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Appeal-Judicial Review - Reasons - Proportionate to Importance of Issue to Party ('Responsive Justification'). Potter v. Office of the Independent Police Review Director
In Potter v. Office of the Independent Police Review Director (Div Court, 2023) the Divisional Court considered (and dismissed) a JR of a decision by the Director of OIPRD to find no police misconduct after a local police investigation stemming from the complaint of the applicant.
In these quotes, the court considers that reasons for decision be proportionate to the importance of the matter to the applicant ('responsive justification'):The impact of the decision on the Applicant
[80] In Vavilov, the Court held that where a decision involves the potential for significant personal impact or harm, there is a heightened responsibility on the part of decision-makers to ensure that the reasons demonstrate that they considered the consequences of the decision and that those consequences are justified. Responsive justification requires “that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention”: Vavilov, at paragraph 133. Examples of such “harsh consequences” include anything that would threaten an individual’s life, liberty, dignity or livelihood: Vavilov, at paragraph 135. Where the chief of police finds the misconduct allegations to be unsubstantiated, the Director’s decision to confirm the chief’s findings only precludes the possibility of employment consequences for the respondent officer. There is no direct impact on the complainant.
[81] As the Respondent points out, the PSA does not provide a complainant with substantive benefits or remedies. The complainant does not receive monetary awards or compensation and there are no personal or financial remedies a complainant can pursue. Rather, the outcome of the process is directed at remediating police conduct, improving police accountability, and increasing public confidence in police oversight. Where a complaint proceeds to an investigation, the PSA entitles a complainant to no more than a copy of the investigative report and, where misconduct is substantiated, the right to participate in an informal resolution or party status if the matter proceeds to a hearing. Complainants have a right to make a complaint, but they are not entitled to a particular investigative outcome or resolution: Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363, at paragraph 23. The Director’s decision to confirm the Chief’s findings does not threaten the complainant’s life, liberty, dignity, or livelihood in any way. Consequently, there was no heightened responsibility for the Director to consider the consequences of his decision on the Applicant. . De Rose v. Windsor-Essex Catholic District School Board
In De Rose v. Windsor-Essex Catholic District School Board (Div Court, 2022) the Divisional Court considered a JR of an HRTO decision to stay a complaint as an abuse of process. In this quote the court cites Vavilov on the point that the thoroughness of the reasons for decision, like the degree of administrative fairness, is higher when the matter is of more significance to the applicant:[83] The Applicant argues that the Vice-Chair did not properly consider her responsibilities given the significance of the case to the Applicant. In support of this argument, counsel points to paragraphs 133 to 135 of Vavilov, supra. Those paragraphs state:[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, at para. 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 and 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 decision maker 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. For example, this Court has held that the Immigration Appeal Division should, when exercising its equitable jurisdiction to stay a removal order under the Immigration and Refugee Protection Act, consider the potential foreign hardship a deported person would face: Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84.
[135] Many administrative decision makers 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 administrative decision makers 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 and law.
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