Simon's Megalomaniacal Legal Resources

Judicial Review - SOR - Reasonableness - Examining Legal Precedents

. Kahkewistahaw First Nation v. Canada (Crown-Indigenous Relations)

In Kahkewistahaw First Nation v. Canada (Crown-Indigenous Relations) (Fed CA, 2023) the Federal Court of Appeal considered a JR of decisions of the Specific Claims Tribunal, here addressing surrender of land emanating from 1944 and related Crown fiduciary duties.

In these interesting quotes the court considered the JR standard of review ('reasonableness') with an interesting cross-over theme of considering specific JR standards for legal [paras 49-53] [esp. 'common law precedents'] and fact issues [paras 54-58], issues which are normally articulated and addressed only in appeal SOR context:

A. Standard of Review

[49] I commence by noting that the standard of review that we are to apply to the Decision is the deferential standard of reasonableness, as was held in by the Supreme Court of Canada in Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4, [2018] 1 S.C.R. 83 at para. 27 [Williams Lake 2018 SCC] and by this Court in Williams Lake First Nation v. Canada (Indian Affairs and Northern Development), 2021 FCA 30 [Williams Lake 2021 FCA], 458 D.L.R. (4th) 722 at para. 33; Witchekan Lake First Nation v. Canada, 2022 FCA 52, 2022 CarswellNat 7119 at para. 2; and Ahousaht First Nation v. Canada (Indian Affairs and Northern Development), 2021 FCA 135, 342 A.C.W.S. (3d) 1, leave to appeal to SCC refused, 39847 (3 March 2022) at paras. 44-45 [Ahousaht].

[50] In Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] 4 S.C.R. 653, 2019 SCC 65 (CanLII) [Vavilov], a majority of the Supreme Court underscored that a decision of an administrative decision-maker may be unreasonable either because of a failure of rationality in its reasoning process, where it gives reasons, or because the decision is untenable in light of the factual and legal constraints that bear on it: Vavilov, at para. 101.

[51] As concerns the second possibility, the majority noted that the requisite inquiry is contextual. The Court provided a non-exhaustive list of contextual factors that may constrain an administrative decision maker. Those include the relevant common law precedents, precedents from the administrative decision maker, itself, and the evidence before the decision-maker.

[52] With respect to common law precedents from the courts, the majority held that, provided adequate explanations are given, an administrative decision-maker may sometimes decline to follow a decision from the courts, depending on the circumstances. More specifically, at paragraphs 112-113 of Vavilov, the majority stated:

Any precedents on the issue before the administrative decision maker or on a similar issue will act as a constraint on what the decision maker can reasonably decide. An administrative body’s decision may be unreasonable on the basis that the body failed to explain or justify a departure from a binding precedent in which the same provision had been interpreted. Where, for example, there is a relevant case in which a court considered a statutory provision, it would be unreasonable for an administrative decision maker to interpret or apply the provision without regard to that precedent. The decision maker would have to be able to explain why a different interpretation is preferable by, for example, explaining why the court’s interpretation does not work in the administrative context: M. Biddulph, “Rethinking the Ramification of Reasonableness Review: Stare Decisis and Reasonableness Review on Questions of Law” (2018), 56 Alta. L.R. 119, at p. 146. There may be circumstances in which it is quite simply unreasonable for an administrative decision maker to fail to apply or interpret a statutory provision in accordance with a binding precedent. For instance, where an immigration tribunal is required to determine whether an applicant’s act would constitute a criminal offence under Canadian law (see, e.g., Immigration and Refugee Protection Act, S.C. 2001, c.27, ss.35-37), it would clearly not be reasonable for the tribunal to adopt an interpretation of a criminal law provision that is inconsistent with how Canadian criminal courts have interpreted it.

That being said, administrative decision makers will not necessarily be required to apply equitable and common law principles in the same manner as courts in order for their decisions to be reasonable. For example, it may be reasonable for a decision maker to adapt a common law or equitable doctrine to its administrative context: see Nor-Man Regional Health Authority, at paras. 5-6, 44-45, 52, 54 and 60. Conversely, a decision maker that rigidly applies a common law doctrine without adapting it to the relevant administrative context may be acting unreasonably: see Delta Air Lines, at paras. 16-17 and 30. In short, whether an administrative decision maker has acted reasonably in adapting a legal or equitable doctrine involves a highly context-specific determination.

[Emphasis added.]

[53] With respect to a decision maker’s own prior decisions, Vavilov recognizes that decision makers may enjoy greater latitude in departing from their own prior decisions, given the absence of stare decisis, but nonetheless must still provide adequate reasons for declining to follow the decision maker’s own case law. As the majority stated at paragraphs 129 and 131:

Administrative decision makers are not bound by their previous decisions in the same sense that courts are bound by stare decisis. As this Court noted in Domtar, “a lack of unanimity is the price to pay for the decision‑making freedom and independence” given to administrative decision makers, and the mere fact that some conflict exists among an administrative body’s decisions does not threaten the rule of law: p. 800. Nevertheless, administrative decision makers and reviewing courts alike must be concerned with the general consistency of administrative decisions. Those affected by administrative decisions are entitled to expect that like cases will generally be treated alike and that outcomes will not depend merely on the identity of the individual decision maker — expectations that do not evaporate simply because the parties are not before a judge.

[...]

Whether a particular decision is consistent with the administrative body’s past decisions is also a constraint that the reviewing court should consider when determining whether an administrative decision is reasonable. Where a decision maker does depart from longstanding practices or established internal authority, it bears the justificatory burden of explaining that departure in its reasons. If the decision maker does not satisfy this burden, the decision will be unreasonable. In this sense, the legitimate expectations of the parties help to determine both whether reasons are required and what those reasons must explain: Baker, at para. 26. We repeat that this does not mean administrative decision makers are bound by internal precedent in the same manner as courts. Rather, it means that a decision that departs from longstanding practices or established internal decisions will be reasonable if that departure is justified, thereby reducing the risk of arbitrariness, which would undermine public confidence in administrative decision makers and in the justice system as a whole.

[54] As concerns the constraints imposed by the evidence before the decision maker, the majority found that it is axiomatic that a reviewing court may not second guess the factual findings of an administrative decision maker or re-weigh the evidence before the administrative decision maker. That said, the majority also recognized that a decision must nonetheless be justified in terms of the facts that were before the decision maker. More specifically, at paragraphs 125-126 of Vavilov, the majority found:

It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”: CHRC, at para. 55; see also Khosa, at para. 64; Dr. Q, at paras. 41-42. Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: see Housen, at paras. 15-18; Dr. Q, at para. 38; Dunsmuir, at para. 53.

That being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir, at para. 47. The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them: see Southam, at para. 56. The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. In Baker, for example, the decision maker had relied on irrelevant stereotypes and failed to consider relevant evidence, which led to a conclusion that there was a reasonable apprehension of bias: para. 48. Moreover, the decision maker’s approach would also have supported a finding that the decision was unreasonable on the basis that the decision maker showed that his conclusions were not based on the evidence that was actually before him: ibid.

[55] In judicial review applications before the Federal Courts, paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C., 1985, c. F-7 sets out the sets out both the grounds of review and the parameters of what reasonableness requires for review of factual errors: see Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 46; Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161, [2021] F.C.J. No. 848 (QL) at para. 103 [Best Buy].

[56] Paragraph 18.1(4)(d) of the Federal Courts Act uses terms very similar to those used by the Supreme Court of Canada in Vavilov to define unreasonable factual errors. Paragraph 18.1(4)(d) of the Federal Courts Act provides that factual findings made by a federal administrative decision maker are subject to being set aside only if the decision maker has “based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.”

[57] As noted in Best Buy at paragraph 123 and Walls v. Canada (Attorney General), 2022 FCA 47, [2022] F.C.J. No 399 (QL) at paragraph 41, this Court has held that the notion of perversity has been interpreted as wilfully going contrary to evidence, whereas the notions of capriciousness and factual findings being made without regard to the evidence include circumstances where there was no evidence to rationally support a finding or where the decision maker failed to reasonably account at all for critical evidence that ran counter to its findings (see also Page v. Canada (Attorney General), 2023 FCA 169, 483 D.L.R. (4th) 742 at para. 79 and Brown v. Canada (Attorney General), 2022 FCA 104, 2022 A.C.W.S. 2040 at para. 22).

[58] While the test for setting aside a decision due to an unreasonable factual finding is an exacting one, reviewable factual errors do occur, and have, for example, resulted in decisions being set aside by this Court in Williams Lake 2021 FCA (an application for judicial review of a Tribunal decision); Canada (Attorney General) v. Fauteux, 2020 FCA 165, 329 A.C.W.S. (3d) 231; and Bergey v. Canada (Attorney General), 2017 FCA 30, [2017] F.C.J. No. 142.

. Turner v. Canada (Attorney General)

In Turner v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal, hearing a judicial review, considered a failure to examine and expressly vary from established precedents as a factor showing unreasonableness:

[8] The adjudicator’s decision is thus unreasonable because the case law requires that, to be reasonable, an administrative decision must, among other things, provide reasons for departing from decided authority and must also must engage with the central arguments raised by the parties: Vavilov at paras. 127–132; Walker v. Canada (Attorney General), 2020 FCA 44 at para. 9, 314 A.C.W.S. (3d) 843; and Bell Canada v. Copyright Collective of Canada, 2021 FCA 148 at para. 43, 336 A.C.W.S. (3d) 538.

. The Corporation of the City of Mississauga v. Information and Privacy Commissioner of Ontario

In The Corporation of the City of Mississauga v. Information and Privacy Commissioner of Ontario (Div Court, 2022) the Divisional Court considered the practice of reviewing legal precedents as a JR SOR 'reasonableness' factor:

Was the IPC’s Reliance on the Gombu Decision Unreasonable?

[32] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, the Supreme Court specifically states that if there are precedents on an issue before an administrative decision maker, these will act as a constraint on what that decision maker can reasonably decide. As put by the Supreme Court at para. 112:

Any precedents on the issue before the administrative decision maker on a similar issue will act as a constraint on what the decision maker can reasonably decide. An administrative body’s decision may be unreasonable on the basis that the body failed to explain or justify a departure from a binding precedent in which the same provision has been interpreted. Where, for example, there is a relevant case in which a court considered a statutory provision, it would be unreasonable for an administrative decision maker to interpret or apply the provision without regard to that precedent.

[33] In Gombu, the Divisional Court was dealing with the interaction of s. 14(1)(d) of MFIPPA and s. 88(5) of the MEA. The same issue was before the IPC. It would have been unreasonable for the IPC to render its decision without considering and applying Gombu, unless it could be distinguished.