Yes, but with respect, Mr. Chairman, Mr. MacKenzie asked the counsel to comment and he brought it up, so I can deal with it.
Frankly, we don't need any of the other factors: just keep in (l). Why don't we just say.... If an application for transfer comes in, how about this: “The minister may consider any factor that the minister considers relevant”? Boom, we're done. You don't need anything else.
I also want to comment to Mr. Kania that although I agree with him in substance, there's something I disagree with him on. I want to say this: there is a slight difference, but a pivotal and profound difference, between wording a basket clause that says “and any other factor that is relevant” and a clause that says “and any other factor that the Minister considers relevant”. Those are two different things, because the first one, relevance, which is a very well-established test in law, establishes an objective test and an objective review. The second one places an objective review on a subjective decision.
Now, I've done a lot of administrative law in my time, and I can tell you that you're right: that doesn't give licence to the adjudicator to come up with any perverse, irrational factor and call it relevant. The courts will always review, but it lowers the test when the test is one of someone asking if this is a relevant factor or not, or did the minister consider this to be relevant? They will give more deference to a minister if they apply their subjective discretion in terms of determining what's relevant.
Still, of course, I agree with you, with the overriding review to make sure that it's not perverse or irrational or bearing no resemblance to the decision under question. I appreciate your remarks to us today, but with respect, I don't think any of that changes the fact that the bare question before this committee is this: do we want to require the minister to consider factors or do we want to leave it open to their discretion whether they consider them at all?