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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
. 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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