Shazam: When unreasonable becomes reasonable through standard of review

I regularly witness how standard of review is wielded by some judges as a threat to one of the pillars of the rule of law — access to an effective remedy.

Ron Poulton

I admit that standard of review is my obsession as of late. How can it not be when I regularly witness how it is wielded by some judges as a threat to one of the pillars of the rule of law — access to an effective remedy? The common law system operates well when no one level of decision-maker trusts anyone else below them to be perfect. It is the layers upon layers of consideration which ensure that at some point in the thickening, justice has the best chance of emerging.  

Then came Dunsmuir v. New Brunswick and the magic wand of deference appeared!

Ugh . . . !

The latest offering from the Federal Court on the issue is the case of Herman v. Canada, which illustrates the lengths to which some judges will go to show respect to the lower tribunals, even while recognizing they may have gotten it wrong. If ever form over substance prevailed, it is in the now of SOR and the case of Herman.

The facts in Herman are clear enough; the mistake by the immigration officer obvious. Sharon Herman entered Canada on a visitor visa in 2010 and stayed, living beneath the radar of Immigration Canada until filing a request for compassion in 2016. She lived in Canada with her spouse, Dean Robert, her 18-year-old daughter and her 9-year-old son. Robert suffers from chronic myeloid leukemia. This disease can be fatal, but it is also treatable. He was treated in the family’s home country of St. Lucia, where it is hard — if not impossible at times — to get your hands on the required medication. Eventually, the cost of buying the drugs he needed became too much to bear; he stopped taking them, went into a health crisis and ended up in the hospital. In Canada, he had never gone without medication.

A letter from an oncologist in St. Lucia, O. Gabriel, was included with the humanitarian application. Gabriel offered the opinion that it would take Robert three to six months to obtain medication to treat his leukemia if he returns to St. Lucia. That means he would go three to six months with no treatment for a disease which he had managed to keep at bay with regular, ongoing drug therapies. A gap of this magnitude was intolerable. The immigration officer recognized Gabriel as an expert on leukemia, but then inexplicably discounted his opinion that Robert would not access the meds he needed for three to six months, because Gabriel had not consulted “secondary sources concerning country conditions in St. Lucia.” An expert doesn’t need secondary sources. An expert is the source!

On judicial review, Justice Henry Brown of the Federal Court appeared to agree that this decision was unreasonable. He held that the officer failed to explain why he thought oncologists in St. Lucia were required to buttress their professional opinions as physicians with additional sources.

So far so good. The officer unreasonably discounted an expert, who had stated that Robert would be without his life saving meds for three to six months. Sounds like compassion should allow for an approval in this case.

Sadly, this was not to be.

The court stood back, reviewed the matter as “an organic whole, and keeping in mind that judicial review is not a treasure hunt for errors” and held that the decision was justified, transparent and intelligible notwithstanding the officer’s unreasonable decision on a key element of the case.

The magic wand of Dunsmuir had been waved, smoke and mirrors applied and shazam:  the unreasonable became the reasonable.  

Ugh . . . !


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