Administrative Law - Reasons for Decision. Beddows v. Canada (Attorney General)
In Beddows v. Canada (Attorney General) (Fed CA, 2020) the Federal Court of Appeal set out the reasons for decision requirements in an administrative context:
 As for the appellant’s contention that the CDS committed a reviewable error by failing to provide adequate reasons in denying the 2017 Grievance, it has, with respect, no merit. Reasons for decisions in the administrative justice context need not be perfect; as long as they allow the reviewing court to understand why the decision-maker made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the court will normally refrain from interfering with the decision (Vavilov at para. 91, quoting from Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62,  3 S.C.R. 708 at para. 16). This threshold has been met. There is similarly no merit in the appellant’s argument that the CDS inappropriately relied on Treasury Board policies in dismissing the 2017 Grievance, as we fail to see any reference to such policies in the impugned decision. . JE and KE v. Children’s Aid Society of the Niagara Region
In JE and KE v. Children’s Aid Society of the Niagara Region (Div Ct, 2020) the Divisional Court granted a rare judicial review of a Child and Family Services Review Board order reversing a children's aid society adoption decision. Following Vavilov in reviewing a judicial review error of law on 'reasonableness', the court makes the obvious but so often (astonishingly) overlooked point that "a reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons":
 The parties agree that the applicable standard of review is reasonableness, as recently articulated by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. We agree. It is worth reviewing however, some of the guidance offered by the Supreme Court in Vavilov about the application of the reasonableness test.. Trinity Western University v. Law Society of Upper Canada
 Reasonableness, of course, finds its starting point in judicial restraint and respects the distinct role of administrative decision-makers. The Vavilov approach focuses on justification and methodological consistency because “reasoned decision-making is the lynchpin of institutional legitimacy” (para. 74). Thus, reasons are the “primary mechanism by which administrative decision makers show that their decisions are reasonable” (para. 81). For this reason, a reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons.
 A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker. It is not enough for the outcome of the decision to be justifiable. The decision must also be justified by way of the reasons. An otherwise reasonable outcome cannot stand if it was reached on an improper basis (para.86).
 A decision will be unreasonable if the reasons for it fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis. 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. Similarly, the reasonableness 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, (paras 103 and 104).
 Whether the outcome is justified in light of the legal and factual constraints that bear on the decision-maker involves a consideration of, among other things, the governing statutory scheme, the evidence before the decision-maker and facts of which the decision-maker may take notice, the submissions of the parties, the past practices and decisions of the administrative body, and the potential impact of the decision on the individuals to whom it applies.
In Trinity Western University v. Law Society of Upper Canada (SCC, 2018) the Supreme Court of Canada ties the standard of review issue of 'reasonableness' with the administrative law issue of 'giving reasons for a decision' in a way that I find compelling. It's not that I agree with the case that some decisions can avoid reasons, I don't - but the connection of 'reasons' from these two (what I've always considered separate) areas of law is novel to me. Now we can argue that, as a matter of 'reasonableness' - as a standard of review - that a decision that lacks written reasons thereby fails the 'reasonableness' standard of review (though the other side can argue this passage in opposition):
 For the same reasons given in Law Society of B.C., there was no requirement on the part of the LSUC to give reasons which provided formal explanation for why the decision to refuse to accredit TWU’s proposed law school amounted to a proportionate balancing of freedom of religion with the statutory objectives of the Law Society Act (paras. 52-54). The speeches the LSUC Benchers made during the Convocations of April 10 and 24, 2014, demonstrate that the Benchers were alive to the question of the balance to be struck between freedom of religion and their statutory duties.. Canada (Attorney General) v. Honey Fashions Ltd.
 Reasonableness review requires “a respectful attention to the reasons offered or which could be offered in support of a decision” (Dunsmuir v. New Brunswick, 2008 SCC 9,  1 S.C.R. 190, at para. 48 (emphasis added); see also Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62,  3 S.C.R. 708, at para. 11). Reviewing courts “may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome” (Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36,  2 S.C.R. 559, at para. 52, quoting Newfoundland Nurses, at para. 15). In our view, the Benchers came to a decision that reflected a proportionate balance.
In Canada (Attorney General) v. Honey Fashions Ltd. (Fed CA, 2020) the Federal Court of Appeal relied on the Vavilov emphasis on adequate reasons for reversing a judicial review decision below:
 In my view, the respondent rightly points to the importance given by the Supreme Court in Vavilov to the justification of a decision. To the extent that reasons have been provided, the reviewing court must pay close attention to those reasons to ensure that the decision is the result of an "“internally coherent and rational chain of analysis”" (Vavilov, at para. 85). In other words, the reasons may be as important as the result. As the majority stated at paragraph 86:. R. v. Victoria
In short, it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies. While some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reached on an improper basis. In addition to the reasons provided, Vavilov directs the reviewing court to examine the reasonableness of an administrative decision in terms of the legal and factual constraints on the decision maker’s discretion. Among the constraints that bear on the reasonableness of a decision are the governing statutory scheme, the evidence before the decision maker, past practices and past decisions, and the impact of the decision on the affected individual. I will turn to each of these factors as they are the most relevant to the resolution of this dispute.
 Because they exercise delegated authority, administrative decision makers must obviously act within the powers they receive by statute; accordingly, the governing statutory scheme is of crucial importance in determining the reasonableness of their decisions. In that respect, the range of discretion given to a decision maker will be of particular interest in assessing whether they have acted within the confines of the law.
In R. v. Victoria (Ont CA, 2018) [a criminal case] the Court of Appeal canvassed why, generally, judges should give reasons:
 To determine this ground of appeal requires the application of principles that govern the obligations of trial judges to provide reasons for evidentiary rulings .... Canada (Minister of Citizenship and Immigration) v. Vavilov
 First, the obligation to provide reasons.
 It is the trial judge, and only the trial judge, upon whom we settle the obligation to provide adequate reasons for rulings on evidentiary and procedural issues. This obligation is not dependent upon a request from counsel for reasons: R. v. Czibulka, 2011 ONCA 82, 267 C.C.C. (3d) 276, at para. 38.
 Among the purposes served by the requirement for reasons are to explain the judge’s disposition of the issue and to facilitate appellate review of the findings made at trial. The content of the duty to provide reasons is linked to their purpose. And the purpose varies with the context: R. v. Dinardo, 2008 SCC 24,  1 S.C.R. 788, at para. 24; R. v. Sheppard, 2002 SCC 26,  1 S.C.R. 869, at para. 24.
 Appellate courts adopt a functional approach to their review of the sufficiency of reasons. Our inquiry into sufficiency is not some abstract exercise, rather is directed at whether the reasons respond to the live issues raised, with due regard to the evidence adduced and the positions advanced by counsel on the issues: Dinardo, at para. 25. Appeals grounded on claims of insufficient reasons will fail unless the reasons are so deficient that they foreclose meaningful appellate review: Sheppard, at para. 25.
 Reasons are not insufficient where the basis for the judge’s conclusion is apparent from the record, even if it is not articulated in a formal, self-contained decision. Where the judge’s reasons are deficient, it is our task to examine the record and to determine whether the reasons for the decision are, in fact, patent on that record: Dinardo, at para. 32; Sheppard, at para. 46; R. v. Walker, 2008 SCC 34,  2 S.C.R. 245, at para. 20.
 The absence or inadequacy of reasons is not a free-standing ground of appeal. Our approach to claims of absent or inadequate reasons is contextual. We require an appellant to show not only a deficiency in the reasons, but also that this deficiency has caused prejudice to the exercise of his or her legal right to an appeal in a criminal case. Provided the reasons are sufficient to serve the purpose for which the duty is imposed, are reasonably intelligible to the parties and provide the basis for meaningful appellate review of the correctness of the decision, they fulfil the judge’s duty: R. v. Braich, 2002 SCC 27,  1 S.C.R. 903, at paras. 31 and 38.
In Canada (Minister of Citizenship and Immigration) v. Vavilov (SCC, 2019) the Supreme Court of Canada engaged in an extended homage to 'reasons for decision' (esp. written reasons) in the administrative law context:
A. Procedural Fairness and Substantive Review. Esgin (Re)
 Before turning to a discussion of the proposed approach to reasonableness review, we pause to acknowledge that the requirements of the duty of procedural fairness in a given case — and in particular whether that duty requires a decision maker to give reasons for its decision — will impact how a court conducts reasonableness review.
 It is well established that, as a matter of procedural fairness, reasons are not required for all administrative decisions. The duty of procedural fairness in administrative law is “eminently variable”, inherently flexible and context-specific: Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC),  1 S.C.R. 653, at p. 682; Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC),  2 S.C.R. 817, at paras. 22-23; Moreau-Bérubé, at paras. 74‑75; Dunsmuir, at para. 79. Where a particular administrative decision-making context gives rise to a duty of procedural fairness, the specific procedural requirements that the duty imposes are determined with reference to all of the circumstances: Baker, at para. 21. In Baker, this Court set out a non-exhaustive list of factors that inform the content of the duty of procedural fairness in a particular case, one aspect of which is whether written reasons are required. Those factors include: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself: Baker, at paras. 23-27; see also Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48 (CanLII),  2 S.C.R. 650, at para. 5. Cases in which written reasons tend to be required include those in which the decision-making process gives the parties participatory rights, an adverse decision would have a significant impact on an individual or there is a right of appeal: Baker, at para. 43; D. J. M. Brown and the Hon. J. M. Evans, with the assistance of D. Fairlie, Judicial Review of Administrative Action in Canada (loose-leaf), vol. 3, at p. 12-54.
 In the case at bar and in its companion cases, reasons for the administrative decisions at issue were both required and provided. Our discussion of the proper approach to reasonableness review will therefore focus on the circumstances in which reasons for an administrative decision are required and available to the reviewing court.
 Notwithstanding the important differences between the administrative context and the judicial context, reasons generally serve many of the same purposes in the former as in the latter: R. v. Sheppard, 2002 SCC 26 (CanLII),  1 S.C.R. 869, at paras. 15 and 22-23. Reasons explain how and why a decision was made. They help to show affected parties that their arguments have been considered and demonstrate that the decision was made in a fair and lawful manner. Reasons shield against arbitrariness as well as the perception of arbitrariness in the exercise of public power: Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine, at paras. 12-13. As L’Heureux-Dubé J. noted in Baker, “[t]hose affected may be more likely to feel they were treated fairly and appropriately if reasons are given”: para. 39, citing S.A. de Smith, J. Jowell and Lord Woolf, Judicial Review of Administrative Action (5th ed. 1995), at pp. 459-60. And as Jocelyn Stacey and the Hon. Alice Woolley persuasively write, “public decisions gain their democratic and legal authority through a process of public justification” which includes reasons “that justify [the] decisions [of public decision makers] in light of the constitutional, statutory and common law context in which they operate”: “Can Pragmatism Function in Administrative Law?” (2016), 74 S.C.L.R. (2d) 211, at p. 220.
 The process of drafting reasons also necessarily encourages administrative decision makers to more carefully examine their own thinking and to better articulate their analysis in the process: Baker, at para. 39. This is what Justice Sharpe describes — albeit in the judicial context — as the “discipline of reasons”: Good Judgment: Making Judicial Decisions (2018), at p. 134; see also Sheppard, at para. 23.
 Reasons facilitate meaningful judicial review by shedding light on the rationale for a decision: Baker, at para. 39. In Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (CanLII),  3 S.C.R. 708, the Court reaffirmed that “the purpose of reasons, when they are required, is to demonstrate ‘justification, transparency and intelligibility’”: para. 1, quoting Dunsmuir, at para. 47; see also Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 (CanLII),  1 S.C.R. 3, at para. 126. The starting point for our analysis is therefore that where reasons are required, they are the primary mechanism by which administrative decision makers show that their decisions are reasonable — both to the affected parties and to the reviewing courts. It follows that the provision of reasons for an administrative decision may have implications for its legitimacy, including in terms both of whether it is procedurally fair and of whether it is substantively reasonable.
In Esgin (Re) (Ont CA, 2019) the Court of Appeal heard an appeal from a finding that the appellant was not criminally responsible on account of mental disorder before the Ontario Review Board:
 In my view, the reasons of the Board are inadequate and did not permit meaningful appellate review. Decision makers must give reasons for their decisions that display the qualities of accountability, intelligibility, adequacy and transparency, and that are responsive to the live issues. See R. v. Sheppard, 2002 SCC 26 (CanLII),  1 S.C.R. 869 per Binnie J. at para. 55. See also Clifford v. OMERS, 2009 ONCA 670 (CanLII); Vancouver International Airport Authority v. Public Service Alliance of Canada, 2010 FCA 158 (CanLII), at para. 16.. Construction Labour Relations v. Driver Iron Inc.
In Construction Labour Relations v. Driver Iron Inc. (SCC, 2012) an Alberta labour relations board finding, that an employer was bound by a collective agreement, was upheld on judicial review on a reasonableness standard against an argument that the board did not provide adequate reasons in it's decision. The basis for this was that the board was an expert tribunal and that:
[para 3] The Board did not have to explicitly address all possible shades of meaning of these [SS: statutory] provisions. This Court has strongly emphasized that administrative tribunals do not have to consider and comment upon every issue raised by the parties in their reasons.[Note: this reasoning may be challengeable with the reduced deference granted to expert tribunals on appeal or judicial review since Vavilov (SCC, 2019) [see the full Vavilov summary from the 'Administrative Law' table of contents.]