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Administrative Law - Standard of Review (post-Vavilov)

. 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":
[38] 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.

[39] 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.

[40] 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).

[41] 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).

[42] 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.
. Magee (Re)

In Magee (Re) (Ont CA, 2020) the Court of Appeal summarized some of the Vavilov case on the reasonableness of a decision:
[19] A reasonable decision is one that, having regard to the reasoning process and the outcome of the decision, properly reflects an internally coherent and rational chain of analysis: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at paras. 102-104. In addition, a reasonable decision must be justified in relation to the constellation of law and facts that are relevant to the decision. For instance, the governing statutory scheme and the evidentiary matrix can constrain how and what an administrative decision-maker can lawfully decide. Further, “[w]here the impact of the decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes”: Vavilov, at para. 133. The principle of responsive justification means that especially in such high-stakes cases, the decision maker must meaningfully explain why its decision best reflects the legislature’s intention.

[20] A Board’s disposition will be unreasonable if the underlying reasons cannot bear even a somewhat probing examination: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 33.
. Entertainment Software Assoc. v. Society Composers

In Entertainment Software Assoc. v. Society Composers (Fed CA, 2020) the Federal Court of Appeal considered a judicial review application where the new s.2.4(1.1) 'making available' of the Copyright Act was at issue. This provision makes it a 'communication of a work' under the Act (for which a SOCAN tariff was payable) to "allow() a member of the public to have access to it from a place and at a time individually chosen by that member of the public". As much of public internet use of copyrighted material is of this nature, the case was quite significant. At paras 14-48 [esp 23] Stratas JA engages in his own take and emphases on Vavilov.

. Canada (Attorney General) v. Poirier

In Canada (Attorney General) v. Poirier (Fed CA, 2020) the Federal Court of Appeal summarized the recent Vavilov case on the standard of review of reasonableness on a judicial review:
[15] Neither party devoted much of its argument to the question of the standard of review, and both parties’ memoranda of fact and law were submitted prior to the recent landmark decision of the Supreme Court of Canada on this question in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 (Vavilov). For this reason, I feel compelled to say just a few words on the subject. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process, as well as with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law: Vavilov at para. 86, Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47. To be reasonable, a decision must be based on reasoning that is both rational and logical. The reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that there is a line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived: Vavilov at para. 102.
. Nation Rise Wind Farm Limited Partnership v. Minister of the Environment, Conservation and Parks

In Nation Rise Wind Farm Limited Partnership v. Minister of the Environment, Conservation and Parks (Ont CA, 2020) the Divisional Court cited the Vavilov case on the standard of review:
[54] All the parties agreed that the standard of review with respect to the merits of the Minister’s decision is reasonableness (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 23 - 24).

[55] In Vavilov, the Supreme Court set out a detailed guide for the conduct of reasonableness review, explaining the essential nature of the inquiry at para. 85:
… 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.
Thus, in applying a standard of reasonableness, the court must focus on the reasons of the decision maker, considering both the reasoning process and the outcome (Vavilov at para. 83).
. Canada Post Corp. v. Canadian Union of Postal Workers

In Canada Post Corp. v. Canadian Union of Postal Workers (SCC, 2019) the Supreme Court of Canada applied the new Vavilov standard of review regime to a judicial review, this case related to a complaint of health and safety regulations under the Canada Labour Code which was eventually taken to a federal tribunal. On a judicial review of the tribunal's decision, which went through both federal court levels, the Supreme Court held that the standard of review was reasonableness. The court's ruling stressed the importance of well-prepared 'reasons' by the tribunal below and is a useful first illustration of the new Vavilov standard of review in action:
C. Conducting Reasonableness Review Under Vavilov

[28] In Vavilov, this Court held that “[r]easonableness review aims to give effect to the legislature’s intent to leave certain decisions with an administrative body while fulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law” (para. 82). The Court affirmed that “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” (para. 86 (emphasis in original)).

[29] Vavilov provides guidance for conducting reasonableness review that upholds the rule of law, while according deference to the statutory delegate’s decision. While deferential review has never meant showing “blind reverence” to statutory decision makers (Dunsmuir, at para. 48), in Vavilov the Court re‑emphasized that judicial review considers not only the outcome, but also the justification for the result (where reasons are required). Reasons, the Court wrote, “are the primary mechanism by which administrative decision makers show that their decisions are reasonable” (para. 81). “[W]here reasons are provided but they fail to provide a transparent and intelligible justification . . . the decision will be unreasonable” (Vavilov, at para. 136).

[30] In this case, the Appeals Officer was required to give written reasons (Code, s. 146.1(2)). He did so, and in this case provided detailed reasons for his decision. As I will discuss below, the “discipline of reasons” (R. J. Sharpe, Good Judgment: Making Judicial Decisions (2018), at p. 134, cited in Vavilov, at para. 80) as exercised in this case “demonstrate[s] that the decision was made in a fair and lawful manner” (Vavilov, at para. 79). His reasons cogently explain “the rationale for [the] decision” (Vavilov, at para. 81). The administrative decision maker’s reasons in this case were exemplary. However, it is important to note that what is required of statutory delegates to justify their decision will depend on the context in which the decision is made. The reviewing court should be mindful that perfection is not the standard (Vavilov, at para. 91). Instead, “when read in light of the evidence before it and the nature of its statutory task, the [administrative decision maker]’s reasons [should] adequately explain the bases of its decision” (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (CanLII), [2011] 3 S.C.R. 708, at para. 18, quoting Canada Post Corp. v. Public Service Alliance of Canada, 2010 FCA 56 (CanLII), [2011] 2 F.C.R. 221, at para. 163, per Evans J.A., dissenting; this Court adopted Evans J.A.’s reasons: see 2011 SCC 57 (CanLII), [2011] 3 S.C.R. 572). The reasons should demonstrate that the decision conforms to the relevant legal and factual constraints that bear on the decision maker and the issue at hand (Vavilov, at paras. 105‑7).

[31] 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” (Vavilov, at para. 85). Accordingly, when conducting reasonableness review “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at [the] conclusion” (Vavilov, at para. 84, quoting Dunsmuir, at para. 48). The reasons should be read holistically and contextually in order to understand “the basis on which a decision was made” (Vavilov, at para. 97, citing Newfoundland Nurses).

[32] A reviewing court should consider whether the decision as a whole is reasonable: “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review” (Vavilov, at para. 90). The reviewing court must ask “whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para. 99, citing Dunsmuir, at paras. 47 and 74, and Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2 (CanLII), [2012] 1 S.C.R. 5, at para. 13).

[33] Under reasonableness review, “[t]he burden is on the party challenging the decision to show that it is unreasonable” (Vavilov, at para. 100). The challenging party must satisfy the court “that any shortcomings or flaws relied on . . . are sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100). In this case, that burden lies with the Union.

[34] The analysis that follows is directed first to the internal coherence of the reasons, and then to the justification of the decision in light of the relevant facts and law. However, as Vavilov emphasizes, courts need not structure their analysis through these two lenses or in this order (para. 101). As Vavilov states, at para. 106, the framework is not intended as an invariable “checklist for conducting reasonableness review”. The structure I have adopted is one that is convenient and useful in the circumstances of this case.

(1) The Appeals Officer’s Decision Was Based on an Internally Coherent Reasoning

[35] As I discuss below, the Appeals Officer’s analysis followed a rational and logical line of reasoning. He employed well‑established principles of statutory interpretation, engaged with the submissions and evidence before him, and drew on his knowledge of the field when considering the practical implications of his interpretation.

[36] Before this Court and the courts below, the Union argued that the Appeals Officer’s decision was internally inconsistent. The Union submitted that the Appeals Officer’s findings with respect to Canada Post’s health and safety practices and policies (for example, conducting route audits, and a protocol for identifying and resolving hazards) demonstrated that the employer had the capacity to fulfil the obligation set out in s. 125(1)(z.12). Therefore, the conclusion that para. (z.12) could not apply to a work place outside the control of the employer was unreasonable.

[37] I agree with Near J.A. that the Appeals Officer’s decision was not rendered unreasonable by, on the one hand, recognizing that Canada Post through its internal policies seeks to identify and resolve hazards for letter carriers, including the audit of certain routes, while also concluding that Canada Post does not have the capacity to “ensure all areas of the work place outside the physical Canada Post building are inspected annually” (para. 20). Canada Post’s discretionary policies (pursued in furtherance of its responsibilities under the Code) take into account practical considerations regarding the work of letter carriers. The duty under para. (z.12) is mandatory; if applicable, Canada Post would have been obligated to ensure that every part of the work place was inspected annually, regardless of any impracticalities arising from the nature of the work of its employees.

[38] Far from being internally incoherent, the Appeals Officer’s reasoning demonstrates his in‑depth understanding of the ways in which Canada Post fulfils the purposes of the Code, bearing in mind the practical limitations of a work place spanning 72 million kilometres of postal routes. With respect to the Union’s position, Canada Post’s ability to carry out some route audits does not imply that it has the capacity to inspect all routes in a year. Further, as I explain below, the Appeals Officer’s interpretation of the provision centred on control over the work place, not the finite capacity of the employer to fulfil the obligation. Findings related to the employer’s capacity to carry out such extensive route audits are supplementary to the Appeals Officer’s reasoning regarding how the statutory scheme should operate in the circumstances of this case.

[39] Accordingly, I find that the Appeals Officer’s reasons do not in any way display a fatal flaw in rationality or logic.

(2) The Appeals Officer’s Decision Was Defensible in Light of the Relevant Legal and Factual Constraints

(a) The Appeals Officer’s Interpretation of Section 125(1)(z.12)

[40] The administrative decision maker “holds the interpretative upper hand” (McLean v. British Columbia (Securities Commission), 2013 SCC 67 (CanLII), [2013] 3 S.C.R. 895, at para. 40). When reviewing a question of statutory interpretation, a reviewing court should not conduct a de novo interpretation, nor attempt to determine a range of reasonable interpretations against which to compare the interpretation of the decision maker. “[A]s reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did” (Delios v. Canada (Attorney General), 2015 FCA 117 (CanLII), 100 Admin. L.R. (5th) 301, at para. 28, quoted in Vavilov, at para. 83). The reviewing court does not “ask itself what the correct decision would have been” (Law Society of New Brunswick v. Ryan, 2003 SCC 20 (CanLII), [2003] 1 S.C.R. 247, at para. 50, quoted in Vavilov, at para. 116). These reminders are particularly important given how “easy [it is] for a reviewing court to slide from the reasonableness standard into the arena of correctness when dealing with an interpretative issue that raises a pure question of law” (New Brunswick Liquor Corp. v. Small, 2012 NBCA 53 (CanLII), 390 N.B.R. (2d) 203, at para. 30).

[41] With respect, the majority in the Court of Appeal appears to have conducted a de novo interpretation of the impugned provision; it also failed to engage adequately with the Appeals Officer’s reasoning. Such an approach, whereby a “court embarks on its own interpretation of the statute to determine the reasonableness of the tribunal’s decisions,” is in tension with the guidance of the majority reasons in Vavilov on how to conduct reasonableness review, as it leaves “little room for deference” (J. M. Evans, “Triumph of Reasonableness: But How Much Does It Really Matter?” (2014), 27 C.J.A.L.P. 101, at p. 109). Taking a “reasons first” approach rather requires the reviewing court to start with how the decision maker arrived at their interpretation, and determine whether it was defensible in light of the interpretative constraints imposed by law.

[42] Where the meaning of a statutory provision is in dispute, the administrative decision maker must demonstrate in their reasons that they were alive to the “essential elements” of statutory interpretation: “the merits of an administrative decision maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision” (Vavilov, at para. 120). Because those who draft statutes expect that the statute’s meaning will be discerned by looking to the text, context and purpose, a reasonable interpretation must have regard to these elements — whether it is the court or an administrative decision maker tasked with the interpretative exercise (Vavilov, at para. 118). In addition to being harmonious with the text, context and purpose, a reasonable interpretation should conform to any interpretative constraints in the governing statutory scheme, as well as interpretative rules arising from other sources of law. In this case, the Appeals Officer’s interpretation was constrained by interpretative rules within the Code, the Interpretation Act, R.S.C. 1985, c. I‑21, and common law rules of statutory interpretation.

[43] The Appeals Officer’s interpretation was guided by the general rule set out in s. 12 of the Interpretation Act that “[e]very enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects” (quoted in OHSTC reasons, at para. 91). As I discuss below, the Appeals Officer’s reasons amply demonstrate that he considered the text, context, purpose, as well as the practical implications of his interpretation (see West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22 (CanLII), [2018] 1 S.C.R. 635, at para. 41). His focus on practical implications did not supplant the need to ensure consistency with the text, context and purpose of the provision, but rather “enrich[ed] and elevate[d] the interpretive exercise” (Vavilov, at para. 119). He demonstrated a sustained effort to discern legislative intent throughout his analysis, and did not simply “‘reverse‑engineer’ a desired outcome” (Vavilov, at para. 121).

(i) The Text of Section 125(1)(z.12)

[44] In deciding whether the inspection obligation under para. (z.12) required Canada Post to inspect letter carrier routes and points of call, the Appeals Officer determined that he had to interpret the term “work place”, as well as the “scope of the specific obligations arising from subsection 125(1)” (para. 93).

[45] Starting with the introductory text of s. 125(1), the Appeals Officer determined that “[i]t is clear . . . that, in order for any obligation under subsection 125(1) to apply to an employer, it must be in respect of a work place” (para. 88). The Appeals Officer began his interpretation with the statutory definition of “work place” at s. 122(1). The definitions in s. 122(1) apply to Part II of the Code (Occupational Health and Safety). Section 122(1) states: “work place means any place where an employee is engaged in work for the employee’s employer”.

[46] Despite the submission of Canada Post that what constitutes a work place depends on whether the employer controls the location or work activity, it was not open to the Appeals Officer to deviate from the definition provided by the governing statute. The Appeals Officer’s interpretation conformed to the definition of “work place” in the Code. He concluded that “‘work place’ must be interpreted broadly to account for all the areas in which an employee may be engaged in work, and in this case, in light of the necessary mobility of a letter carrier” (para. 91). The Appeals Officer followed prior OHSTC decisions on this point (Bell Canada, 2011 OHSTC 21, at paras. 30 and 32 (CanLII), cited in OHSTC reasons, at paras. 30 and 50; Mowat Express v. Communications, Energy and Paper Workers Union of Canada, [1994] C.L.C.R.S.O.D. No. 4 (QL), cited in OHSTC reasons, at para. 92; Seair Seaplanes Ltd. v. Bhangal, 2009 LNOHSTC 24 (QL), at paras. 39‑43, cited in OHSTC reasons, at para. 30).

[47] Turning to the scope of the obligations arising from s. 125(1), the Appeals Officer noted that “[t]he very precise wording . . . indicates that the obligations set out in subsection 125(1) centre around the notion of control” (para. 93). In his view, the phrases “every work place controlled by the employer”, and “every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity” in s. 125(1) are to be read disjunctively: “There is a clear distinction between situations where work places are controlled by the employer and those where they are not” (para. 93).

[48] Before this Court, the Union argued that the Appeals Officer’s interpretation is contrary to the plain text of the statute. In its view, nothing in the introductory language of s. 125 indicates that the obligations listed in s. 125 are meant to apply exclusively to one or the other of the two circumstances. The Union says that the word “and” in this context is to be read conjunctively, meaning that all the obligations apply to employers that control the work place, and to employers that control the work activity. Further, the Union submitted that even when read disjunctively, as long as one pre‑condition is met (control of the work place or control over the work activity), all of the obligations follow.

[49] I agree with Near J.A. that the word “and” can be read conjunctively or disjunctively depending on the context (para. 16). The use of the word “and” in the opening phrase of s. 125(1) does not preclude the Appeals Officer’s conclusion that the provision indicates that certain obligations apply only where the employer has control over the work place, nor does the French “ainsi que”. In any event, the text of the opening language of the provision, read in isolation, is not so clear so as to be determinative of the matter.

(ii) The Statutory Context

[50] The Appeals Officer had regard to the broader statutory context of the obligations under s. 125(1), noting “[it is] clear from a plain reading of the obligations that: (i) some obligations apply to any employer, whether or not they control the work place, as long as they control the work activity, and (ii) other obligations, in order to be executed, require that the employer have control of the physical work place” (para. 93). The Appeals Officer considered specific obligations that in his view, support his interpretation. For example, he referred to para. (t), which obliges the employer to “ensure that the machinery, equipment and tools used by the employees in the course of their employment meet prescribed health, safety and ergonomic standards and are safe under all conditions of their intended use”, concluding that this obligation is applicable to all employers, regardless of whether they control the work place, as long as they control the work activity. Conversely, para. (a), which requires that employers “ensure that all permanent and temporary buildings and structures meet the prescribed standards” is an example of an obligation that applies only where an employer has control over the work place (para. 97).

[51] While the Appeals Officer’s reasons demonstrate that he turned his mind to the context of s. 125(1)(z.12), he did not need to consider every related provision of the Code in his analysis. Before this Court the parties made submissions regarding how s. 135 — which establishes and sets out the duties of the committee — should bear on the interpretation of the obligations under s. 125(1). Section 135(1) reads:
135 (1) For the purposes of addressing health and safety matters that apply to individual work places, and subject to this section, every employer shall, for each work place controlled by the employer at which twenty or more employees are normally employed, establish a work place health and safety committee and, subject to section 135.1, select and appoint its members.
Subsection (7) sets out the duties of the committee. Paragraph (k) mirrors the work place inspection obligation in s. 125(1)(z.12):
(7) A work place committee, in respect of the work place for which it is established,

...

(k) shall inspect each month all or part of the work place, so that every part of the work place is inspected at least once each year;
Counsel for Canada Post submitted that ss. 135(1) and 135(7)(k), when read together, make clear that the inspection obligation therein (which mirrors s. 125(1)(z.12)) applies only to the controlled work place. In response, counsel for the Union argued that s. 135(1) requires only that a committee be established for each controlled work place at which twenty or more employees are employed. The Union continued that subs. (7)(k) does not indicate that the committee, once established, has jurisdiction only over those parts of the work place that are controlled by the employer.

[52] The Appeals Officer did not refer to s. 135(1). The foregoing argument was not made before him; it was raised for the first time before the Court of Appeal by an intervener. The fact that the Appeals Officer did not refer to s. 135(1) in his analysis does not render his interpretation unreasonable. Administrative decision makers — and for that matter, judges — are not required, on their own account, to consider every aspect of the statutory context that might bear on their decision (Vavilov, at para. 122). In our system, the parties frame the arguments to be considered. Failure to consider a particular piece of the statutory context that does not support a decision maker’s statutory interpretation analysis will not necessarily render the interpretation unreasonable. The impact of such an omission will be case‑specific and will depend on whether the “omitted aspect of the analysis causes the reviewing court to lose confidence in the outcome reached” (Vavilov, at para. 122).

[53] On my reading, not only does s. 135(1) not cause me to lose confidence in the outcome reached, this provision provides, if anything, only additional support for the Appeal Officer’s interpretation of s. 125(1)(z.12). The possibility that the justification provided might have been strengthened by reference to s. 135(1) does not affect the reasonableness of his decision.

(iii) The Purpose of Section 125(1)(z.12)

[54] The purpose of Part II of the Code is provided at s. 122.1: “[t]he purpose of this Part is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment to which this Part applies.” A reasonable interpretation of any provision under Part II should be informed by the overarching objectives of Part II of the Code.

[55] The Appeals Officer concluded that in order to fulfil the obligation in para. (z.12), control over the work place is necessary because the purpose of the work place inspection obligation is to “permit the identification of hazards and the opportunity to fix them or to have them fixed” (para. 96). He considered the practical implications of the interpretation in light of the purpose of the provision, and agreed with the submissions of Canada Post that “it would be impractical for an employer to perform [the work place inspection] obligation in respect of structures it neither owns nor has a right to alter” (para. 97). A reviewing court must pay “[r]espectful attention to a decision maker’s demonstrated expertise” when considering whether an outcome reflects a reasonable approach given the “consequences and the operational impact of the decision” (Vavilov, at para. 93). Here, the Appeals Officer had “dealt with and implemented most, if not all, of the employer obligations under subsection 125(1)” (para. 94), and also demonstrated this expertise through his reasons by, for example, demonstrating his familiarity with the statutory scheme and the different types of obligations it imposes on employers (para. 95; see also Vavilov, at para. 94). While the parties’ concessions on this point are not binding on us, they do, in this case, speak to the Appeals Officer’s findings on the point. The purpose of the obligation as described by the Appeals Officer appears to have been accepted by the parties before the Court of Appeal (F.C.A. reasons, at para. 18, per Near J.A.). In my view, the purpose of para. (z.12) imputed by the Appeals Officer is consistent with the broad, purposive interpretation afforded to remedial legislation.

[56] In accordance with the statutory purpose of Part II of the Code, the Appeals Officer noted that Canada Post promotes the health and safety of its employees “in all the elements of their work” through its various policies and assessment tools, even though it lacks the necessary control over the work place to fulfil the inspection obligation under s. 125(1)(z.12) (para. 100). For example, the Appeals Officer referred to the WHPP, which sets out a “detailed protocol for letter carriers and supervisors with respect to delivery hazards, including the identification, investigation, and resolution with customers” (OHSTC reasons, at para. 60). The WHPP was developed by Canada Post and the Union as a prevention program in accordance with the obligations of the Code, the Regulations and the Collective Agreement (see Code, s. 125(1)(z.03) and Regulations; see also A.R., vol. III, at p. 22).

[57] Before this Court, Canada Post submitted that the Appeals Officer’s interpretation is congruent with the scheme of the Code and does not undermine its purposes. It noted that, as an employer, it is bound by the general duty set out in s. 124: “[e]very employer shall ensure that the health and safety at work of every person employed by the employer is protected.” The Union argued that the interpretation of s. 125(1) given by the Appeals Officer created such limitations on the duties of the employer so as to be contrary to the statutory purpose. Further, the Union submitted that if the purposes of the obligations under s. 125 could be met by s. 124 and the creation of the WHPP, then s. 125(1) would be redundant.

[58] The Appeals Officer inferred from the text of s. 125(1) that the legislator intended the employer to be bound to the fullest extent possible: “the wording . . . indicates to me that the legislator drafted the section in this way in order to ensure that the employer be bound to the fullest extent possible by the obligations under the Code and its Regulations” (para. 95). While we presume that the legislator does not speak in vain, in my view, an interpretation that allows for an overlapping “net” of obligations ensuring work place health and safety is appropriately broad so as to apply to the myriad of work activities and work places regulated by the Code. Where one obligation cannot be met due to the nature of the work place, employers are nonetheless bound to ensure health and safety by other measures provided for in the scheme. Accordingly, I am not persuaded by the Union’s argument that the Appeals Officer’s interpretation of the obligations under s. 125(1) renders the provision redundant, and is therefore unreasonable.

[59] An interpretation which imposed on the employer a duty it could not fulfil would do nothing to further the aim of preventing accidents and injury. While the Appeals Officer’s interpretation does limit the application of the obligations under s. 125(1), those obligations — and specifically the inspection obligation — cannot be fulfilled by an employer that does not control the work place. A different interpretation of the statute would not change that reality. As the Ontario Court of Appeal held in Blue Mountain Resorts Ltd. v. Ontario (Ministry of Labour), 2013 ONCA 75 (CanLII), 114 O.R. (3d) 321 (cited in OHSTC reasons, at paras. 26‑28, 50 and 74), while public welfare statutes are generally to be given a liberal interpretation, broad language may be given a narrower interpretation to avoid absurdity (paras. 24 and 29). Accordingly, the Appeals Officer’s interpretation did not frustrate the statutory purpose set out in s. 122.1 of the Code so as to render his decision unreasonable.

(b) The Appeals Officer Accounted for the Submissions of the Parties and the Evidence Before Him

[60] While a decision maker is not necessarily confined to the parties’ submissions, “[t]he principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties” (Vavilov, at para. 127). As always, this will vary with the circumstances of the case at hand. Here, where the Union and Canada Post made detailed submissions, the circumstances called for the Appeals Officer to address those submissions. As this Court explained in Vavilov, “a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it” (para. 128). The Appeals Officer contended with the submissions of the parties throughout his analysis. While he agreed with the Union on the interpretation of “work place”, he ultimately accepted the submission of Canada Post that it cannot inspect parts of the work place over which it has no control.

[61] A reviewing court may conclude that a decision is unreasonable where the decision maker failed to take into account the evidence and submissions before them at first instance. The “evidentiary record and the general factual matrix” act as constraints on the reasonableness of a decision, and must be taken into account (Vavilov, at para. 126). However, while a reviewing court should ensure the decision under review is justified in relation to the relevant facts, deference to a decision maker includes deferring to their findings and assessment of the evidence. Reviewing courts should refrain from “reweighing and reassessing the evidence considered by the decision maker” (Canadian Human Rights Commission, at para. 55, citing Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 (CanLII), [2009] 1 S.C.R. 339, at para. 64; see also Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19 (CanLII), [2003] 1 S.C.R. 226, at paras. 41‑42, cited in Vavilov, at para. 125).

[62] Over the course of the five‑day hearing, the Appeals Officer heard evidence specific to the dispute before him, including evidence of: the time per day that a letter carrier generally spends delivering mail; the time values associated with delivery at each point of call according to the “letter carrier route measurement system”; the time it takes to perform a “work place audit” by Committee members; and prior route audits conducted in accordance with the WHPP to locate and correct hazards. The Appeals Officer noted statistics provided at the hearing by the HSO relating to the activities of letter carriers and the ground they cover in carrying out their work activities. He also considered examples of Canada Post’s occupational health and safety policies and programs described above, which were referred to by the parties.

[63] The Appeals Officer’s decision responded to the issue before him, and took into account the detailed submissions of both parties. There is no indication that he failed to consider the evidence presented at the hearing, or that he based his decision on a misapprehension of the evidence, thereby rendering his decision unreasonable.

[64] Decision makers, simply by reciting evidence and submissions made to them, do not thereby immunize their reasons from challenge on the basis that they have failed to have regard to something that is relevant and significant. Recitation is not justification, or as the reasons in Vavilov state, at para. 102:
Reasons that “simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion” will rarely assist a reviewing court in understanding the rationale underlying a decision and “are no substitute for statements of fact, analysis, inference and judgment”: R. A. Macdonald and D. Lametti, “Reasons for Decision in Administrative Law” (1990), 3 C.J.A.L.P. 123, at p. 139; see also Gonzalez v. Canada (Minister of Citizenship and Immigration), 2014 FC 750 (CanLII), 27 Imm. L.R. (4th) 151, at paras. 57‑59.
Further, depending on the circumstances of the case, a detailed statement of evidence and submissions may not be needed. That said, in this case, the Appeals Officer made more clear and complete the basis for his decision by the thoroughness with which he reviewed the evidence and the submissions.
. Canada (Attorney General) v. Zalys

In Canada (Attorney General) v. Zalys (Fed CA, 2020) the Federal Court of Appeal considered the ruling in Vavilov as follows:
[5] In assessing the Adjudicator’s decision, I am guided by the Supreme Court’s teachings in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 [Vavilov]. When the Court determines that the applicable standard is reasonableness, the Court "“must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified”" (Vavilov at para. 15). While the majority reasons in Vavilov describe reasonableness review as "“robust”", they also reiterate that it involves deference. Reasonableness review "“finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers”" and is "“meant to ensure that courts intervene in administrative matters only where it is truly necessary […] to safeguard the legality, rationality and fairness of the administrative process”" (Vavilov at paras. 12-13). The reasons themselves need "“not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred”" (Vavilov at para. 91, citing Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at para. 16). What distinguishes reasonableness review from correctness review is the court’s focus on the administrative decision and the justification offered for it, "“not on the conclusion the court itself would have reached in the administrative decision maker’s place”" (Vavilov at paras. 15, 83). It is, furthermore, only appropriate to quash a decision on the reasonableness standard where "“any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable”" (Vavilov at para. 100).


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