Judicial Review - Record. Guelph and Area Right to Life v. City of Guelph
In Guelph and Area Right to Life v. City of Guelph (Div Court, 2022) the Divisional Court considered the record required of a judicial application challenging a municipality's removal of bus advertising under s.2(b) of the Charter. These decisions, not requiring a statutory hearing, lacked the SPPA s.20 duty to create a formal documentary 'record' and thus the court had to consider what documentary record would suffice in the alternative. Basically, the court held that - for a Charter decision [here, the Dore/Loyola doctrine] - the municipality had a duty to to ensure that adequately informed staff (logically, legal staff) were made available to make such Charter determinations. As the City did not, and as such the Dore/Loyola determination was not made, the City lost and the application was granted:
The proper record before the Court. Reflection Productions v. Ontario Media Dev. Corp.
 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.
 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.
 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. 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.
 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”. In our view, the approach in South Coast is more consistent with the Doré/Loyola analysis and fundamental principles of administrative law.
 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”.
 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.
 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.”
 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.
 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.
 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.”
 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.
 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.
 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.
In Reflection Productions v. Ontario Media Dev. Corp. (Div Ct, 2021) the Divisional Court considered an issue of the record required at an application for judicial review, and the efforts that a party must make to create it:
 The Applicant served a Notice of Examination under Rule 39.03 of the Rules of Civil Procedure, which is a mechanism to compel oral testimony. The Notice of Examination was quashed. The decision to quash was not appealed. The Notice of Application seeking judicial review does not raise the decision to quash the Notice of Examination as an error.
 A subpoena duces tecum is a mechanism to have a witness present oral testimony. It is not an order to produce documents to a party outside of court, as set out in Law Society of Saskatchewan v Abrametz, 2016 SKQB 134 at para 46:
The document in issue, a subpoena duces tecum, is understood to have a particular function - to compel the subpoenaed person to court, or other independent tribunal, to testify and to bring with him/her certain, specified documents. Watt J. (as he then was) described a subpoena in these terms in R. v. Finkle,  O.J. No. 3506 (Ont. S.C.J.) (QL): "literally translated 'under penalty', [a subpoena] is a command to the person named to appear at a time and place specified to give testimony about a matter in issue between the parties to a proceeding" (para. 88). Watt J. then explained the function of a subpoena duces tecum and the limits that ought to attach to its use: Although not raised in the Notice of Application, the applicant now argues that the record filed by the decision-maker was underinclusive.
... A subpoena duces tecum requires the witness to bring with him or her things like books, papers and other things connected with his or her testimony. In the usual course, a subpoena duces tecum is not used to obtain these other things, which are often used as aides memoires for production at trial.
It is uncontroversial that, where alternative methods of obtaining evidence are available, the party who seeks the evidence may generally choose the means to achieve that end. At the same time, however, courts should be chary of manifest circumventions of traditional methods of acquiring evidence, especially those that avoid adherence to established constitutional principle. A subpoena duces tecum ought not to be used to avoid the scrutiny associated with other methods of acquisition. See, by comparison, R. v. French (1977), 1977 CanLII 2117 (ON CA), 37 C.C.C. (2d) 201, 213-4 (Ont. C.A.) per MacKinnon J.A., affirmed on other grounds (1979), 1979 CanLII 49 (SCC), 47 C.C.C. (2d) 411 (S.C.C.). [Emphasis in original.]
 Section 10 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 provides:
Record to be filed in court Ergo, pursuant to s. 10 of the Judicial Review Procedure Act, it was available to the applicant to bring a motion seeking production of documents it alleges were relied on by the decision-maker but are not contained in the record: see, for example K.D. v. Peel Children’s Aid Society, 2017 ONSC 7392 (Div. Ct.) at paras. 16-17). The applicant failed to do so. As a result, it is precluded from raising this issue for the first time on judicial review.
When notice of an 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.
 The applicant’s argument in this regard therefore fails.