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Reasons - May Be Inferred from the Record. Givogue v. Canada (Attorney General)
In Givogue v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of an earlier JR of a CHRC decision "that it would not deal with the Complaint pursuant to paragraph 41(1)(d) [SS: "complaint is trivial, frivolous, vexatious or made in bad faith"] of the Act (the Decision)", where the complaint involved an employer's requirement that the appellant disclose his COVID vaccination status.
Here the court considers how much reasons for decision may be supplemented by the record below:[7] Where, as here, the Commission adopts the recommendations of its Officer in the Report for Decision, its brief reasons may be supplemented by the reasons in the Report: Syndicat des employés de production du Québec et de l’Acadie v. Canada (Human Rights Commission), 1989 CanLII 44 (SCC), [1989] 2 S.C.R. 879 at 902-903; Tazehkand at para. 39.
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[23] Reasons must be read in a holistic and sensitive way. In the face of silence in a decision maker’s reasons on a particular point, "“[t]he evidentiary record, the submissions made, the understandings of the administrator as seen from previous decisions cited or that it must have been aware of, the nature of the issue before the administrator and other matters known to the administrator may ... supply the basis for a conclusion that the administrator made implicit findings”": Alexion at para. 16, citing Vavilov at paras. 94, 123. .... . Prince Edward Island Potato Board v. Canada (Agriculture and Agri-Food)
In Prince Edward Island Potato Board v. Canada (Agriculture and Agri-Food) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal from an earlier dismissed JR, here against "an [SS: Ministerial] Order issued by the Minister of Agriculture and Agri-Food [Minister] under section 15(3) of the Plant Protection Act, SC 1990, c 22, declaring the entire province of Prince Edward Island [PEI] as "“a place infested with potato wart”" and prohibiting the movement of PEI seed potatoes from PEI without written authorization from an inspector [Ministerial Order]".
Here the court considers 'reasons' in a Ministerial Order context:[58] In circumstances where no formal reasons are provided, such as when the Minister issues an order under subsection 15(3) of the Act, a reviewing court "“must look to the record as a whole to understand the decision”" and, in doing so, "“will often uncover a clear rationale for the decision”": Vavilov at para. 137. Where no reasons are provided and neither the record nor the larger context sheds light on the basis for the decision, "“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,”" an analysis that inevitably focuses on the outcome rather than on the reasoning process: Vavilov at para. 138.
[59] As noted by the Federal Court, the Ministerial Order does not itself contain an analysis of the question whether the requirements of subsection 15(3) of the Act are satisfied: FC Decision at para. 85. Where the administrative decision maker has not explicitly considered the meaning of a relevant provision in its reasons, the reviewing court may still be able to discern the interpretation adopted by the decision maker from the record and determine whether that interpretation is reasonable: Vavilov at para. 123; Safe Food Matters Inc. v. Canada (Attorney General), 2022 FCA 19, [2022] F.C.J. No. 96 at para. 41. . 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).
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[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. . 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. . Kaplan-Myrth v. Ottawa Carlton District School Board
In Kaplan-Myrth v. Ottawa Carlton District School Board (Div Court, 2024) the Divisional Court dismissed a school board trustee's JR against a school board.
Here the court cites a tribunal (from a separate case) to the effect that there is no duty to give 'reasons for decision' on a JR where a political body is involved, and that the reasons may be inferred from the tribunal record:[62] The issue of sufficiency of reasons was addressed in Ramsay, starting at paragraph 54, as follows: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.
55 The context within which the decision was made was an administrative one, where the WRDSB was enforcing its Code of Conduct as part of the discretion granted to it by statute to manage its own affairs. The trustees had ample opportunity to review and consider the factual findings contained in the Integrity Commissioner's report, as well as the submissions made by Ramsay. They were well positioned to balance statutory and policy objectives in coming to a decision. The notice of the decision references the findings of the Integrity Commissioner's report which implicitly accepts the findings of fact made by the Integrity Commissioner. [63] The same facts are present in this case. As set out above, the Board had the IC report, as well as the Applicant’s lengthy submissions in advance of the meetings. On December 19, 2023, the Board held a meeting in which the findings and recommendations were debated and voted on. On January 16, 2023, a special meeting was held during which the Applicant’s appeal was debated and voted on.
[64] At paragraph 84 of Vavilov the SCC emphasizes that “the particular context of a decision constrains what will be reasonable for an administrative decision maker to decide in a given case. This is what it means to say that "[r]easonableness is a single standard that takes its colour from the context”.
[65] At paragraph 94, the Court carried on to state that:The reviewing court must also read the decision maker's reasons in light of the history and context of the proceedings in which they were rendered. For example, the reviewing court might consider the evidence before the decision maker, the submissions of the parties, publicly available policies or guidelines that informed the decision maker's work, and past decisions of the relevant administrative body. This may explain an aspect of the decision maker's reasoning process that is not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency. Opposing parties may have made concessions that had obviated the need for the decision maker to adjudicate on a particular issue; the decision maker may have followed a well-established line of administrative case law that no party had challenged during the proceedings; or an individual decision maker may have adopted an interpretation set out in a public interpretive policy of the administrative body of which he or she is a member. [66] Considering the context in which the decisions were made and the content of the IC report and the Applicant’s submissions, I find that the decision is reasonable, and the reasons are adequate. . 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. . Walpole v. Crisol
In Walpole v. Crisol (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal on the application of DOLA 3(1) ['Application of Occupiers’ Liability Act'].
Here the court notes that an appellate court may review the trial record and evidence to determine whether trial reasons are adequate:[19] In Bruno v. Dacosta, 2020 ONCA 602, at para. 23, Lauwers J.A. explained:In assessing the trial judge’s reasons for sufficiency, “the reviewing court must examine the evidence and determine whether the reasons [for judgment] are, in fact, patent on the record”: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 32, per Charron J., who ordered a new trial. An appellate court must review the record to determine whether the trial decision can be rendered more comprehensible when read in the context of the record. [20] While the motion judge’s reasons in this case were indeed brief, I am satisfied that the record as a whole clarifies and explains why she concluded that the appellants’ claim against the Crisols did not present any genuine issues that required a trial. In this regard, it is significant that the motion judge made her determination on a paper record, and was not asked to resolve conflicting evidence or make any assessments of credibility: see Bruno, at para. 25.
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[29] While the motion judge’s reasons, considered in isolation, may not have fully explained how she arrived at this conclusion, her reasoning path becomes apparent when her reasons are read “in the context of the evidence, [and] the arguments”: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para 35. . R. v. Watson
In R. v. Watson (Ont CA, 2024) the Ontario Court of Appeal considered the adequacy of trial reasons, including how they may be supplemented by reference to the trial record:[13] In R.E.M., McLachlin C.J.C. explained further, at para. 17:These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge made that decision. [Emphasis in original.] Quoting from this court’s decision in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), she added:[T]he description in Morrissey of the object of a trial judge’s reasons is apt. Doherty J.A. in Morrissey, at p. 525, puts it this way: “In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made that decision” (emphasis added). What is required is a logical connection between the “what” — the verdict — and the “why” — the basis for the verdict. The foundations of the judge’s decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded. Later in her reasons, McLachlin C.J.C. observed that “a trial judge is not obliged to discuss all of the evidence on any given point, provided the reasons show that he or she grappled with the substance of the live issues on the trial”: R.E.M., at para. 64.
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[17] It is sometimes possible for a reviewing court to fill in gaps in a trial judge’s reasons by looking to the trial record (Sheppard, at para. 55). However, when a trial judge finds a witness to be credible without referring to important evidence that bears on this issue, a reviewing court cannot simply assume that this evidence must have been tacitly considered: see e.g., Dinardo, at para. 34; R. v. J.C., 2023 ONCA 101, at para. 13; R. v. J.L., 2024 ONCA 36, at paras. 40-41. . R. v. J.L.
In R. v. J.L. (Ont CA, 2023) the Court of Appeal states doctrine regarding 'inadequate reasons for decision', including [paras 40-41] the extent to which recourse to the trial record may cure inadequacies:(1) General principles
[24] Poor reasons on their own do not justify judicial intervention. Judicial intervention is only warranted where the reasons amount to an error of law because they foreclose meaningful appellate review: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 25, 28.
[25] The court is to take a functional and contextual approach in reviewing a trial judge’s reasons: R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, at para. 69. The Supreme Court has instructed that appellate courts are not to “finely parse” trial decisions, searching for errors; rather, “they must assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review”: G.F., at para. 69. In other words, reasons will be insufficient if they fail to articulate what was decided and why it was decided.
[26] Trial judges do not have an obligation to address all issues raised or all the evidence presented at trial. However, as the Supreme Court stated in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 55, the reasons must demonstrate that the trial judge understood and grappled with the critical issues, including contradictory evidence, at trial:The appellate court, proceeding with deference, must ask itself whether the reasons considered with the evidentiary record, the submissions of counsel and the live issues at trial, reveals the basis for the verdict reached. It must look at the reasons in their entire context. It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial. If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions. If there is a difficult or novel question of law, it should ask itself if the trial judge has recognized and dealt with that issue. [Emphasis added.] [27] As the Supreme Court cautioned in R.E.M., at para. 49, the reviewing court is to be mindful that articulating findings of credibility can be challenging. Nevertheless, reasons dealing with findings of credibility must show that the trial judge “seized the substance of the issue”, which “may require at least some reference to [the] contradictory evidence”: R.E.M., at para. 50. As held in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31, where the complainant’s truthfulness is a live issue and where there are significant inconsistencies in the complainant’s testimony, trial judges must demonstrate that they are alive to the issue and explain how they have reconciled these significant inconsistencies.
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[38] The respondent argues that the motive to fabricate was not a significant issue, in part because the complainant’s friend was not even aware of the social media posts. However, this is beside the point. While there may be a valid explanation for rejecting the defence theory that the complainant had a motive to fabricate, the trial judge’s reasons do not allow this court to assess whether and how the trial judge grappled with this issue: R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, leave to appeal refused, [2021] S.C.C.A. No. 127, at para. 35; R. v. S.R., 2022 ONCA 192, 79 C.R. (7th) 162, at para. 30.
(3) Conclusion on sufficiency of reasons
[39] On their own, the failure to address some of the specific inconsistencies or the motive to fabricate may not be sufficient for a finding that the reasons are insufficient. Notably, the Supreme Court and this court have been clear that trial judges are not required to address every inconsistency in the evidence: R. v. L.T., 2019 ONCA 535, at para. 2; R. v. Tootiak, 2021 ONCA 356, at para. 5. However, cumulatively, I agree with the appellant that it is not possible to understand why, given the significant inconsistencies in the complainant’s evidence and the potential motive to fabricate, the trial judge nevertheless concluded that the complainant’s evidence was credible and reliable. It was not sufficient for him to describe her evidence in chief and to then conclude that he found her evidence credible and reliable without addressing any of the inconsistencies in her evidence. There is no formula for showing that a trial judge has grappled with a witness’s inconsistencies in deciding that the witness is nevertheless credible and their evidence is reliable on essential issues. However, to be capable of review, the reasons must nevertheless show that the trial judge grappled with the essential issues at trial. The reasons in this case fail to do so, and they are therefore not capable of appellate review.
(4) This is not a proper case for the court to look to the record to support the trial judge’s conclusions
[40] In argument, the respondent submitted that, if the court found that the reasons were insufficient, the court could nevertheless look to the record to support the trial judge’s findings. Indeed, in Sheppard, at para. 55, the Supreme Court stated that reasons may be sufficient when the basis for the trial judge’s conclusion is “apparent from the record, even without being articulated”. However, this does not mean that, in cases such as this one, appellate courts are required to conduct credibility assessments afresh, particularly ones that require the reconciliation of multiple inconsistencies that go to material issues and ones that require the reconciliation of alleged motives to fabricate, none of which was even acknowledged by the trial judge.
[41] This argument was made by the Crown and rejected in Dinardo, at para. 34, where the Supreme Court stated that, in the face of contradictory evidence from a complainant, “[w]ithout some explanation in his reasons for judgment, there is simply no way to know how the trial judge satisfied himself that the complainant was a credible witness.” Similarly, in R. v. J.C., 2023 ONCA 101, having found the reasons insufficient on one of the counts on which the appellant was found guilty, this court held that it was not possible to resolve the “live issues” on that count based on the record alone: at para. 13. To resolve the issue would require the court “to step into the shoes of the trial judge, weigh the evidence, and redo his assessments of credibility and reliability”, which this court said is not the role of an appellate court: at paras. 12-13. The same concerns arise in this case. . R. v. Lloyd
In R. v. Lloyd (Ont CA, 2023) the Court of Appeal considers that where the reasons are obvious from the record, an 'inadequate reasons' argument will not be successful:[15] Where it is “apparent from the record, even without being articulated” how the trial judge arrived at her decision, no error will be found: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 6. The reviewing court must examine the evidence and determine whether the reasons for conviction are, in fact, patent on the record: Sheppard, at para. 55; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 32; R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, at paras. 68-75.
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[20] While the Reasons for Judgment on the finding of guilt do not set out the basis upon which the trial judge resolved the discrepancy raised by the error in the initial English transcript, it is “apparent from the record, even without being articulated” how the trial judge arrived at her decision. . Canada (Minister of Citizenship and Immigration) v. Vavilov
In Canada (Minister of Citizenship and Immigration) v. Vavilov (SCC, 2022) the Supreme Court of Canada considers the adequacy of reasons for decision [paras 91-98], and notes that they may be inferred from the record:... Where a decision maker’s rationale for an essential element of the decision is not addressed in the reasons and cannot be inferred from the record, the decision will generally fail to meet the requisite standard of justification, transparency and intelligibility.
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