This week’s newsletter coincidentally consists solely of cases pertaining to adequacy of reasons, a topic of perennial interest. I would save this edition of the newsletter because each case demonstrates how different challenges to the adequacy of reasons can be resolved. In Zeifmans, sparse reasons were not necessarily a problem because the record could clearly fill in the gaps. In Cavendish, the record could not perform that function, because it was, apparently, not so clear, and the reasons were deficient at any rate. Finally, in Wells, too much was made of the supposed (in)adequacy of reasons: there, the argument was a surreptitious attempt to get the judicial review court to re-weigh the evidence, under the guise of an alleged “failure to grapple” with certain, specific pieces of evidence.
This is an area that probably cannot be reduced to clear rules; after all, reasons will be very different across the board. But this edition of the newsletter contains two themes: (1) Courts, post-Vavilov, are erecting a heightened bar for what will constitute adequate reasons. Reasons are the primary mechanism for determining whether a decision satisfies the reasonableness standard; (2) This does not mean reasons must always be explicitly written; reasoning can be found, if clear, from a record—in order to fill in gaps in the actual reasons. But I would caution, in doing (2), courts should be careful not to try to get blood from a stone—some records will be deficient, and as in Cavendish, courts should not shy away from declaring the decision unreasonable in those cases (for an example this week endorsing this caution, see Dhaliwal v Canada (Citizenship and Immigration), 2022 FC 1344 at para 9: “If the Officer’s conclusion was based on a particular interpretation of the legislation, then the matter must be returned because I am unable to determine whether they interpreted the legislative requirements reasonably: Vavilov at para 123. The GCMS notes do not explain the Officer’s interpretation and it is not otherwise apparent from the record.”)
Zeifmans LLP v Canada, 2022 FCA 160 (September 27, 2022)
Context: Zeifmans applied for an order “quashing the Minister’s requirement that it provide information to the Minister about certain of its clients” [1]. Zeifmans argued among other things, that the Income Tax Act required prior judicial authorization for the requirement. The Federal Court dismissed the application. Before the Court of Appeal, Zeifmans argued that the Minister “never supplied an express interpretation” of the relevant statutory provisions [8].
Issue: Is the decision reasonable?
Holding: Yes.
Analysis: The Court here finds the decision reasonable despite no express interpretation because of the record. To the Court, Vavilov requires the following when it comes to the adequacy of reasons: “In other words, the reasons on key points do not always need to be explicit. They can be implicit or implied. Looking at the entire record, the reviewing court must be sure, from explicit words in reasons or from implicit or implied things in the record or both, that the administrator was alive to the key issues, including issues of legislative interpretation, and reached a decision on them” [10]. In this case, the record left the Court “in no doubt” that the Minister was aware of and justified its interpretation of the relevant legislative provisions, case law, and other factors [5-6, 11]. The record was clear for a reason. Judicial authorization is only required where information and documents are sought from “ascertainable unnamed persons” [4]. Here, the record did not disclose such an investigation. And so it was reasonable for the Minister to say that judicial authorization was not required—the record disclosed that the Minister must have adopted this interpretation.
Nothing in Zeifmans, in my view, undermines the importance of reasoning post-Vavilov (see Canada (Citizenship and Immigration) v Mason, 2021 FCA 156 (Issue #3)) . If the record was not clear in this case, then it would have been inappropriate for the Court to uphold the decision. While Vavilov clearly does permit a court to look holistically at a record in order to buttress the reasons, the warning in Vavilov against supplementation should also be kept in mind. I worry particularly about cases where there are sparse reasons and only a thin shred of reasoning in the record that does not meaningfully deal with the major issues. In such cases, the move made in Zeifmans would not work. But where the record is rich and full, and it leaves no doubt, express reasons should not be required, and Zeifmans is a good reminder of this.
Cavendish Farms Corporation v Lethbridge (City), 2022 ABCA 312 (September 30, 2022)
Context: This case involves a technical taxation dispute—the question is whether disputed production improvements undertaken by Cavendish qualified as “machinery and equipment” under the relevant law [26]. If the improvements qualify as “machinery and equipment,” the property “receives preferential tax treatment over other classes” [4]. The Board, under the Municipal Government Act, imposes a duty to provide a decision “in respect of each matter in issue” and “give the reasons for the decision” [3]. The Board majority concluded that none of the improvements at issue were machinery and equipment. Cavendish challenged the adequacy of the reasons.
Issue: Is the decision reasonable?
Holding: No; “We are satisfied that reviewing the Board’s majority’s very sparse reasons in light of the record and with sensitivity to the administrative setting in which they were given does little to illuminate the reasoning process that led to the conclusion reached [25].”
Analysis: In this case, the Court finds that the decision is inadequately reasoned because “the reasons consist of no more than a conclusion…” [28]. Even after reading the reasons in light of the record, the Court finds that “[w]e cannot say with any certainty how the Board majority grappled with the language used in the interpretation because no analysis is offered” [28].
Here the Court rightly concludes, to my mind, that the decision is unreasonable. Reasons are the primary vehicle by which courts assess the reasonableness of the decision (Vavilov, at para 81). The provision of reasons is the first place courts can look. Courts can use the record to buttress scant reasons where, as Zeifmans (below) notes, it discloses a clear line of reasoning. But where the record is not clear, courts should not do the work of the administrator and fill gaps in the record or reasons. Here, the record apparently did not disclose any interpretation of the contested terms. In absence of any evidence that the decision-maker grappled with the interpretive difficult, the decision is properly unreasonable. This case can be contrasted with Zeifmans, where the record was crystal clear; and it can be contrasted with Wells, below, which was a disguised attempt by a litigant to demand the reweighing of factual evidence. Cavendish does provide a good reminder: courts cannot draw blood from a stone, and they should not try to reverse-engineer a reasonable decision from a sparse record or reasons. In this sense, there is a reading of Zeifmans and Cavendish that is complementary.
Wells v Cornwall Police Service, 2022 ONSC 5460 (September 26, 2022)
Context: Wells was found guilty on four counts of misconduct and was dismissed. He appealed these findings to the Ontario Civilian Police Commission, which dismissed his appeal.
Issue: Is the Commission’s decision reasonable?
Holding: Yes.
Analysis: This case shows some of the different concerns that are appearing in different courts on adequacy of reasoning. In this case, Wells challenged the misconduct finding on the basis that there was a failure to “grapple with” certain pieces of evidence, relying on Vavilov at para 128: “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.” Some of this evidence seemed rather picayune [12], and at any rate, the Commission “explained why there was no need to ‘grapple with’ these additional facts” [14]. The Court worries about the use of Vavilov’s para 128—it says that there are “perils” associated with the paragraph, which could invite “a re-examination of all the evidence to discern whether the failure to allude to certain evidence, or to merely recite evidence without comment, constitutes a failure to meaningfully address the issues” [9-10].
The Court’s warning here is common sense, and it is not inconsistent with what I consider a general trend—a higher bar for administrative reasoning, post-Vavilov. The Court’s concerns about para 128 can be explained by the prohibition against re-weighing evidence. Clearly, it is improper and impossible to expect a decision-maker to grapple with every piece of evidence, however irrelevant, just because a party claims it is “central” [14]. This would mean that Vavilov’s para 128 gets around the prohibition against re-weighing, which just cannot be true.
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.