Judgments v Reasons in Federal Court Refugee Claim Judicial Reviews: A Bad Precedent?

Abstract

This article offers an empirical examination of policies on the publication of refugee law decisions in Canada’s Federal Court. In 2015, the Court issued a notice describing the Court’s general practice of publishing written reasons in cases that the deciding judge considers as having precedential value and of issuing unpublished judgments in cases that the deciding judge does not view as precedential. In 2018, the Court reversed course and issued a new notice. This time, the Court indicated that all final decisions on the merits will be published.

Drawing on data obtained via automated data scraping processes from thousands of online court dockets and from published decisions in cases involving refugee judicial reviews, the article examines patterns in unpublished judgments and published written reasons. The article considers changes in the frequency of judgments versus reasons, as well as whether judges were more likely to issue judgments or reasons depending on the outcome of cases. It also explores differences in the frequency of judgments versus reasons across judges, including on the basis of gender. Finally, it looks at whether unreported judgments were cited in subsequent published decisions.

Based on this analysis, the authors conclude that the Court’s earlier policy of not publishing supposedly non-precedential decisions was not successful and that this policy should not be replicated by other courts. Instead, other courts should be encouraged to follow the Federal Court’s more recent practice in this area, which entails publishing all final decisions on the merits.

Keywords: Canada, Administrative Law, Refugee Law, Judicial Decision-Making, Judgments, Reasons, Empirical Legal Studies,