Halton (Regional Municipality) v Canada (Environment), 2024 FC 348 (March 1, 2024)
Category: Reasonableness review.
Context: This matter involves three applications for judicial review in relation to a “very large $250 million intermodal container transfer facility…adjacent to CN’s main line and a highway, through and at which containers may be loaded and offloaded…”
Under the Canadian Envrionmental Assessment Act, a Review Panel concluded that the Project would have several adverse environmental impacts—including a direct adverse effect on (1) air quality and (2) human health as it relates to air quality [4]. The Panel’s report also listed five “cumulative” impacts (which includes environmental impact from the project alongside other circumstances unrelated to the project). The Minister referred the project to Cabinet, which decided that though the Minister concluded that the project “is likely to cause significant adverse environmental effects on air quality…”, it was satisfied that “additional measures will be implemented to mitigate the significant adverse environmental effects identified by the Minister of the Environment…” (Order in Council, reproduced at para 106).
Issues: Are the Minister’s referral decision and the Cabinet’s decision reasonable?
Holding: [184] With respect and viewed holistically and not as a treasure hunt for error, both the Minister’s Referral Decision and the Cabinet Justification Decision are unreasonable because a) neither grapples in a meaningful way with the finding of the Review Panel that the Project itself will result in significant direct adverse environmental effects on human health as it relates to air quality, and b) neither considers the protection of human health under subsection 4(2) of the CEAA 2012. Both are therefore set aside and remanded for redetermination in accordance with these Reasons.
Analysis: This is another example of federal Cabinet regulatory orders falling under Vavilov’s revised reasonableness standard.
As we have seen in recent reasonableness review cases involving Cabinet, the nature of the review depends heavily on the nature of the statutory scheme. In the case involving the Emergencies Act (Issue #122), the review appeared more stringent, because the statutory scheme instituted several threshold inquiries that the court needed to undertake. In the case involving the federal government’s listing of plastics as “toxic substances” under the Canadian Environmental Protection Act (Issue #114), the plan of the statute also circumscribed the government’s authority.
This decision strikes me as far more fact-driven and evidence-heavy in the sense that the legal materials are not as constraining. There is a statutory distinction between direct/indirect adverse effects that should be respected; and as the Court notes, there is a mandatory requirement under the statute for the decision-makers to consider human health. But the real question rests on justification: do the various reasons for decision adequately address the health requirement and the parties’ submissions in relation to that requirement? The lynchpin of the Court’s decision (per Brown J) is that the Minister and the Cabinet failed to adequately specify the direct environmental health impacts caused by the project and identified by the Panel’s report [113-114, 164]. But the Court is rather exacting in its review of the record, the Minister’s referral decision, and the ultimate Cabinet decision. The Court draws upon excerpts from the Minister’s referral decision to justify this conclusion: (1) the referral decision seems to only mention health effects in regards to cumulative rather than direct impact [115]; (2) references to “adverse effects of the Project on air quality and, subsequently, human health” do not specifically address the direct effects to air quality and human health [117].
The ultimate decision here is a closer call, to my mind. While it is true, as the Court notes, that courts cannot supplement the decision with reasons that were not offered, the Order in Council in this case refers to “significant adverse environmental effects on air quality.” This conclusion is in service of the ultimate conclusion, rendered by Cabinet, that the effects are justified in the circumstances. The Panel Report should be read in light of the Cabinet’s order, helping to understand the reasons for decision—this is not impermissible supplementation (see Zeifmans LLP v Canada, 2022 FCA 160 at paras 10-11). The specificity here may have been lacking—especially on the key point of health—but whether the specificity is fatal depends on a rather close parsing of the various reports and Order in Council.
I am not sure such parsing is appropriate on a reasonableness standard, though again, this could be a close call. Again, this is different than a situation like the Emergencies Act, where the questions were fundamentally legal about the operation of the statute. Here, the statute operates in the background, but the primary arguments appeared to rest on justification and degree of consideration of evidence (see especially paras 123-126).
Rameau c Canada (Procureur général), 2024 CAF 40 (March 7, 2024)
Category: Reasonableness review.
Context: This is a judicial review of a decision of the Canadian Human Rights Commission dismissing the appellant’s request for an examination of her complaint. The appellant was a long-time member of the public service. At issue is a memorandum of agreement, entered into in 2003, in relation to previous complaints made by Rameau against her employer, the Canadian International Development Agency [CIDA] [14-16]. The parties disagreed over this settlement, specifically on purported obligations on CIDA to provide Rameau with training and to appoint her to a specific position [19]. This settlement was made an order of the Federal Court [23]. Rameau sought to hold the President of CIDA in contempt at the Federal Court, but the Court declined the request
The appellant then asked the Commission to rule on a complaint about the interpretation of memorandum of agreement, in addition to complaints about her treatment at CIDA. A first investigation report concluded that the complaint was not vexatious because it dealt with issues not addressed in the Federal Court contempt order. A second investigative report concluded that the Commission should not address the complaints regarding the agreement as they had been dealt with by the Federal Court contempt order, and went on to conclude that the balance of Rameau’s complaints were unjustified.
Issue: Is the Commission’s decision reasonable?
Holding: In majority reasons on this specific point, but concurring in ultimate result, de Montigny CJ and Goyette JA conclude that the Commission’s refusal to consider non-compliance with the memorandum of agreement is reasonable [140-144]; Heckman JA disagrees, finding that the Commission’s decision is unreasonable on the point of the agreement [125-128], but finds that the only reasonable outcome would be a dismissal of the complaint because of a previous Federal Court decision on point [145]. All three judges agree that the appeal should be dismissed.
Analysis: The facts are complex, and there are other legal issues, but this case is important because the judges disagree about just how specific a decision-maker’s “reasons” must be in order to be “responsive” to submissions. This is so even though the judges agree, for different reasons, that the appeal should be dismissed.
The disagreement between the judges here is attributable, in part, to how they read the investigative reports. Heckman JA sees the second investigative report as erroneous because the Federal Court contempt order did not solve any actual ambiguity with the agreement—it expressly left interpretation of the agreement ambigious, only ruling on the narrow legal issue of contempt [113]. This, to him, leads to an inconsistency between the first report—which kept the complaint alive—and the second report [116]. This was an argument raised by Rameau [129]. The other judges saw no conflict in these reports [153].
As a result, the level of justification required appears to be different for these judges. Heckman JA is more exact, requiring specific attention by the Commission to the point of contradiction between the reports. The other judges, however, are content to read the record as a whole, with the reports that were communicated to Rameau [158]. The reasons of de Montigny CJ & Goyette JA are, in this sense, more deferential: they do not expect a screening body like the Commission to provide exacting reasons, even where, as here, it might have been better to expect more from the decision-maker [156-157]. Both approaches relied on existing FCA and SCC precedent, and both are arguably consistent with Vavilov. I expect the fault lines on this issue of parties’ submissions to continue to present themselves.
Without resolving which approach is “better,” this case reinforces how the submission of the parties acts as a major constraint on administrative discretion.
Penate v Martoglio, 2024 ONCA 166 (March 1, 2024)
Category: Reasonableness review.
Context and Analysis: This is not an administrative law decision; rather, it is a case about adequacy of trial judge reasons. But the Court relies on Vavilov to state some important conclusions about boilerplate reasoning that, I would think, transfer over to the administrative law context:
[22] Conclusory reasons are not adequate. Reasons cannot merely repeat “stock phrases of what a trial judge is expected to do”: R.E.M., at para. 23; see also Lawson, at para. 49. Rather, reasons must explain why trial judges reached the decisions they did by addressing the parties’ key arguments and the key, live issues in the case and making any necessary findings concerning those issues: R.E.M., at paras. 17, 34; Lawson, at paras. 47-48. The Supreme Court of Canada has held that such “responsive reasons” are the “primary mechanism by which decision makers demonstrate that they have actually listened to the parties”: Vavilov, at para. 127 (emphasis in original). Reasons that merely repeat the legal standard and state a bottom-line conclusion are inconsistent with the need for judicial decision-makers to justify their decisions to the parties and the public: Vavilov, at para. 79; Bruno, at para. 14.
Considering this statement comes from an appellate court, we can add it to similar statements from other appellate courts that read Vavilov in this way: see Cavendish Farms Corporation v Lethbridge (City), 2022 ABCA 312 (Issue #60); Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157 (Issue #3).
United Food and Commercial Workers Union Canada, Local 864 v. Sproule Lumber, 2024 NSCA 27 (March 7, 2024)
Category: Reasonableness review.
Context: From the Court’s summary
The arbitrator found the employer, Sproule Lumber, had breached the recognition provisions of a collective agreement through direct communication with employees. He characterized this as an “attack” on the Union and its officials, which interfered with its representational rights under the agreement and awarded damages. The employer successfully sought judicial review. The reviewing judge found the arbitrator’s award to be unreasonable because of the failure to apply the same evidentiary standard used by the labour board in relation to unfair labour practice complaints.
Issue: Is the decision reasonable?
Holding: The reviewing judge erred by selecting a standard to be applied based upon labour board jurisprudence and then measuring the award against it. This amounted to a review for correctness rather than reasonableness.
Analysis: In this case, the Court of Appeal (per Wood CJ) finds fault with the reviewing judge’s selection of a standard from arbitral jurisprudence. The Court notes that “[d]ecisions of the same administrative body may not be binding precedent as that term is used in the judicial sphere” but that “they might constrain the decision maker if they give rise to reasonable expectations which ought to be respected” [45]. But nonetheless, here, the reviewing judge held the decision-maker to evidentiary standards that were simply not relevant—labour board decisions are not binding as a matter of precedent in grievance arbitrations. One cannot impose binding standards from that jurisprudence in this context.
Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own.