Written by Kelsey Meyer and Stephanie Clark
When can a court review a tribunal's decisions, other than the decision under review, in determining whether the decision should be subject to a remedy on judicial review? This question arises from the recent Supreme Court of Canada decision on the standard of review of a tribunal's decision, Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47 [Capilano], in which the court stated, at paragraphs 37–38:
When procedural fairness requires a tribunal to provide some form of reasons, a complete failure to do so will amount to an error of law (Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (CanLII),  3 S.C.R. 708, at paras. 20–22).
However, when a tribunal's failure to provide any reasons does not breach procedural fairness, the reviewing court may consider the reasons "which could be offered" in support of the decision (Dunsmuir, at para. 48, quoting D. Dyzenhaus, "The Politics of Defence: Judicial Review and Democracy", in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286). In appropriate circumstances, this Court has, for example, drawn upon the reasons given by the same tribunal in other decisions (Alberta Teachers’, at para. 56) and the submissions of the tribunal in this Court (McLean, at para. 72).
The sources referenced by the court provide useful guidance on when a tribunal's reasons in other decisions are appropriate to review. In Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir], the Supreme Court of Canada set out the parameters of the reasonableness standard of review, and noted that deference expressly does not include "subservien[ce] to the determinations of decision makers, or … blind reference to their interpretations, or … pay[ing] lip service to the concept of reasonableness review while in fact imposing their own view." Deference, rather, "imports respect for the decision-making process of adjudicative bodies", which requires of the courts "not submission but a respectful attention to the reasons offered or which could be offered in support of a decision". The court quoted Dyzenhaus, who states:
"Reasonable" means here that the reasons do in fact or in principle support the conclusion reached. That is, even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them. For if it is right that among the reasons for deference are the appointment of the tribunal and not the court as the front line adjudicator, the tribunal's proximity to the dispute, its expertise, etc, then it is also the case that its decision should be presumed to be correct even if its reasons are in some respects defective.
While respectful attention to the reasons "which could be offered in support of a decision" appears open-ended, Canadian courts have held, in decisions issued subsequent to Dunsmuir, that "could be offered" does not permit a court to determine what the tribunal's reasons should have been, to consider reasons that are merely conceivable but not actually provided, or to allow reasons that could have been given, but were not, noting that "[t]o do so would seriously undermine the standard of reasonableness based upon the existence of justification, transparency and intelligibility...." Rather, the court's capacity to look at reasons that "could be offered" requires the court to consider whether the reasons provided, in fact or in principle, support the conclusion reached, and the importance of giving proper reasons for an administrative decision must not be diluted.1
In Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61 [Alberta Teachers'], the Supreme Court of Canada was careful to delineate the circumstances that called for looking to the tribunal's other decisions:
In the present case, the Court need not look far to discover a reasonable basis for the adjudicator's decision. ... The existence of other decisions of a tribunal on the same issue can be of assistance to a reviewing court in determining whether a reasonable basis for the tribunal's decision exists. In this case, a review of the reasons of the Commissioner and the adjudicators in other cases allows this Court to determine without difficulty that a reasonable basis exists for the adjudicator’s implied decision in this case. Indeed, in the circumstances here, it is safe to assume that the numerous and consistent reasons in these decisions would have been the reasons of the adjudicator in this case.
The court's statement in Capilano that a court may look at a tribunal's other decisions must therefore be understood based on the context and sources from which it arose in that case. The principles arising from that context and those sources may be summarized as follows:
- A tribunal's other decisions may only be relevant where the decision under review is based on a tribunal's implicit reasons and the lack of reasons is not itself a breach of procedural fairness.
- If the reasons given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them.
- The court's capacity to look at the reasons that the tribunal "could have offered" must not dilute the importance of giving proper reasons for an administrative decision.
- It is appropriate to look at other decisions only where the tribunal has been "numerous and consistent" in its decisions on the given issue.
- A tribunal's other decisions at best provide "assistance" to the reviewing court, and do not take precedence over the actual reasons given.
- See Singh v Canada (Public Safety and Emergency Preparedness), 2011 FC 115 at para 17; Calgary (City) v Calgary Firefighters Association, 2010 ABQB 226 at para 26; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at para 63; and Medah v Canada (Citizenship and Immigration), 2016 FC 1384 at para 17.