Reasons as Fundamental to the Task of Judicial Review
Much ink has been spilled on the role of reasons in administrative law. Reasons straddle the divide between process and substance: on the one hand, the obligation to give reasons is typically seen as an aspect of procedural fairness; on the other hand, the adequacy of reasons given for a decision will usually be treated as a matter of substance.
But what if reasons transcend process and substance? What if their role is to facilitate judicial review of administrative decisions, thereby underpinning the separation of powers? If so, the absence of reasons is not necessarily a breach of the duty of fairness or something that undermines the substantive reasonableness of a decision. Rather, where a decision is incomprehensible because reasons have not been given, the decision would be unlawful because it prevents a reviewing court from performing the fundamental task of judicial review.
Consider the recent decision of the Ontario Court of Appeal in Wall v. Office of the Independent Police Review Director, 2014 ONCA 884 (for my post on the first-instance decision, see here). The decision deals with a statutory obligation to give reasons but the language and logic used by Blair J.A. extend to other areas (see paras. 49, 52 and 63). Briefly, the facts were that a complaint about police practices during the 2010 G20 summit was made to the Office, which refused to investigate but without giving any reasons to justify its refusal: its decision letter simply parroted the statutory language without addressing the merits of the complaint.
Blair J.A. held that this was unlawful:
 …I would not go so far as to say the letter falls into the “no reasons at all” category. But it comes close. I do not think it matters to the reasons analysis, however, because the same factors emphasized [at first instance] by the [Divisional] Court in stating that the letter constituted “no reasons” also undermine the adequacy of the reasons. I agree with the Divisional Court that in its brevity and lack of explanation, the letter is devoid of any reasons adequate to allow for judicial review of the Director’s decision to screen out Mr. Wall’s complaint relating to the higher ranks of the Police Service…
 The Director’s discretion to deal with, or not to deal with, a complaint that brings s. 60(2) into play is not an unfettered discretion…Section 60(3) mandates that “[i]n making a determination under subsection (2), the Independent Police Review Director” – for purposes of this appeal – “shall consider … (c) whether, having regard to all the circumstances, it is in the public interest for the complaint to be dealt with” (emphasis added).
 Did the Director apply his mind to this mandatory consideration? We have no way of telling. Did it matter that a report from his own office contained evidence that higher ranking police officers, including possibly the chief of police, had given orders to lower ranks (which include the arresting officers in Mr. Wall’s case) to effect illegal arrests? Surely this must have been of some concern to the Director, but we don’t know. Did he consider whether clearing the air surrounding such potentially serious allegations was called for in the public interest? Or whether the “discoverability” factors at play raised questions of fairness and openness in that context? Again, the letter is silent (emphasis added).
This approach is not novel in Canadian law, but perhaps points a way out of the morass created by the suggestion in Dunsmuir that inadequate reasons are an independent basis for finding a defective decision to be substantively unlawful. Adequacy of reasons would not go to process or substance, but to whether the court can perform its judicial review role at all.
This would not necessarily impose a general duty of reason giving on administrative decision-makers. Depending on the context, a reviewing court might be able to perform its role in the absence of elaborate reasons. And remember, the requirement of adequacy is a relaxed one, which will be satisfied in the vast majority of cases, because the decision need only be understandable to the reviewing court. But it might help to simplify matters.
This content has been updated on December 28, 2014 at 13:30.