Tuesday, 3 December 2013

Closing the Backdoor to a Right to Reasons?

I have been bothered for about a month now by a hypothetical question I received from an audience member at a talk I gave at the end of October. I was explaining some cases which hold either (a) that plainly inadequate reasons make a decision unreasonable or (b) the absence of sufficient reasons makes a decision impossible to review (see also here).

A couple of audience members disagreed, arguing that I was introducing a right to reasons by the backdoor. It is true that Canadian administrative law still does not recognize a right to reasons in all situations. But I do not think that these cases undermine that proposition. It has long been the case that an absence of reasons can justify judicial intervention on the basis that a decision was unreasonable.

It was also suggested that these cases were inconsistent with Newfoundland Nurses, where the Supreme Court of Canada held that it was inappropriate to quash a decision on the basis that the decision-maker's reasoning process was flawed. As long as the decision fell within the range of reasonable outcomes and the reasoning process was comprehensible, it ought to be upheld despite apparent logical flaws.

Newfoundland Nurses should not be read too broadly. It addressed a particular problem. Intrusive review of reasons was being conducted to undermine the deference normally due to decision-makers. Newfoundland Nurses solved this problem by cautioning courts against picking apart decisions in what was later described as "a line-by-line treasure hunt for error". Review of reasons was a Trojan Horse. It was slayed by Newfoundland Nurses.

The cases I describe under (a) and (b) above are consistent with Newfoundland Nurses. They address situations in which the reasons do not reveal the basis of decision.

Then the bothersome hypothetical question was posed to me. What about a decision which listed all the relevant information and then said "On the basis of the evidence in the record, the Minister concludes X"? Reasonable or not?

My answer then -- and my answer now -- is that this is unreasonable. Even if X falls within the range of possible and acceptable outcomes, a reviewing court cannot "clearly understand" the basis of the decision. This is not the sort of situation that Newfoundland Nurses was designed to combat. There are no reasons to pick apart!

This is slightly more elegant than the reply I gave on the fly. At least, I should hope so, given that I've taken a month to think about it...

UPDATE 3: See also the following comments of Rennie J in Komolafe v. Canada (Citizenship and Immigration), 2013 FC 431:
[11]           Newfoundland Nurses is not an open invitation to the Court to provide reasons that were not given, nor is it licence to guess what findings might have been made or to speculate as to what the tribunal might have been thinking.  This is particularly so where the reasons are silent on a critical issue.  It is ironic that Newfoundland Nurses, a case which at its core is about deference and standard of review, is urged as authority for the supervisory court to do the task that the decision maker did not do, to supply the reasons that might have been given and make findings of fact that were not made.  This is to turn the jurisprudence on its head.  Newfoundland Nurses allows reviewing courts to connect the dots on the page where the lines, and the direction they are headed, may be readily drawn.  Here, there were no dots on the page.
Cited with approval in 7687567 Canada Inc. c. Affaires étrangères et commerce International Canada, 2013 CF 1191.

UPDATE 2: There may be cases, particularly cases decided after adjudication, where a less rigorous approach is required. Take for example the following passage from Miller Transit Limited v. Information and Privacy Commissioner of Ontario et al., 2013 ONSC 7139, in response to an argument similar to the one I laid out in my post:
[41]           It is true that the wording of the IPC Adjudicator’s reasons is such that they appear conclusory on the question of whether the information falls within the immutability and inferred information exceptions.  The conclusory nature of the reasons can be a basis for setting a decision aside and remitting the matter back for a rehearing.  However reasons do not have to be perfect, provided there is sufficient analysis, express or implicit in the decision, which permits judicial review.  In this case, I am satisfied that the reasons are sufficient for three reasons: (i) the IPC Adjudicator sets out in detail the two exceptions and expressly puts his mind to them; (ii) the IPC adjudicator expressly dealt with the one record that the parties specifically referenced in their submissions to him (the training manual) and (iii) in substance there is no credible argument that the requested information could fall within either exception. 
Similarly, in McLean v. British Columbia (Securities Commission), 2013 SCC 67 the Court was not concerned by the fact that an order memorialized the conclusions of an adjudicative decision-maker without setting out the legal arguments on which the conclusions were based.

UPDATE 1: A reader writes...

The hypothetical question that was posted to you recently and the one you blogged about is: "What about a decision which listed all the relevant information and then said "On the basis of the evidence in the record, the Minister concludes X"? Reasonable or not?" Your answer is that it is not.  I believe that it is.

My view is that if the outcome (decision) is reasonable, then it is irrelevant whether there were reasons, or whether the reasons provided a meaningful analysis of the relevant evidence in the record. Substantive judicial review should be concerned with the outcome reached and whether it is reasonable. To the extent that justice is served between the parties, then a reviewing court should end it's reviewing function.  Otherwise, what purpose would remitting the matter back to a differently constituted tribunal achieve?  If a reviewing court were satisfied that the outcome is reasonable and the issue for litigation between the parties is otherwise settled, then what purpose would a new hearing achieve? One could argue that a new tribunal would reach the same outcome but would provide the analysis of the relevant evidence that was otherwise lacking.  Does that warrant allowing an application for judicial review, where the outcome is reasonable, but the reasons consist only of a citation of the "relevant information"?  If procedural fairness is not a trump card in this hypothetical, then why should a formalistic approach to the standard of review do what otherwise fairness and natural justice could not do?

I find support for my proposition in Newfoundland Nurses, at para 15:

[15]        In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show “respect for the decision-making process of adjudicative bodies with regard to both the facts and the law” (Dunsmuir, at para. 48).  This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome.  [Emphasis added]

To me, a court sitting on an application for judicial review ought to concern itself with the reasonableness of the outcome, not the reasons. Procedural fairness and natural justice issues aside; post-Dunsmuir, I would argue that reasonableness does not concern itself with adequacy of reasons.

In your conclusion, you stated that “[e]ven if X falls within the range of possible and acceptable outcomes, a reviewing court cannot "clearly understand" the basis of the decision. This is not the sort of situation that Newfoundland Nurses was designed to combat. There are no reasons to pick apart!” With respect, what else is left after a reviewing court that was not able to understand the basis of the decision, but would have done its own analysis and reached a realization that the tribunal's outcome was within a reasonable outcomes and was open to it? This is what Newfoundland Nurses was addressing: a reviewing court should supplement the reasons that do not seem wholly adequate before it seeks to subvert them (para 12).  Recently, the Federal Court of Appeal turned its mind to the issue of reasons as well. In Library of Parliament v. Canadian Association of Professional Employees, 2013 FCA 237 Justice Mainville, for the court, wrote at paras 34 and 35

[33]           The Library also submits that the Board’s reasons were inadequate in that they failed to specifically address subsection 5(3) of the Act. The Library’s submissions on the inadequacy of the Board’s reasons rest entirely on this Court’s decision in Vancouver International Airport Authority v. P.S.A.C., 2010 FCA 158, 320 D.L.R. (4th) 733. However, since that decision was released, the Supreme Court of Canada has provided guidance as to the adequacy of the reasons issued by administrative tribunals, most notably in  Newfoundland and Labrador Nurses’ Union  v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708. As noted by a unanimous Supreme Court of Canada in Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65, [2012] 3 S.C.R. 405 at para. 3: “This Court has strongly emphasized that administrative tribunals do not have to consider and comment upon every issue raised by the parties in their reasons. For reviewing courts, the issue remains whether the decision, viewed as a whole in the context of the record, is reasonable.”  This approach was again recently reiterated in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para. 53.
[34]           In this case, the Board implicitly dealt with subsection 5(3) of the Act in its reasons by finding that the terms or conditions of employment set out in the Guidelines could be embodied in a collective agreement. The Board’s decision in that respect, when viewed as a whole, is reasonable even though it did not explicitly refer to subsection 5(3). [Emphasis added]

It appears to me that post-Dunsmuir, only an outcome/decision is the focal point of a judicial review, not the reasons. In the Library case, the FCA was not concerned that a provision was not expressly referred to in the reasons.  Reasons that implied consideration of a provision was sufficient for the court. This, to me, would be even a lower threshold that the one raised in the hypothetical question.  At minimum, the hypothetical question expressly references what is being considered, based on their relevancy.

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