Vavilov 'Reasonableness' Review :: Justice 4 EI Misconduct
Governing Administrative Law Case: (2019 SCC 65) Canada (MC&I) v. Vavilov
Justice 4 EI Misconduct: Vavilov ‘Reasonableness’ Review
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(Standard of Review)
Reasonableness: Since this is a Judicial Review of an Administrative Tribunal Decision (SST-EI), the appropriate Standard of Review is Reasonableness. 1
Vavilov Reasonableness Reviews
Here is a breakdown of the Vavilov Holding. (I’m using it to correlate my arguments.)
‘Reasonableness’ Factors (¶99-101)
What [two] factors constitute ‘Reasonableness’?
[‘RP’]: Reasons (the ‘Process’): Internal Coherence & Rational Consistency
[‘DO’]: Decision (the ‘Outcome’): Justifiable in Light of Law, Facts & Record
Emphasis: on Reasons (Not Legal Analysis: What are the Unreasonable Reasons?)
(¶99): …To determine [whether the Decision is Reasonable], the reviewing Court asks whether the Decision bears the hallmarks of Reasonableness — Justification, Transparency & Intelligibility — and whether it is justified in relation to the relevant Factual & Legal constraints that bear on the Decision. (cf. Dunsmuir [¶47 & ¶74])
(¶100): The burden is on the party challenging the Decision to show that it is Unreasonable. [] Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the Decision. [] The Court must be satisfied that any shortcomings or flaws relied on by the party challenging the Decision are sufficiently central or significant to render the Decision Unreasonable.
(¶101): What makes a Decision Unreasonable? We find it conceptually useful here to consider two types of fundamental flaws. The first is a failure of rationality internal to the reasoning Process. The second arises when a Decision is in some respect untenable in light of the relevant factual & legal constraints that bear on it.
Reasoning Factors (¶102-04)
Rational & Logical Reasoning Process (No Errors or Fallacies)
Clear, Complete Traceable Reasoning (from Start to Conclusion)
Thorough Statements of Fact, Analysis, Inference & Judgment
Made ‘in Light of’ Record & Sensitive to Administrative Context
(¶102): To be reasonable, a Decision must be based on reasoning that is both rational and logical. [] The reviewing Court must be able to trace the Decision-Maker’s reasoning without encountering any fatal flaws in its overarching logic. [] Reasons that “simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion” will rarely assist a reviewing Court in understanding the rationale underlying a Decision and “are no substitute for statements of fact, analysis, inference, and judgment.” (Irving [¶54], cit. Newfoundland Nurses [¶14]; Gonzalez [¶57-59])
(¶103): …formal reasons should be read in light of the Record and with due sensitivity to the Administrative Regime in which they were given. A Decision will be unreasonable if the reasons for it, read holistically, fail to reveal a rational chain of analysis or if they reveal that the Decision was based on an irrational chain of analysis. (Southam [¶56]) […] A Decision will also be unreasonable where the conclusion reached cannot follow from the analysis undertaken, or if the reasons read in conjunction with the Record do not make it possible to understand the Decision-Maker’s reasoning on a critical point.
(¶104): Similarly, the internal rationality of a Decision may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations, or an absurd premise.
Decision Factors (¶105-07)
(a) Governing Statutory Scheme (¶108-10)
(b) Other Statutory or Common Law (¶111-14)
(c) Principles of Statutory Interpretation (¶115-24)
(d) Evidence Before the Decision Maker (¶125-26)
(e) Submissions of the Parties (¶127-28)
(f) Past Practices & Past Decisions (¶129-32)
(g) Impact of Decision on Affected Individual (¶133-35)
(a) Governing Statutory Scheme (¶108-10)
(¶108): Because ADMs (Administrative Decision Makers) receive their powers by statute, the governing statutory scheme is likely to be the most salient aspect of the legal context relevant to a particular Decision. […] ADMs are [not] permitted to disregard or rewrite the law as enacted by Parliament & the Provincial Legislatures. (Catalyst [¶15 & ¶28], Roncarelli [p.140], Montréal [¶33 & ¶40f], et al) […] Decision[s] must comport with any more specific constraints imposed by the governing legislative scheme, such as the statutory definitions, principles, or formulas that prescribe the exercise of a Discretion. […] The statutory scheme also informs the acceptable approaches to Decision-Making: for example, where [an ADM] is given wide discretion, it would be unreasonable for it to fetter that discretion. (Delta Air Lines [¶18])
(¶109): …[an] ADM [cannot] interpret the scope of its own authority beyond what the Legislature intended. [] Although an ADM’s interpretation of its statutory grant of authority is generally entitled to Deference, the[y] must nonetheless properly justify that interpretation. Reasonableness Review does not allow ADMs to arrogate powers to themselves that they were never intended to have, and an Administrative Body cannot exercise authority which was not delegated to it.
(¶110): Whether an interpretation is justified will depend on the context, including the language chosen by the Legislature in describing the limits and contours of the ADM’s authority. […] certain questions relating to the scope of an ADM’s authority may support more than one interpretation, while other questions may support only one, depending upon the text by which the statutory grant of authority is made. What matters is whether, in the eyes of the reviewing Court, the ADM has properly justified its interpretation of the statute in light of the surrounding context. It will, of course, be impossible for an ADM to justify a Decision that strays beyond the limits set by the statutory language it is interpreting.
(b) Other Statutory or Common Law (¶111-14)
(¶111): It is evident that both Statutory & Common Law will impose constraints on how and what an ADM can lawfully Decide. (cf. Dunsmuir [¶47 & ¶74]) […] an ADM [] cannot adopt an interpretation that is inconsistent with applicable Common Law principles regarding the nature of statutory powers. […] Where a relationship is governed by Private Law [{i.e. Contract Law}], it would be unreasonable for an ADM to ignore that Law [{i.e. specific Contracts}] in adjudicating parties’ rights within that relationship. Similarly, where the governing statute specifies a standard that is well known in law and in the jurisprudence, a reasonable Decision will generally be one that is consistent with the established understanding of that standard.
(¶112): Any precedents on the issue before the ADM (or on a similar issue) will act as a constraint on what the[y] can reasonably Decide. [Their] Decision may be unreasonable on the basis that the[y] failed to explain or justify a departure from a binding precedent in which the same provision had been interpreted.
(¶113): ADMs will not necessarily be required to apply Equitable and Common Law principles in the same manner as Courts in order for their Decisions to be reasonable. It may be reasonable [] to adapt [these] doctrine[s] to [their] administrative context. (Nor-Man RHA [¶5-6 & ¶44-45])
(c) Principles of Statutory Interpretation (¶115-24)
(¶117): A Court interpreting a statutory provision does so by applying the ‘Modern Principle’ of Statutory Interpretation, that is, that the words of a statute must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the Scheme of the Act, the Object of the Act, and the Intention of Parliament.”
(Rizzo Shoes [¶21] & Bell ExpressVu [¶26], [both] cit. Elmer Driedger: Construction of Statutes (1983: 2nd Ed.) [p.87].)
Parliament & Provincial Legislatures have also provided guidance by way of statutory rules that explicitly govern the Interpretation of Statutes & Regulations. (e.g. Interpretation Act [RSC 1985, c.I-21]; Legislation Act [SO 2006, c.21, Sch.F], et al)
(¶118): This Court has adopted the ‘Modern Principle’ as the proper approach to Statutory Interpretation, because Legislative Intent can be understood only by reading the language chosen by the Legislature in light of the Purpose of the Provision and the entire relevant Context. Those who draft & enact Statutes expect that questions about their meaning will be resolved by an Analysis that has regard to the Text, Context & Purpose, regardless of whether the entity tasked with interpreting the Law is a Court or a [Tribunal] ADM. An approach to Reasonableness Review that respects Legislative Intent must therefore assume that those who Interpret the Law – whether Courts or ADMs – will do so in a manner consistent with this Principle of Interpretation.
(¶120): But whatever form the Interpretive exercise takes, the merits of an ADM’s Interpretation of a Statutory Provision must be consistent with the Text, Context & Purpose of the Provision. […] Where the meaning of a Statutory Provision is disputed in Administrative Proceedings [{i.e. Tribunal Decisions}], the ADM must demonstrate in its Reasons that it was alive to these essential elements.
(¶121): The ADM’s task is to Interpret the contested Provision in a manner consistent with the Text, Context & Purpose, applying its particular insight into the Statutory scheme at issue. It cannot adopt an Interpretation it knows to be inferior – albeit plausible – merely because the Interpretation in question appears to be available and is expedient. The ADM’s responsibility is to discern Meaning & Legislative Intent, not to ‘Reverse-Engineer’ a desired Outcome.
(cf. Errors #14-15: Atrium Templates Reverse-Engineer Decisions)
(¶122): …If, however, it is clear that the ADM may well, had it considered a key element of a Statutory Provision’s Text, Context or Purpose, have arrived at a different result, its failure to consider that element would be Indefensible, and Unreasonable in the circumstances…
(¶124): Finally, even though the task of a Court conducting a Reasonableness Review is not to perform a de novo analysis or to determine the ‘correct’ Interpretation of a disputed provision, it may sometimes become clear in the course of Reviewing a Decision that the interplay of Text, Context & Purpose leaves room for a single reasonable interpretation of the statutory provision, or aspect of the statutory provision, that is at issue. (Dunsmuir [¶72-76] & Conares [¶61]) […] As discussed below, it would serve no useful purpose in such a case to Remit the interpretative question to the original ADM. Even so, a Court should generally pause before definitively pronouncing upon the Interpretation of a Provision entrusted to an ADM.
[Dunsmuir ¶74]: The Interpretation of the Law is always Contextual. The Law does not operate in a vacuum. The Adjudicator was required to take into account the Legal Context in which he was to apply the Law. The employment relationship between the parties in this Case was governed by Private Law. The Contractual Terms of Employment could not Reasonably be Ignored.
(d) Evidence Before the Decision Maker (¶125-26)
(¶125): It is trite law that the ADM may assess & evaluate the Evidence before it and that, absent exceptional circumstances, a Reviewing Court will not interfere with its Factual Findings…
(¶126): That being said, a Reasonable Decision is one that is justified in light of the Facts. (Dunsmuir [¶47]) The ADM must take the Evidentiary Record and the general Factual Matrix that bears on its Decision into account, and its Decision must be Reasonable in light of them. (Southam [¶56]) The Reasonableness of a Decision may be jeopardized where the ADM has fundamentally misapprehended or failed to account for the Evidence before it. In Baker, for example, the ADM had relied on irrelevant stereotypes and failed to consider relevant Evidence, which led to a conclusion that there was a reasonable apprehension of Bias. (Baker [¶48]) Moreover, the ADM’s approach would also have supported a finding that the Decision was Unreasonable on the basis that the ADM showed that his conclusions were not based on the Evidence that was actually before him. (ibid.)
(e) Submissions of the Parties (¶127-28)
(¶127): The principles of Justification & Transparency require that an ADM’s Reasons meaningfully account for the central issues and concerns raised by the Parties. The principle that the individual or individuals affected by a Decision should have the opportunity to present their case Fully & Fairly underlies the Duty of Procedural Fairness and is rooted in the Right to be Heard. (Baker [¶28]) The concept of Responsive Reasons is inherently bound up with this principle, because Reasons are the primary mechanism by which ADMs demonstrate that they have actually listened to the Parties.
(¶128): …a[n] ADM’s failure to meaningfully grapple with key issues or central arguments raised by the Parties may call into question whether the[y were] actually alert and sensitive to the matter before it. In addition to assuring Parties that their concerns have been heard, the process of drafting Reasons with care & attention can alert the ADM to inadvertent gaps and other flaws in its reasoning. (Baker [¶39])
(f) Past Practices & Past Decisions (¶129-32)
(¶129): ADMs are not bound by their previous Decisions in the same sense that Courts are bound by stare decisis. As this Court noted in Domtar, “a lack of unanimity is the price to pay for the decision‑making freedom & independence” given to ADMs, and the mere fact that some conflict exists among an Administrative body’s Decisions does not threaten the Rule of Law. Nevertheless, ADMs & Reviewing Courts alike must be concerned with the general consistency of Administrative Decisions. Those affected by Administrative Decisions are entitled to expect that like cases will generally be treated alike and that Outcomes will not depend merely on the identity of the individual ADM – expectations that do not evaporate simply because the parties are not before a Judge.
(¶130): Fortunately, Administrative bodies generally have a range of resources at their disposal to address these types of concerns. Access to past reasons and summaries of past reasons enables multiple individual ADMs within a single organization (such as Administrative Tribunal Members) to learn from each other’s work, and contributes to a harmonized decision-making culture. Institutions also routinely rely on Standards, Policy Directives & internal Legal Opinions to encourage greater uniformity and guide the work of frontline ADMs. This Court has also held that plenary meetings of a Tribunal’s Members can be an effective tool to “foster coherence” and “avoid … conflicting results.” (IWA [pp.324-28]) Where disagreement arises within an Administrative body about how to appropriately resolve a given issue, that institution may also develop strategies to address that divergence internally and on its own initiative. Of course, consistency can also be encouraged through less formal methods, such as the development of Training materials, checklists & Templates for the purpose of streamlining and strengthening institutional best practices, provided that these methods do not operate to fetter Decision-Making.
(g) Impact of Decision on Affected Individual (¶133-35)
(¶133): It is well established that individuals are entitled to greater Procedural Protection when the Decision in question involves the potential for significant personal impact or harm. (Baker [¶25]) However, this principle also has implications for how a Court conducts Reasonableness Review. Central to the necessity of adequate Justification is the perspective of the individual or Party over whom authority is being exercised. Where the impact of a Decision on an individual’s Rights & Interests is severe, the Reasons provided to that individual must reflect the Stakes. The Principle of ‘Responsive Justification’ means that If a Decision has particularly harsh consequences for the affected individual, the ADM must explain Why its Decision best reflects the Legislature’s Intention. This includes Decisions with consequences that threaten an individual’s Life, Liberty, Dignity, or Livelihood.
(¶134): Moreover, concerns regarding Arbitrariness will generally be more acute in Cases where the consequences of the Decision for the affected Party are particularly severe or harsh, and a failure to grapple with such consequences may well be Unreasonable…
(¶135): Many ADMs are entrusted with an extraordinary degree of Power over the lives of ordinary People, including the most vulnerable among us. The corollary to that Power is a heightened responsibility on the part of ADMs to ensure that their Reasons demonstrate that they have considered the consequences of a Decision and that those consequences are Justified in light of the Facts & Law.
Other Relevant Rules
(¶95): Internal Records: Reviewing Courts must keep in mind the principle that the exercise of Public Power must be Justified, Intelligible & Transparent, not in the abstract, but to the individuals subject to it. It would therefore be unacceptable for an ADM 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. (cf. Error #12: BE-Memo)
(‘Vavilov’) The governing Administrative Law Case is ‘Vavilov’ (2019 SCC 65): Canada (MC&I) v. Vavilov. It established ‘Reasonableness’ as the primary (default) ‘Standard of Review’ and provided significant details about how to conduct a ‘Reasonableness Review’. (¶73–¶142)