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Administrative - Reasons for Decision (2). Sloat v. Grand Erie District School Board
In Sloat v. Grand Erie District School Board (Div Court, 2024) the Ontario Divisional Court allowed a JR initiated by a school trustee, here against "four decisions [SS: of the school board] that determined that she breached the respondent’s Trustee Code of Conduct (“the Code”)".
Here the court considers the adequacy of the reasons for the school board's administrative decisions:The Board’s Decisions Are Not Reasonable
[72] In each of the Four Decisions, the only reasons the applicant was provided with gave the applicant notice of the sections of the Code she was found to have breached and the sanctions imposed. The applicant submits that there is no way to know which allegations led to the result. The applicant submits that the failure to provide sufficient reasons results in a breach of the duty of procedural fairness and makes the Decisions unreasonable.
[73] The court in Ramsay, supra in the case of a school trustee accepted that the school board’s reasons which provided the applicant with written notice of the result and the sanctions imposed were sufficient and there is no duty to give formal reasons.[2] The Supreme Court has held that there is no duty to give formal reasons in a context where the decision was made by elected representatives pursuant to a democratic process. It submits that a school board’s reasoning may be deduced from the debate, deliberations and the statements of policy (see: Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293; Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5). The Education Act does not require the provision of reasons in writing for a decision. The only statutory requirement it imposes is to provide written notice of the result and applicable sanctions. This was done.
[74] In a situation where no reasons have been provided, and the record does not shed light on the basis for the decision, however, the reviewing court must still examine the decision in light of the relevant constraints on the decision maker in order to determine whether the decision is reasonable. Without reasons, the analysis will then focus on the outcome rather than on the decision maker’s reasoning process. This does not mean that reasonableness review is less robust in such circumstances, only that it takes a different shape.[3]
[75] A reviewing court must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable. To make this determination, the 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.[4]
[76] A decision will also be unreasonable where the conclusion reached cannot follow from the analysis undertaken or if the reasons read in conjunction with the record do not make it possible to understand the decision maker’s reasoning on a critical point.[5] . Cascade Aerospace Inc. v. Unifor [IMPORTANT]
In Cascade Aerospace Inc. v. Unifor (Fed CA, 2024) the Federal Court of Appeal noted the reduced (simplified) reasons for decision required for administrative decisions, but that a reviewing court (either by JR or appeal) "is entitled to consider the evidence and submissions that were before the decision-maker as well as its past decisions (Vavilov at para. 94). In other words, the reviewing court must look beyond the four corners of the administrative decision.":[7] Although the Board’s reasons are succinct and could have been more elaborate, we are all of the opinion that these reasons withstand scrutiny on reasonableness review. Vavilov instructs reviewing courts to examine the reasons provided by administrative decision-makers with "“respectful attention”" (Vavilov at para. 84), taking into account the "“institutional context in which the decision was made”" (Vavilov at para. 91). This entails varying levels of justification or explanation. It instructs reviewing courts as well to be "“acutely aware”" that administrative justice "“will not always look like “judicial justice””" (Vavilov at para. 92). When it comes to statutory interpretation, administrative decision-makers are not expected to engage in a formalistic interpretation exercise in every case. Their task is rather to come up with an interpretation that is consistent with the text, context and purpose of the provision at issue (Vavilov at paras. 119-121). In so doing, they are not required "“to explicitly address all possible shades of meaning of a given provision”" and may find it "“unnecessary to dwell on each and every signal of statutory intent in their reasons”" (Vavilov at para. 122).
[8] Hence, the fact that a decision does not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, is not, in and of itself, a basis to set it aside (Vavilov at para. 91). Quite the opposite, in seeking to understand the reasoning process followed by the decision-maker, the reviewing court is entitled to consider the evidence and submissions that were before the decision-maker as well as its past decisions (Vavilov at para. 94). In other words, the reviewing court must look beyond the four corners of the administrative decision.
[9] With that in mind, we all agree that the Board provided responsive reasons when they are read in light of the record, of the Board’s past decisions, of section 38 legislative history and of the Board’s own particular institutional context. Here, this context is that of a highly specialized tribunal tasked with making decisions in a area where delays can hamper the realization of the Code’s objectives (Maritime Employers Association v. Syndicat des débardeurs (Canadian Union of Public Employees, Local 375), 2023 FCA 93 at para. 86). It is clear to us that the Board was alive to the central issue of the scope of section 38 and that it meaningfully grappled with it by resorting to the proper legal analytical framework, including the one applicable to the interpretation of bilingual enactments. Although, again, the Board’s reasons could have been more elaborate, they exhibit a rational chain of analysis. As for the outcome of the decision that section 38 only applies to certification applications, it is reasonable in our view when one looks at the discrepancies between the French and English versions of the provision, which the Board was well aware of. It is consistent as well with prior decisions of the Board holding that the amendments brought to section 38 in 2001, which at the time unambiguously only applied to certification applications as conceded by counsel for the applicant, were not substantive. . Power Workers’ Union v. Canada (Attorney General)
In Power Workers’ Union v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of a JR, here relating to "the validity of pre-placement and random alcohol and drug testing which were imposed by the Canadian Nuclear Safety Commission (the Commission) as a license condition to persons licensed to operate high security—or Class I—nuclear facilities".
Here the court considers the adequacy of reasons by the tribunal below, the Canadian Nuclear Safety Commission, which here were drawn from the record - not expressly written:[39] As to the appellants’ contention that the Commission had failed to provide adequate reasons for the inclusion of the Impugned requirements into RD2.2.4, the Application Judge found that the material contained in the Certified Tribunal Record provided a rational chain of analysis to justify that inclusion. According to him, the inclusion of the Impugned requirements stems from "“an identified need to bolster fitness for duty programs, particularly with respect to the detection of drug and alcohol impairment.”" (Decision at para. 209). He was satisfied as well that the record shows that the Commission not only considered, but also addressed, the Charter concerns raised during the consultation process leading to the inclusion of the Impugned requirements into RD2.2.4 (Decision at paras. 211–13).
....
[178] It is trite that written reasons are not required for all administrative decisions. Whether or not they are required in a given circumstance is eminently variable and context-specific. The nature of the decision, the process followed in making it and the nature of the statutory scheme are among the factors to be considered. Reasons will generally be required where "“the decision-making process gives the parties participatory rights, an adverse decision would have a significant impact on an individual or there is a right of appeal”" (Vavilov at para. 77).
[179] Here, the indicia go both ways. There is no right of appeal of a Commission’s decision to adopt a regulatory document and the Act does not provide for a decision-making process giving stakeholders participatory rights in the adoption of a regulatory document. However, the evidence is that the Impugned requirements were adopted following a vast consultation process put in place by the Commission that allowed various stakeholders, including some of the appellants, to voice their concerns over the various iterations of the version that would eventually be adopted by the Commission. One could say as well that the adoption of the Impugned requirements, and their subsequent incorporation as license conditions into the Licensing Basis of the Licensees, had an impact on the interests of one category of Class I nuclear facilities employees.
[180] That said, I need not decide whether the Commission was under a duty to provide reasons, because assuming it was, I am satisfied that adequate reasons were provided for adopting the Impugned requirements and making them licence requirements for Licensees. And I come to that conclusion essentially for the reasons given by the Application Judge at paragraphs 208 to 214 of the Decision.
[181] As this Court stated in Bank of Montreal v. Canada (Attorney General), 2021 FCA 189, at paragraph 4, where the Federal Court appears to have given a complete answer to all the arguments advanced by the losing party on a judicial review application, that party "“bears a strong tactical burden to show on appeal that the Federal Court’s reasoning is flawed”".
[182] That burden was not met by the appellants.
[183] As noted by the Application Judge, Vavilov teaches us that formal reasons "“should be read in light of the record and with due sensitivity to administrative regime in which they were given”" and will be found to be unreasonable if "“read holistically”", they "“fail to reveal a rational chain of analysis”" (Vavilov at para. 103). I would add that 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”" (Vavilov at para. 91). Furthermore, they need not "“deploy the same array of legal techniques that might be expected of a lawyer or judge”" (Vavilov at para. 92).
[184] With that in mind, I find that the Commission was entitled to rely on the work done by its staff throughout the consultation process in support of its decision. As noted by the Attorney General, the document called "“Regulatory Fundamentals”" describes the Commission’s regulatory approach and philosophy and underscores that it relies on "“highly skilled scientific, technical, professional and administrative personnel”" – its staff – to "“carry out the work necessary to fulfil [its] mandate”" (Appeal Book at 4381; Attorney General’s Memorandum of Fact and Law at para. 86). Paragraph 16(1) of the Act empowers the Commission to "“appoint and employ such professional, scientific, technical or other officers or employees as it considers necessary for the purposes of this Act”".
[185] In Sketchley v. Canada (Attorney General) (F.C.A.), 2005 FCA 404 (Sketchley) , this Court ruled that the reasons for decision of the decision-maker - in that case the Canadian Human Rights Commission - could be found by reference to the report of the investigator who had investigated the complaint made to the Commission, even though both have "“mostly separate identities”". It was so, in the Court’s view, because the investigator’s report was prepared "“for the Commission”", resulting in the "“investigator [being] considered to be an extension of the Commission”" (Sketchley at paras. 37−39; see also Kemp v. Canada (Finance), 2022 FCA 198 at para. 18) (italicized in original).
[186] This flexible rule has been applied in other contexts, such as labour law grievance matters (Andruszkiewicz v. Canada (Attorney General), 2024 FCA 105 at para. 4), workplace harassment complaints (Haynes v. Canada (Attorney General), 2023 FCA 158 at para. 55) and final determinations made under the very technical Special Import Measures Act, R.S.C., 1985, c. S-15 (Canadian Hardwood Plywood and Veneer Association v. Canada (Attorney General), 2023 FCA 74 at para. 60).
[187] I agree with the Attorney General that the record clearly shows that the Commission was actively engaged with its staff throughout the development of the Impugned requirements, including raising concerns with prior versions, as they were drafted, directing changes and requesting staff to provide more information, including on balancing safety risks with human rights and Charter concerns.
[188] It is clear as well that when the Commission ultimately adopted the Impugned requirements, they had accepted the staff’s work and its reasoning. While it might be said that the staff’s work does not deploy the same array of legal techniques that might be expected of a lawyer or a judge or display all the details a reviewing court would have preferred, this is not a sufficient basis to conclude that the Commission’s decision is unreasonable.
[189] I further agree with the Attorney General that this Court’s decisions in Vancouver International Airport Authority v. Public Service Alliance of Canada, 2010 FCA 158 (Vancouver Airport Authority) and Safe Food Matters Inc. v. Canada (Attorney General), 2022 FCA 19 (Safe Food Matters), do not assist the appellants.
[190] In one case, Safe Food Matters, the decision-maker was required by its enabling statute to provide written reasons (Safe Food Matters at para. 54). In the other, Vancouver Airport Authority, the lack of reasons could not be remedied because it was "“impossible to see anything in the evidentiary record, including the investigation report, as helping to supply a rational for the [decision-maker]’s decision”" (Vancouver International Airport Authority at para. 27). As for Irving, it was directly considered by the staff in response to some of the comments the Commission received through the consultation process that led to the adoption of the Impugned requirements (Appeal Book at 4814-15).
[191] In sum, there is no basis to the appellants’ contention that the Commission’s decision to adopt the Impugned requirements must be set aside because of the Commission’s failure to provide adequate reasons. . PUC Services Inc. v. Power Workers’ Union
In PUC Services Inc. v. Power Workers’ Union (Div Court, 2024) the Divisional Court dismissed a labour JR brought by the employer, here respecting a one-day suspension from employment of a union representative for "unprofessional and disrespectful conduct".
Here the court considers an administrative adjournment decision, and whether reasons should be given for it:[34] I am not satisfied the Arbitrator’s decision to deny the adjournment request was unfair. The Arbitrator had the authority to deny an adjournment. Labour arbitrators are experts and are sensitive to the dynamics at play in labour relations disputes: Toronto (City) Board of Education v. OSSTF, District 15, 1997 CanLII 378 (SCC), [1997] 1 S.C.R. 487, at para. 35. It is not realistic to require labour arbitrators, in the context of a collective agreement that contemplates multiple hearings a day, to give reasons for routine procedural decisions. While the Arbitrator denied PUC an adjournment, he allowed PUC to adduce the reply evidence it had available. . Yavari v. Ontario (Minister of Finance)
In Yavari v. Ontario (Minister of Finance) (Div Court, 2024) the Divisional Court allowed a JR, here challenging "a decision of the Minister of Finance of Ontario (“the Minister”) under section 20 of the Land Transfer Tax Act, R.S.O. 1990, c. L.6 (“LTTA”) to deny the applicant relief from payment of the Non-Resident Speculation Tax (“NRST”)".
Here the court notes that administrative 'reasons for decision' may be inferred from the JR record:[25] In addition to the November 10, 2023 letter, the record in this case includes the Information Note. A reviewing court may look to the record to assess the reasons of an administrative decision-maker. The court can review the evidence and the submissions of the parties. The record may explain an aspect of the decision-maker’s reasoning process that is not apparent from the reasons themselves: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62; [2011] 3 S.C.R. 708, at para. 15; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 94. . Govedaris v. McIlquham
In Govedaris v. McIlquham (Div Court, 2024) the Divisional Court held that an appeal court may look to the record to supplement a lower tribunal's reasons:[12] However, a reviewing court may look to the record to assess the reasons of an administrative decision-maker. The court can review the evidence, the submissions of the parties, and any concessions made by a party. The record may explain an aspect of the decision-maker’s reasoning process that is not apparent from the reasons themselves: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62; [2011] 3 S.C.R. 708, at para. 15; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 94. . Andruszkiewicz v. Canada (Attorney General)
In Andruszkiewicz v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismisses an appeal from a Canada Border Services Agency (CBSA) JR, here where the appellant argued that the JR reasons were inadequate (but that the administrative decision reasons itself were adequate):[4] The Federal Court determined that the reasons for the CBSA grievance decision are set out in the decision itself, the two investigation reports (the Investigation Reports), and the final level grievance précis prepared by a senior labour relations advisor (the Advisor) (the Précis). We agree: Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3 FCR 392 at para. 37-39; Veillette v. Canada (Revenue Agency), 2020 FC 544 at para. 27. This finding is important as it addresses the appellant’s submission that the CBSA grievance decision provides insufficient reasons to justify its conclusions. We are of the view that the CBSA’s decision, read with the Investigation Reports and the Précis, and considered in light of the record, discloses the key bases on which the decision was made. . Geddes v. Chief Animal Welfare Inspector
In Geddes v. Chief Animal Welfare Inspector (Div Court, 2024) the Divisional Court dismisses a JR against the Animal Care Review Board (ACRB) under the PAWS animal welfare regime. The ACRB decisions confirmed orders that "certain animals— which had been removed from the Applicant’s property by Animal Welfare Services (“AWS”) — should not be returned to the Applicant. The Board also confirmed seven Statements of Account (“SOA”), payable by the Applicant in the total amount of $105,059.35."
The court comments on an argument that the tribunal failed to considered cases advanced by the appellant:The Board’s alleged failure to consider the Applicant’s case law
[46] The Applicant submits that in its Initial Decision the Board failed to refer to any of the cases put forth by the Applicant. He submits that the rules of natural justice and procedural fairness dictate that the Board consider the cases put forth by the Applicant and reference them in its decision. The Applicant submits that, although in its Reconsideration Decision, the Board states its conclusion that the cases relied upon by the Applicant are distinguishable or irrelevant, it does not explain how or why it reached that conclusion, thereby depriving the Applicant of “the primary mechanism by which decision makers demonstrate that they have actually listened to the parties”: Vavilov, at para. 127.
[47] We do not accept those submissions. As Vavilov makes clear, at para. 92, a reviewing court is not to expect administrative decisions to read like court decisions.
[48] First, there is no requirement on a tribunal to make reference to every case referenced by a party. Absent a submission that a particular case calls into question the reasonableness of the decisions at issue, it is not a reviewable error not to deal with caselaw. In any event, the Board did, in fact, make specific reference to cases raised by the Applicant, explaining why they were not applicable: see Reconsideration Decision, at paras. 22-37. The Applicant conceded that in assessing the reasonableness of the Board’s decisions we could consider the reasoning in both decisions to determine if together they demonstrated the hallmarks of reasonableness.
[49] In our view the Board provided adequate reasons for its conclusions concerning the applicability and relevance of the case law referenced by the parties and we find no breach of procedural fairness or lack of natural justice in the Board’s determinations and treatment of the case law it was asked to consider. . Geddes v. Chief Animal Welfare Inspector
In Geddes v. Chief Animal Welfare Inspector (Div Court, 2024) the Divisional Court dismisses a JR against the Animal Care Review Board (ACRB) under the PAWS animal welfare regime. The ACRB decisions confirmed orders that "certain animals— which had been removed from the Applicant’s property by Animal Welfare Services (“AWS”) — should not be returned to the Applicant. The Board also confirmed seven Statements of Account (“SOA”), payable by the Applicant in the total amount of $105,059.35."
The court comments on a presumption on assessing the adequate of reasons in the administrative context:[44] Administrative decision makers are presumed to have weighed and considered all the evidence unless it is proven otherwise. The fact that a piece of evidence is not mentioned does not mean that it was ignored: Arvan v. Canada (Citizenship and Immigration), 2024 FC 223, at para. 20. Only where a decision maker does not deal with evidence that “squarely contradicts” its reasoning and conclusions will that render the decision unreasonable: Arvan, at para. 21. . 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 contrasts the duty to give reasons of an adjudicator (typically, a tribunal) with those of a (simpler) administrative decision-maker:[57] In this case the context of the proceeding is not one where the CEO is an adjudicator. He is an officer of Ontario’s Legislative Assembly, with statutory authority to administer the EFA. As such, he was required to explain the reasons for his decision taking into account the arguments that had been put before him, not to consider every aspect of the statutory context that might bear upon his decision.
[58] Thus, we do not accept that the CEO’s decision should be considered unreasonable for failing to explicitly deal with an argument about the statute’s purpose that was not put before him. . Loeb v. Toronto (City)
In Loeb v. Toronto (City) (Div Court, 2023) the Divisional Court considers an 'inadequate reasons' argument challenging (by JR) a decision of a committee of adjustment [under Planning Act s.45(8.1)]:Are the Committee’s Reasons Inadequate?
[35] The Applicants take the position that the Decision is “procedurally unfair” because it does not adequately explain the reasons for the decision. They submit that because the Decision does not comply with the requirements of s. 45(8.1) of the Planning Act, it is invalid and must be quashed.
[36] Subsection 45(8.1) of the Planning Act states as follows:The decision of the Committee, “whether granting or refusing an application, shall be in writing, shall be signed by the members who concur in the decision and shall,
(a) set out the reasons for the decision; and
(b) contain a brief explanation of the effect, if any, that the written and oral submissions mentioned in subsection (8.2) had on the decision. [37] Subsection 45(8.2) states that the above provision applies to any written submissions relating to the application that were made to the committee before its decision and any oral submissions that were made at the hearing.
[38] I disagree with the Applicants’ position that a decision that does not strictly comply with the requirements of s. 45(8.1) is invalid. To begin with, s. 45(8.1) does not provide such a consequence. By contrast, s. 45(8) of the Planning Act states that “[n]o decision of the committee on an application is valid unless it is concurred in by the majority of the members of the committee that heard that application.” Therefore, where the legislature has intended that the consequence of a failure to comply with the statutory requirements is that the decision is invalid, it has specifically stated that.
[39] Moreover, the relevant subsection of s. 45 of the Planning Act was amended in 2015 under the Smart Growth for Our Communities Act, 2015, S.O. 2015, C. 26, s. 29(3). The previous version of s. 45(8) of the Planning Act provided that no decision of the committee on an application was valid unless the majority of the members concurred and also required that the decision “shall be in writing and shall set out the reasons for the decision…[.]” Previously, a decision of the committee was invalid if the reasons were insufficient. In separating out subsections 45(8.1) and (8.2) from the previous version of s. 45(8), the legislature chose to limit invalidity to the sole basis in the current version of s. 45(8), that is, non-concurrence by a majority of the members of the committee.
[40] Moreover, this interpretation of s. 45(8.1) is consistent with the Supreme Court of Canada’s holding that where reasons are not provided or are deficient, the court should examine the decision in light of the record, the larger context, and other relevant constraints: Vavilov, at paras. 137-138.
[41] In Bacher v. GR (CAN) Investments, 2022 ONSC 2937 (Div. Ct.), at para. 23, this court held that the correct approach to assessing reasons, based on Vavilov, is to assess whether the tribunal’s reasons explain the decision to the parties, provide public accountability, and permit effective appellate review. In the context of a decision of a Committee of Adjustments, in Opara and Leslie, 2012 ONSC 2483 (Div. Ct.), at para. 13, this court held that the “four tests” do not have to be applied “entirely separately and formulaically” but that it is sufficient if the reasons make it clear that the decision-maker substantively applied the “four tests” after properly considering the appropriate factors and evidence.
[42] While the Applicants rely on this court’s decision in Masters v. Claremont Development Corporation, 2021 ONSC 3311 (Div. Ct.), in that case, this court declined to set aside a decision for the tribunal’s failure to provide adequate reasons and instead found that the decision was sufficiently supported by the record.
[43] In this case, while the Decision itself is brief, it is clear from the record that the Committee applied the four tests and considered the evidence before it. There was a significant amount of evidence before the Committee beyond the parties’ oral submissions, including surveys, architectural plans, a tree protection plan, and a table of other minor variances approved in the neighbourhood. The material from the previous application was also available to the Committee, and there was an overlap in the committee members from the previous hearing before the TLAB.
[44] At the hearing, the Committee members mentioned that the plan had been revised significantly to address the concerns raised by the previous application, that the proposal was not out of keeping with Forest Hill community, and that it addressed the neighbours’ submissions. The Committee was not persuaded by the Applicants’ submissions, which did not identify significant impacts. The Committee found that the proposal mitigated against such impacts, which would be further addressed by the conditions that the Committee imposed in its Decision.
[45] When read in the context of the record and the transcript of the hearing, I consider that the Decision addresses the four tests and provides sufficient reasons to explain the Decision to the parties, provide public accountability and permit effective appellate review. Accordingly, the reasons for the Decision are adequate. . Ramsay v. Waterloo Region District School Board
In Ramsay v. Waterloo Region District School Board (Div Court, 2023) the Divisional Court considers any duty to give reasons in an administrative, non-tribunal context:[54] The WRDSB argues that the reasons provided were sufficient. The Supreme Court has held that there is no duty to give formal reasons in a context where the decision was made by elected representatives pursuant to a democratic process. It submits that a school board’s reasoning may be deduced from the debate, deliberations and the statements of policy (see: Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293; Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5). The Act does not require the provision of reasons in writing for a decision. The only statutory requirement it imposes is to provide written notice of the result and applicable sanctions. This was done.
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