Date: 20180612 Docket: CI 16-01-03007 (Winnipeg Centre) Indexed as: Sekhon v. Minister of Education and Training Cited as: 2018 MBQB 99 COURT OF QUEEN S BENCH OF MANITOBA B E T W E E N: NARINDER KAUR SEKHON, ) Counsel: ) applicant, ) ) DAVID MATAS for the applicant - and - ) MINISTER OF EDUCATION AND TRAINING, respondent. ) T. DAVID GISSER ) ) ) ) ) MYRIAM HACAULT (Articling Student) for the respondent JUDGMENT DELIVERED: JUNE 12, 2018 KROFT J. I. INTRODUCTION [1] The applicant seeks an order of certiorari, quashing the respondent s decision that her application to the Manitoba Provincial Nominee Program (MPNP) did not meet the eligibility requirement. The applicant alleges the process was unfair and the decision was unreasonable. I refer to the respondent and the MPNP interchangeably. [2] For the reasons that follow, I dismiss the application.
2 II. FACTS [3] The applicant is a foreign national of India. She is a food supervisor and cook. Her hope is to become a permanent resident of Canada. Her chosen path to permanent residency was the MPNP for Skilled Workers. 1 [4] Although the overall structure for becoming a permanent resident is created by the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and its regulations, the parameters for nominating foreign nationals in Manitoba are set out in a document entitled Canada-Manitoba Immigration Agreement June 2003 (Immigration Agreement). The federal legislation and Immigration Agreement contemplate that the Government of the Province of Manitoba (respondent) will determine its own policies and procedures for assessing applicants under the MPNP. Even if a nomination certificate is issued by the respondent in respect of an applicant, it is the federal government that ultimately decides whether permanent resident status will be granted or not. [5] On July 24, 2014, the applicant applied to the MPNP for a nomination certificate. The application identified Gurmeet Singh Gill as her Manitoba supporter. That same day, the MPNP sent an email to Mr. Gill setting out the specific steps to follow so the application could advance. The email reads as follows: 1 The provincial nominee class is one of many avenues through which a foreign national may become a permanent resident.
3 We are writing in reference to NARINDER KAUR SEKHON s online application to the Manitoba Provincial Nominee Program for Skilled Workers (MPNP) received on 7/24/2014. The applicant has identified you as their Manitoba Supporter for the purposes of their application to the MPNP and has indicated you will complete an MPNP form called Settlement Plan Part 2. Settlement Plan Part 2 asks [you to] describe how you will help the applicant achieve their plan to settle and become employed in Manitoba as a permanent resident. Instructions: If the applicant has not e-mailed you a copy of their completed Settlement Plan Part 1, request that they do so. You will need to review the applicant s Settlement Plan before you complete Part 2. Download the form, Settlement Plan Part 2. Print, complete and sign the form. Send the form, along with the requested supporting documents, as attachments in an e-mail to mpnpsupporter@gov.mb.ca. Or, you can deliver printed copies to the MPNP office in Winnipeg. Our address is listed on the form. Failure to send the completed and signed Settlement Plan Part 2 to the MPNP within 30 days of receipt of this message will result in closure of the applicant s file. [Emphasis added.] [6] The email shows it came from no-reply@gov.mb.ca. [7] On August 22, 2014, at 5:51 p.m., Mr. Gill purported to submit the Settlement Plan Part 2 form identified in the July 24, 2014 email from the MPNP. It is undisputed that Mr. Gill sent the Settlement Plan Part 2 form to the wrong email address. Instead of sending it to mpnpsupporter@gov.mb.ca as directed, he sent it to no-reply@gov.mb.ca. It is also undisputed that at 5:53 p.m., two
4 minutes after sending the Settlement Plan Part 2 form, Mr. Gill received a bounce-back message advising: Delivery has failed to these recipients or groups: no-reply@gov.mb.ca The e-mail address you entered couldn t be found. Please check the recipient s e-mail address and try to resend the message. If the problem continues, please contact your helpdesk. [Emphasis in original.] [8] Mr. Gill did not follow up at that time or at any time. There is no evidence that the MPNP received Mr. Gill s documentation. It is Mr. Gill s evidence that, despite the bounce-back message, he did not know about the failed delivery. [9] The next communication from any party was a letter dated January 15, 2016, from the MPNP to the applicant advising, among other things: In order to be eligible to apply to the MPNP, you must demonstrate that you have legal status if residing in Canada and that you have a connection to Manitoba, through current/prior employment or studies in the province, or friends/family in Manitoba who are supporting your application. We have pre-screened your application and wish to advise it does not meet the eligibility criteria for the following reason(s): -You did not demonstrate proof of your connection to Manitoba as outlined in the eligibility criteria. Specifically, your Manitoba supporter did not provide signed and completed Settlement Plan Part 2, proof of residence in Canada and Manitoba Health card; these must be submitted within 30 days after application submission. [Emphasis in original.] You may wish to reapply provided you can demonstrate you meet the MPNP eligibility criteria at that time.
5 [10] As noted in paragraph 4 of these reasons, it is the role of the respondent to establish the policies and procedures for assessing applicants under the MPNP. The policies and procedures in force when the applicant applied for permanent residency were adopted in 2008 (2008 policies). The 2008 policies governed until April 30, 2015, at which time they were replaced with updated policies and procedures (2015 policies). I will not reproduce all 17 pages of the 2008 policies. However, I do note the following: Nominations are granted at the sole discretion of the Province of Manitoba (at p. 3). Applicants are responsible for providing full and complete applications and for proving the validity of documentation and their bona fides with regard to all aspects of their application (at p. 3). Aspects of the MPNP organization structure include (at pp. 5-6): o Program officers are responsible for assessing individual applications. o Pre-assessment/administrative officers pre-assess all applications and, at intake, prior to file creation, screen applications for (a) eligibility, and (b) level of completeness acceptable for intake. o Pre-assessment/administrative officers apply consistent MPNP policies and procedures related to confirmation on individual applications for:
6 program eligibility (applicant documents an established connection to Manitoba, through family, friends, a pre-approved job offer, current employment in Manitoba, previous education or work experience in Manitoba) stream eligibility (applicant meets core criteria of stream in which application has been submitted) The stages that applications proceed through include (at pp. 8-11): o intake (by pre-assessment/administrative officers) o file distribution o first assessment (by program officers) o second assessment (by program officers) At the pre-assessment stage, the pre-assessment/administrative officers ensure only eligible and complete applications are accepted to move to the assessment stages. If, at intake, the application is too incomplete or does not meet core criteria of the MPNP, it is returned to the applicant with an ineligible/incomplete letter, describing why the application was not accepted (at p. 8). 2 2 This is the type of letter that was sent to the applicant in this case.
7 Once an application passes pre-assessment and is taken in, it moves to the first assessment stage where a program officer reviews it for eligibility, completeness, potential for approval, and document integrity (at pp. 8-11). At the second assessment stage, the application is further reviewed by a different program officer (at p. 11). During the second assessment stage, a program officer may refuse an application and issue a refusal letter (at p. 11). If a refusal letter issues, the applicant may request, in writing, a formal review, identifying the errors allegedly committed by the program officer (at p. 16). [11] The 2015 policies retain the three stages of assessment. They also introduce to the assessment stages (not to the pre-assessment stage) a procedural fairness letter, which replaces the refusal letter. Specifically, the fairness letter issues where, following the first assessment, an application is being considered for refusal. Where a fairness letter is sent to an applicant, the applicant has 30 days to address the concerns raised in the letter. [12] Neither the 2008 policies nor the 2015 policies provide a right to appeal the MPNP s ultimate decision. [13] Back to the chronology of events.
8 [14] On January 16, 2016, in response to the pre-assessment ineligibility letter dated January 15, 2016 (reproduced in part in paragraph 9 of these reasons), Mr. Gill emailed the MPNP requesting the application be reopened. By email dated January 21, 2016, the MPNP advised: The application will remain closed, but the applicant can reapply at any time. It was the applicant s responsibility to ensure her application was complete when it was submitted. Mr. Gill had received written email instructions explaining what information to submit and where to submit it. [15] The applicant has not reapplied to the MPNP and submits that due to changes to the MPNP since first applying, her chances of being nominated under the MPNP are reduced. III. ANALYSIS A. Issues [16] In her brief, the applicant defines the issues as: 1. The MPNP committed procedural unfairness by: a. not issuing a fairness letter to the applicant; b. taking advantage of a mistake by the applicant or creating a trap for the unwary. 2. The pre-assessment ineligibility decision and the closing of the file was unreasonable.
9 [17] In its brief, the respondent defines the issues as: 1. There was no decision to review. 2. If there was a decision, it was a policy decision and not reviewable. 3. If there was a reviewable decision, there was no breach of procedural fairness. 4. If there was a reviewable decision, the decision itself was reasonable. [18] I adopt the respondent s definition of issues. In so doing, I am not disregarding the applicant s issues. To the contrary. In my view, the applicant s issues are subsumed in the respondent s issue list. 1. There was no decision to review. [19] Before addressing this issue, there is a related but distinct question that arose during submissions: what decision am I reviewing? [20] During oral submissions and in her brief, the applicant suggests the relevant decision is the MPNP s January 21, 2016 email refusing Mr. Gill s January 16, 2016 email request to reopen the application. However, in her notice of application, the decision under review is stated to be the January 15, 2016 refusal letter reproduced in part in paragraph 9 of these reasons. Consistent with the notice of application, the respondent s oral and written arguments focused on the January 15, 2016 refusal letter.
10 [21] During oral argument, the applicant conceded that the notice of application references the January 15, 2016 refusal letter though submits the MPNP s January 21, 2016 email necessarily flows from it. [22] The intent of a notice of application is to frame the issue for determination. It is the originating process. At no time was the notice of application amended or leave to amend sought. Because the notice of application identifies the January 15, 2016 refusal letter as the decision under review, it is reasonable to decide this application on that basis. Moreover, my ultimate conclusions would not change even if the MPNP s January 21, 2016 email confirming the January 15, 2016 decision was the decision under review. [23] I return to the issue: is there even a decision to review? [24] The respondent argues that, in the facts of this case, no discretion was ever exercised by the MPNP, and as such no decision was ever made. More precisely, because no Settlement Plan Part 2 form establishing a connection to Manitoba was received by the MPNP (as opposed to an insufficient or deficient plan), there was no opportunity to exercise discretion at the time of intake and a conclusion of ineligible was effectively automatic. [25] The applicant argues that even if the Settlement Plan Part 2 form was not submitted, the conclusion of ineligibility communicated in the January 15, 2016 refusal letter and reasons for the conclusion amount to a decision.
11 [26] After reviewing the record, and absent specific authorities supporting the respondent s position on this issue, I am in agreement with the applicant. Even if the application of the 2008 policies mandated ineligibility at the time of intake, a conclusion in that regard was nonetheless required and communicated to the applicant. [27] A decision occurred. 2. If there was a decision, it was a policy decision and not reviewable. [28] The respondent submits that because the ineligibility decision resulted from applying the very program and policies it was authorized to create and implement, the decision cannot be reviewed. At the risk of repeating myself, there is no doubt that the 2008 policies permitted the issuance of letters of ineligibility at the pre-assessment stage where an application is too incomplete or does not meet core criteria of the MPNP. [29] To support its position, the respondent referred me to Amin v. Saskatchewan (Economy), 2017 SKQB 142, a decision of the Saskatchewan Court of Queen s Bench. There, the applicant s application to move to Canada under the Saskatchewan Immigrant Nominee Program (SINP) was rejected at the assessment stage for failing to provide all of the banking/financial information required by the SINP. The applicant alleged procedural unfairness by the SINP. As in Manitoba, the respondent in Amin was solely responsible for creating and implementing the SINP, rules, criteria, and decision-making process.
12 [30] As to the reviewability of the SINP s decision, the respondent drew my attention to the following passages in Amin: [12] As well, for the purposes of the within application it is important to note that all of these rules, categories, criteria and policies for SINP were purely a creation of the respondent Ministry. Thus there is an issue as to whether the impugned decisions are even the proper subject of a judicial review application.... [62] First, I examine the nature of the decision being made and the process followed in making it. It has been held that the closer a decision is to a judicial process decision, the more closely the decider is held to procedural fairness. As noted above, this was a discretionary decision involving implementation of government policy, a decision not generally reviewable in this process. As well, I have considered whether the decision made was individual in nature or broad, affecting a class or group of people. While it certainly pertained individually to this applicant, that can be said of many policy decisions. At its heart, it is a broad policy decision. All applicants under this facet of SINP had to prove their financial viability by demonstrating stable funds on deposit for a period of time. The applicant was not singled out. This was a very standard requirement within this application process, one that should not have proven onerous on her to meet. In fact, she acknowledged this in her correspondence of August 12, 2014 when she admitted she could have easily avoided the aforementioned mistakes by paying attention to the numeric number of the account on the statement. [Emphasis added.] [31] Based on these statements, the respondent asks me to find the MPNP decision cannot be reviewed. [32] Despite its misgivings that a policy decision is reviewable, the Saskatchewan Court of Queen s Bench chose not to dismiss the application on that basis, choosing instead to dismiss it after conducting a procedural fairness analysis.
13 [33] Similarly, absent some additional binding authority on this point, I decline to determine the current application on the basis that the decision is not reviewable. 3. If there was a reviewable decision, there was no breach of procedural fairness. a. Duty of Procedural Fairness and Threshold [34] The applicant alleges it was procedurally unfair for the MPNP not to issue a fairness letter prior to declaring the application ineligible and to penalize her for Mr. Gill s harmless mistake. [35] Assuming the decision is reviewable (I have ruled that it is), the respondent seems to accept that the decision at issue is administrative, affects the rights, privileges or interests of the applicant, and, therefore, gives rise to a duty of fairness. However, in contrast to the applicant, the respondent submits the procedural fairness threshold in this case is a low one and was met by the MPNP. [36] The applicant and respondent agree that the concept of procedural fairness is variable and its content/the threshold is to be determined in the context of each case. They also agree that I should determine the procedural fairness threshold by applying the following, non-exhaustive, list of factors: The nature of the decision being made and the process followed in making it For example, the more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision making, the more likely it is
14 that procedural protections closer to the trial model will be required by the duty of fairness. The nature of the statutory scheme and the terms of the statute pursuant to which the body operates The importance of the decision to the individual affected The legitimate expectations of the person challenging the decision For example, the law takes into account any promises by, or regular practices of, administrative decision makers as it would be unfair for them to act contrary to such promises and practices. The choices of procedure made by the agency itself, particularly when the statute leaves to the decision maker the ability to set procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances See Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 18-28. [37] I make one factual observation before considering these factors. [38] The procedural fairness letter on which the applicant relies was introduced in the 2015 policies. It replaced the refusal letter in the 2008 policies (the policies that governed the applicant s application). Based on my review, I do not interpret
15 the introduction of the fairness letter as a change in procedure material to the facts in this case. In this case, the relevant time period is intake and pre-assessment. Neither the 2008 policies nor the 2015 policies require the issuance of a letter similar to a fairness letter or refusal letter at that preliminary stage. [39] As I see it, the applicant s real complaint is that a letter similar to the refusal letter or fairness letter, inviting the applicant to make a written submission, should have issued at the intake and pre-assessment stage as opposed to the first and second assessment stages. [40] Returning now to the procedural fairness Baker factors referenced in paragraph 36 of these reasons: (1) Nature of the Decision [41] Pursuant to the program, rules and decision-making process established by the respondent under the Immigration Agreement, the MPNP was not required to, and did not conduct itself in a formal, court-like manner (see paragraph 10 of these reasons). (2) Nature of the Statutory Scheme/Terms of the Statute pursuant to which the MPNP Operates [42] The scheme followed by the MPNP was as set out in the 2008 policies. There is no evidence that policies and procedures were not followed, nor does the applicant suggest that is the case. It is agreed that no right of appeal lies from
16 the MPNP s decisions. It is also agreed that a MPNP applicant who has been rejected at the pre-assessment stage (or later) has a right to reapply to the MPNP. In that sense, the closing of a file is not determinative. It is also relevant that the ultimate decision about permanent resident status rests with the federal government, not the respondent. [43] The entire scheme is discretionary in nature. The onus is on the applicant to persuade the respondent to exercise its discretion in her favour and issue a nomination certificate. (3) Importance of the Decision [44] Notwithstanding an applicant has the right to reapply to the MPNP and the decision of the respondent is not determinative, I accept that the pre-assessment eligibility decision is an important one to the applicant. While it may not carry the day, receiving a nomination certificate from the respondent is no doubt significant. (4) Legitimate Expectations [45] An objective read of the Immigration Agreement and policies made under them, confirm that the respondent has complete discretion to determine its own procedures and selection criteria to be used to nominate applicants. Again, it is clear that throughout the application process, the onus is on the applicant to establish he/she qualifies for nomination, and that there is no right to appeal an unfavourable decision. While the respondent provides some guidance regarding
17 the factors that it considers relevant, there is no list of criteria, which, if met, guarantee an applicant will be nominated. [46] There is no evidence of any promises or practices on the part of the MPNP to give rise to a reasonable expectation that a file closed at the intake and pre-assessment stage because of deficient documents will be reopened. (5) Decision Maker s Choice of Procedure [47] The respondent has the discretion to choose the policies and procedures it will follow. As appears from the federal legislation and Immigration Agreement, this was the intent behind the system established by Canada and Manitoba. [48] After considering the factors in paragraphs 41 to 46 of these reasons, what is the threshold of procedural fairness applicable in the context of this application? [49] I unreservedly accept that the decision in question is important to the applicant. However, I must weigh that factor along with all the others. When I do, I agree with the respondent that the procedural fairness threshold in this particular case is on the low end of the spectrum. b. Standard of Review for Procedural Fairness [50] To answer the procedural fairness question, I must first identify the standard of review to apply.
18 [51] The parties agree that in the years since Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the standard of review when dealing with procedural fairness has been correctness. [52] Notwithstanding this general rule, the respondent invites me to adopt a different standard. A hybrid standard. [53] The respondent relies on the Amin decision and, in particular, the following statements from the Saskatchewan Court of Queen s Bench: [41] So, given that this is the somewhat uncertain and even treacherous legal landscape, where does this lowly trial judge step? In the case at bar I am of the view that even if the correctness standard applies, significant deference is owed to the respondent s decision. In this regard I cite three sources of authority.... [46] While at least formally the standard of review is correctness, this is one of those decisions referenced in the above-cited authorities where significant deference is called for. This is my view whether a strict standard of correctness or that of reasonableness is used. I also note the parties have agreed, more or less, that reasonableness is an available standard for this court. While generally this decision of the respondent must be considered within the context of correctness it must be afforded deference, thus I am applying a hybrid standard of review. [47] The respondent needs to have afforded procedural fairness to the applicant. Failing to do that will not necessarily be rigidly categorized as incorrect or unreasonable, but simply wrong. What conclusion the merits of this case results in shall be explored, below. [54] In the absence of higher authorities and more extensive submissions on the point, I am not prepared to find that a standard other than correctness applies here. Moreover, correctness was the standard applied by our own Court of Appeal
19 in Jiang v. Manitoba (Minister of Labour and Immigration), 2014 MBCA 27, a case also decided in the context of the MPNP. c. The Answer Fairness of Process [55] Having identified the standard of review (see paragraph 54 of these reasons) and the threshold of the procedural fairness duty in this case (see paragraph 49 of these reasons), did the MPNP breach that duty by not issuing a fairness letter to the applicant or by taking advantage of Mr. Gill s mistake? (1) Procedural Fairness Letter [56] In respect of the procedural fairness letter allegation, I note: (a) Using the discretion afforded to it, the respondent established the MPNP, including the 2008 policies and subsequently the 2015 policies. (b) The policies contemplate a process comprised of an intake and pre-assessment stage followed by two assessment stages, with different officers assigned to the stages. The intake and preassessment stage specifically contemplates the culling out of applications that are too incomplete or do not meet the criteria of the MPNP. Where an application is culled, a letter such as the one sent to the applicant on January 15, 2016, is sent.
20 (c) The January 15, 2016 letter advises, among other things, that the applicant can reapply. (d) A subsequent application is treated as a fresh application. (e) It was the 2008 policies that applied to the applicant, not the 2015 policies. The 2008 policies provide for a refusal letter, not a procedural fairness letter. The latter is a creation of the 2015 policies. In any event, neither the refusal letter nor the procedural fairness letter applies to the intake and pre-assessment stage of the process. (f) A new application would be subject to the 2015 policies, including the procedural fairness letter. The applicant has not reapplied to the MPNP. (g) The 2008 policies applied to all applicants to the MPNP. There is no suggestion that the applicant in this case was singled out or treated differently. (h) There is no evidence that the MPNP conducted itself in a manner creating expectations that a procedural fairness letter would issue. [57] The absence of a fairness letter from the respondent did not amount to procedural unfairness.
21 (2) Trap for the Unwary [58] In respect of the allegation that the respondent took advantage of the applicant, the applicant submits Mr. Gill s reply to no-reply@gov.mb.ca rather than mpnpsupporter@gov.mb.ca was a harmless mistake that did not prejudice the MPNP. Moreover, by sending instructions from an email address different from the one to which the response is to be directed, the MPNP created a trap for the unwary. In addition to points (a) and (g) in paragraph 56 of these reasons, I note: (a) The relevant procedures give MPNP applicants the choice to apply online or in person. The applicant chose online. (b) Likewise, Mr. Gill, the applicant s supporter, was given the choice to submit the Settlement Plan Part 2 form online or in person. Mr. Gill chose online. The instructions were clear and unambiguous. (c) Upon Mr. Gill transmitting his information to the wrong email address, the MPNP s computer system immediately generated (within two minutes) a failed delivery notice. (d) Despite some evidence that one-and-a-half years later Mr. Gill was surprised to learn of the MPNP s rejection of the applicant s application, there is no evidence that the failed delivery notice was not received by Mr. Gill, or explaining why he did not see it.
22 (e) The onus of completing the application and submitting it in accordance with the respondent s policies and procedures rests with the applicant. (f) The Settlement Plan Part 2 is a necessary component of the MPNP as it establishes the applicant s connection to the province. The respondent argues its total absence from the application the MPNP received (as was the case here) is fatal. (g) There is no evidence supporting the suggestion that the MPNP created an expectation that it would receive correspondence sent to no-reply@gov.mb.ca. [59] In support of her trap for the unwary argument, the applicant relies on Aghaee v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 910 (QL) (T.D.). The context of Aghaee is a self-represented litigant seeking a court order extending time within which to serve and file material in court proceedings. The applicant also relies on a number of cases involving pre-printed forms. See Canadian Imperial Bank of Commerce v. Farr (1993), 110 Nfld. & P.E.I.R. 11 (Nfld. S.C. (T.D.)); Royal Bank of Canada v. Hale et al. (1961), 30 D.L.R. (2d) 138 (B.C.S.C.); Curtis v. Chemical Cleaning and Dyeing Co., [1951] 1 K.B. 805; Delaney v. Cascade River Holidays Ltd. (1983), 44 B.C.L.R. 24 (C.A.); Neuchatel Asphalte Co. Ltd. v. Barnett, [1957] 1 W.L.R. 356 (C.A.); Tilden Rent-A-Car Co. v. Clendenning (1978), 18 O.R. (2d) 601 (C.A.).
23 [60] In my opinion, the facts in each of the cases referred to in paragraph 59 of these reasons are materially different from the facts in this case. The applicant chose the manner in which she submitted her application to and communicated with the respondent as did Mr. Gill. On the evidence before me, I cannot conclude the applicant was in any way trapped by the MPNP s procedures or unwary. [61] In all of the circumstances, applying the correctness standard, I find the MPNP did not breach its duty of procedural fairness to the applicant. 4. If there was a reviewable decision, the decision itself was reasonable. a. Standard of Review for the Decision [62] The applicant and respondent submit that the applicable standard is reasonableness. They rely on Dunsmuir and Jiang v. Manitoba (Minister of Labour and Immigration), 2013 MBQB 107 at para. 37. I agree. [63] In Dunsmuir, the Supreme Court of Canada described the reasonableness standard as follows: [47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
24 b. The Answer Reasonableness of Decision [64] Does the MPNP s determination of ineligibility and refusal to reopen the applicant s application fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law? I note: (a) In its discretion, the MPNP established its procedures in respect of pre-assessment at intake, first assessment, second assessment, and all time periods related to the submission of documents. (b) The policies and procedures are clear. (c) It is the applicant s responsibility to provide all documents within the time periods prescribed by the MPNP and to support the application with the required content. (d) The MPNP did not receive the Settlement Plan Part 2 form within the prescribed time period or at any time before pre-assessment. Establishing a connection to Manitoba is critical to the MPNP. (e) There is no evidence suggesting that Mr. Gill did not receive the bounce-back message advising of a failed delivery. There is no evidence suggesting that the MPNP was aware the Settlement Plan Part 2 form was sent. (f) This is a situation of no documentation as opposed to insufficient documentation.
25 (g) The decision taken is consistent with the 2008 policies as was the provision of the January 15, 2016 letter advising that the application was closed on account of ineligibility. [65] In all of the circumstances, and applying a reasonableness standard, I find that the MPNP s determination of ineligibility and refusal to reopen the applicant s application falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [66] I would reach the same conclusion were I to apply a correctness standard. IV. CONCLUSION [67] This application is dismissed. [68] Costs may be spoken to if counsel cannot agree. J.