Today, as the Vavilov at 5 symposium rolls on, I am happy to present an entry from Ian R. Mackenzie. Mr. Mackenzie was an adjudicator for 22 years with Ontario and federal tribunals with a focus on labour relations, human rights, employment law, workers compensation and disability law. He now writes about adjudication, delivers training to adjudicators, conducts mediations/facilitations, and consults on dispute resolution design and dispute management. Mr. Mackenzie runs his own Substack newsletter, An Adjudicator’s Toolkit, which offers valuable insights from the perspective of a longtime and experienced practicing adjudicator. I encourage you to check out his newsletter, and read his intriguing entry in this symposium.
Vavilov at 5: Increased transparency comes at a cost
Justice and the Rule of Law are priceless (and precious) but not cheap. Vavilov has contributed to the transparency of justice, but governments have not stepped up to pay the price that the enhanced expectations of reasons that Vavilov has created.
Vavilov has set the following expectations for all administrative decisions - frontline decisions as well as tribunal decisions:
Does a decision have “the hallmarks of reasonableness”: justification, transparency, and intelligibility? (Paragraph 99)
Does the challenged decision have “sufficiently serious shortcomings … such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”? In other words, are the flaws relied on by a party “sufficiently central or significant” to make the decision unreasonable? (Paragraph 100)
Do the reasons (read holistically) show a “a rational chain of analysis”? (Paragraph 103)
Do the reasons exhibit “clear logical fallacies” (including circular reasoning, false dilemmas, unfounded generalizations or an absurd premise)? (Paragraph 104)
Although the courts have continually said that perfection in reasons is not expected - there is no doubt that reasons, in the wake of Vavilov, must be more comprehensive. Some may remember when the Supreme Court endorsed the idea of "implicit reasons". Comprehensive reasons serve a useful purpose in the administration of justice and it's hard to argue that parties should know less about the reasons for the outcomes of a dispute. However, that comprehensiveness comes at a price.
Paul Daly has noted that Vavilov has set a higher bar for decision-makers than previously, with respect to justification, demonstrated experience (of the decision-maker), responsiveness (to the central points raised by the parties) and contemporaneity (no after-the-fact reasoning to bolster the initial decision). He notes:
While most respectable administrative tribunals are likely to continue to scale this bar with ease, others might find it more imposing. Those operating in high volume areas of decision making (such as immigration) and those used to receiving a high degree of deference on the basis of their expertise (such as labour arbitrators) or electoral legitimacy (such as ministers) have had to learn to jump higher than they have in the past.
Paul Daly, A Culture of Justification: Vavilov and the Future of Administrative Law, UBC Press, 2023
Our justice system is creaking and groaning under significant caseloads - both in the courts and in the administrative justice settings (frontline decisions and tribunals). Since Vavilov, those caseloads and resulting backlogs have only increased. While there are many reasons for backlogs, Vavilov is not helping.
The biggest impact of Vavilov on the administrative justice system is on high volume decision-making processes – such as the processing of student visas where traditional “boilerplate” or standard form decisions were the way that decision-makers were able to turn around the high volume of requests in a timely manner.
Near the end of the short decision in Kashefi v. Canada (Citizenship and Immigration), 2024 FC 856, Justice William Pentney provides a comment on the use of form letters in decision-making that may foreshadow significant changes to the use of “boilerplate” decision letters (at paragraph 17):
…I will simply note that there may be legitimate questions to be asked about the extent to which the current practice of providing “standard form” decision letters devoid of any meaningful details is consistent with Vavilov’s call for a “culture of justification.”
While tribunals do not issue “boilerplate” or standard form decisions, Vavilov does impose more onerous requirements on decision-writers. Although the courts have said that administrative decision makers do not need to address each and every submission of the parties, just the central submissions, it is sometimes difficult to ascertain what a court might regard as a central submission. So, the tendency is for decision-makers to address all of the submissions.
Credibility assessments have also come under increasing scrutiny by the courts after Vavilov. In Singh v. Canada (Citizenship and Immigration), 2024 FC 1794 the court relied on Vavilov when it stated:
Putting it differently, likening the situation to puzzle pieces, individual credibility findings represent fragments of evidence. Each piece might be accurate on its own, but without assembling and examining the complete puzzle, the overall picture – the comprehensive credibility assessment – may fail to reflect the true nature of the case. It underscores the necessity of a holistic approach to ensure the integrity and accuracy of the decision-making process. Without it, the chain of reasoning is lost and the reasons are no longer intelligible …
The answer to the more onerous requirements imposed on decision-makers by Vavilov is not to retreat from transparency but to invest the necessary resources in our administrative justice system. If decisions take longer to write under the Vavilov criteria, then we need more decision-makers. Those decision-makers also need training (or more training) on efficiency in decision writing. Most decision writing training focuses on the structure of decisions and the content of decisions - not the reasoning process itself and how to digest and organize the vast amounts of evidence that arise out of many disputes.
An increased allocation of resources, along with a strategic approach to the training of those resources, should alleviate some of the pressure on decision-makers in the administrative justice system created by Vavilov, leading to improvements in the delivery of justice.