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Fairness - The Borders of Fairness
COMMENT
This subject, the 'borders of fairness' is my own. I have long-suspected that procedural fairness overlaps into the quasi-doctrine of 'error', either legal or discretionary (for instance in the Rodriguex Anzola case the appellant advanced a JR record addition 'error' as a fairness issue).
This subject is where I will post any extracts that might illustrate this suspicion so that I may explore this sub-topic more.
. Rodriguez Anzola v. Canada (Citizenship and Immigration)
In Rodriguez Anzola v. Canada (Citizenship and Immigration) (Fed CA, 2026) the Federal Court of Appeal allowed an appeal, this brought against the dismissal of "the appellant’s application for judicial review of a decision of the Immigration Division (the ID) of the Immigration and Refugee Board of Canada (IRB)", this regarding an ID finding that the appellant was "inadmissible to Canada on grounds of serious criminality pursuant to paragraph 36(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c. 27 (the Act) for having committed an offence in her country of origin (trafficking or carrying illegal drugs) which, if committed in Canada, would constitute an offence under an Act of Parliament – here the Controlled Drugs and Substances Act, SC 1996, c. 19 – punishable by a maximum term of imprisonment of at least 10 years".
Here the court considers the (IMHO uncertain) dividing line between issues of procedural fairness and straightforward discretionary ruling, which it characterizes as being on the 'merits':[28] As a third issue in this appeal, Ms. Rodriguez Anzola reiterates that it was procedurally unfair on the part of the ID not to consider the Additional Material and that the Application Judge erred in failing to set aside the ID Decision on that ground. She contends that this portion of the ID Decision must be reviewed on a standard of correctness, which, she says, is the standard applicable to questions of procedural fairness.
[29] However, to the extent that the Additional Material was found to be irrelevant as not being germane to what was being decided, and as largely focusing on events that post-dated Ms. Rodriguez Anzola’s conviction in Colombia, I am not persuaded that the ID’s refusal to consider the Additional Material raises procedural fairness concerns. On the contrary, the refusal in my view, is more akin to the ID determining what factually constrained the exercise of what it considered, rightly or wrongly, to be the scope of its decision-making authority in this case. This goes to the actual merits of the ID Decision and is reviewable, therefore, on a standard of reasonableness.
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