Pushpanathan v. Canada (Minister of Citizenship and Immigration)
Encyclopedia
Pushpanathan v. Canada, [1998] 1 S.C.R.
982 is a leading decision of the Supreme Court of Canada
on the standard of review
in Canadian administrative law
. The Court held that a decision of the Immigration and Refugee Board should be reviewed on the standard of "correctness"
.
. The claim was never settled as he eventually got permanent resident status. He was sent to prison and was eventually paroled. He tried to renew his refugee claim but a conditional deportation order was issued.
The judgement canvasses factors that are to be considered when determining the standard of review that the courts should apply. These factors include:
The court concluded that since the issue is "a serious question of general importance" there is no other standard but that of "correctness".
Supreme Court Reports
The Supreme Court Reports is the official reporter of the Supreme Court of Canada. Since the creation of the Supreme Court, all of its decisions have been published in the Reports, in both English and French. The first volume was published in 1877 containing the first case ever heard by the...
982 is a leading decision of the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
on the standard of review
Standard of review
In LAW, the standard of review is the amount of deference given by one court in reviewing a decision of a lower court or tribunal. A low standard of review means that the decision under review will be varied or overturned if the reviewing court considers there is any error at all in the lower...
in Canadian administrative law
Administrative law
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...
. The Court held that a decision of the Immigration and Refugee Board should be reviewed on the standard of "correctness"
Standard of review
In LAW, the standard of review is the amount of deference given by one court in reviewing a decision of a lower court or tribunal. A low standard of review means that the decision under review will be varied or overturned if the reviewing court considers there is any error at all in the lower...
.
Background
Veluppillai Pushpanathan arrived in Canada seeking refugee status from his native country of Sri LankaSri Lanka
Sri Lanka, officially the Democratic Socialist Republic of Sri Lanka is a country off the southern coast of the Indian subcontinent. Known until 1972 as Ceylon , Sri Lanka is an island surrounded by the Indian Ocean, the Gulf of Mannar and the Palk Strait, and lies in the vicinity of India and the...
. The claim was never settled as he eventually got permanent resident status. He was sent to prison and was eventually paroled. He tried to renew his refugee claim but a conditional deportation order was issued.
Issue
The issue was the standard of review to be applied to the Immigration and Refugee Board's decision regarding Pushpanathan.Standard of review
Bastarache noted that even though the lower courts did not address it, the standard of review must be established before considering the other issues. He reviewed the "pragmatic and functional approach" from U.E.S., Local 298 v. Bibeault (1988) and the three available standards of review. In a key passage, the judgement redefined the meaning of 'jurisdictional' in administrative law:A question which "goes to jurisdiction" is simply descriptive of a provision for which the proper standard of review is correctness, based upon the outcome of the pragmatic and functional analysis. In other words, "jurisdictional error" is simply an error on an issue with respect to which, according to the outcome of the pragmatic and functional analysis, the tribunal must make a correct interpretation and to which no deference will be shown.
The judgement canvasses factors that are to be considered when determining the standard of review that the courts should apply. These factors include:
- The presence or absence of a privative clausePrivative clauseIn administrative law, a privative clause is a provision in a statute that tries to remove a court’s ability to review decisions of a tribunal . In the UK they are known as "ouster clauses"....
- The relative expertise of the courts and the administrative decision-maker
- The purpose of the act as a whole, and the provision at issue in particular
- The Nature of the Problem: a question of law or fact?
The court concluded that since the issue is "a serious question of general importance" there is no other standard but that of "correctness".