Reasonableness of a Decision Absent Reasons

In 2016, Justice David Stratas of the Federal Court of Appeal took the unusual step of posting “A Plea for Doctrinal Coherence and Consistency” online, stating,

Our administrative law is a never-ending construction site where one crew builds structures and then a later crew tears them down to build anew, seemingly without an overall plan…

Administrative law matters. Resting at its heart is the standard of review, the body of law that tells us when the judiciary can legitimately interfere with decision-making by the executive—a matter fundamental to democratic order and good governance, a matter where objectivity, consistency and predictability is essential.

The Court presumably answered this plea through its decision in Vavilov, which cited the paper above, and notably was an appeal from a panel with Justice Stratas where the Court upheld his decision.

The situation gets more complex perhaps where the decision being reviewed is not explained or provided in any form. The Court in Vavilov also addressed these circumstances,

[136] Where the duty of procedural fairness or the legislative scheme mandates that reasons be given to the affected party but none have been given, this failure will generally require the decision to be set aside and the matter remitted to the decision maker. Also, where reasons are provided but they fail to provide a transparent and intelligible justification as explained above, the decision will be unreasonable. In many cases, however, neither the duty of procedural fairness nor the statutory scheme will require that formal reasons be given at all.

[emphasis added; citations omitted]

The Ontario Divisional Court recently released a decision in Laforme v. The Corporation of the Town of Bruce Peninsula, which illustrated exactly these types of circumstances.

The conservation authority in question provided a permit to a town to build a retaining wall next to a road running along a beach. The permit was challenged on the basis of the Endangered Species Act, Environmental Assessment Actand s. 24 of the Planning Act. The retaining wall was necessary due to wind sweeping sand dunes towards a road and parking area for the popular beach, creating a safety hazard. The dunes also contain a nesting area for an endangered species.

The Divisional Court agreed with the applicant that the decision to issue the permit was unreasonable. The town admitted that the project was inconsistent O. Reg. 151/06 made under the Conservation Authorities Act and obligations under s. 3(5) of the Planning Act, which requires consistency with applicable provincial policy statements,

Policy statements and provincial plans

(5) A decision of the council of a municipality, a local board, a planning board, a minister of the Crown and a ministry, board, commission or agency of the government, including the Tribunal, in respect of the exercise of any authority that affects a planning matter,

(a) shall be consistent with the policy statements issued under subsection (1) that are in effect on the date of the decision; and

(b) shall conform with the provincial plans that are in effect on that date, or shall not conflict with them, as the case may be.

A development could only be created in this beach area if it would not be affected, but there was a difference in the interpretation of this regulation between the parties,

[33] The parties disagree on the proper reading of section 3(1) of the Regulation. The applicant argues that section 3(1) prohibits all developments that have an effect on a dynamic beach; the Town argues that the effect must be negative and suggests that the Authority can balance the salutary effects of a proposed development against the negative impacts on the dynamic beach.

The policies in question did not support the position that the town was to conduct a balancing exercise of the benefits and harms on the beach. While the conservation authority’s discretion is very broad, the regulation does not grant it the authority to create exceptions for projects that are desirable or in the public interest.

The unreasonableness of the decision was in the manner in which the conservation authority applied the relevant regulations, and because the failed to consider whether the permit was consistent with the 2020 Provincial Policy Statement. The court did not conclude whether the Policy Statement applied, or if it would have prevented the permit from being issued,

[61] I would note, in closing on this issue, that protection of nesting sites for the piping plover has been a prominent issue for many years on Sauble Beach. The issue has garnered considerable public attention and more than a little local conflict. Protection of the Beach itself, and protection of piping plover habitat, are not one and the same thing. The Beach, as a dynamic beach, is an environmentally sensitive area, and the authority is charged with protecting the Beach itself from negative impacts, a protection that is not limited to beach features related to protecting piping plover habitat.

At the same time, the Divisional Court did not find the decision to proceed with the project without a permit pursuant to the Endangered Species Act, 2007 and Environmental Assessment Act was unreasonable. Consequently, the issue of the permit was remitted back to the conservation authority to be decided anew.

However, the conservation authority and the town did not issue any reasons for their decisions, and there was no expert evidence before them at the time of the decision. The expert evidence was therefore excluded, as it did not inform the reasonableness of the decision at the time. The court cited the passage from Vavilov above, and summarized at para 19 the reasonableness analysis as follows:

a. Reasonableness is concerned with justification, transparency and intelligibility. A decision is unreasonable if it is internally incoherent or if it is untenable having regard to the relevant factual and legal constraints.

b. The party challenging the decision has the burden of showing that it is unreasonable. A court should not set aside a decision based on minor flaws or peripheral shortcomings. To justify a finding of unreasonableness, the flaws or shortcomings must be sufficiently central or significant to the merits of the decision.

c. The role of the court is to review the decision and not to decide the issue afresh. The focus of the reasonableness inquiry is therefore on the decision making process and the outcome.

The court refused to involve itself in a reasonableness analysis of this issue,

[68] In my view, the applicant’s request that the Divisional Court intervene on this issue on the current record misconceives the role of the Court on an application for judicial review. In making this argument, the applicant has not identified a decision made by the Town that is subject to judicial review. As the proponent of the project and as a potential applicant for a permit under the Endangered Species Act, 2007, the Town is not exercising a statutory power amenable to judicial review. Rather, it is in the same position as any private citizen who may be required to apply for a permit to carry out a project that may harm or destroy the habitat of an endangered species. Under the Endangered Species Act, 2007, the decision maker for issuing a permit and for enforcing the Act is the Minister of Environment, Parks and Recreation. At a minimum, an application for judicial review that seeks to prohibit the Town from proceeding with the project without a permit granted under the Endangered Species Act, 2007should name the Minister as a respondent. In addition, based on the conflicting evidence on the record currently before the Court, it would not be possible or appropriate for this Court to determine whether the Town requires a permit. This is a decision to be made at first instance by the MECP, after which the applicant may have avenues of redress by way of judicial review to the Divisional Court. However, based on the current record, there is no legal or factual basis that warrants this Court granting an order prohibiting the Town from proceeding with the project in the absence of a permit under the Endangered Species Act, 2007. Judicial review is a discretionary remedy and, without the MECP as a named respondent on this application, the Court should decline to make any decision on this issue on the record currently before the Court.

The absence of any reasons made the permit unreasonable, but also made the challenge of the environmental issues impossible as well. The conservation authority and the town will have to revisit this time-sensitive issue, with additional time and scrutiny dedicated to it, and will likely have to issue reasons the second time around.

For the many decision-makers who are potentially subject to review, this decision applying the Vavilov analysis may encourage them to provide better decisions on first instance.

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