Simon's Megalomaniacal Legal Resources

Administrative - Reasons for Decision (3)

. Jennings-Clyde (Vivatas, Inc.) v. Canada (Attorney General) [decisions/notice]

In Jennings-Clyde (Vivatas, Inc.) v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal allowed an appeal, this brought against a dismissed Federal Court JR, this in turn brought against "the refusal of the Canada Revenue Agency to let the appellant file tax returns late: see subsection 220(3) [SS: 'Administration and Enforcement - Extensions for returns'] of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) (the provision allowing for the exercise of discretion to allow late filings) and subsection 164(1) of the Act [SS: 'Refunds'] (the provision requiring the appellant to file its return within three years of the end of the relevant taxation year to get a refund)."

Here the court (Stratas JA) considers the appellant's argument that "it did not get an adequate explanation for the refusal from the Agency", which it finds as justified, in typical blunt Stratas fashion:

[3] As a general principle, we do not allow an administrative decision-maker like the Agency to decide a matter affecting someone’s rights or practical interests unless it gives an adequate explanation for its decision, or the explanation is otherwise evident or discernable. See, generally, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653.

[4] This is no small thing. Through their decisions, administrative decision-makers like the Agency have the power to affect people’s lives, sometimes significantly. In our democratic governance, there is a quid pro quo for that: public administrative decision-makers must explain their decisions. "“""L’État, c’est moi”" and "“trust us, we got it right”" have no place in public administrative decision-making: Canada (Citizenship and Immigration) v. Tennant, 2018 FCA 132 at para. 23.

[5] And there are good practical reasons why we insist on seeing adequate explanations for administrative decisions:

Adequate explanations lead often to more thinking, better thinking, and, thus, better decision-making. This is because administrative decision-makers, while they write up adequate explanations for their decisions, often discover gaps or flaws in their reasoning or the need for more submissions.

Adequate explanations tell affected persons that the administrative decision-maker took on board their key arguments and rejected them for certain reasons: this vindicates the interests served by procedural fairness.

Adequate explanations further the transparency, legitimacy and accountability of administrative decision-makers to the parties before them, other regulatees, reviewing courts, and the wider public—something needed more than ever in these days of widespread skepticism, cynicism, and mistrust of government.

(See generally Canadian National Railway Company v. Canada (Transportation Agency), 2025 FCA 184 at para. 46 and cases cited therein.)

[6] In this case, the Agency concluded that the relevant taxpayer relief provision, subsection 220(3), didn’t apply. Its explanation? The appellant’s case was distinguishable from this Court’s decision in Bonnybrook Park Industrial Development Co. Ltd. v. Canada (National Revenue), 2018 FCA 136. In that case, this Court held that subsection 220(3) applied to another refund provision in the Act, subsection 129(1).

[7] The grounds for distinguishing Bonnybrook? It’s pretty much a mystery. The analysis and reasoning in support of whatever grounds the Agency was invoking? Nothing.

[8] The grounds for saying that the reasoning in Bonnybrook does not apply to subsection 164(1) of the Act, the relevant section here, a different section from that considered in Bonnybrook? Again nothing.

[9] The Canada Revenue Agency did say this to the appellant: "“subsection 220(3) may not be relied on by the Minister to exercise discretion to extend the deadline in subsection 164(1) of the Act”". Why? That’s pretty much a mystery too.

[10] On that point, the Agency offers a little more. It says that by enacting subsection 164(1.5), "“Parliament made it clear”" that subsection 220(3) was ousted. But Parliament expresses itself in words, and Parliament’s words in subsection 164(1.5) do not make that clear. So where did Parliament make it clear? Is it the context of the words in subsection 164(1.5) when seen alongside other provisions of the Act? Is it the purpose of 164(1.5)? The purpose of other provisions? Some recognized canon or maxim of statutory construction? Some earlier judicial or administrative authority? More mystery.

[11] Vavilov made it clear (at paras. 119-123) that when administrative decision-makers interpret a legislative provision, they must show a genuine, non-tendentious, explicit or implicit analysis of the text, context and purpose behind a legislative provision when interpreting it. On this, silence.

[12] But there’s still more.

[13] The Agency’s reasons say that the appellant raised Bonnybrook in its request for relief. No, it did not. At least not from anything we can see. According to the written record before us, the Agency in its final decision letter — not the appellant — was the first and only party to mention Bonnybrook.

[14] Did the Agency ask the appellant to make submissions on Bonnybrook before deciding the matter? It appears not.

[15] If in fact the appellant did raise and make submissions on Bonnybrook, for example in a phone call or email, or the Agency asked the appellant to make submissions on Bonnybrook, the Agency should have recorded this in a letter or file note and put it in the certified record of the decision-maker filed in this Court. Here, the certified record contains no such thing. Either there was no phone call or email, or the Agency did not put it in the certified record.

[16] What we have here falls below standard, especially given the six-figure amounts at stake for the taxpayer. Alas, on adequacy of reasons in taxpayer relief cases, we are seeing a disappointing recent pattern: e.g., Osbourne v. Canada (Attorney General), 2022 FC 122 at para. 37; Barrs v. Canada (National Revenue), 2022 FCA 147 at para. 38; Loyer (Succession) v. Canada (Attorney General), 2019 FC 1528 at paras. 38-40; Onex Corporation v. Canada (Attorney General), 2024 FC 1247 (albeit currently on appeal, so its placement on this list is provisional).

[17] Reviewing courts understand the pressures on the Agency. It must regulate and serve millions of taxpayers. It has a giant job to do with limited resources. No doubt, a blizzard of requests for discretionary relief and other matters buries the Agency. It has neither the time nor the resources to offer anything close to appellate court level explanations for all its decisions. It has to be fast, efficient and cost-effective.

[18] Thus, reviewing courts are fine with brevity that works. They will connect the dots on the page so to speak, as long as (unlike here) the Agency has put down the dots and it’s easy to know how to connect them: Komolafe v. Canada (Citizenship and Immigration), 2013 FC 431 at para. 11. The Agency can cross-reference with precision to explanations in particular portions of cases, key documents or taxpayer’s submissions in the record, and Agency documents like recommendation memos, interpretation bulletins, or working group conclusions, so long as those Agency documents are publicly accessible. And lastly, these days, the Agency need only invent good, plain-language reasons on a recurring issue once: they can be cut and pasted in later decisions with just a couple of keystrokes, Ctrl-C and Ctrl-V.

[19] From my own multi-decade experience with administrative decision-makers, I suspect another problem: inadequate resources and funding. If so, the Agency must complain. And those responsible for considering the complaint, including the politicians who oversee and instruct them, had better take note. Ensuring the wheels of justice, both administrative and judicial, turn quickly, adequately and properly is not a luxury, frill, or optional extra; it’s one of the most basic things governments owe to those they govern.

[20] On the issue of remedy, the Agency, not this Court, decides whether to allow for late returns under subsection 220(3). Thus, we must reject the appellant’s request that we grant it tax relief.

[21] Therefore, I would allow the appeal, set aside the judgment of the Federal Court, and grant the application for judicial review. I would order the Canada Revenue Agency to give the appellant a fair opportunity to make submissions on all relevant issues, to consider those submissions, and to redetermine the matter with adequate reasons. The appellant does not seek its costs and so I would award none.

. Rocca v. Bayer

In Rocca v. Bayer (Ont Div Ct, 2025) the Ontario Divisional Court considers cross-appeals, these from an "order granting the request for review" (for bias) of a costs order of a Normal Farm Practice Protection Board decision.

Here the court considers whether a reconsideration decision need have accompanying reasons:

[26] In Barnes [SS: Barnes v. Ontario (Social Benefits Tribunal), [2009] O.J. No. 3096 (Div. Ct.)], this court held that the Social Benefits Tribunal was not required to give reasons for granting a reconsideration hearing. At paragraph 31 of the decision, the court said that if reasons are given when a rehearing is ordered, they would inevitably touch on the substance of the reconsideration request, raising a concern that those reasons might influence the member presiding at the rehearing. There being such a concern, it follows that the reasons given for granting a request for reconsideration are not necessarily binding on the member presiding at the rehearing. I see no reason why the same principle should not apply in the present case. It will therefore be up to the panel presiding at the rehearing to decide, on a final basis, whether the original panel was tainted by a reasonable apprehension of bias. See also, M.I. v. Administrator, Ontario Works Region of Peel, 2024 ONSC 1975 (Div. Ct.), at para. 15.

. Tobin (Re)

In Tobin (Re) (Ont CA, 2025) the Ontario Court of Appeal allowed an NCR appeal.

Here the court cited a case that found an "it was an error for the Board to issue a disposition that fails to reflect its reasons”:

[17] In Re Le Feuvre, 2020 ONCA 822, at para. 12, this court found that “it was an error for the Board to issue a disposition that fails to reflect its reasons.” We find that the Board made a similar error in this case. The fact that Mr. Tobin is obligated to reside at the hospital when his current condition would allow him to live in some form of supervised community housing is at least in part due to the hospital’s error. The hospital’s obligation to remedy this situation should be reflected in the Board’s disposition rather than simply a strong suggestion to act with due diligence in the reasons. Accordingly, we would amend the disposition to include the following term: “The hospital is to exercise all due diligence in pursuing community housing for Mr. Tobin”.

. 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.