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Judicial Review - Evidence - Non-Hearing Decision

This topic, which is essentially about the evidence considered in non-hearing (and thus non-tribunal) administrative decisions, reflects the lack of guidance that a court faces when determining what evidence should be assessed where the decision is made without any statutory hearing. These are often 'political' decisions where the decision-maker may be motivated to avoid records of any sort.

. LifeLabs LP v. Information and Privacy Commr. (Ontario) [go to the full case for case references]

In LifeLabs LP v. Information and Privacy Commr. (Ontario) (Div Court, 2022) the Divisional Court usefully addressed the 'record' requirement in non-tribunal judicial review (ie. where the record required by SPPA 20 does not apply), finding that it was governed by the common law:
The Record of Proceedings

[12] Section 10 of the Judicial Review Procedure Act (the “JRPA”) provides:
When a notice of application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision has been served on the person making the decision, such person shall forthwith file in the court for use on the application the record of the proceedings in which the decision was made.[1]
The JRPA is silent on what is included in the “record of proceedings.”

[13] “An applicant for judicial review has the right to have a full and accurate record of what went on before the tribunal put before the court.”[2] For some tribunals, the required content of the record is specified in the Statutory Powers Procedure Act (the “SPPA”).[3] However, these requirements do not apply in this case: proceedings before the Commissioner are not ones “where the tribunal is required… to afford the parties to the proceeding an opportunity for a hearing before making a decision.”[4]

[14] The “record” then, in this case, is a matter of common law. About seventy years ago, Lord Denning stated that the record “has been said to consist of all those documents which are kept by the tribunal for a permanent memorial and testimony of their proceedings…. [It] must contain at least the document which initiates the proceedings.”[5] By way of analogy to a trial in a court of record, the record should contain the pleadings or analogous documents, the evidence that was before the decision-maker, and transcripts (if oral evidence was taken and recorded for purposes of transcription). This court may insist upon production of an adequate record for purposes of review, and this court has the power to order the decisionmaker below to complete the record.[6]
. Lovell v. Ontario (Ministry of Natural Resources and Forestry)

In Lovell v. Ontario (Ministry of Natural Resources and Forestry) (Div Court, 2022) the Divisional Court considered the Keeprite test for evidence in a judicial review (this one without a hearing process and thus with no formal SPPA s.20 record):
[60] In keeping with the principles set out in Keeprite Workers' Independent Union v. Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.), this court will consider any admissible evidence in the three affidavits that speaks to the background and context of this application as well as any issues regarding an alleged breach of natural justice. Nothing in any of the three affidavits speaks to any of the other Keeprite factors. This court gives no weight to any affidavit evidence of the parties not in keeping with the factors cited above.
. Guelph and Area Right to Life v. City of Guelph

In Guelph and Area Right to Life v. City of Guelph (Div Ct, 2021) the Divisional Court considered (and denied) the admission in a Charter judicial review of the municipality's filed affidavit setting out their policy submissions on a decision to disallow anti-abortion advertisements on municipal buses. The court granted the JR but sent the primary issue back down to the City for reconsideration with directions:
The proper record before the Court

[62] Before turning to the application of these principles to the facts in this case, it is necessary to address the issue raised by the applicant regarding the proper record before the Court.

[63] As indicated above, the applicant takes the position that the reasons for decision that this Court can consider are limited to the reasons originally provided by the City. Those reasons cannot be supplemented through the statements made by the City’s affiant in her affidavit. In contrast, the City invites the Court to take a very liberal approach to the scope of the record, arguing that the Court can and should look for other indicia beyond the reasons originally provided for the decision.

[64] The Court of Appeal of Alberta wrestled with a similar problem in Grande Prairie. In that context, the Court rejected an argument that the Court can only look at the reasons originally given by the decision maker. The Court’s rationale for this approach, at para. 36, is that the “transit system manager” could not be expected to engage in a Doré/Loyola analysis:
In this respect there is a distinction between the reason that the transit manager gave for rejecting the advertisement, and the Doré analysis on whether that decision was constitutionally justified. The transit manager never purported to do a Doré analysis, and so there is no Charter driven “reason” of his to be supplemented. Therefore, it is beside the point to argue that judicial review is usually limited to the “record”, because in this case the constitutional justification of the decision is not engaged at all by the decision on the record as it was originally communicated. If the respondent could only rely on the Doré analysis done by its transit manager, this appeal would have to be summarily allowed, because there was no such analysis.
[65] In that context, the Court went on to treat the municipality’s arguments in the court proceedings as its rationale for the decision to exclude the advertisements at issue in that case. Ultimately, as reviewed above, this led the Court to accept that the decision to reject the advertisements was reasonable because it represented a proportionate balancing between the municipality’s legislative objectives and the appellant’s rights to freedom of expression.

[66] In contrast, in South Coast, the Court of Appeal for British Columbia explicitly rejected this approach. In doing so, the Court made clear that, at a minimum, the original decision must demonstrate that the decision-maker engaged in the Doré/Loyola balancing exercise. The Court reasoned that it is not for the court to step into the shoes of the decision maker and supplement the decision with reasons that could have been provided:
In the case at bar, there are no dots for a court to connect. In denying the CCRB’s advertisement request, Mr. Beaudoin did not acknowledge the CCRB’s right to freedom of expression, let alone explain how the denial represents a proportionate balance with TransLink’s objectives. Accordingly, I would not endorse the view, expressed in Grande Prairie (City) (Alta. C.A.) at para. 40, that in a case such as this one it is open to the decision-maker to ask the court to consider “all possible objections to an advertisement, and all justifications for its rejections.” Doing so would subvert the deferential role of a reviewing court and, in the words of Rennie J., amount to “speculat[ion] as to what the tribunal might have been thinking”.
[67] In our view, the approach in South Coast is more consistent with the Doré/Loyola analysis and fundamental principles of administrative law.

[68] As reviewed above, the analysis prescribed by Doré/Loyola requires the court to assess whether an administrative decision maker has performed the requisite balancing of interests. On its face, this deferential standard of review does not permit the court to step into the shoes of the decision maker and perform the analysis that should have been conducted by the administrative decision maker. This is in fact how the Supreme Court approached the facts in Doré. At para. 66, the Court reviewed the competing values of “open, and even forceful, criticism of our public institutions with the need to ensure civility in the profession”, and then stated that disciplinary bodies “must demonstrate that they have given due regard to the importance of the expressive rights at issue, both in light of an individual lawyer’s right to expression and the public’s interest in open discussion”. The Court went on, at para. 70, to analyze the Disciplinary Council’s decision for indicia that it had engaged in this balancing exercise. Ultimately, the Court held that the Discipline Council’s decision to reprimand Mr. Doré was a reasonable balance of his “expressive rights with the statutory objectives”.

[69] The principle that the Court cannot substitute its own analysis for that of an administrative decision-maker exercising discretion is reinforced by recent decisions of the Supreme Court of Canada dealing with the reasonableness review.

[70] In Delta Air Lines Inc. v. Lukács, 2018 SCC 2, the Supreme Court rejected an argument that a court could substitute its own justification for an administrative decision that contained admittedly flawed reasoning. In that context, the Court held, at para. 27, that doing so “would undermine, if not negate, the vital role of reasons in administrative law… If we allow reviewing courts to replace the reasons of administrative bodies with their own, the outcome of administrative decisions becomes the sole consideration… This goes too far. It is important to maintain the requirement that where administrative bodies provide reasons for their decisions, they do so in an intelligible, justified, and transparent way.”

[71] The Supreme Court reinforced this principle in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. In Vavilov, the Court revisited the standard of review analysis, including providing significant guidance on how courts are to perform the reasonableness standard of review. In that context, at paragraph 83, the Court stated “that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome”. The Court went on to emphasize that the court’s role is not to reverse engineer the rationale for an administrative decision. Rather, the focus must be on the rationale for the decision given by the decision-maker.

[72] The City relies on the Supreme Court of Canada’s decision in Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, to argue that the court should take an expansive approach to the reasons for decision. In that case, at para. 29, the Court stated that formal reasons were not required for the Law Society’s decision. The Court could consider the reasons that could have been offered, including through review of the speeches given by Benchers of the Law Society.

[73] There is no doubt that many decision-making processes do not lead to formal reasons. The Supreme Court recognized this in Vavilov, where, at para. 91, the Court emphasized that administrative decisions are not to be held to a standard of perfection. In reviewing a decision for reasonableness, the Court should take account of the context in which the decision was made, including the decision-maker’s expertise and the history and context of the proceedings. However, as the Court emphasized at para. 95, “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.”

[74] In this case, the City asks that this Court take account of the justifications for the decision provided by its affiant on the application for judicial review. In our view, this evidence is not properly before the Court. During the contemporaneous communications between the City and the applicant at the time the decision was made to remove the advertisements, the only justification provided by the City was reliance on the rulings made by Ad Standards. In our view, based on the principles reviewed above, it is improper for the City to try to supplement its reasons for decision for the purpose of the application for judicial review by having the decision maker state after the fact that she considered the matters she was required to consider at the time she made the decision in the absence of any indicia that she did so at the time of the decision. The role of the court on an application for judicial review is to review the reasonableness of the decision made, including the reasons for the decision. What was in the mind of the decision maker but not articulated at the time cannot be relevant to this exercise.

[75] Having said this, we are mindful of the comments made by the Court of Appeal of Alberta in Grande Prairie to the effect that a transit manager cannot be expected to engage in the Doré/Loyola analysis. This no doubt poses a challenge for municipalities when having to consider whether to post contentious advertisements. However, in our view, a municipality cannot avoid making a proper decision by saying that its staff are not qualified to undertake the Doré/Loyola analysis. These are difficult and contentious decisions. They require balancing competing interests and nuanced principles. But, if a municipality wants to sell advertisement space on its public buses, it must comply with the law and it must have decision makers in place capable of performing the Doré/Loyola analysis when confronted with contentious advertising. The decision-maker’s reasons do not have to be perfect nor do they have to lengthy or sophisticated, but they must demonstrate the rationale for the decision.

[76] Finally, in this case, as we will review below, even if we had accepted that the City’s after the fact rationales for the decisions was properly before the Court, they do not serve to fix the defects in the original decisions. They do not demonstrate that the City engaged in the analysis required by Doré/Loyola.
. St. Lawrence Neighbourhood Association v. Ontario (Minister of Government and Consumer Services)

In St. Lawrence Neighbourhood Association v. Ontario (Minister of Government and Consumer Services) (Div Ct, 2021) the Divisional Court considered (and punted) a possible non-hearing 'statutory power of decision' (SPD) situation, on the issue of whether the decision-maker had to file a 'record' with the court on a JR [JRPA 10]:
[2] Toronto has commenced a proceeding in this court against Ontario and is now an applicant rather than a respondent. The two proceedings – one brought by Toronto and the other by St. Lawrence Neighbourhood Association, are scheduled to be heard together by a panel of this court on February 26, 2021.

[3] Toronto and Ontario disagree about whether Ontario is required to deliver a “record of decision” in Toronto’s case. Toronto says that, by legislation, the Minister is “responsible for” disposition of Crown property, and that destruction of four heritage buildings pursuant to this statutory grant of authority leads to a conclusion that a statutory power of decision has been exercised, within the meaning of the Statutory Powers Procedures Act (“SPPA”).

[4] Ontario says that decisions made respecting the demolition of the buildings are akin to business decisions made by a private person in respect to their own property and are not caught by the concept of “statutory power of decision” in the SPPA of the Judicial Review Procedure Act.

[5] The schedule directed by this court did not include a deadline for production of a record of decision. It did include a deadline for production by Ontario of its application materials and a schedule for cross-examinations. Toronto fears that Ontario will adduce no evidence about who made the decision to demolish the buildings without complying with the Heritage Act and the Subdivision Agreement, and so there will be no record before the court about the decision impugned in this application. Toronto referred to the decision of Myers J. in Tesla Motors Canada ULC v. Ontario (Ministry of Transportation), 2018 ONSC 5062, as a case where Ontario failed to disclose information about an impugned decision while, at the same time, asserting that the decision reflected a core policy choice protected from judicial review.

[6] The applicants’ cases rest on the position that Ontario has breached the Heritage Act and the Subdivision Agreement. It is for the applicants to establish this case. To the point of the case management conference, Ontario had not adduced its record in defence of the application. If Ontario relies upon a statutory power of decision to exempt Ontario from meeting its obligations under the Heritage Act or the Subdivision Agreement, it may well be that a statutory power of decision will emerge as an element of the case. If Ontario does not raise such a defence, and the demolition decision is nothing more than an operational choice made under a statutory grant of authority and responsibility, then it may well be that no statutory power of decision is engaged.

[7] In my view this issue should be left for the panel to decide on the record as it exists at the time the cases are heard. It will be open to the panel, for example, to conclude that no statutory power of decision is engaged, and to draw whatever inferences are available and appropriate on the evidence before it regarding the decision-making process in this case. It will be open to the panel, for example, to adjourn the hearing and order further disclosure, and/or provision of a record of decision, if, in the view of the panel, that is the appropriate thing to do.

[8] The City expressed concern that Ontario is trying to position the case as a private law dispute to argue that the matter should be before the Superior Court (where the St. Lawrence Neighbourhood Association case started and from whence it was transferred to this court). That, too, is a matter to be addressed with the panel, which could transfer the cases or parts of them back to the Superior Court, if that was thought appropriate, on such terms as are just. The goal here, of course, is to get to the bottom of these cases on the merits, in quick order, given the interim order made by this court to preserve the court’s ability to do justice to the case.



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Last modified: 16-10-22
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