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Administrative - Reasons for Decision (3). Cascade Aerospace Inc. v. Unifor
In Cascade Aerospace Inc. v. Unifor (Fed CA, 2024) the Federal Court of Appeal notes the distinctiveness (and allowed paucity) of administrative 'reasons for 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. . Dmitrienko v. Canada (Attorney General)
In Dmitrienko v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal allowed an appeal from a JR, here against negative disability pension decisions of the Assessment Review Panel and Assessment Appeal Panel of the Veterans’ Review and Appeal Board (VRAB).
Here the court found the Appeal Panel's reasons inadequate, both under requirements from Vavilov and the VRAB Act:[7] While administrative decision makers may, in some circumstances, be presumed to have considered all of the evidence before them, that presumption cannot operate to save the Appeal Panel’s decision in this case. This is because the Supreme Court of Canada has told us in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 that administrative decision makers must provide reasoning on key issues affecting the outcome of a case. In addition, section 39 of the Veterans Review and Appeal Board Act, S.C. 1995, c. 18, instructs the VRAB to draw every reasonable inference in favour of an applicant based on the evidence presented to it, and to resolve any doubt in favour of the applicant.
[8] The Appeal Panel had evidence before it that supported Mr. Dmitrienko’s claim that his ongoing cardiorespiratory symptoms resulted from the PE that he suffered following his knee surgery for his on-duty injury. While the Appeal Panel was not required to accept Dr. Stuart’s opinion as to the linkage between these events (and indeed, the Review Panel appears to have had concerns with respect to this report), it had to at least come to grips with it in determining whether Mr. Dmitrienko had established a case. Having failed to do so, the Board cannot be said to have fulfilled its obligations under Vavilov and section 39 of the Act.
[9] This error was perpetuated in the Appeal Panel’s reconsideration decision, where, once again, the Panel discussed much of the medical evidence, but studiously avoided any mention of Dr. Stuart’s opinion, notwithstanding Mr. Dmitrienko having once again drawn this evidence to the attention of the Panel.
[10] Administrative decision makers do not have to deal with every issue raised by a case, however subordinate, collateral or incidental. However, the causal link between Mr. Dmitrienko’s PE and his cardiorespiratory symptoms was the central issue in this case. The failure of the Appeal Panel to engage with Dr. Stuart’s evidence means that the reconsideration decision lacks the lacks the transparency, intelligibility and justification required of a reasonable decision: Vavilov, above at paras. 96-98, 127–128.
[11] The Federal Court addressed Dr. Stuart’s report at paragraphs 68-71 of its decision, explaining why, in its view, the report was entitled to little weight and would not have made a difference to the Appeal Board’s decision. It is not, however, the role of the Federal Court to weigh the evidence and make findings of fact to buttress an administrative decision. That responsibility rests with the administrative decision maker, and "“even if the outcome of the decision could be reasonable under different circumstances, it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome”": Vavilov, above at para. 96.
[12] Therefore, this appeal will be allowed. Mr. Dmitrienko’s application will be remitted to a differently constituted Appeal Panel of the VRAB for a fresh hearing with the direction that it engage with all of the medical evidence, including Dr. Stuart’s report and any other evidence and key submissions made by Mr. Dmitrienko. Mr. Dmitrienko shall have his costs, fixed in the amount of $1,000.00.
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