Another example from the Canadian courts of the thin line separating process from substance: Turner v. Canada (Attorney General), 2012 FCA 159. On this occasion, the determination that a question went to process is again plausible at first sight but troubling on closer inspection.
The applicant here alleged that he was discriminated against by the Canada Customs and Revenue Agency when they sought to hire new customs inspectors. He subsequently made a complaint under the Canadian Human Rights Act, which was ultimately heard by the Canadian Human Rights Tribunal. Mainville J.A. described the nub of the applicant's complaint: "the appellant formed the belief that his disqualification from the Vancouver competition and his failure to pass the interview for the Victoria 7003 competition were the result of his being unfairly stereotyped within the CCRA as a big lazy black man" (at para. 11).
Accordingly, the applicant's complaint was that he was discriminated against on the basis of race and disability (i.e. being overweight). Alleging that his girth was the basis of discriminatory treatment within the meaning of the Act was probably something of a stretch. Before the Tribunal, counsel for the applicant argued, more plausibly, that the discrimination might have arisen from intersecting grounds: that is, the applicant's perception was not so much that he was treated unfairly as a black man, but stereotyped as lazy on the basis of his appearance, his appearance being a product of his race and obesity.
What was troubling for Mainville J.A. was that the Tribunal refused to hear argument on the point and made no determination as to whether it could entertain the suggestion that being overweight was a disability within the terms of the Act. As he observed:
 In this context, the complete silence of the Tribunal on the issue of perceived disability is troubling. Did the Tribunal refuse to consider this ground of discrimination on the basis that it lacked jurisdiction to do so? Or was the Tribunal of the view that perceived disability involving weight does not constitute a ground of discrimination contemplated by the Canadian Human Rights Act? Or did the Tribunal find that the appellant had failed to establish a prima facie case of discrimination on this ground? And if so, why did the Tribunal disregard the arguments of the appellant concerning the importance of intersecting or compound grounds of discrimination, and the principles set out in Radek? Or did the Tribunal simply forget to address these issues? In the absence of any discussion in the Tribunal’s reasons, we simply do not know the answers to these questions.
The next question was the standard of review to be applied. Mainville J.A. held that the failure to consider an important point raised by an applicant is a breach of procedural fairness: "Consequently, whether the point or argument made before an administrative tribunal was of such importance as to require the tribunal to consider it is a matter to be dealt with on a standard of correctness" (at para. 43). Once it has been determined that a point must be considered, whether the decision-maker dealt adequately with it is to be determined on a standard of reasonableness: "The reasons provided by the Tribunal must thus be canvassed with due regard to the record, together with the outcome of the proceedings, for the purpose of assessing whether or not the argument or point was effectively dealt with" (at para. 44).
There is much to commend this position. Linguistically and intuitively, the failure to consider an argument developed at some length by an applicant seems unfair, a breach of the right to procedural fairness. At the very least, it seems to suggest that the applicant was not given a fair shake by the decision-maker.
Doctrinally, Mainville J.A. drew an analogy with the recent decision of the Supreme Court of Canada in the Newfoundland Nurses case (see my earlier post). There, the Court held that a complete failure to give reasons is a breach of procedural fairness, where a duty to give reasons can be established; but whether those reasons were adequate is to be determined on a standard of reasonableness. The advantage of this approach, as the Court explained, was that clever counsel would not be able to undermine a deferential approach by arguing that the inadequacy (or unreasonableness) of the reasons given was a matter of process to be determined by the reviewing court. Here, by analogy, the complete failure to consider an argument was a matter of process but the extent to which the argument had been addressed was a matter of substance.
Herein lies the problem with Mainville J.A.'s approach. For him, it is the reviewing court that must decide whether there is a duty to consider a particular argument. But in Canada (unlike in, say, England), failure to consider a relevant factor does not automatically require a decision to be struck down: the decision-maker gets to decide what the relevant factors are and unless its determination is unreasonable, the decision stands. What Mainville J.A. is suggesting is that judges should decide what the relevant factors are. Otherwise, how can the reviewing court know whether there is a duty to consider a particular argument? The analogy with Newfoundland Nurses is flawed, because it assumes that which is to be proved: that the decision-maker had a duty to consider a particular argument. Unless the standard of review is correctness, it is for the decision-maker to decide whether an argument is relevant or not.
In fact, Mainville J.A. commits the very sin the Supreme Court sought to purge in Newfoundland Nurses: if whether an argument is relevant is to be determined on a standard of correctness, there is a risk that deference will be undermined because clever counsel can argue that failure to consider a particular argument goes to process rather than substance. Admittedly, such an approach will not always be open to counsel, assuming that decision-makers are relatively assiduous about dealing with the arguments put before them. Nonetheless, the family resemblance is troubling.
Accordingly, the better approach here would have been to hold that the decision was unreasonable, lacking in the necessary qualities of justification, transparency and intelligibility, because no cogent explanation was given for rejecting the applicant's argument that his obesity was a disability and a prohibited ground of discrimination. Toying with the thin and malleable line between process and substance only invites unnecessary difficulty in distinguishing the two in the future.
In the meantime, the question of whether obesity counts as a disability has been remitted for a full hearing before the Tribunal. It will be interesting to see how Mr. Turner gets on.