SOAR’S ANNUAL CONFERENCE

HAS REASONS REVIEWRISEN AGAIN?

November 6, 2014

Presented by: Raj AnandWeirFoulds LLP416.947.5091ranand@weirfoulds.com

Outline of Presentation

1. Newfoundland Nurses: the death of reasons review

2. Post-NL Nurses: divergent lines of jurisprudence

3. Tips and takeaways

2

Newfoundland Nurses (2011 SCC)

• Re-interpretation of Dunsmuir

• Adequacy of reasons is not a stand-alone basis to set aside a tribunal decision

• Reasonableness based on evaluation of both outcome and reasons

• Look to the record

• Complete absence of reasons as procedural unfairness

3

Allegiance to the deferential approach: Agraira (2013 SCC)

• Admitting the applicant “would not be detrimental to the national interest”

• No consideration of five mandated factors or definition adopted for “national interest”

• With no “express decision”, Court could “consider the reasons that could be offered” by looking at the whole record

• Since implied interpretation was reasonable, the decision was upheld

• Implicit or implied interpretations: Alberta IPC v. ATA (2011) (issue of time extension not addressed); Library of Parliament (section not referred to)

4

Taking refuge in “complete absence of reasons”: Manga

• Convention refugee application rejected

• “absence of analysis with respect to what constitutes the heart of the matter cannot be condoned”

• “where there are no reasons in circumstances where they are required, there is nothing to review”

• More stated here than in Agraira, ATA or Library of Parliament

5

Resistance to NL Nurses: Komolafe and cases following it

• Federal Skilled Worker class application rejected: applicant didn’t provide evidence he met the regulations

• Agent’s attempt to give reasons by affidavit on judicial review rejected

• “NL Nurses is not an open invitation to the Court to provide reasons that were not given, nor is it license to guess what findings might have been made or to speculate as to what the tribunal might have been thinking.”

• “NL Nurses allows reviewing courts to connect the dots on the page where the lines…may be readily drawn. Here, there were no dots on the page.”

6

7

Stratas JA decisions

• D’Errico: NL Nurses distinguished because party here was not sophisticated

• Lemus: noted ATA was decided the day before NL Nurses and was not mentioned by the Supreme Court

• as between the two, chooses ATA

• “one might also query whether, in trying to sustain an outcome reached by flawed reasoning, the reviewing court might be coopering up an outcome that the administrator, knowing of its error, might not have itself reached.”

8

Tips and takeaways: achieving justification, transparency, intelligibility

• Written reasons where possible, even if disposition given orally

• Importance of introduction

• Write reasons, not conclusions

• Sufficiency: listening and explaining

• Credibility findings must be justified

9

Tips and takeaways (cont’d)

• Don’t need to record all the evidence and submissions

• Don’t need to resolve every issue in dispute

• Reasons don’t need to be long