Pushpanathan v. Canada (Minister of Citizenship and Immigration)

Pushpanathan v. Canada (Minister of Citizenship and Immigration)
Supreme Court of Canada
Hearing: October 9, 1997 Judgment: June 4, 1998
Full case name: Veluppillai Pushpanathan v. The Minister of Citizenship and Immigration Citations: [1998] 1 S.C.R. 982 Ruling: Appeal Allowed.
Court membership
Chief Justice: Antonio Lamer Puisne Justices: Claire L'Heureux-Dubé, John Sopinka, Charles Gonthier, Peter Cory, Beverley McLachlin, Frank Iacobucci, John C. Major, Michel Bastarache
Reasons given
Majority by: Bastarache J. (paras. 1-77) Joined by: L’Heureux-Dubé, Gonthier and McLachlin JJ. Dissent by: Cory J. (paras. 78-158) Joined by: Major J.

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [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".

Contents 1 Background 2 Issue 3 Judgment of the Court 3.1 Standard of review 4 References 5 External links

Background

Veluppillai Pushpanathan arrived in Canada seeking refugee status from his native country of Sri Lanka. 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.

Judgment of the Court

Justice Bastarache, writing for the majority.

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.^[1] 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:^[2]

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 clause
• 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".

References

External links

• Full text of Supreme Court of Canada decision at LexUMand CanLII
• case summary