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JR - SOR - Reasonableness Review - The Nature of Reasonableness Review. Giffen v. TM Mobility Inc.
In Giffen v. TM Mobility Inc. (Fed CA, 2024) the Federal Court of Appeal allowed an appeal, this from a denial of the Federal Court of a judicial review, this that "sought to set aside the ... decision of Adjudicator Michael Horan" that "determined that he had no jurisdiction to consider the appellant’s complaint that she had been unjustly dismissed following her return from maternity leave due to the limitation set out in paragraph 242(3.1)(a) of the Canada Labour Code" ... "(t)hat paragraph of the Code precluded an adjudicator from hearing an unjust dismissal complaint where a complainant was laid off because of a lack of work or discontinuance of a function."
Here the court finds fault with the Federal Court for deciding the underlying case themselves (a 'correctness' approach) and not performing a 'reasonableness review':[39] Here, the Federal Court correctly selected reasonableness as the appropriate standard of review, it being firmly settled that this standard applies to the review of adjudicators’ (and the CIRB’s) decisions under Division XIV of the Code: see Northern Inter-Tribal Health Authority Inc. v. Yang, 2023 FCA 47 at para. 49; Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, 399 D.L.R. (4th) 193 at paras. 15–18.
[40] However, the Federal Court erred in how it applied the reasonableness standard and wrongfully decided the issues that the adjudicator failed to consider. In short, it "“coopered up”" the adjudicator’s reasons in an unacceptable fashion. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 [Vavilov] at paragraph 96, the Supreme Court underscored that, absent exceptional circumstances, a reviewing court should not step in and decide issues of significance that are relevant to the outcome that were argued before the administrative decision maker that the decision maker neglected to consider. The majority stated as follows at paragraph 97 of Vavilov:We agree with the observations of Rennie J. in Komolafe v. Canada (Minister of Citizenship and Immigration), 2013 FC 431, 16 Imm. L.R. (4th) 267, at para. 11:
Newfoundland Nurses is not an open invitation to the Court to provide reasons that were not given, nor is it licence to guess what findings might have been made or to speculate as to what the tribunal might have been thinking. This is particularly so where the reasons are silent on a critical issue. It is ironic that Newfoundland Nurses, a case which at its core is about deference and standard of review, is urged as authority for the supervisory court to do the task that the decision maker did not do, to supply the reasons that might have been given and make findings of fact that were not made. This is to turn the jurisprudence on its head. Newfoundland Nurses allows reviewing courts to connect the dots on the page where the lines, and the direction they are headed, may be readily drawn. [41] Rather than proceeding as it did, the Federal Court should instead have focused on the reasons given by the adjudicator and determined whether the adjudicator reasonably considered the appellant’s arguments. Had the Federal Court done so, it would have been apparent that the adjudicator’s decision was unreasonable for its failure to address important arguments advanced by the appellant.
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