Inadequate Reasons: The Need for Tribunal Participation in Judicial Review Litigation

Canadian courts continue to grapple with the implications of a broadly applicable obligation for administrative decision-makers to provide reasons as part of the common law duty of procedural fairness, established by the Supreme Court of Canada in its 1992 judgment in Baker v Canada (Minister of Citizenship and Immigration). The requirement for reasons, which applies when a decision of a public body has “important significance for the individual, where there is a statutory right of appeal, or in other circumstances”, has prompted a more forgiving judicial approach to what is proffered by the decision-maker as its reasons. In the Baker case, for instance, the shorthand notes of a junior investigating officer were treated by the Supreme Court of Canada as fulfilling the requirement for reasons in relation to a decision to deny an immigration claim on humanitarian and compassionate grounds. Although the officer’s notes were not well-organized or comprehensive, they were seen to meet the requirement for reasons on the basis that the reviewing court must adopt a pragmatic approach and “evaluate the requirements of the duty of fairness with recognition of the day-to-day realities of administrative agencies”. Since Baker, courts have continued to expand what counts as reasons when reasons are required by the duty of procedural fairness. In Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), for example, the Supreme Court of Canada held that the poor quality of reasons provided by an administrative decision-maker could not be a stand-alone basis upon which to quash a decision for lacking fairness. Instead, the question under procedural fairness focused simply on whether any reasons were provided when reasons were required. The quality of reasons would be considered instead as part of a substantive review when applying a reasonableness standard. In other words, most anything proffered by the decision-maker as reasons will count as ‘ticking the box’ when reasons are legally required. It is only when testing the reasonableness of the outcome when courts will pay closer attention to the quality and comprehensiveness of the reasons provided. And even in those circumstances, reviewing courts will apply a generous interpretation of the reasons, going so far as to judicially supplement inadequate or incomplete reasons to uphold the decision if the court can find a reasonable basis for it. According to the Supreme Court of Canada, courts should adopt a “respectful attention to the reasons offered or which could be offered in support of a decision”. Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association provides an illustration of the court filling in the blanks, or more accurately, devising hypothetical reasons that could have been provided by the decision-maker when none were actually provided. In that case, the decision-maker failed to consider the issue of whether a time limit could be properly extended after the time had already elapsed as none of the parties had bothered to question it. The agency simply proceeded on the assumption that it could provide such an extension. The issue was later raised on judicial review for the first time. The Supreme Court of Canada upheld the reasonableness of the agency’s ‘implicit’ decision to extend the time limit after engaging in a thought experiment to consider reasons that could have been offered by the agency had it turned its mind to the issue. While the Supreme Court of Canada cautioned that reviewing courts should give due regard to reasons provided by the decision-maker without ignoring or glossing over clear deficiencies or problematic lines of reasoning, they should also seek to supplement inadequate or incomplete reasons if there exists a reasonable basis (from the reviewing court’s perspective) for the decision. Again, the rationale is principally pragmatic. Pausing judicial review litigation to request better or more complete reasons from the decision-maker could “undermine the goal of expedient and cost-efficient decision making”. It was also somewhat punitive on the facts as the parties had an opportunity to raise time limits before the agency but failed to do so. Allowing parties to raise an issue on judicial review that could have been raised before the decision-maker would deprive the court of the benefit of an express decision made by the agency and reasons for that decision, effectively short-circuiting the administrative decision-making process. The recent Supreme Court of Canada judgment in Ontario (Energy Board) v Ontario Power Generation Inc. is another case in relation to what could be seen as deficient reasons provided by a public authority. The case raised the important question of whether the original reasons supplied by a tribunal could be later ‘topped up’ by the tribunal itself as a party to a judicial review litigation. Relatedly, the more general question arose as to the proper role of a tribunal on a statutory appeal or judicial review of its decision and to what extent the tribunal could act ‘aggressively’ in defending its original decision. In answering these questions, the Supreme Court of Canada established in law the proper participatory role of a public body before a reviewing court and the acceptable content of arguments that could be made by the decision-maker before the court.

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