Feng v. Saskatchewan (Economy): Denying a remedy for a breach of procedural fairness in the Saskatchewan Immigrant Nominee Program context

December 2, 2020

By Kali Stahl*

On January 9, 2020, the Court of Appeal for Saskatchewan released its decision in Feng v. Saskatchewan (Economy). This comment discusses the Court’s decision to deny a remedy despite finding a breach of procedural fairness and, more importantly, addresses the Ministry of the Economy’s concerning arguments.

 

I. THE CASE

In its recent decision in Feng v. Saskatchewan (Economy),[1] the Court of Appeal for Saskatchewan denied a remedy for a breach of procedural fairness.[2] The plaintiff, Mr. Feng, was a foreign national who applied to the Ministry of the Economy[3] (“Ministry”) under the Saskatchewan Immigrant Nominee Program (“SINP”) for nomination to the federal government for permanent residency.[4] The SINP is not a statutory program. The Ministry created the SINP under the Canada-Saskatchewan Immigration Agreement, 2005,[5] and it is administered pursuant to internal Ministry policies and procedures.[6]

Mr. Feng applied for a SINP nomination in 2014[7] under the “International Skilled Worker: Employment Offer” category, which requires the applicant to have received a valid job offer.[8] Mr. Feng had received a job offer from OK Tire.[9] The Ministry notified Mr. Feng that his application was accepted and instructed him to work with Citizenship and Immigration Canada (“CIC”) to advance the immigration process.[10] CIC notified the Ministry of concerns regarding the legitimacy of the job offer and requested verification from the Ministry.[11] The Ministry attempted to contact OK Tire to investigate, but the efforts were unsuccessful.[12] Mr. Feng was not notified of the investigation.[13] Nevertheless, the Ministry informed CIC that the job offer was invalid because OK Tire failed to respond to the Ministry.[14]

In 2016, the Ministry notified Mr. Feng that the OK Tire job was invalid and that he had to obtain a new valid job offer within forty-five days to maintain his nomination status (“2016 decision”).[15] The letter contained no return address and instructed Mr. Feng not to contact the SINP.[16] During that forty-five-day period, OK Tire informed the Ministry that the job offer had not been withdrawn.[17] However, two months later, OK Tire explained to the Ministry that the position was no longer required.[18] The Ministry notified Mr. Feng that OK Tire had withdrawn the position.[19] The Ministry afforded Mr. Feng the opportunity to secure a new position to maintain his nomination status.[20] After three extensions and one failed attempt to provide evidence of a valid job offer, the Ministry notified Mr. Feng in 2017 of its decision to revoke his SINP nomination (“2017 decision”).[21]

Mr. Feng applied to the Court of Queen’s Bench for judicial review of the Ministry’s decisions.[22] The Chambers judge reviewed only the 2017 decision and found, inter alia, that the procedure followed by the Ministry was fair.[23] Mr. Feng appealed.[24]

 

II. BREACH OF PROCEDURAL FAIRNESS

The Court of Appeal for Saskatchewan focused on the issue of procedural fairness and applied the correctness standard of review.^[25] The Court determined that the Ministry’s decisions required “minimal procedural safeguards,”^[26] which included providing Mr. Feng with notice, an opportunity to respond, and reasons.^[27] Since these safeguards were not afforded to Mr. Feng during the investigation leading up to the 2016 decision, the Court found a breach of procedural fairness.[28] The Court found no breach of procedural fairness with respect to the 2017 decision.[29]

Generally, a breach of procedural fairness results in the quashing of an impugned decision. Matters are generally remitted for reconsideration regardless of whether the reviewing court believes that reconsideration would change the substantive outcome.[30] However, the Court in Feng CA applied a narrow exception to this rule: when a case is hopeless and has an inevitable answer, a court may refuse to grant a remedy.[31] Since OK Tire ultimately withdrew the job offer, there was no job offer for the Ministry to reconsider. Therefore, the Court concluded that granting a remedy and remitting the matter to the Ministry would “be futile, meaningless and serve no useful purpose.”[32]

 

III. COMMENT

Given the futility of remitting the decision, the Court was right to deny a remedy. The Court struck an appropriate balance by recognizing the importance of the decision to Mr. Feng and thereby determining that procedural fairness was owed while remaining pragmatic about the pointlessness of granting relief. By denying a remedy, the Court avoided wasting time and resources.

Despite the Court’s denial of a remedy being appropriate, the breach of procedural fairness created unfair circumstances for Mr. Feng. Additionally, the Ministry’s arguments raise concerns. First, the Ministry argued that the 2016 decision affected the interests of OK Tire as an employer and not the interests of Mr. Feng.[33] The Court rejected this argument.[34] Mr. Feng’s status as a nominee under the SINP depended on him maintaining a valid job offer. The Ministry’s decision to invalidate the offer clearly affected his status. Moreover, the goal of applying under the SINP is to gain permanent residency in Canada. It is perplexing that the Ministry responsible for making decisions that affect the lives of applicants would deny the clear impact of its decisions. In 2018–19, the SINP attracted 11,109 immigrants to Saskatchewan—including 4,500 nominees, their spouses, and their dependents—and accounted for 72 per cent of immigration to the province.[35] Clearly, the decisions that the Ministry makes under the SINP have profound implications for thousands of people, including nominees and their family members.

Second, the Ministry argued that the investigation leading to the 2016 decision complied with its policies and procedures which shaped “the scope of Mr. Feng’s procedural rights.”[36] Recall that Mr. Feng was afforded neither notice, an opportunity to respond, nor reasons. The Court reviewed the Ministry’s procedure regarding investigations of job offers and commented that the procedure is “vague and not clearly defined.”[37] Applicants under the SINP should be afforded more protection. It has been argued that provincial nominee programs like the SINP should be statutorily enacted to protect applicants, particularly with regard to substantive review of decisions.[38] As it stands, however, despite the Court’s engagement with Mr. Feng’s case against the SINP,[39] mechanisms by which an applicant can challenge a decision are unclear in cases where the decision-maker’s authority is not statutorily granted.[40]

Short of legislation, however, given the importance of the Ministry’s decisions under the SINP and their impact on the lives of nominees and their families, perhaps the Ministry would be prudent to employ clear policies and procedures that do not tolerate the denial of procedural fairness to applicants.

*           JD Candidate (Saskatchewan).

[1]           2020 SKCA 6 [Feng CA].

[2]           Ibid at para 118.

[3]           After restructuring in 2018, the Ministry of the Economy became the Ministry of Immigration and Career Training (ibid at para 1, n 1).

[4]           Ibid at para 1.

[5]           Canada-Saskatchewan Immigration Agreement, 2005, 7 May 2005, online: Government of Canada <www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/federal-provincial-territorial/saskatchewan/canada-saskatchewan-immigration-agreement-2005>, archived: <perma.cc/Y7P9-7WJC>.

[6]           Feng CA, supra note 1 at paras 5–7. In Kaberwal v Saskatchewan (Ministry of the Economy), 2013 SKQB 244 at para 5, 424 Sask R 144, Justice Schwann (as she then was) described the SINP as follows:

SINP is not established pursuant to specific legislative authority. It derives its authority pursuant to “management direction” from the broader, umbrella legislative mandate of the Ministry. In this respect the processes, forms, guidelines, criteria, requirements, evaluation and decision making, etc. were all created and are governed by broad based ministerial policy. As succinctly put by the Ministry, the program has no statutory basis and the officials who administer it do not exercise statutory authority of any kind.

[7]           Feng CA, supra note 1 at paras 9–10.

[8]           “International Skilled Worker: Employment Offer” (last visited 27 February 2020),

online: Government of Saskatchewan <www.saskatchewan.ca/residents/moving-to-saskatchewan/immigrating-to-saskatchewan/saskatchewan-immigrant-nominee-program/applicants-international-skilled-workers/international-skilled-worker-with-employment-offer>, archived: <perma.cc/VV9B-BQSJ>.

[9]           Feng CA, supra note 1 at para 9.

[10]         Ibid at para 10.

[11]         Ibid at para 12.

[12]         Ibid at para 15.

[13]         Ibid at para 19. Two other SINP applicants, whose job offers were subject to similar investigations at “around [the] same time,” had been given the opportunity to follow up with the Ministry (ibid).

[14]         Ibid at para 16.

[15]         Ibid at paras 22–23.

[16]         Ibid.

[17]         Ibid at para 25.

[18]         Ibid at para 30.

[19]         Ibid at para 31.

[20]         Ibid.

[21]         Ibid at paras 32–33.

[22]         Ibid at para 34.

[23]         Feng v Saskatchewan (Economy), 2018 SKQB 11 at para 39 [Feng QB].

[24]         Feng CA, supra note 1 at para 40.

[25]         Ibid at para 43. Although the Supreme Court of Canada recently overhauled the standard of review for administrative decisions on appeal for substantive outcome in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, 441 DLR (4th) 1 [Vavilov], the Court did not explicitly alter the applicable standard of review for matters of procedural fairness (but see ibid at para 23).

[26]         Feng CA, supra note 1 at para 71.

[27]         Ibid at paras 72, 86.

[28]         Ibid at paras 98–100.

[29]         Ibid at para 105.

[30]         Cardinal v Director of Kent Institution, [1985] 2 SCR 643, 1985 CanLII 23 at para 23.

[31]         Feng CA, supra note 1 at paras 111–112, citing Mobil Oil Canada Ltd. v Canada-Newfoundland Offshore Petroleum Board, [1994] 1 SCR 202, 1994 CanLII 114. The Court in Feng CA noted that the Supreme Court of Canada recognized the exception in Vavilov, albeit in the context of substantive review: “‘Declining to remit a matter to the decision-maker may be appropriate where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose’” (Feng CA, supra note 1 at para 113, quoting Vavilov, supra note 25 at para 142).

[32]         Feng CA, supra note 1 at para 118.

[33]         Ibid at paras 75, 78. The Chambers judge had agreed with the Ministry on this point and declined to review the 2016 decision: Feng QB, supra note 23 at paras 27–28, 30.

[34]         Feng CA, supra note 1 at paras 77–78.

[35]         Saskatchewan, Ministry of Immigration and Career Training, Annual Report for 2018-19 (Regina: MICT, 2019) at 6.

[36]         Feng CA, supra note 1 at para 89.

[37]         Ibid at para 91.

[38]         Delphine Nakache & Catherine Blanchard, “Remedies for Non-Citizens under Provincial Nominee Programs: Judicial Review and Fiduciary Relationships” (2014) 37:2 Dal LJ 527 at 541–42.

[39]         See Feng QB, supra note 23 at paras 23–24 where the Court applied a reasonableness standard without discussing SINP’s lack of statutory authority.

[40]         Ibid. See also Amin v Saskatchewan (Ministry of the Economy), 2017 SKQB 142 at para 62, 49 Imm LR (4th) 202 where Justice Danyliuk framed a decision under the SINP as “a discretionary decision involving implementation of government policy, a decision not generally reviewable in this process.”