The Supreme Court recently clarified the rules on the role of a tribunal on a judicial review of one of its decisions: Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44 (CanLII). The clarifications are useful for courts in deciding whether to give a tribunal standing. Professor Paul Daly has provided a useful overview of the court’s decision on the standing question. In this column, I want to focus on what the court outlined as the basic parameters of what a tribunal can say to the court, once it is given standing.
Justice Rothstein, writing for the majority, described the limits on the content of a tribunal’s arguments on judicial review as the rule against “bootstrapping”. The distinction between this and standing is a fine one: the standing issue concerns what types of argument a tribunal may make (jurisdictional or merits arguments), while the bootstrapping issue concerns the content of those arguments. Professor Daly suspects that the distinction between participation and the content of the participation may turn out to be “chimerical”. I think the distinction has importance in two areas: defending implicit reasons and the tone of submissions.
A tribunal is “bootstrapping” where it attempts to supplement what would otherwise be a deficient decision with new arguments on appeal. The general rule is that a tribunal cannot defend its decision on a ground that it did not rely on in the decision under review. This rule is based on the principle of finality of tribunal decisions.
Under this principle, the Federal Court of Appeal has held that a tribunal cannot use judicial review as an opportunity to “amend, vary, qualify or supplement its reasons”: Canada (Attorney General) v. Quadrini, 2010 FCA 246 (CanLII). In Leon’s Furniture Ltd. v. Information and Privacy Commissioner (Alta.), 2011 ABCA 94 (CanLII), the Alberta Court of Appeal, stated that a tribunal could “offer interpretations of its reasons or conclusion, [but] cannot attempt to reconfigure those reasons, add arguments not previously given, or make submissions about matters of fact not already engaged by the record”.
The Ontario Court of Appeal has taken a more relaxed approach. In Children’s Lawyer for Ontario v. Goodis, 2005 CanLII 11786, the court held that the Commissioner could, on judicial review, rely on an argument on appeal not expressly set out in her original decision. Although the court was aware of the possible undermining of reasoned decision making if a tribunal could “simply offer different, better, or even contrary reasons to support its decision”, the Court of Appeal held that the new argument was “not inconsistent” with the reason contained in the decision: “[i]ndeed it could be said to be implicit in it”.
Justice Rothstein noted merit in both positions on the issue of bootstrapping:
On the one hand, a permissive stance toward new arguments by tribunals on appeal serves the interests of justice insofar as it ensures that a reviewing court is presented with the strongest arguments in favour of both sides… This remains true even if those arguments were not included in the tribunal’s original reasons. On the other hand, to permit bootstrapping may undermine the importance of reasoned, well-written original decisions.
However, he came down on the side of a permissive approach to the arguments a tribunal can make on judicial review. He found that the following types of arguments or submissions do not offend the principle of finality:
- the introduction of arguments by a tribunal that interpret or were implicit but not expressly articulated in its original decision.
- explanations of established policies and practices to the reviewing court, even if those were not described in the reasons under review.
- responding to arguments raised by a counterparty.
Justice Rothstein was of the view that a tribunal raising arguments of these types does so in order to uphold the initial decision; it is not reopening the case and issuing a new or modified decision. He noted: “[the] result of the original decision remains the same even if a tribunal seeks to uphold that effect by providing an interpretation of it or on grounds implicit in the original decision”.
The implying of reasons is a growing trend in judicial review (see my column of last year). There are good reasons for courts allowing implied reasons to justify a tribunal decision. What is problematic, in my view, is allowing the tribunal itself to define those implied reasons.
A tribunal’s decision is final and the reasons grounding that decision should speak for themselves, without the aid of further explanation by the tribunal. Implied reasons are no longer implied, if the tribunal sets out the (implied) reasons on judicial review. In effect, by doing this, the tribunal has added to the decision by making once implied reasons explicit. On judicial review it is the court that is tasked with finding implied reasons. It may be assumed by the court, and others, that the very tribunal that made the decision must have special insight into what those implied reasons are. This therefore gives the tribunal an opportunity to buttress the decision on judicial review. In effect, the tribunal is attempting to say, “what we really meant to say, was…”
Justice Rothstein does recognize the challenges of allowing a tribunal to raise fresh arguments on judicial review. He notes that the parties may view it as unfair if a tribunal surprises them with new arguments on judicial review: “[t]his may be particularly true where a tribunal is tasked with adjudicating matters between two private litigants, as the introduction of new arguments by the tribunal on appeal may give the appearance that it is “ganging up” on one party.”
It seems, though, that Justice Rothstein does not see that making implied reasons explicit would ever constitute “fresh argument” by a tribunal.
Professor Daly, in a 2014 paper, has neatly summarized the possible view of a party faced with the tribunal expanding its reasons on judicial review by making explicit what was previously implicit:
One could imagine the applicant thinking it rather unfair that the Ministry won the case based on an argument elaborated only after the dispute between the parties had arisen. A particularly angst-ridden applicant would doubtless think that maybe, just maybe, it could have mounted a better argument in its discussions with the Ministry had it only had the full details of the Ministry’s position.
The Supreme Court also provided guidance to tribunals on the appropriate tone in judicial review proceedings. Justice Rothstein quoted the Ontario Court of Appeal in Goodis:
A tribunal that seeks to resist a judicial review application will be of assistance to the court to the degree its submissions are characterized by the helpful elucidation of the issues, informed by its specialized position, rather than by the aggressive partisanship of an adversary.
Justice Rothstein concluded that the Ontario Energy Board “generally acted in such a way as to present helpful argument in an adversarial but respectful manner”. He did scold the Board lightly about its assertion that the imposition of the test at issue in the judicial review “would in all likelihood not change the result” if the decision was sent back for reconsideration. He noted that this type of statement may, if “carried too far”, raise concerns about the principle of impartiality. As a result, such a position expressed by a tribunal might justify a court in exercising its discretion to limit the tribunal’s standing on judicial review.
Justice Rothstein did not give much guidance on what carrying this statement “too far” would look like. On its face, the comment is quite close to an assertion that the tribunal has pre-judged the outcome if the case was to be returned to it. Perhaps the Board escaped censure because, in the end, its decision was upheld. It is prudent for a tribunal not to express any opinion about the possible outcome of a rehearing to avoid any taint of pre-judging the case.
The decision in Ontario Energy Board provides important guidance for the appropriate role of tribunals on judicial review. For the most part, the role of a tribunal on judicial review is well understood by the courts, the parties and the tribunal. Less well understood is the possible role of a tribunal in expanding the reasons for decision by making explicit what was (arguably) implicit in the reasons for the decision under review. This also raises an important question for tribunal decision makers: if implicit reasons are important enough to ground a decision on judicial review, why are they not important enough to make explicit in the original decision?