Reasonableness Review in Canada: Delios v. Canada (Attorney General), 2015 FCA 117

Reasonableness is fast becoming the dominant organizing principle of Canadian administrative law. In particular, Courts of Appeal around the country have been putting flesh on the bones of the skeletal definition given in Dunsmuir (see, e.g. here). The latest example is Delios v. Canada (Attorney General), 2015 FCA 117, a straightforward review of a labour adjudicator’s interpretation of a collective agreement.

First, Stratas J.A. noted, although the reviewing court nominally applied a standard of reasonableness, it had “actually performed correctness review” (at para. 25; and see the very instructive examples at para. 23). Reasonableness review does not permit a court to arrive at its own preferred interpretation of a provision and then check to see whether the administrative decision-maker’s interpretation matches it:

Under the reasonableness standard, we do not develop our own view of the matter and then apply it to the administrator’s decision, finding any inconsistency to be unreasonable. In other words, as reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did, finding any inconsistency to be unreasonable. That is nothing more than the court developing, asserting and enforcing its own view of the matter – correctness review (at para. 28. See also Law Society of New Brunswick v. Ryan, [2003] 1 SCR 247, at paras. 50-51, though the guidance there is often ignored, even by the Supreme Court).

Second, Stratas J.A. recalled the familiar idea that the range of acceptable and defensible outcomes “can be narrow, moderate or wide according to the circumstances” (at para. 26) before adding:

The evidentiary record, legislation and case law bearing on the problem, judicial understandings of the rule of law and constitutional standards help to inform acceptability and defensibility. Here, certain indicators, sometimes called “badges of unreasonableness,” may assist…For example, a decision whose effects appear to conflict with the purpose of the provision under which the administrator is operating may well raise an apprehension of unreasonableness…In that sort of case, the quality of the explanations given by the administrator in its reasons on that point may matter a great deal. Another badge of unreasonableness is the making of key factual findings with no rational basis or entirely at odds with the evidence. But care must be taken not to allow acceptability and defensibility in the administrative law sense to reduce itself to the application of rules founded upon badges. Acceptability and defensibility is a nuanced concept informed by the real-life problems and solutions recounted in the administrative law cases, not a jumble of rough-and-ready, hard-and-fast rules.

Badges of unreasonableness must be identified in order to justify striking down a decision. But these are not a laundry list of potential reasons for judicial intervention. Sometimes, perhaps even often, what look like badges of unreasonableness on first glance will turn out on a patient review of the record to be perfectly acceptable and defensible ways of expressing a particular thought or justifying a particular conclusion.

Where a decision is indelibly tainted by a badge or badges of unreasonableness, judicial intervention will be more or less appropriate depending on the range of reasonable outcomes. For instance, the narrower the range, the more that will be required by way of explanation of the badge(s) of unreasonableness tainting the decision. At all times, an administrative decision should be read fairly, not picked apart in a “line by line treasure hunt for error“; the true meaning, I venture to add, of the “deference as respect” that Canadian courts so often talk about.

Here, the adjudicator’s decision was reasonable:

Behind this finding is the adjudicator’s specialized and expert appreciation that in any collective agreement – often a document of considerable length and complexity – there will be issues left on the table, unresolved. Collective bargaining can be tough, each side must make difficult compromises, and so there are any number of things in the final deal that can seem unfair or inequitable to the parties. As the adjudicator noted, it is not for him to modify the text of the agreement to address those issues. Rather, as the adjudicator held, it is for the next round of bargaining.

Overall, all of the above observations and findings of the adjudicator are rooted within his factual appreciation and labour relations specialization and expertise. To use the language of reasonableness review, they are within his margin of appreciation. To the extent there is any unfairness, inequity or additional cost resulting from his interpretation of the collective agreement, it is an artifact of the collective bargaining process. The overall result reached by the adjudicator is acceptable and defensible on the facts and the law and, thus, reasonable (at paras. 36-37).

Update:

It is worth mentioning Saskatchewan Power Corporation v Alberta (Utilities Commission), 2015 ABCA 183. Sometimes, reading a decision carefully will reveal that the flaws alleged by the parties are not actually flaws after all:

[57]           It is argued that paragraph 226—no priority for AB-BC and AB-Sask interties per subsection 16(4) but there may be other reasons to given them priority—conflicts with paragraph 228. In paragraph 228 the Commission concluded that the Operator must allocate ATC on a non-priority basis. We agree with the Operator’s response to this criticism. Paragraph 226 should be read as determining that the restoration requirements in sections 16(1) to (3) are not a basis for prioritizing ATC allocation but there may be other reasons (that is, other than ss 16(1) to (3)) for the Operator to prioritize. In addition to confirming the Operator’s obligation to restore the existing interties, paragraph 228 suggests that support for not prioritizing ATC allocation is found elsewhere in the scheme and context of the Act. We do not read these paragraphs as conflicting to the degree advanced by the appellants.

This content has been updated on June 5, 2015 at 13:07.