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Judicial Review - Reasons (After Vavilov) (1)
REASONS AND JUDICIAL REVIEW
In a very important sense, 'reasons for decision' was the essential issue underlying the recent key Vavilov (SCC, 2019) case. Vavilov promoted 'reasonableness' to the central role in the standard of review applicable to judicial review. Vavilov has set out extensive case guidance on 'reasonableness', and therefore the required contents of adequate 'reasons for decision' - at least for judicial reviews which overwhelmingly involve administrative law.
Now, when a court considers a judicial review (JR) on the issue of 'inadequate reasons', the issues are much the same as those they would consider regarding the JR standard of review (SOR) [see s.5 'Standard of Review' in this Judicial Review Guide]. The allocation of the cases between the two Guide sections follows the court's own allocation - ie. whether they characterize the issue as a 'standard of review' issue, or an 'inadequate reason' issue.
CASES
. Ottawa Airport Professional Aviation Fire Fighters Association v. Ottawa Macdonald-Cartier International Airport Authority
In Ottawa Airport Professional Aviation Fire Fighters Association v. Ottawa Macdonald-Cartier International Airport Authority (Div Court, 2022) the Divisional Court makes clear the relationship between 'reasons for decision' and the SOR of 'reasonableness' in a judicial review:[13] In determining whether a decision of an administrative tribunal is reasonable, the reviewing court must start with the reasons provided. A decision is reasonable if there is a coherent and rational line of analysis, and the result is justified in light of the law and the evidence (Vavilov v. Canada (Minister of Citizenship and Immigration), 2019 SCC 65 at paras. 85, 86 and 99-100). . Ontario Nurses’ Association v. Burloak Long Term Care Home
In Ontario Nurses’ Association v. Burloak Long Term Care Home (Div Court, 2022) the Divisional Court considered the adequacy of reasons for an labour arbitrator's decision, in light of the directions from Vavilov:The reasons are adequate
[22] Again, the adequacy of the reasons must be assessed contextually (St. Gabriel’s at para. 7). As the Supreme Court of Canada stated in Vavilov v. Canada (Minister of Citizenship and Immigration), 2019 SCC 65 (at para. 91), “The review of an administrative decision can be divorced neither from the institutional context in which the decision was made nor from the history of the proceedings.” See, also, para. 94.
[23] It is of great significance that the parties agreed in advance that the Arbitrator could provide a bottom line decision with brief reasons. When a court is reviewing the reasonableness of the subsequent decision, it should have regard to the reasonable expectations of the parties respecting the kind of reasons to be provided. In some situations – for example, in expedited arbitration, the parties may agree that no reasons are required. In other situations, the reasons required may be brief, either because of the nature of the decision, a statutory provision, or, in this case, an agreement of the parties as to what is expected. Having made the agreement that a bottom line decision with brief reasons was acceptable, ONA cannot now complain that brief reasons were insufficient.
[24] In any event, the reasons are adequate to explain the outcome, when considered in light of the award as a whole and the nature of interest arbitration. ONA did well on many important issues, including wages, and the resolution of a number of issues resulted in the adoption of the Central Agreement terms. ONA has not complained about these other aspects of the award, nor suggested that there was a need for better reasons with respect to them.
[25] The reasons of the Arbitrator concerning the disability income support plan show that he was well aware of the importance of the issue to the parties. He ordered a provision that respected the concerns of ONA for the continuation of the prior Plan for six months, but he then adopted the Central Plan term because he believed that the application of the Central Plan for nurses was appropriate and reasonable.
[26] His reasons were adequate to explain the provision, which, as I have said, was reasonable when considered in the overall context.
[27] Finally, ONA relies on Scarborough Health Network v. Canadian Union of Public Employees, Local 5852, 2020 ONSC 4577, where another panel of the Divisional Court overturned an interest arbitration award because the reasons were inadequate. That case is distinguishable, as there was no agreement by the parties in that case with respect to the issuance of a bottom line award with brief reasons. I also note that the Court was concerned that there was no justification for adopting past practice with respect to wage harmonization without considering the employer’s submissions about the particular circumstances – there, a merger of three hospitals with 2,100 members of the new bargaining unit. In the present case, the reasons provide adequate justification for the result.
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