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JR - SOR - Exception - 'First-Instance Decision-Maker'. Tan v. Canada (Citizenship and Immigration)
In Tan v. Canada (Citizenship and Immigration) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against a JR dismissal determining whether: "section 10 of the Citizenship Act, by which citizenship that was obtained by “false representation or fraud or by knowingly concealing material circumstances” may be revoked, violate paragraph 2(e) of the Canadian Bill of Rights".
Here the court considers a JR SOR exception, that where the application court is acting as the "decision maker of first instance":[30] On appeal of a decision of the Federal Court sitting in judicial review, this Court typically determines whether the Federal Court identified the proper standard of review and correctly applied that standard. In effect, we step into the shoes of the Federal Court and focus on the administrative decision under review, in this case the Minister’s Decision: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45‐47 (Agraira); Northern Regional Health Authority v. Horrocks, 2021 SCC 42 at paras. 10-12 (Horrocks). This approach accords no deference to the reviewing judge’s application of the standard of review: Horrocks at para. 12.
[31] However, the Federal Court acted as a decision maker of first instance when considering its jurisdiction to examine Ms. Tan’s constitutional arguments and interpreting section 10 of the Citizenship Act, and when addressing whether the revocation process mandated in section 10 of the Citizenship Act violates paragraph 2(e) of the Bill of Rights and section 7 of the Charter (Issues A-D above). Accordingly, the Federal Court’s analysis and findings regarding those issues are subject to the appellate standards of review set out in Housen v. Nikolaisen, 2002 SCC 33 (Housen): Horrocks at para. 12; Aracil-Morin v. Enoch Cree Nation, 2025 FCA 21 at paras. 20-22; Power Workers’ Union v. Canada (Attorney General), 2024 FCA 182 at paras. 45-46, leave to appeal to SCC refused, 41628 (May 29, 2025). Where the appellate standards apply, questions of law are reviewed on a correctness standard and questions of fact or mixed fact and law are reviewable for palpable and overriding error: Housen at paras. 8, 10; Prairies Tubulars (2015) Inc. v. Canada (Border Services Agency), 2022 FCA 92 at para. 7, leave to appeal to SCC refused, 40334 (March 16, 2023). . Canada (Attorney General) v. Canadian Civil Liberties Association
In Canada (Attorney General) v. Canadian Civil Liberties Association (Fed CA, 2026) the Federal Court of Appeal dismissed a federal AG JR, this brought against "the Federal Court’s finding that the declaration of a public order emergency was unreasonable and that some provisions of the Regulations and of the Economic Order violated the Charter", here where the emergency order made under the federal Emergencies Act.
Here the court considers another exception to JR SOR 'reasonableness', this where the court is the "first instance decision-maker" (this can occur when there was no prior tribunal decision, or where the reasons are non-existent or weak):[101] When the Federal Court’s decision that is being challenged was not made by that Court sitting in its judicial review capacity, but rather as a first instance decision-maker, it is uncontroversial that the applicable standard of review is that set out in Housen v. Nikolaisen, 2002 SCC 33: see, for example, Laurentian Pilotage Authority v. Corporation des Pilotes de Saint-Laurent Central Inc., 2019 FCA 83 [Laurentian Pilotage] at paras. 28-29; Budlakoti v. Canada (Citizenship and Immigration), 2015 FCA 139 at paras. 37-39; Canada v. Long Plain First Nation, 2015 FCA 177 at para. 88; Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17 at paras. 25-26. Accordingly, the standard of correctness will apply on questions of law, whereas questions of fact and mixed fact and law from which no question of law is extricable will be reviewed on the palpable and overriding error standard.
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