As seen in the Canadian Lawyer Magazine: https://www.canadianlawyermag.com/news/opinion/the-new-grappling-game-of-administrative-law/329639
In its landmark decision on the boundaries, reach and substance of the judicial review of administrative law decisions, the Supreme Court of Canada in Vavilov v. MCI 2019 SCC 65 revealed a grammatical “tick” that may be key to the full implications of the decision. We all have them: words or phrases we unconsciously reuse in our daily conversations or writing and may never even notice until and unless someone points it out. Lawyers learn of this the hard way, in a grimace-inducing read of a transcript of a discovery or cross examination in which the words are there, in black and white, with no take backs. I never realized I used the word, “Okay” a thousand times in the course of questioning a witness or in a simple conversation, until I saw it there on the transcript page, over and over and over and over again… a hideous reminder of my lack of vocabulary!
Some argue that the ticks we develop reveal a lot about what we really mean when we communicate as it is not the conscious mind producing the repetition, but the inner world. Mine just has the letters “OK” in it.
But the judges of the Supreme Court of Canada are deeper thinkers and have more on their minds. When they use a word, it has meaning, whether they consciously intended it or not. In more limited, but telling fashion, the Supreme Court of Canada in the Vavilov decision has revealed something to us when on three separate parts of the case they use the word “grapple.” The Court initially says that a failure of a decision maker to grapple with the severe or harsh consequences of a decision may render the decision unreasonable. Later on, they note that referring to legislative history is not enough, but that the tribunal must grapple with the elements of that history. Finally, the Court directs decision makers to grapple with the arguments or legal reasoning put to them.
What all of this means is that the Court was disturbed by the fact that the decision maker in Vavilov, and other cases, did not give due attention and thought, to substantive legal argument made to her. Mentioning an argument and moving on is no longer enough. For a decision to be reasonable, some grappling has to occur and be evident in the decision.
The Federal Court is getting the message.
In a recent decision of the Court in Ahmed v. MPSEP 2020 FC 507, Justice Ahmed overturned a decision of a Minister’s Delegate for failing to meaningfully grapple with the expert opinion of an academic who concluded that the application would be at risk if forced to return to Somalia, a country he had left at age 7 and with the evidence of his inability to cope with a new life in Somalia. At the time the case was heard, he was 37 years old! Somalia, as you may know, is a failed state. The “government” such as it is, controls a small portion of the country, largely the capital of Mogadishu. The rest is under a loose domination of a number of warring entities, including Al Shabaab. Al Shabaab is a terrorist organization with extreme religious views and intolerance. They are known for brutal and dehumanizing conduct toward enemies, those perceived as enemies and those who do not follow their strict religious doctrine. In short, they are a monstrous aberration which rose from the chaos of war and famine, and for persons like the Applicant, coming from the west after so long an absence – they are to be feared, and rightly so. The expert, a renowned scholar from Oxford University, relied on by CBSA itself for consultations, believed that the Applicant would be perceived as a non-believer, and perhaps even a Western spy and subjected to torture, and murder. Because that is what Al Shabaab does.
In deciding that the applicant was not at risk and could return safely to Somalia and re-affirm his life there, the Minister’s Delegate touched on the arguments and evidence made, including the expert report, but failed to grapple with it. As the Court stated:
Although the Delegate listed the H&C considerations, the analysis was superficial and demonstrated a “failure to grapple with the consequences” of removal to the Applicant (Vavilov at para 134). As the Applicant came to Canada as a child at the age of 7, the Applicant lacks an understanding of the Somali language and culture, does not have family members in Somalia, and has absolutely no support in Somalia that could assist in his reintegration. The Applicant’s life and reintegration in Somalia will not only be “difficult” as described by the Delegate, but nearly insurmountable.
Whether a Supreme Court grammatical tick or not, the requirement to fully analyse and come to terms with evidence and arguments put before tribunals, is now entrenched. The tribunals must grapple and show that they grappled. No longer is a tick box type answer appropriate.
