Executive Summary: Key Legal and Evidentiary Issues

• Whether section 8 of the Special Economic Measures (Haiti) Regulations provides an adequate alternative remedy to judicial review.

• The applicant’s failure to pursue the statutory delisting process before seeking judicial review rendered the application premature.

• Arguments that the delisting process is not capable of curing alleged procedural defects in the initial listing decision were considered and rejected.

• The court addressed claims that the delisting process is inefficient, costly, and does not provide the remedy sought by the applicant.

• Precedent decisions upholding the adequacy of the section 8 process were followed.

• Costs of $4,500 were awarded to the Attorney General of Canada as the successful party.

Facts and outcome of the case

Background and parties

Frantz Carl Braun, a Haitian national and the founder and former Chairman and Chief Executive Officer of UNIBANK, was added to Schedule 1 of the Special Economic Measures (Haiti) Regulations by the Governor in Council on September 20, 2023, on the recommendation of the Minister of Foreign Affairs. The listing, made pursuant to section 2 of the Haiti Regulations under the Special Economic Measures Act, prohibited certain dealings and activities with Braun by persons in Canada and Canadians outside Canada. Braun was informed of his listing and advised that he could apply in writing to the Minister of Foreign Affairs to have his name removed from the sanctions list.

Procedural history and legal arguments

On October 17, 2023, Braun filed an application for judicial review of his listing, without first applying for delisting under section 8 of the Haiti Regulations. The Attorney General of Canada brought a motion to strike the application for judicial review on the basis that it was premature, as an adequate alternative remedy existed under section 8. On December 4, 2024, the Associate Judge granted the motion to strike, finding that the application for judicial review was premature because Braun had not exhausted the statutory delisting process. Braun then filed a motion under Rule 51 to set aside the Associate Judge’s judgment.

Court’s analysis of the issues

The court considered whether the Associate Judge erred in determining that section 8 of the Haiti Regulations constituted an adequate alternative remedy. The court reviewed the legal framework for assessing alternative remedies, including the contextual approach set out in Strickland v Canada (Attorney General), and found that the Associate Judge correctly followed recent Federal Court decisions involving the same regulations. The court rejected Braun’s arguments that the delisting process was merely a reconsideration by the same decision-maker, that it was incapable of curing alleged procedural defects, and that it was inefficient or ineffective. The court noted that similar procedural fairness arguments had been rejected in previous cases and that the legislation did not provide for advance notice of listing.

Outcome and costs

The court dismissed Braun’s motion, upholding the Associate Judge’s decision that the section 8 process provided an adequate alternative remedy and that the application for judicial review was premature. The court awarded costs of $4,500 to the Attorney General of Canada, payable by Braun. No damages were awarded.