Reasonableness as Tapestry

Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 is closing in on 10,000 mentions in subsequent cases. 

After five-or-so years the basic concepts have been very well explained and are widely understood. Nonetheless, every now and then I come across a passage that is particularly evocative. 

The following contribution by Phillips J in Sprung c. Canadian Actors’ Equity Association, 2024 QCCS 850, dealing with a discipline report prepared by a third-party investigator (TPI) is quite wonderful. I’ve emphasized the best part and included a top and tail for context:

[84]        The final report claims to have assessed credibility,[52] an assertion that was flatly denied by the TPI, who, twice during the hearing of the application for judicial review, and without hesitation either time, candidly stated that his investigation entailed no assessment of credibility whatsoever. And yet, in many instances, he was faced with conflicting accounts of a given point. In the evidence compilation, one finds no attempt to reconcile or otherwise reach factual conclusions. It consists merely of a succession of paragraphs indicating no more than so-and-so stated this, whereas someone else stated that. There is no substantive discussion.

 

[85]        It is as if someone had been asked to describe the appearance of a large tapestry, who then proceeded to give a square-inch-by-square-inch account, going to great pains to note every detail of the colours, shapes, the number of knots and stitches in each separate square-inch surface area, one after the other, but without taking any interest in the overall image and picture being portrayed. Bald facts are lined up one after the other. In the final report, an equally bald conclusion then follows “substantiating” this or that. There is no sense that the TPI was able to gauge the relative weight to be given to this or that account. Nor does one sense that the TPI was able to put facts into context. His evidence compilation, later distilled to its essence to constitute his final report, is little more than the aggregate of a lengthy series of isolated assertions.

 

[86]        Whether or not the TPI thereby acquitted himself of his fact-finding role is a contractual matter as between him and Equity, which was not debated and about which the Court expresses no opinion. The point is simply that, for the overall analytical process leading to the Decision to have been reasonable, it was necessary that someone, at some step, appropriately weigh the importance of certain key elements of context.

For me the tapestry metaphor — describing in evocative terms the act of missing the wood for the trees — is up there with other classics of reasonableness review, like Rennie J’s “join the dots” metaphor in Komolafe v. Canada (Minister of Citizenship and Immigration), 2013 FC 431, and Abella J’s “line by line treasure hunt for error” in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34.

I remain sceptical about the analytical utility of metaphor in administrative law but, nonetheless, a well-done metaphor can capture analytical ideas very effectively. Credit where credit is due.

Feel free to post any of your own favourites in the comments.

This content has been updated on March 25, 2024 at 10:08.