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Reasons - Post-Vavilov Cases. Canadian Pacific Railway Company v. Sauvé
In Canadian Pacific Railway Company v. Sauvé (Fed CA, 2024) the Federal Court of Appeal allowed an employer's appeal from an earlier employer's JR, here of "a decision of a labour adjudicator that allowed in part the respondent’s unjust dismissal complaint under section 240 of the Canada Labour Code".
Here the court considers the adequacy of reasons for decision, as addressed in Vavilov:[15] When assessing the reasonableness of the decision, the reviewing court first examines "“the reasons provided with ‘respectful attention’ and seek[s] to understand the reasoning process followed by the decision maker to arrive at its conclusion”" (Vavilov at para. 84; Mason at para. 60). Written reasons must be read holistically, with sensitivity to the administrative context in which they were rendered and in light of the record as a whole (Vavilov at paras. 91, 94, 103; Mason at para. 61).
[16] Extensive or perfect reasons are not required for an administrative decision to be reasonable. However, "“where the administrative decision maker has provided written reasons, those reasons are the means by which the decision maker communicates the rationale for its decision”" (Vavilov at para. 84). It is not enough for the outcome of a decision to be justifiable. The administrative decision maker must justify its decision (Vavilov at para. 86). As the Supreme Court affirms, "“[r]easons shield against arbitrariness”" (Vavilov at para. 79), and it is not for the reviewing court to fashion its own reasons in order to buttress the decision where the reasons provided, even read with sensitivity to the institutional setting and the record, contain a fundamental gap or are based on an unreasonable chain of analysis (Vavilov at para. 96).
[17] For the following reasons, I am of the view that the adjudicator’s decision in this case does not exhibit the requisite degree of justification set out in Vavilov. The adjudicator’s reasons are not supported by an analysis that demonstrates that he considered the relevant factual and legal constraints that could have borne on his decision.
[18] Although this list is not exhaustive, these constraints include the applicable legal regime, the evidence before the adjudicator, and the potential impact of the decision on the parties.
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[40] Despite the restraint that reviewing courts must exercise in reviewing administrative decisions, I am of the opinion that the adjudicator’s decision contains significant deficiencies in justification. In the case at hand, the reasons do not provide insight into the reasoning that the adjudicator followed in concluding that sexual harassment had not occurred, or even into whether the adjudicator considered the various elements that define sexual harassment in the workplace. They do not make it possible to determine whether the adjudicator’s finding is the outcome of a coherent and rational chain of analysis in light of the relevant factual and legal constraints applicable. The duty to justify the decision was high, given the importance of the decision to the parties involved, including the effect on the careers of the respondent and the complainant and the impact on the liability of the appellant, which is responsible for ensuring that its employees’ work environment is free of sexual harassment.
[41] As this Court stated in Alexion Pharmaceuticals Inc. v. Canada (Attorney General), 2021 FCA 157, before Vavilov, "“reviewing courts could pick up an administrator’s pen and write supplemental reasons supporting the administrators’ outcomes”" (Alexion at para. 8). Since Vavilov, they must ask "“if there is a sufficient reasoned explanation in support of the ... decision”" of the administrative decision maker (Alexion at paras. 10, 12).
[42] As I noted above, it has been recognized that, in assessing the adequacy of reasons, a reviewing court may interpret them holistically and contextually, in light of the record before the administrative decision maker (Vavilov at paras. 97, 103; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 15; Alexion at para. 16). As noted by the Federal Court at paragraph 35 of its decision, it can "“connect the dots on the page where the lines, and the direction they are headed, may be readily drawn”" (Alexion at para. 17, citing Komolafe v. Canada (Citizenship and Immigration), 2013 FC 431).
[43] However, this does not allow the reviewing court to fashion its own reasons in order to buttress the administrative decision, as the Federal Court has done (Vavilov at para. 96). . 2541005 Ontario Ltd. v. Oro-Medonte (Township)
In 2541005 Ontario Ltd. v. Oro-Medonte (Township) (Div Court, 2023) the Divisional Court considered a motion for statutory leave to appeal, here brought under the s.24(1) of the Ontario Land Tribunal Act, 2021 against a 'review decision' of the Ontario Land Tribunal (OLT) (the 'review decision' was only to procedurally require a review (para 16), not the substantive review result).
Here the court quotes the leading Vavilov case for current doctrine on the adequacy of reasons for decision:Reasons
[56] The Moving Party argued that the Chair based his decision on insufficient reasons in the Hearing Decision, yet failed to specify which reasons were insufficient, ironically, leading to the fact that his own reasons on the review were insufficient. The Moving Party relied on Wright v Coleman, 2015 ONSC 2744, para. 21, and Barbieri v. Mastronardi, 2014 ONCA 416, paras. 18, 22, 24, 25 for the proposition that reasons for decision must “provide some insight into how the legal conclusion was reached and what facts were relied upon in reaching that conclusion” in order to allow for “meaningful appellate review”.
[57] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), [2019] 4 SCR 653, the court stated as follows:[91] A reviewing court must bear in mind that the written reasons given by an administrative body must not be assessed against a standard of perfection. That the reasons given for a decision do “not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred” is not on its own a basis to set the decision aside: Newfoundland Nurses, at para. 16. 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.
[92] Administrative decision makers cannot always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge — nor will it always be necessary or even useful for them to do so. Instead, the concepts and language employed by administrative decision makers will often be highly specific to their fields of experience and expertise, and this may impact both the form and content of their reasons. These differences are not necessarily a sign of an unreasonable decision — indeed, they may be indicative of a decision maker’s strength within its particular and specialized domain. “Administrative justice” will not always look like “judicial justice”, and reviewing courts must remain acutely aware of that fact.
[93] An administrative decision maker may demonstrate through its reasons that a given decision was made by bringing that institutional expertise and experience to bear: see Dunsmuir, at para. 49. In conducting reasonableness review, judges should be attentive to the application by decision makers of specialized knowledge, as demonstrated by their reasons. Respectful attention to a decision maker’s demonstrated expertise may reveal to a reviewing court that an outcome that might be puzzling or counterintuitive on its face nevertheless accords with the purposes and practical realities of the relevant administrative regime and represents a reasonable approach given the consequences and the operational impact of the decision. This demonstrated experience and expertise may also explain why a given issue is treated in less detail.
[94] 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.
[95] That being said, reviewing courts must keep in mind the principle that the exercise of public power must be justified, intelligible and transparent, not in the abstract, but to the individuals subject to it. It would therefore be unacceptable for an administrative decision maker to provide an affected party formal reasons that fail to justify its decision, but nevertheless expect that its decision would be upheld on the basis of internal records that were not available to that party.
[96] Where, even if the reasons given by an administrative decision maker for a decision are read with sensitivity to the institutional setting and in light of the record, they contain a fundamental gap or reveal that the decision is based on an unreasonable chain of analysis, it is not ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision. 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: Delta Air Lines, at paras. 26-28. To allow a reviewing court to do so would be to allow an administrative decision maker to abdicate its responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion. This would also amount to adopting an approach to reasonableness review focused solely on the outcome of a decision, to the exclusion of the rationale for that decision. To the extent that cases such as Newfoundland Nurses and Alberta Teachers have been taken as suggesting otherwise, such a view is mistaken. [58] In his 6-page Review Decision, the Chair identified the Rules and test to be applied, set out the factual background, summarized the request for review, responded to the issues of timing and abeyances, explained the ground upon which the rehearing was granted and why this was the only appropriate result. Shorter reasons do not equate to insufficient reasons. This court is satisfied that the Chair covered the necessary items and set out his reasoning for necessity of a rehearing. His findings were responsive to one significant and fundamental issue raised by the Township. The Chair found that there was no justification to order the repeal of the entire By-law. This was based on extensive review submissions that the Township made to the Tribunal.
[59] There is no reason to doubt the correctness of the decision on this basis.
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