Friday, 9 November 2012

The Federal Court of Appeal on Inadequate Reasons

The Supreme Court of Canada took the (in my view) reasonable step in Newfoundland Nurses, 2011 SCC 62 of separating procedural review for failure to provide reasons from substantive review for reasonableness. One concern that might be voiced in response is that rolling a procedural right to reasons into substantive review may give too much latitude to administrative decision-makers, resulting in opaque decisions which communicate little or nothing to those affected. Viewed in this light, the approach of the Federal Court of Appeal in Leahy v. Canada (Citizenship and Immigration), 2012 FCA 227 is reassuring.

The decision at issue was quashed as substantively unreasonable. From the following extract, it is easy to see why:
[122]      Any reviewing court upholding a decision whose bases cannot be discerned would blindly accept the decision, abdicating its responsibility to ensure that it is consistent with the rule of law.

[123]      In this case, the decision letter, signed by Ms. McManus, merely asserts the exemptions that apply. No further reasons are given. The record consists of a relatively thin affidavit, documents that have been produced to the appellant, and documents that have been withheld from the appellant.

[124]      This material does not provide us with the basic information we need in order to discharge our role...
[136]      These deficiencies in the information provided to the Federal Court rendered it impossible for the Federal Court or this Court to carry out their respective roles.

[137]      In this case, the Crown vigorously maintained that there was no reviewable error in the decisions. This may be so, but this Court cannot decide the matter. In the circumstances of this case explained above, with such little information in the reasons and the record, that is equivalent to an assertion that this Court should just accept the decisions, not test them. In effect, the Crown’s submission is “trust us, we got it right.” Acceptance of that submission is inconsistent with our role on judicial review.
From the perspective of any administrative decision-maker, isn't the import of this sort of decision that it is better to provide coherent reasons to survive substantive judicial review? From the perspective of the individual affected by an administrative decision, isn't it quite unimportant whether this is a matter of procedural review or substantive review?

What counts, surely, is that the decision-maker has been forced to justify its position in a coherent and intelligible way. This is what the Court was driving at in Newfoundland Nurses, I think. With progeny like this, it is hard to argue with the thrust of the Court's approach.

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