Simon's Megalomaniacal Legal Resources

Review - Fresh Law - JR

. Tan v. Canada (Citizenship and Immigration)

In Tan v. Canada (Citizenship and Immigration) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against a JR dismissal determining whether: "section 10 of the Citizenship Act, by which citizenship that was obtained by “false representation or fraud or by knowingly concealing material circumstances” may be revoked, violate paragraph 2(e) of the Canadian Bill of Rights".

The court considers a 'fresh law' issue, here in a Charter JR context - and, in the course of that, canvasses administrative tribunal Charter jurisdiction over 'questions of law' [paras 42-43]:

A. Did the Federal Court err in concluding that it did not have jurisdiction to examine Ms. Tan’s constitutional challenges?

[32] The Federal Court made two preliminary findings regarding Ms. Tan’s constitutional arguments:

The constitutional validity of sections 10 and 10.1 of the Citizenship Act was not raised before the Delegate; and

It would be inappropriate for the Federal Court to consider Ms. Tan’s constitutional arguments for the first time on judicial review.

[33] I agree with the Federal Court that Ms. Tan did not put the constitutional validity of sections 10 and 10.1 of the Citizenship Act before the Delegate. Although Ms. Tan referred to the Bill of Rights and the Charter in support of her submissions to the Delegate, she did not request a declaration that the two provisions are constitutionally invalid. As the Federal Court stated, Ms. Tan’s 2015 written representations, in which she did raise a constitutional issue, were made in the course of her application for judicial review of a decision made under the citizenship revocation regime of the 2015 Citizenship Act, which regime was declared invalid in Hassouna. The 2015 submissions do not challenge the constitutionality of sections 10 and 10.1 of the current Citizenship Act. The Federal Court correctly concluded that Ms. Tan raised the constitutional issues at the heart of this appeal for the first time on judicial review.

[34] I do not, however, agree with the Federal Court’s second preliminary finding.

[35] Citing the Supreme Court’s decision in Alberta Teachers, the Federal Court found that a reviewing court will not in most cases exercise its discretion to consider a new issue in favour of an applicant on judicial review where the applicant did not argue the issue before the administrative decision maker. The Federal Court was not persuaded by the Respondent’s argument that the Court could address Ms. Tan’s constitutional arguments because the Delegate did not have jurisdiction to do so.

[36] It is well settled that a reviewing court has discretion "“not to consider an issue raised for the first time on judicial review where it would be inappropriate to do so”" and, generally, will not exercise its discretion "“where the issue could have been but was not raised before the tribunal”": Alberta Teachers at paras. 22-23. A party cannot bypass an administrative process by applying for relief in a court of law where the particular decision maker has the jurisdiction to address the issue, including a constitutional issue: Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla v. Quebec (Attorney General), 2005 SCC 16 at paras. 38-40 (Okwuobi); Zoghbi v. Air Canada, 2024 FCA 123 at para. 30 (Zoghbi), leave to appeal to SCC refused, 41471 (April 17, 2025); Erasmo v. Canada (Attorney General), 2015 FCA 129 at paras. 33, 38 (Erasmo).

[37] Conversely, if an administrative decision maker does not have the power or jurisdiction to decide constitutional questions, the general rule prohibiting a reviewing court from considering those questions at first instance is subject to an exception and the constitutional issue or issues may be raised before the reviewing court: Zoghbi at para. 30; Erasmo at paras. 33-38. The contrary result is untenable. If the administrative decision maker had no jurisdiction to consider a constitutional issue and it is not appropriate to raise the issue for the first time on judicial review, an applicant has no recourse and the legislation in question is not subject to efficient, independent oversight.

[38] In Zoghbi, this Court stated:

[30] […] 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.

[Emphasis added.]

[39] To similar effect, this Court has previously stated that "“a direct challenge in Court to the constitutionality of legislation is possible as long as the challenge is not ‘circumventing the administrative process’ or tantamount to a collateral attack on an administrator’s power to decide the issue…”": Forest Ethics Advocacy Association v. Canada (National Energy Board), 2014 FCA 245 at paras. 46-47, citing Okwuobi at para. 54; see also Benito v. Immigration Consultants of Canada Regulatory Council, 2019 FC 1628 at paras. 55-56. This Court has also stated that the objection to first raising constitutional issues before a reviewing court, "“would not lie if the [administrative tribunal] did not have the jurisdiction to decide the constitutional issues”": Toussaint v. Canada (Attorney General), 2011 FCA 213 at para. 49, leave to appeal to SCC refused, 34446 (April 5, 2012), citing Okwuobi at paras. 28-34 and 38, and Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, 2003 SCC 54 (Martin).

[40] In Goodman, a brief decision issued from the bench, this Court found that the appellant’s constitutional arguments regarding a 2013 amendment to section 25 of the IRPA should not have been considered by the Federal Court because they had not been raised before the administrative decision maker. It is not at all evident from the Court’s reasons that the jurisdiction of the decision maker was argued in the appeal and the decision in Goodman does not address whether the original decision maker was empowered to consider constitutional arguments. As a result, I do not read Goodman as stating that a reviewing court should not entertain a new constitutional issue on judicial review even where the administrative decision maker did not have jurisdiction to consider the issue.

[41] The question is then whether the Delegate was competent to hear Ms. Tan’s constitutional arguments. In other words, could the arguments have been addressed by the Delegate?

[42] Administrative tribunals with the power to decide questions of law by virtue of their enabling statute have presumptive jurisdiction to determine issues of constitutional law, including the constitutional validity of a provision of their enabling statutes: Martin at para. 34; York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22 at para. 87, citing R. v. Conway, 2010 SCC 22 at para. 22. Presumptive jurisdiction to consider constitutional questions can only be rebutted "“by an explicit withdrawal of authority to decide constitutional questions or by a clear implication to the same effect, arising from the statute itself rather than from external considerations”": Martin at para. 42.

[43] The grant of jurisdiction to consider questions of law can be explicit or implicit: Martin at paras. 35-41, 48; Zoghbi at para. 43. Explicit authority is set out in the terms of the tribunal’s statutory grant of authority. The existence of implied jurisdiction requires consideration of the governing statute as a whole: Covarrubias v. Canada (Minister of Citizenship and Immigration), 2006 FCA 365 at para. 49 (Covarrubias). In Martin, the Supreme Court stated:

[48] … Relevant factors will include the statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this mandate effectively; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal’s capacity to consider questions of law. Practical considerations, however, cannot override a clear implication from the statute itself. […] If the tribunal is found to have jurisdiction to decide questions of law arising under a legislative provision, this power will be presumed to include jurisdiction to determine the constitutional validity of that provision under the Charter.

[44] Under section 10 the Citizenship Act, the Minister (typically a delegate of the Minister) is empowered to revoke a person’s citizenship if satisfied on a balance of probabilities that the person has obtained their citizenship by false representation or fraud or by knowingly concealing material circumstances. The section does not contain an express grant of jurisdiction to consider questions of law and, considering the citizenship revocation provisions of the Citizenship Act as a whole and the Minister’s statutory mandate, I cannot discern an implied grant of jurisdiction.

[45] Subsection 10(1) limits the Minister’s power to determining whether a person obtained their citizenship by false representation or fraud and, if so, whether the person’s personal circumstances warrant special relief. In my view, the Minister’s task is factual. Although the Minister makes a final determination of revocation in some cases, they are not required to decide questions of law in fulfilling their role. Rather, the Minister applies substantive rules to a set of facts.

[46] In terms of the Minister’s relationship with other actors in the statutory framework of revocation, a person faced with the revocation of their citizenship can forego the opportunity to have the revocation determined by the Minister, in which case the determination is made by the Federal Court (subsection 10(4.1) and section 10.1 of the Citizenship Act), thereby providing an alternate adjudicative avenue for consideration of constitutional issues. I would add that neither the Minister nor their delegate in a given case may have legal training. Practically, they may not have the capacity or expertise to assess and determine questions of law, including Charter questions: see, e.g. Covarrubias at paras. 51-56, and the Court’s consideration of the same questions in relation to an officer entrusted with the determination of a pre-removal risk assessment under the IRPA, a role that is similar to that of a delegate under section 10 of the Citizenship Act.

[47] I find that the Delegate was not empowered to adjudicate constitutional or Charter issues and that Ms. Tan cannot be said to be circumventing the administrative process by raising such issues before the reviewing court. It follows that Ms. Tan was not prohibited from making her constitutional arguments and requesting a declaration of invalidity for the first time before the Federal Court.

[48] Despite reaching the opposite conclusion, the Federal Court nonetheless considered the constitutional issues raised by Ms. Tan. This Court has the benefit of the Federal Court’s analysis and the parties’ extensive written and oral submissions regarding those issues and I find that it is appropriate and fair to consider Ms. Tan’s constitutional arguments on appeal.

[49] A note of caution. By far the better practice for an applicant is to raise all issues, including constitutional issues, before the administrative decision maker who can then determine if they have jurisdiction to address those issues. If the applicant fails to do so and the decision maker had the necessary jurisdiction, the applicant risks the reviewing court’s refusal to exercise its discretion to act as a decision maker of first instance.