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Judicial Review - SOR - The 'Reasonableness' Test (4). Danso v. The Human Rights Tribunal of Ontario et al.
In Danso v. The Human Rights Tribunal of Ontario et al. (Div Court, 2024) the Divisional Court considered Vavilov 'reasonableness' in the following terms, with a common emphasis on the tribunal's 'expertise':[42] In order for the court to overturn the decision, the applicant must establish that the decision of the Adjudicator was unreasonable.
[43] The nature of a reasonableness inquiry requires the reviewing court to respect the institutional expertise and experience of the decision-maker. As stated in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 15, the reviewing court must do the following:In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified. What 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. [44] In Peel Law Association v. Pieters, 2013 ONCA 396, 116 O.R. (3d) 81, the task of this court is delineated, at para. 132:The only issue on judicial review was whether the vice-chair’s decision fell within the range of reasonable outcomes. On judicial review, it is not enough that the reviewing court be persuaded that one could arrive at a different decision based on the same evidentiary record. To succeed on judicial review in this case, it was necessary to show the tribunal could not reasonably arrive at the decision it did. ....
[48] With respect to other allegations and evidence, the Adjudicator reached a decision that is rationally supported and conducted in accordance with the analytical framework set out in Shaw v. Phipps, 2012 ONCA 155, 289 O.A.C. 163. The Court of Appeal for Ontario described the this analysis at para. 12, as followsThe onus rests on a complainant to establish the prohibited discrimination in accordance with the “prima facie” test. This description of the approach to establish discrimination comes from the decision of the Supreme Court of Canada in Ontario (Human Rights Comm.) and O’Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 [7 C.H.R.R. D/3102], which was decided in the context of employment-related discrimination. In that case, the Supreme Court of Canada explained that “[a] prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer” from the person alleged to have discriminated (at 558 [C.H.R.R. § 24782]). This means that the onus lies on the complainant to establish discrimination on the balance of probabilities and that, if the complainant does so, the evidentiary burden shifts to the respondent. See also Ontario (Director, Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, 269 O.A.C. 137 [71 C.H.R.R. D/1]. . New Blue Ontario Fund v. Ontario (Chief Electoral Officer)
In New Blue Ontario Fund v. Ontario (Chief Electoral Officer) (Div Court, 2024) the Divisional Court illustrates some Election Finances Act procedures, here were a political party felt they were entitled to greater allowance subsidies.
Here the court notes a logical consequence of the JR 'reasonableness' SOR doctrine:[45] In reviewing the CEO’s interpretation, it is important to remember that on questions of statutory interpretation, an administrative decision maker “holds the interpretative upper hand.” The reviewing court “should not conduct a de novo interpretation, nor attempt to determine a range of reasonable interpretations against which to compare the interpretations of the decision maker.” Rather, the court must determine whether the decision maker was alive to the “essential elements” of statutory interpretation: text, context, and purpose: Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 S.C.R. 900, at paras. 40-42.
[46] Thus, in a situation where there are two possible interpretations of a statute, both of which are reasonable, the interpretation adopted by the decision maker must be respected. In other words, even if it could be argued that the express language of the statute would have allowed for the interpretation put forward by the Applicants, this is not a basis for us to find that the CEO’s Decision is unreasonable. . Spirou v. College of Physiotherapists of Ontario
In Spirou v. College of Physiotherapists of Ontario (Div Court, 2023) the Divisional Court considered the requirements of 'reasonableness', here in the context of a JR of RHPA decisions by the "Inquiries, Complaints and Reports Committee of the College of Physiotherapists of Ontario":B. Were the Decisions Unreasonable?
[29] Given the finding that the ICRC had jurisdiction to make the orders, were the orders reasonable? A decision will be unreasonable if it contains one of two fundamental flaws:(i) It contains failures of rationality internal to the reasoning process; and
(ii) It is untenable in light of the relevant factual and legal constraints that it bears: Canada (Minister of Immigration and Citizenship) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 101. . Filippova v. Whyte
In Filippova v. Whyte (Div Court, 2023) the Divisional Court reviews the Vavilov JR 'reasonableness' standard of review, with some recent twists [para 65]:Analysis
[59] As the Supreme Court of Canada stated in Vavilov, reasonableness review finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision-makers. However, it is not a “rubber-stamping” process or a means of sheltering administrative decision-makers from accountability. It remains a robust form of review: Vavilov, at para. 13.
[60] The focus of a reasonableness review must be on the decision actually made by the decision-maker, including the decision-maker’s reasoning process and the outcome. The role of the courts is to review, and they are, as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not 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.
[61] Where the administrative decision-maker has provided written reasons, those reasons are the means by which the decision-maker communicates the rationale for its decision. A principled approach to reasonableness review is one that puts those reasons first. A reviewing court 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: Vavilov, at para. 84.
[62] An administrative decision-maker may demonstrate through its reasons that a given decision was made by bringing institutional expertise and experience to bear. In conducting reasonableness review, judges should be attentive to the application by decision-makers of specialized knowledge, as demonstrated by their reasons. Respectful attention to a decision-maker’s demonstrated expertise may reveal to a reviewing court that an outcome that might be puzzling or counterintuitive on its face nevertheless accords with the purposes and practical realities of the relevant administrative regime and represents a reasonable approach given the consequences and the operational impact of the decision. This demonstrated experience and expertise may also explain why a given issue is treated in less detail: Vavilov, at para. 93.
[63] A reviewing court must develop an understanding of the decision-maker’s reasoning process to determine whether the decision as a whole is reasonable. To make this determination, the reviewing court must ask whether the decision bears the hallmarks of reasonableness – justification, transparency, and intelligibility – and whether the decision is justified in relation to the relevant factual and legal constraints that bear on the decision: Vavilov, at para. 99.
[64] The burden is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside on this basis, the 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. Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision. It would be improper for a reviewing court to overturn an administrative decision simply because its reasoning exhibits a minor misstep. Instead, the 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: Vavilov, at para. 100.
[65] Two types of fundamental flaws may render a decision unreasonable:(a) The first is a failure of rationality internal to the reasoning process: Vavilov, at para. 101. To be reasonable, a decision must be based on reasoning that is both rational and logical. Reasonableness review is not a “line-by-line treasure hunt for error.” However, the reviewing court must be able to trace the decision-maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that 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: Vavilov, at para. 102.
(b) The second arises when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it: Vavilov, at para. 101. Factors in this evaluation may include the following: 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: Vavilov, at para. 106. The governing statutory scheme is likely to be the most salient aspect of the relevant legal context: Vavilov, at para. 108. . Thales DIS Canada Inc. v. Ontario (Transportation)
In Thales DIS Canada Inc. v. Ontario (Transportation) (Ont CA, 2023) the Court of Appeal considered the Canada-European Union Comprehensive Economic and Trade Agreement (CETA), here in the course of a successful Crown appeal of a JR finding that the bidding requirements were in violation of CETA.
Here the court considers the SOR for a JR ('reasonableness'), on which the court finds the lower court had erred:[7] I would allow the appeal. I agree with Ontario that the majority of the Divisional Court erred in its application of the reasonableness standard of review. Instead of considering whether the reasons, in light of the law, the record and the submissions made by the parties, contain a rational line of analysis, the majority improperly decided the issue afresh. Applying the deference mandated by the reasonableness standard of review, I find that the decision was reasonable. In addition, I agree with Ontario that the request for bids is not subject to judicial review, although I arrive at this conclusion based on the circumstances of this case. Finally, I disagree with the concurring reasons of the Divisional Court. It was open to Ontario to rely on an already established dispute resolution process to address Thales’s complaint, given that the outcome of that process was subject to judicial review.
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(b) Standard of review to be applied by the Divisional Court to the Decision
[87] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 23, the Supreme Court held that there is a presumption that the reasonableness standard of review will apply to the review of an administrative decision on an application for judicial review. The presumption can be rebutted where a different standard of review is prescribed by legislation or where the rule of law requires a correctness standard of review because the matter raises a constitutional issue, a question of central importance to the legal system or an issue of jurisdiction as between two administrative tribunals.
[88] In this case, the majority of the Divisional Court held that the presumption that reasonableness was the standard of review applied. I agree.
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(c) How the reasonableness standard of review is to be applied
[90] The more significant issue in this case is the application of the reasonableness standard of review to the Decision.
[91] In Vavilov, at para. 83, the court emphasized that the reasonableness review must focus on the reasons of the administrative decision maker. The reviewing court’s role is not to decide the issue afresh: “a court applying the reasonableness standard does not 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.” The court further emphasized, at para. 84, that the “reviewing court 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”.
[92] The hallmarks of a reasonable decision are justification, transparency and intelligibility: Vavilov, at para. 99.
[93] There are two types of “fundamental flaws” that may make a decision unreasonable: Vavilov, at para. 101. First, a decision may be unreasonable because the reasoning process is internally irrational: Vavilov, at para. 101. As explained in Turkiewicz, at para. 59, the “reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic”: see also Vavilov, at para. 102.
[94] Second, a decision may be unreasonable because it is “untenable in light of the relevant factual and legal constraints that bear on it”: Vavilov, at para. 101. Again, as described in Turkiewicz, at para. 60, the relevant factual and legal constraints 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 on the individual to whom it applies”: see also Vavilov, at para. 106.
[95] In Vavilov, at para. 114, the Supreme Court explained that one of the potentially relevant legal constraints on an administrative decision maker is international law and international treaties:We would also note that in some administrative decision making contexts, international law will operate as an important constraint on an administrative decision maker. It is well established that legislation is presumed to operate in conformity with Canada’s international obligations, and the legislature is “presumed to comply with the values and principles of customary and conventional international law”: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53; R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754, at para. 40. Since Baker, it has also been clear that international treaties and conventions, even where they have not been implemented domestically by statute, can help to inform whether a decision was a reasonable exercise of administrative power: Baker, at paras. 69-71. [96] In Vavilov, at para. 127, the court also emphasized that the principles of justification and transparency require that reasons should be responsive to the issues raised by the parties:The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties. The principle that the individual or individuals affected by a decision should have the opportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard: Baker, at para. 28. The concept of responsive reasons is inherently bound up with this principle, because reasons are the primary mechanism by which decision makers demonstrate that they actually listened to the parties. [Underlined emphasis added.] [97] Finally, the review of an administrative decision maker’s reasons cannot be divorced from the institutional context in which the decision was made or the history of the proceedings: Vavilov, at para. 91. Factors such as expediency or the nature of the decision maker are relevant to assessing whether a decision is reasonable. . Amer v. Shaw Communications Canada Inc.
In Amer v. Shaw Communications Canada Inc. (Fed CA, 2023) the Federal Court of Appeal considered (and allowed) an appeal of a successful JR against a federal labour arbitrator's decision "under Division XIV of Part III of the Canada Labour Code, R.S.C. 1985, c. L-2 (the Code)" (which found unjust termination).
In these quotes the court finds a 'reasonableness' error in assessing the standard of review for JRs, here when the lower court conducted it's own merits assessment of the case 'from the ground up':[59] I turn next to the Federal Court’s interference with the Adjudicator’s findings in respect of the appellant’s duties. While stating that it was applying the reasonableness standard, the Federal Court did not do so and instead conducted its own analysis of the evidence to reach an opposite conclusion from that reached by the Adjudicator. This is correctness as opposed to reasonableness review.
[60] When applying the reasonableness standard, a reviewing court “does not 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”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), [2019] 4 S.C.R. 653 at para. 83; Canada (Attorney General) v. Ennis, 2021 FCA 95 (CanLII), [2021] 4 F.C.R. 154, leave to appeal to SCC refused, 39800 (20 January 2022) at para. 48.
[61] As this Court has repeatedly held, reviewing judges should not make their own yardstick and then use that yardstick to measure what the adjudicator did: Delios v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171 at para. 28; Canada (Attorney General) v. Kattenburg, 2020 FCA 164, [2020] F.C.J. No. 965, leave to appeal to SCC refused 39474 (1 April 2021) at paras. 9, 15. This is disguised correctness review.
[62] To avoid creating its own yardstick, a reviewing court must not reweigh or reassess the evidence considered by the decision maker. It must refrain from interfering with the administrative decision maker’s factual findings unless “the decision maker has fundamentally misapprehended or failed to account for the evidence before it”: see Vavilov at para. 125; Shreedhar v. Canada (Attorney General), 2023 FCA 14, 2023 A.C.W.S. 223 at para. 7; Public Service Alliance of Canada v. Canada (Senate), 2023 FCA 111, 2023 A.C.W.S. 2155 at para. 12; Gulia v. Canada (Attorney General), 2021 FCA 106, 332 A.C.W.S. (3d) 84 at para. 13.
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[64] While the Federal Court may have disagreed with these findings, it was not appropriate for it to reassess the evidence to come to its own conclusions: Brown v. Canada (Attorney General), 2022 FCA 104, 2022 A.C.W.S. 2040 at para. 27. . Yan v. 30 Forensic Engineering Inc.
In Yan v. 30 Forensic Engineering Inc. (Div Court, 2023) the Divisional Court set out a summary of the Vavilov 'reasonableness' SOR for judicial review:[28] To assess whether a decision is reasonable, courts are to be guided by, inter alia, the following considerations, as set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653:a. The reasonableness review respects the distinct role of administrative decision-makers, their institutional expertise and experience.
b. The written reasons given by an administrative body must not be assessed against a standard of perfection. That the reasons given for a decision do “not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred” is not on its own a basis to set the decision aside (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 16).
c. When conducting a reasonableness review, a judge should be attentive to the application by the decision maker’s specialized knowledge. Respectful attention to the decision maker’s expertise may reveal that outcome accords with the purposes and practical realities of the relevant administrative regime and represents a reasonable approach given the consequences and the operational impact of the decision.
d. The history and context of the proceedings is to inform the reviewing court’s reading of the reasons.
e. While the reasoning is to be rational and logical, the analysis is not to be a line-by-line treasure hunt for error. The reviewing court must ask 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. The reviewing court must trace the decision maker’s reasoning to see if there are any fatal flaws in the overarching logic. Any flaw must be more than merely superficial or peripheral.
f. A court conducting a reasonableness review must also consider the reasoning process that led to that outcome. An outcome that is based on an unreasonable chain of analysis may be set aside even if the outcome is not unreasonable in the circumstances.
g. The court must show restraint and ask itself whether the applicant demonstrated the decision was unreasonable.
h. Decision makers need not respond to every argument or make an explicit finding on every element leading to a conclusion. . Huebner v. Canada (Attorney General)
In Huebner v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal gives a new characterization of the JR SOR of 'reasonableness' - ie. "(t)he decision does not have to be perfect":[5] It is not the role of this Court to redetermine the question of the applicant’s entitlement to a survivor’s pension but rather to apply the reasonableness standard of review to the Appeal Division’s decision in accordance with well-established principles (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653). These principles require that this Court give deference to the decision of the Appeal Division, and only intervene if the decision is unreasonable. The decision does not have to be perfect. In our view, the decision satisfies this standard of review. In particular, the decision amply demonstrates the requisite degree of transparency, justification and intelligibility. . Ottawa Police Services Bd. v. Ottawa Police Assn.
In Ottawa Police Services Bd. v. Ottawa Police Assn. (Div Court, 2023) the Divisional Court considered the post-Vavilov 'reasonableness' JR SOR doctrine:[20] Vavilov, at para. 105, provides that “in addition to the need for internally coherent reasoning, a decision, to be reasonable, must be justified in relation to the constellation of law and facts that are relevant to the decision”.
[21] In Morningstar v. WSIAT, 2021 ONSC 5576, 158 O.R. (3d) 739 (Div. Ct.), at para. 43, with reference to Vavilov, the court set out the hallmarks of unreasonableness:Hallmarks of unreasonableness in a tribunal’s decisions can include:
a. logical flaws, circular reasoning, unfounded generalization, or an absurd premise (Vavilov, at paras. 102-104);
b. failing to take into account the governing statutory scheme, including by interpreting the scope of delegated authority more broadly than the legislature intended, and by not attending to the language chosen by Parliament to delineate the limits of that authority (Vavilov, at paras. 108-110);
c. failing to recognize the constraints that precedent and court interpretations concerning relevant provisions impose or failing to justify a departure from precedent or past decisions (Vavilov, paras. 111-114, 129-132);
d. taking an approach to statutory interpretation that is inconsistent with the text, context, and purpose of a provision (Vavilov, at paras. 119-124);
e. failing to justify a decision in light of the general factual matrix of a case or failing to account for the evidence before it (Vavilov, at para. 126);
f. failing to meaningfully grapple with key arguments or central issues raised by a party (Vavilov, at paras. 127-128); and
g. failing to consider the significant consequences of a decision for an affected individual (Vavilov, at para. 133). [22] Mammoet Canada Eastern Ltd. v. International Union of Operating Engineers, Local 793, 2022 ONSC 3447, [2022] O.L.R.B. Rep. 658 (Div. Ct.), reminds this court that caution must be exercised when conducting a reasonableness review of a decision made by a decision-maker with “specialised knowledge”. In particular, labour arbitrators should be given “the highest degree of deference in their interpretation of collective agreements”: Mammoet, at para. 28, citing Electrical Power Systems Construction Association v. Labourers’ International Union of North America, 2022 ONSC 2313, [2022] O.L.R.B. Rep. 497 (Div. Ct.).
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