|
Judicial Review - SOR - The 'Reasonableness' Test (3). Mason v. Canada (Citizenship and Immigration)
In Mason v. Canada (Citizenship and Immigration) (SCC, 2023) the Supreme Court of Canada considered (and allowed) a further appeal of an initially-allowed JR of a decision of the Immigration and Refugee Board of Canada (Immigration Appeal Division). The Federal Court of Appeal (Stratas JA writing, but here reversed) interpreted s.34(1)(e) of the Immigration and Refugee Protection Act ['engaging in acts of violence that would or might endanger the lives or safety of persons in Canada'] to not require a 'national security' nexus when applying it's immigration inadmissibility provision.
In these quotes the Supreme Court of Canada re-visits (after Vavilov) the content of the 'test' for the JR standard of review of reasonableness:(1) Vavilov’s Guidance on Reasonableness Review of Administrative Decisions
[56] Vavilov provided extensive guidance on conducting reasonableness review of administrative decisions (paras. 73-142). Without canvassing every detail of that guidance, the main elements of reasonableness review can be summarized as follows.
(a) The Purpose of Reasonableness Review: Upholding the Rule of Law While According Deference
[57] Vavilov explained that the purpose of reasonableness review is “to give effect to the legislature’s intent to leave certain decisions with an administrative body while fulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law” (para. 82). Reasonableness review starts from a posture of judicial restraint and “a respect for the distinct role of administrative decision makers” (para. 13), arising from the legislature’s institutional design choice to give administrative decision makers rather than courts the jurisdiction to decide certain issues (para. 24). Reasonableness review also serves to “maintain the rule of law” (para. 2) and “to safeguard the legality, rationality and fairness of the administrative process” (para. 13). Thus, the purpose of reasonableness review is to uphold “the rule of law, while according deference to the statutory delegate’s decision” (Canada Post, at para. 29).
(b) A “Reasons First” Approach
[58] Vavilov noted that, given the deference owed to an administrative decision, reasonableness review is “methodologically distinct” from correctness review (para. 12). The Court explained that “[w]hat distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place” (para. 15). Reasonableness review is thus concerned with both the administrator’s decision-making process and the outcome (paras. 83 and 87; see also Canada Post, at para. 29).
[59] When an administrative decision maker is required by the legislative scheme or the duty of procedural fairness to provide reasons for its decision, the reasons “are the primary mechanism by which administrative decision makers show that their decisions are reasonable” (Vavilov, at para. 81).[1] The purpose of reasons is to “demonstrate ‘justification, transparency and intelligibility’” (para. 81). Reasons are “the means by which the decision maker communicates the rationale for its decision” (para. 84). This Court emphasized that “it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies” (para. 86 (emphasis in original)).
[60] A decision will be unreasonable when the reasons “fail to provide a transparent and intelligible justification” for the result (para. 136). A reviewing court must therefore take a “reasons first” approach that evaluates the administrative decision maker’s justification for its decision (para. 84). It must “begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion” (para. 84, citing D. Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286). As noted by Professor David Mullan, the “reasons first” approach “underscores a commitment to deference” and requires that reasons are “the principal lens through which the exercise of reasonableness review takes place” (p. 202). Thus, as he explains, “the starting or focal point for the conducting of truly deferential reasonableness review should be the reasons provided by the decision-maker” (p. 215; see also Daly (2022), at pp. 108-10).
[61] Under Vavilov’s “reasons first” approach, the reviewing court should remember that “the written reasons given by an administrative body must not be assessed against a standard of perfection”, and need not “include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred” (para. 91). The reviewing judge must read the administrator’s reasons “holistically and contextually” (para. 97), “in light of the history and context of the proceedings in which they were rendered”, including “the evidence before the decision maker, the submissions of the parties, publicly available policies or guidelines that informed the decision maker’s work, and past decisions of the relevant administrative body” (para. 94). Reasons must be read “in light of the record and with due sensitivity to the administrative regime in which they were given” (para. 103). Such factors may “explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency” (para. 94).
[62] A reviewing court should also avoid engaging in “disguised correctness review”, or correctness in the guise of reasonableness (para. 294, per Abella and Karakatsanis JJ., concurring in the result; see also Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770, at para. 27, citing D. Mullan, “Unresolved Issues on Standard of Review in Canadian Judicial Review of Administrative Action — The Top Fifteen!” (2013), 42 Adv. Q. 1, at pp. 76‑81). Because “[t]he role of courts in these circumstances is to review”, they should, as a general rule, “refrain from deciding the issue themselves” (Vavilov, at para. 83 (emphasis in original)). A reviewing court should not create its “own yardstick and then use [it] to measure what the administrator did” (para. 83, and Canada Post, at para. 40, both citing Delios v. Canada (Attorney General), 2015 FCA 117, 100 Admin. L.R. (5th) 301, at para. 28). Nor should a reviewing court ask “what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the problem” (Vavilov, at para. 83; see also Canada Post, at para. 40). Rather, a “reviewing court must consider only whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led — was unreasonable” (Vavilov, at para. 83).
[63] Finally, Vavilov cautioned that the “reasons first” approach is “not a ‘rubber-stamping’ process or a means of sheltering administrative decision makers from accountability” (para. 13). Instead, it is “a robust form of review” (para. 13; see also paras. 12, 67 and 138), one that highlights “the need to develop and strengthen a culture of justification in administrative decision making” (para. 2).
(c) Indicators of Unreasonableness
[64] Vavilov identified two types of “fundamental flaws” indicating that an administrative decision is unreasonable: (1) a failure of rationality internal to the reasoning process; or (2) a failure of justification given the legal and factual constraints bearing on the decision (para. 101). A reviewing court need not categorize unreasonableness as falling into one category or another. They are simply a helpful way of describing how a decision may be unreasonable (para. 101).
(i) Failures of Rationality in the Reasoning Process
[65] A failure of rationality in the reasoning process arises if the decision is not rational or logical (paras. 102‑4). A decision is unreasonable if, “read holistically”, it “fail[s] to reveal a rational chain of analysis” or “reveal[s] that the decision was based on an irrational chain of analysis” (para. 103). A reviewing court “must be able to trace the decision maker’s reasoning without encountering any fatal flaws” in the decision maker’s “overarching logic” (para. 102). It must “be satisfied that the decision maker’s reasoning ‘adds up’” (para. 104).
(ii) Failures of Justification in Light of the Legal and Factual Constraints
[66] A failure of justification in light of the legal and factual constraints bearing on the decision arises if the decision is not “justified in relation to the constellation of law and facts that are relevant to the decision” (para. 105). The legal and factual context “operate as constraints on the decision maker in the exercise of its delegated powers” (para. 105). The burden of justification varies with the circumstances, including the wording of the relevant statutory provisions, the applicable precedents, the evidence, the submissions of the parties, and the impact of the decision on the affected persons. The greater the interpretive constraints in a given case, the greater the burden of justification on the decision maker in deviating from those constraints (see M. Popescu, “L’arrêt Vavilov: à la recherche de l’équilibre perdu entre la primauté du droit et la suprématie législative” (2021), 62 C. de D. 567, at p. 603). Examples include the seven non-exhaustive constraints set out below. As was highlighted in Vavilov, “[t]hese elements are not a checklist for conducting reasonableness review, and they may vary in significance depending on the context. They are offered merely to highlight some elements of the surrounding context that can cause a reviewing court to lose confidence in the outcome reached” (para. 106).
....
4. The Evidence and Facts Before the Decision Maker
[73] Absent exceptional circumstances, a reviewing court will defer to an administrative decision maker’s factual findings (para. 125). A reviewing court may intervene, however, if the decision is unreasonable: if it is not “justified in light of the facts” or when “the decision maker has fundamentally misapprehended or failed to account for the evidence before it” (para. 126). . Interpaving Limited v. Workplace Safety and Insurance Appeals Tribunal
In Interpaving Limited v. Workplace Safety and Insurance Appeals Tribunal (Div Court, 2023) the Divisional Court considered a JR by an employer in a WSIA case, here where a successful claimant employee had been injured while driving home from work under the influence of alcohol.
Here the court considers the JR SOR of unreasonableness [from Vavilov]:[5] As held in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, a reasonable decision is one that is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and law that bore on the decision: Vavilov, at para. 85. The hallmarks of reasonableness are justification, transparency, and intelligibility: Vavilov, at para. 99. In Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780, at paras. 55 to 58, the Ontario Court of Appeal identified the two types of error that may render an administrative tribunal’s decision unreasonable: a failure of rationality internal to the reasoning process, and the untenability of the decision, in light of the relevant factual and legal constraints that bear on it. The Court in Turkiewicz held that the expertise of the administrative decision-maker was relevant to a reviewing court’s assessment of reasonability. . City of Toronto v WSIAT and Beebeejaun
In City of Toronto v WSIAT and Beebeejaun (Div Court, 2023) the Divisional Court [Leiper J] set out fresh perspectives on the JR SOR of 'reasonableness':[8] The reasonableness standard of review requires a reviewing court to respect the distinct role of administrative decision makers. Reasonableness is not a standard of perfection, and thus, errors that are peripheral or superficial will not necessarily mean that a decision is unreasonable: Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, at para. 82.
[9] Unreasonableness is more likely to be found where the decisionmaker has failed to address key arguments raised by the parties, applied circular reasoning, failed to justify a departure from precedent, or employed statutory interpretation that is inconsistent with the text and context of the legislation: Vavilov, at para. 106.
[10] Overall, the reasons for decision will be measured against the important elements of justification, intelligibility, and transparency: Vavilov, at para. 86.
[11] Tribunals should strive to treat like cases alike and explain a departure from established decisions in like circumstances: Vavilov at paras. 129 and 131. However, administrative decision makers do not need to be unanimous in their interpretations. “[T]he mere fact that some conflict exists among an administrative body’s decisions does not threaten the rule of law.”: Vavilov, at para. 129.
[12] Tribunals are bound by principles of statutory interpretation, that “the words of a statute must be read ‘in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament:” Rizzo & Rizzo Shoes (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27. . UFCWC, Local 175 v. CVH Birchwood Terrace Nursing Home
In UFCWC, Local 175 v. CVH Birchwood Terrace Nursing Home (Div Court, 2023) the Divisional Court considered 'the' two types of errors that may result in an unreasonable decision, and thus meeting the standard of review for judicial review [citing Turkiewicz]:[35] The Court of Appeal identified the two types of error that may render an administrative tribunal’s decision unreasonable at paras. 59 and 60 of Turkiewicz, again referring to the Supreme Court’s decision in Vavilov:Two types of fundamental flaws can render a decision unreasonable. The first is a failure of rationality internal to the reasoning process (para. 101). To be reasonable, a decision must be based on reasoning that is both rational and logical. The reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic (para. 102).
The second type of fundamental flaw arises when a decision is untenable, in some respect, in light of the relevant factual and legal constraints that bear on it (para. 101). Elements in this evaluation include: the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the parties’ submissions; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies (para. 106). The governing statutory scheme is likely to be the most salient aspect of the relevant legal context (para. 108) . Toronto District School Board v. Canadian Union of Public Employees
In Toronto District School Board v. Canadian Union of Public Employees (Div Court, 2023) the Divisional Court neatly summarizes Vavilov factors to be considered on a JR (ie. a 'reasonableness' review):Standard of Review
[22] The Parties agree that Vavilov[2] applies. Principles from Vavilov applicable to this case include:a. “The burden is on the party challenging the decision to show that it is unreasonable.” (para. 110);
b. Although reasonableness review remains a “robust form of review”, “courts intervene in administrative matters only when it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process.” (para. 13);
c. “[A] reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires that a reviewing court defer to such a decision.” (para. 85);
d. “[T]he reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision.” (para. 99);
e. The reviewing court must be satisfied there is a “line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.” (para. 102, citing Law Society of New Brunswick v. Ryan, 2003 SCC 20 at para. 55);
f. “[T]he reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency…. [T]he court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable.” (para. 100); and
g. “In conducting reasonableness review, judges should be attentive to the application by decision-makers of specialized knowledge, as demonstrated by their reasons.” (para. 93). . Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1
In Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1 (Ont CA, 2022) the Court of Appeal states, and applies, it's interpretation of Vavilov 'reasonableness' while allowing an appeal from an OLRB JR:A. The Vavilov Directives for the Proper Application of the Reasonableness Standard of Review
[55] Vavilov states that the reasonableness review approach is based on the following principles. Courts are to intervene in administrative matters only if it is truly necessary to safeguard the legality, rationality, and fairness of the administrative process. Such reviews start from the principle of judicial restraint and respect for the distinct role of decision makers (para. 13). The reviewing court should respect administrative decision makers and their specialized expertise, should not ask how they themselves would have resolved an issue, and should focus on whether the applicant has demonstrated that the decision is unreasonable (para. 75).
[56] In conducting a reasonableness review, the court must focus on the decision actually made by the decision maker. The court should refrain from deciding the issues itself. It does not ask what decision it would have made in place of the administrative decision maker, attempt to ascertain the range of possible conclusions, conduct a de novo analysis, or seek to determine the correct solution. Instead, the reviewing court considers only whether the actual decision, including both the rationale for the decision and the outcome to which it led, was unreasonable (para. 83).
[57] Where reasons have been given, the reasonableness review puts those reasons first. The court must examine the reasons with respectful attention, seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion (para. 84).
[58] A reasonable decision is one that is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and law that bore on the decision (para. 85). It bears the hallmarks of reasonableness – justification, transparency, and intelligibility (para. 99).
[59] Two types of fundamental flaws can render a decision unreasonable. The first is a failure of rationality internal to the reasoning process (para. 101). To be reasonable, a decision must be based on reasoning that is both rational and logical. The reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic (para. 102).
[60] The second type of fundamental flaw arises when a decision is untenable, in some respect, in light of the relevant factual and legal constraints that bear on it (para. 101). Elements in this evaluation include: the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the parties’ submissions; the past practices and decisions of the administrative body; and, the potential impact of the decision on the individual to whom it applies (para. 106). The governing statutory scheme is likely to be the most salient aspect of the relevant legal context (para. 108).
[61] I would add that the reviewing court must bear in mind the expertise of the administrative decision maker with respect to the questions before it. At para. 31 of Vavilov, the Supreme Court states that “expertise remains a relevant consideration in conducting [a] reasonableness review.” Being attentive to a decision maker’s demonstrated expertise may reveal to a court why a decision maker reached a particular outcome or provided less detail in its consideration of a given issue (para. 93). Moreover, decision makers’ specialized expertise may lead them to rely, when conducting statutory interpretation, on “considerations that a court would not have thought to employ but that actually enrich and elevate the interpretive exercise” (para. 119). As such, relevant expertise of the administrative decision maker must be borne in mind by a court conducting a reasonableness review, both when examining the rationality and logic of the decision maker’s reasoning process and the decision itself, in light of the factual and legal constraints bearing on it.
....
(a) The Relevant Factual Constraints
[72] Vavilov instructs that, on a reasonableness review, three factual constraints are pertinent: the evidence before the decision maker and facts of which the decision maker may take notice; the parties’ submissions; and, the potential impact on the individual to whom the decision applies.
[73] There is nothing unreasonable in the Board’s handling of the first two factual constraints. In each of the OLRB Decisions, the Board clearly identified and addressed the evidence before it and the parties’ submissions.
[74] As for the third factual consideration – the potential impact of the OLRB Decisions on Mr. Turkiewicz – each of the decisions reflects that the Board understood Mr. Turkiewicz’s personal circumstances, the history and context of the proceedings, and Mr. Turkiewicz’s submissions. Thus, in my view, in each case, the Board reasonably considered the potential impact of the Decision on Mr. Turkiewicz.
[75] Accordingly, there is nothing in the relevant factual constraints to indicate that the OLRB Decisions are untenable. On the contrary, a consideration of the relevant factual constraints reinforces their reasonableness.
(b) The Relevant Legal Constraints
[76] The relevant legal constraints include the governing statutory scheme, other relevant statutory and common law, the principles of statutory construction, and the past practices and decisions of the administrative body. For the reasons given above, I would also consider the relative expertise of the administrative decision‑maker on the issues it decided. A consideration of these matters reveals nothing untenable about the OLRB Decisions.
[77] In terms of the governing statutory scheme, s. 114 of the LRA gives the OLRB exclusive jurisdiction to exercise the powers conferred on it and s. 116 contains a strong privative clause.[1] The OLRB is a highly specialized tribunal with considerable expertise, placing it in an elevated position to interpret its home statute.
[78] Section 1(4) of the LRA explicitly confers a broad discretion on the Board, stating that where, “in the opinion of the Board”, the preconditions are met, the Board “may” make a related employer declaration. Apart from the preconditions, s. 1(4) does not expressly require that other matters be considered.
[79] It was for the Board to assess and evaluate the evidence before it when determining if the preconditions had been met (Vavilov, para. 125). And, if the preconditions were found to have been met, it was for the Board to decide how to exercise the discretion that s. 1(4) confers on it.
[80] The foregoing focuses on s. 1(4) and the related employer declaration in the First Decision because the Divisional Court found that decision to be unreasonable. As a result, it quashed the First Decision and also the Second and Third Decisions, which were based on the First Decision. However, in each of the OLRB Decisions, the issues the Board had to grapple with fell squarely within its expertise and the confines of its enabling statute. And, in each case, the Board – a highly specialized tribunal with extensive expertise – was informed by decades of its jurisprudence on the issues.
[81] In my view, a consideration of the relevant legal constraints shows nothing untenable about the OLRB Decisions and offers no basis for judicial intervention. Instead, it reinforces the conclusion that those decisions are reasonable. . Canada (Justice) v. D.V.
In Canada (Justice) v. D.V. (Fed CA, 2022) the Federal Court of Appeal (Stratas JA) stated the nature of a reasonableness review, harkening it's similarity with federal court practice pre-Vavilov:C. Conducting reasonableness review
[13] The Federal Court’s task was to review the Minister’s decision for reasonableness. Under that standard of review, reviewing courts must review the outcome reached by the Minister and ensure that a reasoned explanation for the outcome can be discerned: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at paras. 74, 82-87.
[14] In reviewing the outcome reached by an administrative decision-maker for reasonableness, reviewing courts are to review "“holistically and contextually”" any written reasons in light of the entire context, including the evidentiary record and the submissions made, with "“due sensitivity to the administrative regime”": Vavilov at paras. 94, 97, 103 and 123. Simply put, reviewing courts look to the reasons provided and anything in the legal backdrop and the record before the reviewing court that can shed light on where the administrator was coming from.
[15] In doing that, reviewing courts must keep front of mind the fact that Parliament has made the administrative decision-maker—here the Minister—the decider of the merits on the facts and the law. This means that it is not for reviewing courts to analyze the facts and law themselves, reach a definitive conclusion on the merits of the administrative decision, and then impose their own conclusion, finding any disparity in the administrative decision to be "“unreasonable”": Vavilov at para. 83, citing Delios v. Canada (Attorney General), 2015 FCA 117; see also Coldwater First Nation v. Canada (Attorney General), 2020 FCA 34 at para. 28 and Girouard v. Canada (Attorney General), 2020 FCA 129 at para. 42. Nor is the reviewing court to conduct a "“line-by-line treasure hunt for [any] error”": Vavilov at para. 102, citing Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458 at para. 54.
[16] Rather, reviewing courts are to consider "“the limits and contours of the space in which the decision-maker may act [which can vary according to the context] and the types of solutions it may adopt”" and ask whether the decision was within that space or was otherwise a permissible solution: Vavilov at para. 90. Reviewing courts must start with the administrator’s decision and the bases for it, giving any reasons respectful attention, with due regard for expertise, experience and regulatory history, all with a view to understanding where the administrator was coming from, detecting any "“sufficiently central”", "“significant”", "“sufficiently serious shortcomings”", and assessing whether any constraints were exceeded: Vavilov at paras. 93, 100-103, 127-128.
[17] Reviewing courts must also be able to discern an "“internally coherent and rational chain of analysis”" on "“critical point[s]”" from the reasons or the context that informs an understanding of the reasons: Vavilov at paras. 85, 100-103, 127-128. For this reason, the rationale for a decision, sufficient to sustain its reasonableness, is sometimes said to be implicit: Canada (Citizenship and Immigration) v. Mason, 2021 FCA 156 at para. 41. Administrators also fall short when they "“fail to reveal a rational chain of analysis”", supply a "“flawed basis”", or rely on "“an unreasonable chain of analysis”" such as "“logical fallacies”", "“circular reasoning, false dilemmas, unfounded generalizations or an absurd premise”": Vavilov at paras. 96 and 103-104. Reasoned explanations are adequate when "“the parties [are assured] that their [main] concerns have been heard”", the administrator has shown that it was "“actually alert and sensitive to the matter before it”" and reviewing courts "“can assess, meaningfully, whether the [administrator] met minimum standards of legality”": Vavilov at paras. 127-128; Vancouver International Airport Authority v. Public Service Alliance of Canada, 2010 FCA 158, [2011] 4 F.C.R. 425 at para. 16. See also Alexion Pharmaceuticals Inc. v. Canada (Attorney General), 2021 FCA 157.
[18] Here again, reasonableness review must not be turned into correctness review by, for example, using a "“standard of perfection”" or applying the "“standards of academic logicians”": Vavilov at paras. 91 and 104.
[19] Even before Vavilov, the Federal Courts have conducted reasonableness review of Ministerial review decisions in this manner: Winmill v. Canada (Justice), 2016 FCA 250; Walchuk v Canada (Justice), 2015 FCA 85, 469 N.R. 360; Timm v. Canada (Attorney General), 2012 FCA 282, 451 N.R. 250; Timm v. Canada (Attorney General), 2015 FCA 199. In many ways, in Vavilov the Supreme Court ratified the approach of this Court to reasonableness: Entertainment Software Ass’n v. Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100, [2021] 1 F.C.R. 374 at paras. 23-37, aff’d 2022 SCC 30.
[20] In Winmill, this Court specifically addressed how reasonableness review of decisions made at the preliminary assessment phase should be conducted. A reviewing court is to "“ensure that during the preliminary assessment phase the Minister followed a methodology appropriate to the purposes of the legislative framework and had a firm evidentiary basis for the decision”" (at para. 11). A reviewing court cannot "“engage in [its own] de novo weighing and assessment of facts, substituting [its own] conclusions for those of the Minister”" (at para. 11).
[21] It also goes without saying that the reviewing court must focus on whether the Minister has adopted a reasonable interpretation of the Ministerial review provisions in the Criminal Code and not conduct its own interpretation of the provisions or, worse, impose on the Minister its own view of what the provisions ought to say. . BCE Inc. v. Québecor Média Inc.
In BCE Inc. v. Québecor Média Inc. (Fed CA, 2022) the Federal Court of Appeal considered factors relevant to the test for 'reasonableness':[62] The Supreme Court went on to remind reviewing courts that the decision maker’s reasons must be assessed in light of the context in which they were rendered. Relevant considerations include the evidence before the decision maker, the submissions of the parties, the tribunal’s publicly available policies or guidelines that informed the decision maker’s work, as well as past decisions of the tribunal. This context may throw light on aspects of the decision maker’s reasoning process that are not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency. Other considerations which may shed light on the decision maker’s reasons may include the fact that opposing parties may have made concessions that made particular issues non-contentious or the fact that the decision maker followed a well-established line of the tribunal’s case law that was not challenged during the proceedings. The fact that an individual decision maker may have adopted an interpretation set out in the tribunal’s public interpretive policy is equally relevant in assessing the quality of the latter’s decision.
|
