On the Reasonableness of Reasons: Association of Justice Counsel v Canada
In Association of Justice Counsel v Canada (Attorney General), 2017 SCC 55 [Association of Justice Counsel] the Supreme Court of Canada (“SCC”) elaborated on the relationship between the provisions of reasons and the reasonableness standard of review.
As Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] and ensuing Supreme Court decisions have established, there is now an almost universal standard of reasonableness when reviewing administrative decisions. This standard asks whether the administrative decision is one falling within a reasonable range of possible interpretations and does not necessarily distinguish between facts and law. However, the reasonableness standard of review is not necessarily correlated with the provision of reasons or perhaps even the reasonableness of those reasons (to the extent the reason can be considered independently of the result). In Association of Justice Counsel, the SCC grappled with the relationship between the reasonableness standard and the provision of reasons.
The case arose out of a labour dispute between Immigration Law Directorate counsel and the Department of Justice. In the 1990s, the office had established a system where lawyers would volunteer for “standby shift” during evenings and weekends to respond to emergency calls. Lawyers were compensated with paid leave irrespective of whether they were actually called into work. After completing a collective bargaining agreement in 2009 that made more lawyers eligible for overtime pay, management changed the standby program so that lawyers would only be compensated if they actually worked while on standby. This change in policy meant that lawyers stopped volunteering for standby shifts. The lack of volunteers further led to the employer issuing a directive that all lawyers must be available for standby shifts one to three times a year.
This mandatory directive was what was at issue in the case. While the collective bargaining agreement was silent on the issue, section 5.01 of the agreement is a “management rights” clause, one that reserves any residual powers not allocated in the agreement with the employer. Section 5.02, however, constrains management’s power since it requires the employer to act reasonably and in good faith. The question at arbitration was whether the unilateral directive issued pursuant to section 5.01 violated section 5.02 in that it was unreasonable and unfair.
At Public Service Labour Relations and Employment Board (“PSLREB”) arbitration, the adjudicator recognized the Department of Justice’s need for a standby system where lawyers would be available to respond to emergencies. However, the arbitrator found that the imposing standby duty was unfair and unreasonable and that it further infringed the lawyers’ Section 7 Charter right to liberty. The employer appealed this finding to the Federal Court of Appeal (“FCA”), where Justice de Montigny set aside the adjudicator’s directive and returned the grievance to the PSLREB. The FCA included in its instructions to the PSLREB that the board should consider the directive fair and reasonable and it should not find a Section 7 Charter infringement.
The Supreme Court addressed a few issues in its analysis and reasons regarding the relationship between administrative decision making and judicial review. While the primary issue was the reasonableness of the decision, the Court also addressed the role of the adjudicator and the relationship between justification and outcome under a review for reasonableness. Notably, Justice Karakatsanis for the majority of the Court assessed the outcome and the justifications separately, finding that both fall within the scope of “reasonable.” In arriving at the decision, the adjudicator considered the facts and the context, meaning the particularities of the collective agreement and the policy change. Although she analyzed the reasons separately from the outcome, Justice Karakatsanis applied Newfoundland and Labrador Nurses Union v Newfoundland and Labrador, 2011 SCC 62, which holds that reasons should be assessed as part of the holistic assessment of a substantive outcome. In other words, unreasonable reasons that meet the Dunsmuir indicia of justification, intelligibility, and transparency (Dunsmuir, para 47) will likely not invalidate a decision falling within a reasonable range of outcomes. Justice Karakatsanis rejected the Department of Justice’s claim that the adjudicator’s reasons were unreasonable, even though she also rejected the adjudicator’s finding of a Section 7 infringement. In concluding that the decision would have been the same regardless of the Section 7 analysis, the adjudicator’s original decision stands as reasonable.
The dissent, however, scrutinizes the reasons provided in more detail, in effect narrowing the scope of a reasonable or defensible outcome. Justice Côté, also relying on Dunsmuir, found that the adjudicator erred in both fact and law. The errors mean that the adjudicator’s decision is not one that could fall within a range of possible acceptable outcomes and therefore, the issue should be remitted to the adjudicator. which holds that reasons should be assessed as part of the holistic assessment of a substantive outcome. In other words, unreasonable reasons that meet the Dunsmuir indicia of justification, intelligibility, and transparency (Dunsmuir, para 47) will likely not invalidate a decision falling within a reasonable range of outcomes. Justice Karakatsanis rejected the Department of Justice’s claim that the adjudicator’s reasons were unreasonable, even though she also rejected the adjudicator’s finding of a Section 7 infringement. In concluding that the decision would have been the same regardless of the Section 7 analysis, the adjudicator’s original decision stands as reasonable.
This case is significant not so much in its application of the standard of review but more so in its discussion of two issues: first: the relationship between reviewing courts and front-line administrative adjudicators; and second: the interaction between reasonableness review and reasons.
Both the majority and dissent reject the FCA’s instruction to future adjudicators as to how to decide the case. Both agree that the “balancing of interests” test developed in the jurisprudence is the proper legal test to be determined by the adjudicator. To override the adjudicator’s decision and instruct future adjudicators how to decide the case, the Court held, is to effectively impose the FCA’s legal analysis over the PSLREB’s. This type of instruction seems to me as exceeding the bounds of reasonableness review and perhaps even entering correctness territory. The majority maintains the distinction between administrative decision making and administrative review, and adds a reminder of the important role of expertise in structuring the administrative review process (para 47). Deference is an essential element of administrative review not simply out of respect for statutory schemes but because of the assumption that local, expert decision makers (in this case labour arbitrators) are best suited to interpret collective agreements. Maintaining such a division of roles – first line, context specific adjudication versus review on a standard of reasonableness – is essential for the functioning of labour schemes and administrative law as a whole.
Association of Justice Counsel is also a reminder of the different role reasons play in administrative law. Procedural fairness, of course, is reviewed on a standard of correctness. Depending on the nature of the decision, a lack of justification may invalidate the decision, irrespective of the outcome. So the existence of reasons, or lack thereof, is a powerful indicator of the fairness and the process’ validity. Conversely, when reviewing the outcome of a decision, the provision and content of reasons may assist in determining whether the decision was reasonable but reasons are neither essential nor determinative. Justice Côté’s review of the adjudicator’s language in dissent and the near absence of a similar analysis in the majority’s opinion demonstrates just how much deference is accorded to front-line decision makers and their reasons under a reasonableness standard. The dissent uses weaknesses in the reasons to conclude that the outcome is unreasonable. The majority finds the outcome reasonable and potential weaknesses in the reasons insignificant since these problems would not have changed the outcome. This is in direct contrast to the importance of reasons when reviewing courts consider procedural fairness. So even though the lack of reasons can invalidate a decision on procedural fairness grounds, Association of Justice Counsel enforces the insignificance of provided reasons when reviewing the outcome of the decision.
This case is significant in that it reinforces a wide scope for the reasonableness standard. The decision further emphasizes that the front-line adjudicator’s task is one of contextual balancing of interests. Association of Justice Counsel reminds practitioners and students of the limited utility of reasons when reviewing the outcome of the decision and the importance of expertise in administrative decision making, especially in the labour context.