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Judicial Review - Reasonableness versus Fairness
COMMENT
These cases raise the interesting point that, in judicial reviews, issues of 'procedural fairness' and 'reasonableness' can often happily fit under both categories - as they are both procedural and in relation to the tribunal (or court) below. Regardless of which category the issue is located within, if it is successful by the challenging applicant then the remedy is typical the same - a re-hearing.
CASES
. Givogue v. Canada (Attorney General)
In Givogue v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of an earlier JR of a CHRC decision "that it would not deal with the Complaint pursuant to paragraph 41(1)(d) [SS: "complaint is trivial, frivolous, vexatious or made in bad faith"] of the Act (the Decision)", where the complaint involved an employer's requirement that the appellant disclose his COVID vaccination status.
Here the court allows the JR in part for the failure of the Commission to address an issue raised by the appellant - which is essentially a fairness issue, but couched here as a failure of reasonableness:[20] Reasonableness is a robust form of review that highlights the need to develop and strengthen a culture of justification in administrative decision-making: Mason at para. 63. One cannot expect the Commission, when screening a complaint to decide whether it should be dealt with on its merits, to provide full and detailed reasons of the kind expected of adjudicative tribunals or courts: Rameau c. Canada (Attorney General), 2024 CAF 40, 2024 CarswellNat 607 at para. 158. However, the Commission must still provide an explanation of its reasoning on points central or significant to its decision. Its reasons, read in light of the record and with due sensitivity to the administrative screening context in which they are delivered, must be sufficient to assure the parties that their concerns have been heard, demonstrate that it actually listened to them and show it was actually alert and sensitive to the matter before it: Alexion Pharmaceuticals Inc. v. Canada (Attorney General), 2021 FCA 157, [2022] 1 F.C.R. 153 at para. 20 [Alexion], citing Vavilov at paras. 127-128, leave to appeal to SCC refused, 39858 (24 March 2022).
[21] I agree with Mr. Givogue that the reasons in the Report clearly indicate that the Officer misconstrued his argument on perceived disability. Rather than addressing whether the employer’s conduct following Mr. Givogue’s refusal to disclose his vaccination status constituted adverse differential treatment on the ground of perceived disability, the Officer asked whether Mr. Givogue had established that he actually suffered from a disability that prevented him from being vaccinated. By adopting the reasons in the Report, which did not address Mr. Givogue’s perceived disability claim, one of the two grounds expressly raised in both the Complaint and Response, the Commission did not address a core plank supporting Mr. Givogue’s position and failed to meet Vavilov’s standard of responsive justification: Mason at para. 97.
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[24] I am also of the view that by effectively failing to consider Mr. Givogue’s perceived disability claim, the Officer did not conduct a thorough investigation, as required by the jurisprudence of this Court: Slattery v. Canada (Canadian Human Rights Commission), 1994 CanLII 3463 (FC), [1994] 2 F.C. 574 at 591-601, 73 F.T.R. 161, aff’d 205 N.R. 383 (F.C.A.), 62 A.C.W.S. (3d) 761; Jagadeesh at paras. 28-31. Based as it was on a deficient investigation, the Commission’s decision not to deal with Mr. Givogue’s perceived disability claim was itself deficient, because the Commission was not in possession of sufficient relevant information upon which it could exercise its discretion: Jagadeesh at para. 33. . London (City) v. Canadian Union of Public Employees, Local 101
In London (City) v. Canadian Union of Public Employees, Local 101 (Div Court, 2024) the Divisional Court considers a labour JR where the applicant City challenges an arbitrator's finding regarding paid holiday.
Here the court finds that the arbitrator's decision was JR 'unreasonable' (but not that it was procedurally unfair) insofar as the arbitrator 'overlooked' admitted evidence:[28] A decision is also unreasonable if it fails to consider some aspect of the evidentiary record or is unreasonable in light of the evidence. As stated in Vavilov, at para. 126, the reasonableness of a decision “may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it” or where the decision maker has “relied on irrelevant stereotypes and failed to consider relevant evidence”.
[29] Finally, a decision may be untenable if it fails to reasonably address the parties’ positions and submissions: Vavilov, at para. 127.
[30] Given the Supreme Court of Canada’s dicta, above, I do not accept the City’s position that the Arbitrator’s alleged failure to accept and consider historical Collective Agreements is an issue of procedural fairness which attracts the standard of review of correctness.
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[36] On the whole of the Arbitrator’s decision, and considering the evidence on this Application, it is clear to this Court that the Arbitrator merely overlooked or forgot that the historical Collective Agreements and Proclamations were before him. ....
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Analysis
[39] Looking at the decision and the record before this Court, insofar as the Arbitrator’s decision addressed the City’s estoppel argument, the decision is unreasonable since the Arbitrator did not consider the historical Collective Agreements and Proclamations placed before him.
[40] As stated in Vavilov, at paras. 103-04, a decision is not reasonable if, read in its context and with a mind to the evidence before the decision maker, it fails to reveal a rational chain of analysis, if it fails to take into account the evidentiary record, or is unreasonable in light of the evidence. As stated in Vavilov, at para. 126, the reasonableness of a decision “may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it”.
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