January 30, 2020
Inadequate Reasons for Decision – Where are we now?
The court has long been alert to the issues encompassing the provision of inadequate reasons for a decision by administrative bodies. In Baker[1], the Supreme Court of Canada (“SCC”) recognized that a failure to provide written reasons in certain cases may give rise to a breach of procedural fairness. Subsequent cases have followed this trajectory; however, the issue of inadequate reasons has remained ripe for debate prompting commentators to highlight the usefulness and necessity of coherent reasons in Judicial Review over the years.
In Dunsmuir,[2] the Court unequivocally expressed that the provision of inadequate reasons is not a stand-alone basis for quashing a decision and must instead be read together with the outcome to determine whether the decision is unreasonable.[3] This was affirmed in Sheppard[4] where the SCC outlined that inadequate reasons do not automatically constitute a reviewable error. As a consequence of its conclusion, the Court established the panoptic trinity of justification, transparency and intelligibility required within the decision‑making process, combined with the question of whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law, to determine the reasonableness of a decision.[5]
In a myriad of post-Baker and post-Dunsmuir cases, legal scholars have continued to grapple with the reality that the jurisprudence has failed to address the quality of the reasons provided by administrative decision makers. Some have argued that Baker failed to address the required authenticity of Reasons and as such, administrative decision makers in turn provide boilerplates.[6] The courts, however, have addressed incoherent reasons in its decisions and have determined that by analyzing both the outcome and the reasons that the decision in a given case is unreasonable but where exactly are we now?
In the recent case of Vavilov[7], the SCC addressed the fundamental flaw of inarticulateness of reasons. Specifically, the court stresses the need for decision makers to provide reasons which are able to communicate the rationale for the decision. It was also noted that the court must be able to develop an understanding of the reasoning. The court further pointed out that a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker.[8] A decision will be unreasonable if the reasons for it, read holistically, fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis.[9]
Only time will tell whether administrative bodies – in light of the court’s decisions- will place more effort into providing coherent and intelligible reasons as required by jurisprudence.