Summertime and the adjudicating is easy?

It’s been a week for slowing down, with hot and humid days - so, a couple of case notes and a short commentary on “slow productivity”

Jun 21, 2024

Cases of note

The end of boilerplate decision letters?

Kashefi v. Canada (Citizenship and Immigration), 2024 FC 856

This case involved the refusal of visa applications. Justice William Pentney found the reasons provided by the visa officer to be “simply too generic to meet the standard of responsive justification demanded by Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65”.

Justice Pentney found that the officer’s reasons did not show any engagement with the specific situation of the applicants. He noted that the Federal Court has acknowledged the following about visa application decisions:

The reasons can be brief, because officers “face a deluge of cases and in view of the interests of the individuals affected by such decisions”.
In making their decision, officers can bring their expertise concerning country conditions and many other factors to bear in exercising their wide discretion under the law.
Visa officers exercise broad discretion under the law, and the onus lies with the applicants to demonstrate that they will leave Canada at the end of their authorized stay. Decisions on visa applications deserve deference in view of this breadth of discretion.

Justice Pentney stated that he was not questioning any of these principles, but visa application decisions “must demonstrate an engagement with the specific facts of the case, and provide sufficient detail to justify the result”. He concluded that “[s]hort, focused and clear reasons will be sufficient, and not every detail needs to be addressed”.

Near the end of the short decision, Justice Pentney provides a comment on the use of form letters in decision-making that may foreshadow significant changes to the use of “boilerplate” decision letters:

…I will simply note that there may be legitimate questions to be asked about the extent to which the current practice of providing “standard form” decision letters devoid of any meaningful details is consistent with Vavilov’s call for a “culture of justification.”

The peril of not addressing extension of time requests

Lee v. Canada (Citizenship and Immigration), 2024 FC 913

This case involved a study permit extension application by a foreign student. The student asked for an extension of 30 days to obtain transcripts from three post-secondary institutions. The immigration officer refused her application without considering her extension request. The student submitted that this was a breach of procedural fairness. The respondent argued that the officer’s reconsideration decision cured the initial breach of procedural fairness.

Justice Anne Turley of the Federal Court agreed with the respondent that procedural fairness or other defects in an initial decision could be cured or remedied in a subsequent reconsideration decision (relying on Canada (Health) v The Winning Combination Inc, 2017 FCA 101 at paras 86-87and Weldesenbet v Canada (Citizenship and Immigration), 2022 FC 1174 at paras 21-25). However, such a determination was to be made based on the facts of each case, the nature of the procedural fairness breach and the subsequent reconsideration decision. Justice Turley concluded:

[14] … in this case, the Officer’s initial procedural fairness breach was not cured by their subsequent decision. The Officer, after breaching the Applicant’s procedural fairness rights at first instance, still failed (on reconsideration) to address the Applicant’s request for an extension of time to provide the requested documents.
[15] In my view, in order to cure or remedy the particular procedural fairness breach in this case, it was incumbent on the Officer on reconsideration to assess the Applicant’s extension request as it stood when it was made, not at the time of the reconsideration request. The Officer, however, failed to engage with the Applicant’s initial request for more time to collect the additional documents. Rather, the Officer simply referred to the request for more time and faulted the Applicant for failing, in the interim, to submit the additional documents. Given that the Applicant’s study permit application was rejected on December 19, 2022, it was not reasonable to expect the Applicant to spend the time and money in the intervening time to obtain official school transcripts. Indeed, if the Officer had refused to re-open and reconsider the application, this would have been a waste of the Applicant’s resources.
[Bold in original]

What I’m Doing

Apart from drafting this newsletter, I’m taking a break from administrative law for a few weeks - I highly recommend it! The Ottawa Jazz Festival starts today and runs until June 30. I have media accreditation for the festival because of my jazz radio shows so will be attending daily. (If you have an interest in jazz, you can check out my other Substack newsletter, Jazz on the Rideau.)

In praise of “slow productivity”

Cal Newport has written a few books about the nature of knowledge work, including the classic, Deep Work. He has a new book out this year: Slow Productivity: The Lost Art of Accomplishment Without Burnout.

He describes “slow productivity” as:

A philosophy for organizing knowledge work efforts in a sustainable and meaningful manner, based on the following three principles:
Do fewer things.
Work at a natural pace.
Obsess over quality.

This philosophy rejects “busyness” — seeing work overload as an obstacle to producing results that matter, not a “badge of pride”. His goal is to rescue knowledge work from “its increasingly untenable freneticism” and rebuild it into something both more humane and more sustainable.

As in many “self-help” books, Newport provides anecdotes to support his proposals for a slower, more productive life. He provides one story about the painter Georgia O’Keefe to support the idea of “seasonality” in work. She used to spend her summers in the Adirondacks - resulting in the most prolific period of her career.

Georgia O’Keefe, “Jimson Weed, White Flower No. 1,” 1932.

Of course, Newport recognizes that this philosophy of working is only open to those who engage in skilled knowledge work with significant amounts of autonomy. While one might quibble over his “obsession over quality” (which can lead to perfectionism), some of his recommendations are well-suited to adjudicators.

The more profound message of the book, however, is the demonstration of the need to rethink what we mean by “productivity” in knowledge work generally. That will require more systemic changes - and although he doesn’t tell us how to get there, he might at least have planted a seed of doubt among some about the structure of organizations and of work.