The new grappling game of administrative law

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 019 SCC 65 revealed a verbal tic 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 writings, which we 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 takebacks. I never realized I used the word “OK” 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 tics we develop reveal a lot about what we really mean when we communicate, as it is not the conscious mind producing the repetition, but its inner world. Mine evidently has only the word “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 in three separate parts of the case they use the word “grapple.”

The Court initially says that a failure of a decisionmaker to grapple with the severe or harsh consequences of a decision may render the decision unreasonable. Later, 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 decisionmakers 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 decisionmaker in Vavilov and other cases did not give due attention and thought to the substantive legal arguments made to her. Mentioning an argument and moving on is no longer enough. For a decision to be reasonable, some grappling must occur and be evident in the decision.

The Federal Court is getting the message.

In a recent decision of the Court in Ahmed v. Canada (Public Safety and Emergency Preparedness), 2020 FC 507, Justice Shirzad 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 applicant would be at risk if forced to return to Sudan, a country he had left at age seven and with the evidence of his inability to cope with a new life in Somalia. He was now 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 lose domination of a number of warring entities, including the king of them all, Al-Shabaab, a terrorist organization with extreme religious views. It is known for brutal and dehumanizing conduct toward enemies, those perceived as enemies, and those who do not follow their strict religious doctrine.

In short, it is a monstrous aberration which rose from the chaos of war and famine, and for persons like the applicant — who would be returning from the West after a long absence — they are to be feared, and rightly so.  The expert, a renowned scholar from the University of Oxford whose opinion is relied on by the Canada Border Services Agency, believed the applicant would be perceived as a non-believer, 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-establish 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 Federal Court stated:

Although the Delegate listed the H&C [humanitarian and compassionate] 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 verbal tic 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 have grappled. No longer is a tick-box type of answer appropriate.