Justice William Hourigan accused his colleagues of misunderstanding panel reviews in dissent
A dissenting judge has chastised a majority judgment as “an exercise in micromanaging” and warned it could encourage litigants to strategically misuse appellate panel reviews.
In a majority decision that sent a refugee applicant’s infant back to Bangladesh, OCA Justice William Hourigan noted in his dissent that “over the last several years, panel reviews have increased to the point where they are now a regular occurrence in this court.” He added that litigants have used such reviews “to shop for a sympathetic judge, which is what appears to have happened in this case.
“A motion judge may apply the law and exercise their discretion in an entirely reasonable and correct manner, but all it takes is for two judges of this court to accept an argument that the relevant factors should have been weighed differently, and that decision will be set aside,” Hourigan wrote.
“Effectively, the appellant is granted double appeal rights.”
According to Tuesday’s decision, the couple involved in the case are from Bangladesh and travelled to Canada in May for a vacation with their infant daughter. In June, the mother called the police, and the father was charged with assault, forcible confinement, assault with choking, and uttering threats to cause death or bodily harm.
The father temporarily returned to Bangladesh for work after being released on bail, and the mother filed a refugee claim for herself and their child so they could stay in Canada. The father filed an urgent motion to stop the mother from removing the child from Toronto without his consent, unless she was bringing her to Bangladesh, and from including the child on her refugee claim. He also sought joint decision-making responsibility for the child and requested in-person parenting time.
According to the father, the mother had serious mental health diagnoses and a history of violent behaviour. The mother meanwhile accused the father of verbal, mental, sexual, and physical abuse.
A lower Ontario court concluded that while the mother might have legitimate safety concerns, the child should be returned to Bangladesh, and there is no evidence that the father would harm the child. An OCA motion judge upheld the lower court’s order.
The mother asked the OCA for a panel review. Under s. 7(5) of the Courts of Justice Act, a panel of the OCA can review a single judge’s order. However, Hourigan said in his dissent that overturning an order is considered an extraordinary remedy, particularly in cases where the order is discretionary.
Justices Lene Madsen and Jill Copeland set aside the motion judge’s order. Writing for the majority, Madsen said the motion judge “erred in principle” when he refused to stay the order that would have returned the infant to Bangladesh. To assess whether the court should grant a stay pending an appeal, the court needs to consider whether there is a serious question to be tried, whether the moving party will suffer irreparable harm if the stay is not granted, and the balance of convenience with respect to each party.
Madsen said multiple factors “augured in favour of granting the stay.”
According to the justice, the debate over the scope of existing case law, specifically that which addresses whether to return a child to their home country while there is a pending refugee claim, constitutes a serious question on appeal. Madsen said the motion judge did not give enough weight to this issue.
The mother also met the irreparable harm prong of the stay test, given that sending her child back to Bangladesh when her partner is abusive would harm the mother, Madsen said. The justice added that the motion judge’s analysis focused only on the mother but failed to consider how the child would suffer potential immigration consequences and be separated from her primary caregiver.
Madsen said the motion judge’s balance of convenience analysis “ought to have considered the child’s refugee claim, the potential separation from her mother, as well as the acknowledged premise that children’s best interests are favoured by their timely return to their home jurisdiction.”
In his dissent, Hourigan accused the majority of ignoring “the law that holds that a panel review is not a de novo hearing” and their obligation to defer to the motion judge’s analysis.
“If panels reviewing a single judge’s order are permitted to reweigh discretionary factors, no order of a single judge will be safe because discretionary factors can always be reweighed differently,” the justice wrote. He added that “panels are required to show deference and not declare that they will do so and then undertake a de novo analysis.”
He wrote that “the majority's analysis of the serious issue criterion is an exercise in micromanaging not deference.
“They agree that the motion judge's finding that there was a serious issue was correct, but they find that more emphasis should have been placed on the alleged strength of the case,” Hourigan said. “They cite no authority for the proposition that the motion judge was obliged to grant additional weight to this component of the stay test. Nor do they cite a case where a review panel has overturned a single motion judge on this basis. As far as I can tell, this is an unprecedented approach to panel reviews in this court.”
Hourigan added that the motion judge did not make any errors when he found that the mother’s claim that her child would suffer immigration consequences lacked merit. The motion judge was unable to assess this claim, the justice said, because the mother’s lawyers “made a tactical choice not to adduce any evidence regarding the grounds they were asserting to establish irreparable harm.”
Hourigan said he would have upheld the motion judge’s order. “The majority’s reasons are unprecedented, wrong in law, and internally inconsistent,” he wrote. “They represent a fundamental misunderstanding of the role of a panel reviewing an order of a single judge.
“Further, their long-term impact is potentially serious as they will encourage the misuse of panel reviews for judge-shopping purposes.”
Counsel for the mother declined to comment on the case, and counsel for the father did not respond to a request for comment.
