Since the officer did not give such an opportunity to respond, it was a breach of procedural fairness sufficient to justify the Court’s intervention and overturn the decision. In Diallo, the Federal Court found that the applicant had provided a narrative detailing their political activities in Colombia and the immigration officer’s finding that there was no evidence of this implied that the officer did not believe the factual assertions made by the applicant in their narrative. The Court held that the officer made a veiled credibility finding against the applicant without allowing them to respond thereby breaching procedural fairness. And, in JKL, the Federal Court found that an immigration officer made a veiled credibility finding against an applicant applying for a Pre-Removal Risk Assessment after finding that the applicant had failed to objectively establish her sexual orientation as a lesbian, despite the applicant providing an affidavit attesting to this. The court found that the officer had failed in their reasons to address the probative value of the applicant’s affidavit and, as a result, the Court concluded that “the officer simply did not believe [the applicant’s] story and tacitly discounted her credibility”.
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71. In my view, the case before us is distinguishable from those in Chera, Diallo, and JKL since, unlike in those cases, here, there is no indication that the Internal Reviewer did not believe the explanations provided by the Applicant or the Employer. A decision-maker can draw conclusions from the evidence before them without making adverse findings about a party’s credibility: see Liverpool v. Ontario Workplace Safety and Insurance Appeals Tribunal, 2023 ONSC 2286 (Div. Ct.), at para. 43; and Nacar v. Canada (Minister of Citizenship and Immigration), 2024 FC 1647, at para. 35.
72. It was for the Internal Reviewer to determine what, if any, weight would be given to the Applicant’s explanations. The Internal Reviewer assessed the Applicant’s evidence against the statutory intent and purpose of the OINP. The Internal Reviewer did not reject the Applicant’s evidence as not true or find that he was not being honest. There is nothing to indicate that the Internal Reviewer did not believe the Applicant’s explanations about the COVID-19 restrictions in China or his family responsibilities or had a concern about his genuineness. It is apparent on the face of the Decision that the Internal Reviewer accepted the Applicant’s explanations but, in weighing the evidence before them, was simply not satisfied that it justified not fulfilling the Condition. I find that there was no veiled credibility finding. It was within the Internal Reviewer’s discretion to find that the Applicant’s explanations did not satisfactorily account for why he was not able to apply for the work permit. In my view, this was a reasonable and logical finding given the information before the Internal Reviewer. Since there was no veiled credibility finding by the Internal Reviewer, there was no breach of procedural fairness. . Zoghibi v. Air Canada
In Zoghibi v. Air Canada (Fed CA, 2024) the Federal Court of Appeal considered an appeal of a JR challenging a CHRC decision, here stemming from a complaint by an airline passenger seeking 'financial relief' for alleged discrimination.
Here the court considers practice when a tribunal fails to consider an argued issue - that is, can it be argued as a fresh law issue on review (appeal/JR), or should it be remitted back to the tribunal for re-hearing on that issue (it's the latter):[29] Issue (6) was raised before the Commission but, as mentioned above, the Commission never dealt with it. The Federal Court dealt with it on its merits. On the authority of Alberta Teachers, it should not have done so: see paragraphs 26-27, above, in these reasons.
[30] The fact that issue (6) is a constitutional issue does not change the situation. Where the issue is one of constitutional law and the administrative decision-maker has the jurisdiction to deal with it, the administrative decision-maker, as the merits-decider, is the forum to raise it. In those circumstances, an applicant on judicial review cannot bypass the power of a tribunal to decide an issue, and proceed directly to the reviewing court: Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla v. Quebec (Attorney General), 2005 SCC 16, [2005] 1 S.C.R. 257 at paras. 28-55.
[31] Where, as here, the administrative decision-maker failed to deal with a constitutional issue placed before it and an applicant submits that the administrative decision-maker had jurisdiction to decide it, an applicant should attack that failure and ask for the constitutional issue to be remitted back for redetermination. The Commission, not a reviewing court, has the power to consider whether it has jurisdiction to assess the constitutional issue and, if so, whether the constitutional issue, along with any other issues, should be sent to the Tribunal for adjudication. ....
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