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).

The Irish Supreme Court Clarifies its Position on the Reason-Giving Requirement

I posted some harsh(ish) words previously about the Irish Supreme Court's position on the right to reasons. More recently, in EMI Records (Ireland) Ltd. v. The Data Protection Commissioner, [2013] IESC 34, the Court has laid its position out with more clarity.

The factual  background is important. An internet provider entered into a settlement with several record companies The regulator was worried that implementation of the agreement would have data protection consequences. An enforcement notice was issued against the internet provider. No notice was issued against the record companies, but one can easily understand their concern. The issue I address in this post is whether the reasons were so inadequate as to invalidate the enforcement notice.

Reasons -- Parroting the Statute as a Breach of Procedural Fairness, or Leading to Unreasonableness

The vexed question of the adequacy of reasons got another outing in Wall v. Independent Police Review Director, 2013 ONSC 3312.

Here, an individual arrested during an allegedly heavy-handed police operation at the 2010 G20 summit in Toronto made a complaint about his treatment. Having spent 28 hours in custody, he was released without charge.

The Irish Supreme Court on the Right to Reasons in Administrative Law

In his judgment in Meadows v. Minister for Justice, [2010] IESC 3, Murray C.J. suggested that a general right to reasons for administrative decisions should be recognized in Irish law. In its decision last week in Mallak v. Minister for Justice, [2012] IESC 59, the Irish Supreme Court did not quite go that far, but its observations on the issue are far-reaching and important. Unfortunately, its observations are also somewhat muddled.

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.

Process and Substance: What Happens when the Decision-Maker Doesn't Listen?

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.

Reasons and Reasonableness in Administrative Law

In describing the deferential standard of review of reasonableness in Dunsmuir v. New Brunswick, the Supreme Court of Canada was very eloquent. Where a standard of review of correctness is appropriate, the reviewing court substitutes its judgment for that of the initial decision-maker. But where deference is owed,

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.  In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.  But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

For more on Canadian judicial review doctrine, see my paper here.

One of the questions left unanswered by Dunsmuir was how this standard of reasonableness coheres with the duty to give reasons. This question is an important one, because the duty to give reasons has traditionally been treated as a matter of procedural fairness. When a right to procedural fairness is engaged, the standard of review is correctness: it is the reviewing court that decides whether the applicant has been treated in a procedurally fair manner.

Now, the distinction between procedure and substance is a tricky one (see my earlier post here) and here it gives rise to a problem. Assuming that the standard of review of the substance of a decision should be reasonableness, clever counsel could undermine deference by claiming that the reasons were insufficient. Adequacy of reasons, remember, attracts a standard of correctness and substitution of judgment. The idea would be to have the reviewing court substitute its judgment for that of the decision-maker in deciding whether the reasons given were adequate to explain the decision under review. An end-run around the standard of reasonableness could be accomplished by manipulating the distinction between procedure and substance.

Such sleight of hand is no longer possible after the Supreme Court of Canada’s decision in Newfoundland andLabrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board). Justice Abella noted with approval the warning of Professor Bryden: “courts must be careful not to confuse a finding that a tribunal’s reasoning process is inadequately revealed with disagreement over the conclusions reached by the tribunal on the evidence before it” (para. 21). She went on to explain that the better reading of Dunsmuir is that the adequacy or inadequacy of reasons goes only to whether the decision is reasonable, not to procedural fairness:

[14]    Read as a whole, I do not see Dunsmuir as standing for the proposition that the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses — one for the reasons and a separate one for the result.  It is a more organic exercise — the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.  This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes”.

Where no reasons at all have been offered in support of a decision, the failure to give reasons may be a breach of procedural fairness: “Where there are no reasons in circumstances where they are required, there is nothing to review” (para. 22). Beyond that, what matters is the reasonableness of the decision, determined in part by the adequacy of the reasons given for it.

As chance would have it, my current recreational reading is Amartya Sen’s The Idea of Justice. In explaining why the conventional economic view of rational choice is inadequate, Professor Sen comments in terms eerily reminiscent of the language used in Dunsmuir and Newfoundland Nurses:

Having reason to do something is not just a matter of an unscrutinized conviction – a strong ‘gut feeling’ – that we have ‘excellent grounds’ for doing what we choose to do. Rather, it demands that we investigate the reasons underlying the choice and consider whether the alleged reasons survive searching and critical examination, which one can undertake if and when the importance of such self-scrutiny is understood. The grounds of choice have to survive investigation based on close reasoning (with adequate reflections and, when necessary, dialogue with others), taking note of more information if and when it is relevant and accessible (p. 180).

That is not the only area of overlap between Professor Sen and the Supreme Court. In some areas of decision-making, such as labour relations, only laconic reasons need be given to parties well-versed in the intricacies of the relevant relationships and legal provisions. Taking Justice Abella’s view of the relationship between reasons and reasonableness, sparseness in explanation is not problematic. Thus it is interesting to note that Professor Sen continues: “When the reasons for a particular choice are established in our mind through experience or habit formation, we may often choose reasonably enough without sweating over the rationality of every decision” (p. 181).

Clearly, great minds think alike!

A Slightly Less Cold House for Foreign Investors

One of the components of the Federal Government's omnibus budget bill, the Jobs, Growth and Long-term Prosperity Act, involves amendments to the Investment Canada Act. In certain circumstances, take-overs by foreign persons of Canadian corporations must be reviewed by the Minister for Industry and, if the Minister concludes that the proposed investment is not of "net benefit" to Canada, the foreigners have to remain on the outside looking in. Aliant Techsystems and BHP Billiton saw their take-over efforts run aground on the net benefit rock, as Kevin Ackhurst reminds us.

Decisions by the Minister are to be taken within 45 days, although there is a power to extend the time for decision. If the decision is negative, further submissions can be made, but the reasons for the decision need not be disclosed until a final decision is reached. Not an ideal situation for a multi-national corporation with potentially billions of dollars on the table, and not hard to perceive how this might chill the enthusiasm of foreign investors (as if it were not cold enough here already...).

Amendments to the decision-making process are now proposed, along with the introduction of a ministerial power to accept offers of security. The amendments to the decision-making process do not change the basic infrastructure of the Act, but the Minister will have a little bit more elbow room to disclose concerns about proposed investments early in the decision-making process. Strangely, this does not seem to be accompanied by a provision allowing proponents to amend their applications, but presumably a 'right to respond' to concerns raised by the Minister will be read in to the statutory scheme, on the basis that procedural fairness requires it (see, e.g., para. 17 here).

Why Give Reasons for Decisions?

From the Nova Scotia Court of Appeal comes a useful overview of the requirement to give reasons:

[17]         In a series of cases, the Supreme Court of Canada has recognized the importance of reasons in various settings: e.g., Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39; R. v. Sheppard, 2002 SCC 26 (CanLII), 2002 SCC 26; R. v. Braich, 2002 SCC 27 (CanLII), 2002 SCC 27; R. v. Walker, 2008 SCC 34 (CanLII), 2008 SCC 34; F.H. v. McDougall, 2008 SCC 53 (CanLII), 2008 SCC 53; R. v. R.E.M., 2008 SCC 51 (CanLII), 2008 SCC 51.  Their import can be summarized thusly:

(a)      the need for, and adequacy of reasons, is contextual and depends upon the adjudicative setting, (Sheppard, para. 19);

(b)     reasons inform the parties – and especially the losing party – of why the result came about, (R.E.M., para. 11);

(c)      reasons inform the public, facilitating compliance with the rules thereby established, (Sheppard, para. 22);

(d)     reasons provide guidance for courts in the future in accordance with the principle of stare decisis, (R.E.M., para. 12);

(e)      reasons allow both the parties and the public to see that justice is done and thereby enhance the confidence of both in the judicial process, (Baker, para. 39);

(f)      reasons foster and improve decision-making by ensuring that issues are addressed and reasoning is made explicit, (Baker, para. 39; Sheppard, para. 23; R.E.M., para. 12);

(g)      reasons facilitate consideration of judicial review or appeal by the parties, (Baker, para. 39);

(h)     reasons enhance or permit meaningful appeal or judicial review, (Sheppard, para. 25; R.E.M., para. 11).

The instant case involved an appeal from the oral reasons of a Family Court judge granting an order for permanent care. Pursuant to the relevant legislation, the trial judge's conclusions had to be accompanied by a statement of the evidence on which his conclusions were based. It is interesting to observe how the Court's interpretation of the statutory reason-giving requirement was influenced by jurisprudence from different fields of law, including that of administrative law.

The appeal was dismissed.