Appeal (LTB)

Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII)

Administrative law — Judicial review — Standard of review — Proper approach to judicial review of administrative decisions — Proper approach to reasonableness review.

[2] In these reasons, we will address two key aspects of the current administrative law jurisprudence which require reconsideration and clarification. First, we will chart a new course forward for determining the standard of review that applies when a court reviews the merits of an administrative decision. Second, we will provide additional guidance for reviewing courts to follow when conducting reasonableness review. The revised framework will continue to be guided by the principles underlying judicial review that this Court articulated in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190: that judicial review functions to maintain the rule of law while giving effect to legislative intent. We will also affirm the need to develop and strengthen a culture of justification in administrative decision making.

Reasonableness Review

B. Reasonableness Review Is Concerned With the Decision-making Process and Its Outcomes

[82] Reasonableness review aims to give effect to the legislature’s intent to leave certain decisions with an administrative body while fulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law: see Dunsmuir, at paras. 27-28 and 48; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 10; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3, at para. 10.

[83] It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome. The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem. The Federal Court of Appeal noted in Delios v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171, that, “as reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did”: at para. 28; see also Ryan, at paras. 50-51. Instead, the reviewing court must consider only whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led — was unreasonable.

[86] Attention to the decision maker’s reasons is part of how courts demonstrate respect for the decision-making process: see Dunsmuir, at paras. 47-49. In Dunsmuir, this Court explicitly stated that the court conducting a reasonableness review is concerned with “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes”: para. 47. Reasonableness, according to Dunsmuir, “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process”, as well as “with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: ibid. In short, it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies. While some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reached on an improper basis.

[89] Despite this diversity, reasonableness remains a single standard, and elements of a decision’s context do not modulate the standard or the degree of scrutiny by the reviewing court. Instead, the particular context of a decision constrains what will be reasonable for an administrative decision maker to decide in a given case. This is what it means to say that “[r]easonableness is a single standard that takes its colour from the context”: Khosa, at para. 59; Catalyst, at para. 18; Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364, at para. 44; Wilson, at para. 22, per Abella J.; Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38, [2016] 2 S.C.R. 80, at para. 57, per Côté J., dissenting but not on this point; Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293, at para. 53.

E. A Reasonable Decision Is One That Is Both Based on an Internally Coherent Reasoning and Justified in Light of the Legal and Factual Constraints That Bear on the Decision

[99] A reviewing court must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable. To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision: Dunsmuir, at paras. 47 and 74; Catalyst, at para. 13.

[102] To be reasonable, a decision must be based on reasoning that is both rational and logical. It follows that a failure in this respect may lead a reviewing court to conclude that a decision must be set aside. Reasonableness review is not a “line-by-line treasure hunt for error”: Irving Pulp & Paper, at para. 54, citing Newfoundland Nurses, at para. 14. However, the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”: Ryan, at para. 55; Southam, at para. 56. Reasons that “simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion” will rarely assist a reviewing court in understanding the rationale underlying a decision and “are no substitute for statements of fact, analysis, inference and judgment”: R. A. Macdonald and D. Lametti, “Reasons for Decision in Administrative Law” (1990), 3 C.J.A.L.P. 123, at p. 139; see also Gonzalez v. Canada (Minister of Citizenship and Immigration), 2014 FC 750, 27 Imm. L.R. (4th) 151, at paras. 57-59.

Principles of Statutory Interpretation

[115] Matters of statutory interpretation are not treated uniquely and, as with other questions of law, may be evaluated on a reasonableness standard. Although the general approach to reasonableness review described above applies in such cases, we recognize that it is necessary to provide additional guidance to reviewing courts on this point. This is because reviewing courts are accustomed to resolving questions of statutory interpretation in a context in which the issue is before them at first instance or on appeal, and where they are expected to perform their own independent analysis and come to their own conclusions.

[116] Reasonableness review functions differently. Where reasonableness is the applicable standard on a question of statutory interpretation, the reviewing court does not undertake a de novo analysis of the question or “ask itself what the correct decision would have been”: Ryan, at para. 50. Instead, just as it does when applying the reasonableness standard in reviewing questions of fact, discretion or policy, the court must examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached.

[117] A court interpreting a statutory provision does so by applying the “modern principle” of statutory interpretation, that is, that the words of a statute must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, both quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. Parliament and the provincial legislatures have also provided guidance by way of statutory rules that explicitly govern the interpretation of statutes and regulations: see, e.g., Interpretation Act, R.S.C. 1985, c. I-21.

Grounds for Appeal

Failure of Natural Justice

Brewer v. The Landlord Tenant Board Southern RO, 2018 ONSC 1006 (CanLII)

37 It has been repeatedly held that a failure of natural justice is reviewable on appeal by this court (see Decosse v. Isles of Innisfree Non Profit Homes, 2012 ONSC 1413 (Div. Ct.) (CanLII) (“Decosse”); and Duncan v. Toronto Community Housing Corp., 2015 ONSC 4728 (Div. Ct.) (CanLII) (“Duncan”)).

[38] I adopt the following summary of the requirement for natural justice from Decosse (at paragraphs 6-8):

A Tribunal is required to comply with the requirements of natural justice. There is no standard of review. On appeals on questions of law, the standard of review to be applied is correctness. Failure to meet the standards will result in a Tribunal's order being quashed.

Under the Residential Tenancies Act, 2006, S.O. 2006 c. 17, there is a statutory right of appeal on questions of law alone, a factor suggesting a more rigorous standard of review. Further, the Court has wide powers on appeal, and may affirm, rescind, replace, or amend the decision below, remit the matter back with the opinion of the Court, and make any other order that it considers proper. It may substitute its own opinion for that of the Tribunal.

Motion to Dismiss (Frivolous)

Okosun v. Minniti, 2020 ONSC 1354 (CanLII)

[24] It is difficult to assess whether the Tenant raises an error of law or whether it has any merit.

[25] An alleged error of law does not clearly appear from the Notice of Appeal. Yet, given that he is self-represented, the Notice of Appeal must be read liberally.

[26] The issue is whether the adjournment should or should not have been granted. While the appeal looks extremely “thin”, it is possible that it raises a genuine issue of law, I am not prepared to dismiss the appeal and deprive the Tenant a full opportunity to make submissions why his appeal should be granted.