The writing of reasons for decisions is never easy. Adjudicators must strike the right balance between comprehensiveness and intelligibility. In most cases, adjudicators also have a heavy workload and perfection in reason writing is not possible. There are many readers of an adjudicator’s reasons, but the readers that I will focus on in this column are judges. There has been a sea change in the approach of courts to reasons over the past decade. That change reflects the reality of increased litigation, stagnant or declining resources and an increased focus on efficiency. This has led to a focus on a kind of “rough justice” and away from elegance in reasons. This has been most evident recently in the reliance of courts on “implicit” reasons in adjudicators’ decisions to uphold those decisions.
The Rule of Law requires decisions of administrative tribunals (among other public actors) that are not arbitrary. Or, put more positively, decisions that affect rights must be justified in terms of rationality, reasonableness and fairness. As Professor Mary Liston has written: “…skeletal, generic, boilerplate, formulaic reasons cannot serve the function of reminding the political, social and legal order of the rules of conduct we believe are necessary to regulate our activities.”
Almost 16 years ago, the Supreme Court of Canada highlighted the importance of written reasons in administrative decisions (Baker v. Canada (MCI), 1999 CanLII 699). Among other things, the court emphasized that reasons allow parties to see that the applicable issues have been carefully considered (at paragraph 39). In this case, the notes of an immigration officer were considered to be sufficient reasons.
In R. v. Sheppard, 2002 SCC 26, the court noted that the “giving of reasoned judgments is central to the legitimacy of judicial institutions in the eyes of the public”. The court held that a judge is not held to some abstract standard of perfection and that the duty to give reasons is satisfied when the reasons are “reasonably intelligible” to the parties and provides the basis for meaningful appellate review. In a companion case, R. v. Braich, 2002 SCC 27, the court held that an appellate court was not permitted to substitute its views for that of a trial judge if the trial judge’s reasons provided “an intelligible pathway through his reasons to his conclusion” (at paragraph 42).
In 2008, Justice Abella stated that in determining the reasonableness of a decision the focus was mostly on “the existence of justification, transparency and intelligibility within the decision-making process” (Dunsmuir v. New Brunswick, 2008 SCC 9 at paragraph 47). A few years later, the SCC held that a decision-maker was not required to make an explicit finding on each constituent element leading to a final conclusion (Newfoundland and Labrador Nurses Union, 2011 SCC 62 at paragraph 16). Also in 2011, the SCC held that a decision may imply a particular interpretation of a statutory provision, even if the decision-maker has not expressed an opinion on that provision’s meaning (Alberta Teachers’ Association, 2011 SCC 61). In that decision, the court also held that it could consider the reasons that “could be offered” for the decision (at paragraph 54). The following year, the SCC held that in determining reasonableness, a reviewing court must examine the tribunal’s decision as a whole and in the context of the underlying record (Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65, at paragraph 3).
The high water mark for implied reasons is in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36. This was a judicial review of a ministerial decision not to grant relief from a finding of inadmissibility under the Immigration and Refugee Protection Act. In this case, the Minister found that it was not in the national interest to admit individuals to Canada with sustained contact with known terrorist or terrorist-connected organizations. However, the Minister did not make a determination of the meaning of “national interest”. The court held that although it was not in a position to determine “with finality” the actual reasoning of the Minister, an interpretative decision of that term was “necessarily implied within his ultimate decision”. The court went on to consider what appeared to be the Minister’s interpretation based on his “express reasons” and ministerial Guidelines that informed the scope and context of those reasons.
Interestingly, the court relied on “boilerplate” language in the Minister’s decision to ground its analysis: the Minister wrote that he had “reviewed and considered the material and evidence submitted in its entirety”. I have always thought that such a generic statement was implied, as it is part of an adjudicator’s job to review all of the material and evidence in coming to a decision. However, the best advice to adjudicators is to go back to the annoying, “having considered all the evidence, I come to the following conclusions” statement at the beginning of reasons.
The application of the implicit reason principle has been uneven in the lower courts. Justice Rennie of the Federal Court has stated (prior to the issuing of Agraira by the SCC) that the analysis in Newfoundland Nurses is not “an open invitation to the court to provide reasons that were not given, nor is it a licence to guess what the findings might have been made or to speculate as to what the tribunal might have been thinking” (Komolafe v. Canada (MCI), 2013 FC 431, at paragraph 11). He used a striking analogy of dots on the page (and the resulting image of a colouring book):
Newfoundland Nurses allows reviewing courts to connect the dots on the page where the lines, and the direction they are headed, may be readily drawn. Here there were no dots on the page.
In a recent decision of the Ontario Court of Appeal (EllisDon Corporation v. Ontario Sheet Metal Workers’ and Roofers’ Conference and International Brotherhood of Electrical Workers, Local 586, 2014 ONCA 801), the court held that a reviewing court is “obliged to discern the tribunal’s implicit reasons, having regard to the context and the evidentiary record, where the reasons fall short”. In this case, the Ontario Labour Relations Board allowed a document to be introduced based on the business records and ancient document rules and did not rely on the statutory provisions for discretion in admitting evidence. The OCA held that it was reasonable to infer that the Board would have invoked its discretionary authority to admit the document, “had it occurred to the Board as being necessary in light of its substantive admissibility decision”.
Professor Paul Daly is critical of this reasoning:
Failing to state the statutory authority on which you are acting is a fairly serious mistake, in my view, and one that should be subject to censure by a reviewing court. The failure suggests that the parties before the decision-maker did not have a clear view of what the decision-maker was likely to do, thereby inhibiting their ability to make appropriate submissions.
At the Canadian Bar Association National Administrative Law and Labour Law Conference, David Phillip Jones in referring to the SCC decision in Agraira, called the implying of reasons “very troubling”. He asked whether such an approach effectively permitted the court to “re-do or re-make” an administrative decision to save it from being overturned on judicial review.
These concerns are legitimate Rule of Law concerns. Also of concern, is the heavy-lifting that judges might be required to do if an administrative decision-maker fails to do a proper job. However, the courts are feeling their way to a practical approach to the administration of justice. Given the volume of cases, the pressure on decision-makers to get decisions out in a timely manner and the limited resources available to tribunals, the identification of some path to a decision, even if not a well-worn path, is a way of getting a reasonable result, without the need to re-do litigation.
Over twenty years ago, Chief Justice McLachlin made the following comment in the criminal law context (before she was Chief Justice) that are still relevant for administrative tribunal decision-makers (R. v. Burns, 1994 CanLII 127 at page 664):
…To require trial judges charged with heavy caseloads of criminal cases to deal in their reasons with every aspect of every case would slow the system of justice immeasurably. Trial judges are presumed to know the law with which they work day in and day out. If they state their conclusions in brief compass, and these conclusions are supported by the evidence, the verdict should not be overturned merely because they fail to discuss collateral aspects of the case.
There are still incentives for decision-makers to write intelligible, transparent and explicit reasons, apart from pride of authorship. Decisions that require inferences are generally more susceptible to judicial review applications. And the problem with inferences is that you don’t always know if the reader (in this case a judge) will pick up on those inferences. There is also a concern that a judge will only look for inferred reasons if he or she likes the result of your decision.