Brown v. Canada (Attorney General)

Brown v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2024-11-25
Neutral citation
2024 FC 1884
File numbers
T-405-24
Decision Content
Date: 20241125
Docket: T-405-24
Citation: 2024 FC 1884
Ottawa, Ontario, November 25, 2024
PRESENT: The Hon Mr. Justice Henry S. Brown
BETWEEN:
DAVID BROWN
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
[1] This is an application for judicial review of a decision by the third and final level delegated decision-maker of the Treasury Board Secretariat of Canada [TBS], dated February 2, 2024 [Decision]. The Decision denied two grievances filed by the Applicant on October 27, 2022, and June 29, 2023, alleging unfair, inappropriate, potentially unlawful, discriminatory treatment, censorship and reprisals by management. The Decision dismissed both grievances on the basis that the decision-maker had no jurisdiction regarding his complaints under the Canada Labour Code, RSC 1985, c L-2 [Canada Labour Code], that in a great number of respects the Applicant’s complaints concerned matters related to a previous grievance concerning Leave Code 699 matters (that was set aside on judicial review and is therefore over and done with), and that there was no evidence of wrongdoing, discrimination or threat of reprisals. I am not persuaded the Decision is unreasonable and therefore this application will be dismissed.
I. Facts [2] The Applicant has worked as a Senior Policy Analyst at TBS since March 2020. The Applicant’s position is classified as PE-05 (Personnel Administration), which is unrepresented; however, his terms and conditions of employment follow the Economics and Social Science Services Collective Agreement [EC Collective Agreement]. Not having a union which might advise and represent him, he comes to this Court representing himself.
[3] The Applicant identifies as neurodivergent and a person with a mental health disability.
A. Background (1) First internal grievance and investigation [4] The Applicant has been before this Court twice concerning related but separate decisions, both of which were set aside by this Court and remitted back to TBS for redetermination (see Brown v Canada (Attorney General) 2023 FC 1748 [Brown 2023] and Brown v Canada (Attorney General) 2024 FC 823 [Brown 2024]. Brown 2023 (in which the Court found the Applicant had been unreasonably assessed in an earlier grievance concerning TBS COVID-19 directives re payroll Code 699) summarizes surrounding facts:
[3] In broad strokes, the Applicant had an underlying mental health condition that was exacerbated by the COVID-19 pandemic to such a serious extent he was unable to work as of May 1, 2020 and for some time thereafter. His departmental employer, TBS, required him to use up his accumulated sick leave notwithstanding a direction from TBS dated April 10, 2020, that “all employees (i.e. critical and non-critical employees who are working remotely or on-site), who are unable to work because of a COVID-19-related illness, will no longer be required to take sick leave and instead will be eligible for ‘Other leave with Pay (699)”. He unsuccessfully grieved this determination to the third level.
(2) Notices of Occurrence filed pursuant to the Canada Labour Code [5] This case concerns, among other things, two Notices of Occurrence [NoO] the Applicant filed with his employer pursuant to the Canada Labour Codeand Work Place Harassment and Violence Prevention Regulations, SOR/2020-130.
[6] The Applicant’s first NoO was responded to by letter dated November 29, 2022. The Designated Recipient determined:
the allegations in [the Applicant’s] Notice of Occurrence fall outside the scope of the definition provided in the Code and as applied under the Workplace Harassment and Violence Prevention Regulations. It is plain and obvious that the allegations do not relate to work place violence or harassment even if accepted as true. As such, no further action will be taken with respect to [the Applicant’s] above-noted Notice of Occurrence.
[7] On March 6, 2023, the Applicant then filed a further labour standards complaint with the Labour Program of Employment and Social Development Canada [Labour Program] concerning the employer’s investigation. In a letter dated May 30, 2023, the Labour Program closed the Applicant’s file, stating:
Having investigated your complaint, in my opinion, the employer has complied with the requirements of the Act.
Upon further review of the first Notice of Occurrence (NoO #1) along with the second Notice of Occurrence (NoO #2) and the investigation reports, the allegations identified in NoO #1 and NoO #2 have been investigated and no further action is required.
Therefore, it has been determined that the employer is in compliance with Paragraph 125(1)(z.16) of the Canada Labour Code Part II, and Subsection 25(1) of the Work Place Harassment and Violence Prevention Regulation.
The Labour Program of Employment and Social Development Canada can, therefore, take no further action on your behalf.
[Emphasis added]
B. Grievances at issue [8] Although the Applicant raises a multitude of proceedings in his record, the only decision under judicial review is the Final Level Grievance Response (Internal Grievances 322231 and 322274), dated February 2, 2024. The Decision concerns these two grievances (filed within 8 months of each other) [collectively the Grievances]. The Grievances allege that management’s treatment towards the Applicant was unfair, inappropriate, potentially unlawful, and discriminatory. They also raise concerns about the Employer’s application of the Leave Code 699 COVID-19 policy, wrongdoing within the organization, and the Applicant’s fear of reprisal for raising such concerns.
(1) Grievance 322231 [9] Grievance 322231 is the second grievance filed by the Applicant, counting the one dealt with by this Court in Brown 2023. Specifically, Grievance 322231, submitted October 26, 2022, makes three primary allegations concerning 1) adequacy and timeliness of responses from management, 2) harassment in the form of discrimination, and 3) potential wrongdoing. He also notes his fear of reprisal.
[10] The Applicant says the “inaction and non-response” from management to his many questions negatively impacted his return to work and worsened his mental health situation to the point that he was forced to go on leave again. The Applicant alleges this meets the definition of harassment in the form of discrimination, and that management did not meet its legislative responsibility to provide him with a healthy and safe work environment.
[11] In June 2022, the Applicant wrote that he “has not yet received answers to many of his questions… or even to be explicitly told where management would not be in a possibility of answering” them. The Applicant requested answers to his questions as corrective action for Grievance 322231:
If they are not answered and addressed in some other form or fashion, I would like all of my outstanding questions and issues to be addressed. In particular, I would like the following answered and corrective action taken.
Pertaining to potential wrongdoing:
1. Previously the policy guidance pertaining to the use of code 699 was as follows: “The use of other leave with pay (699) should be granted on a case-by-case basis, and only after remote or alternate work, or flexible work hours have been considered, and generally only after other relevant paid leave has first been used by the employee (i.e. Family related leave and paid sick leave, etc.).” (reference TBS IN-BRIEF, Effective Nov 9th, 2020). In TBS, during the time period that this policy was in effect, in cases where individuals used all of their relevant leave and could not do remote or alternate work, or flexible work hours, did they receive code 699 support or not?
2. If management across the organization were not providing this support, would this be considered wrongdoing?
3. At a minimum, would management's actions be considered unfair and/or inappropriate?
4. When I raised these and similar questions with management all the way up the line to the Clerk of the Privy Council, is it fair and/or appropriate that I received little to no response whatsoever for over a year?
In the event that management has committed wrongdoing and/or unfairly treated employees (that used all of their relevant leave and could not do remote or alternate work, or flexible work hours) in not following the organizations own policy guidance identified above, and if employees deserve it, I would like these employees to be reimbursed in some form or fashion and in part or in whole for the time that they should have received code 699 support.
Also, in the event that management has committed wrongdoing and/or unfairly treated employees (that used all of their relevant leave and could not do remote or alternate work, or flexible work hours) in not following the organizations own policy guidance identified above, and if the managers and advisors who are implicated in this deserve it, I would like implicated individuals to return a portion of their performance pay and/or benefits commensurate with their involvement in this wrongdoing and/or unfair treatment.
Pertaining to personal restitution:
5. Is it fair and/or appropriate that my executive director directed me to not send any long emails to anyone and when I repeatedly raised this and my fear of punishment, that management refused to take action for months and speak out in favor or against this behavior?
6. Despite my repeated engagement and follow-up, is it fair and/or appropriate that management not tell me the rationale behind the use of code 699 for over a year which harmed my mental health and led me to believe this was unjustified discrimination?
7. Is it fair and/or appropriate that I be assessed up to my occupational group and level while on a gradual return to work and not working full-time when this expectation was never clearly communicated to me until much later (approximately 10 months)?
8. Is it fair and/or appropriate that my manager tell me my contributions were not providing enough value to Canadian taxpayers.
9. Is it fair and/or appropriate that management did not address my concerns of fear of reprisal for over a year?
10. Is it fair and/or appropriate that management did not answer non-opinion based questions?
11. Is it fair and/or appropriate for management to not speak out on issues pertaining to the health and wellbeing of employees when we have potentially discriminatory policies?
12. Is it fair and/or appropriate that the acting Deputy Minister tell me it is inappropriate that I share my experience with others when I expressly asked everyone to please redact anything that they did not feel comfortable with and indicated I would send everything through an ATIP process to protect the privacy of others?
13. Is it fair and/or appropriate that no one tell me what would be an appropriate way for me to communicate my experience when I have asked repeatedly?
14. Is it fair and/or appropriate for management to continue to not respond to my questions and issues for months when I have clearly said this is harming my mental health and I have provided a letter from my doctor stating that answering my questions would help with my rehabilitation?
15. Is it fair and/or appropriate that management has not apologized for their inaction and non-response, in some cases for over a year and counting?
16. Are the delays that I have experienced in being afforded a healthy and safe work environment fair and/or appropriate and as such should I bear the full impact of these delays?
If I deserve it, I would like to be reimbursed (pension, pay and benefits) in part or in whole for the time that I was unable to work due to this negative work situation that harmed my mental health to the extent that I was unable to work and function.
If management and/or those who have advised them deserve it, I would like them to return a portion of their performance pay and/or benefits commensurate with their involvement in my situation and their non-response and inaction.
[12] Grievance 322231 also grieved issues regarding the application of the Leave Code 699 COVID-19 policy, management’s comments on the Applicant’s performance, and the non-response of management to his questions. These matters concerned his first grievance which was ultimately decided in his favour after this Court granted judicial review in Brown 2023.
[13] In addition to the actual grievance document, the Applicant filed supporting and supplementary documentation on over a half-dozen occasions.
[14] On November 29, 2022, the Designated Recipient informed the Applicant that the allegations in the second NoO fell outside the definitions of violence and harassment in the Canada Labour Code. The letter stated that if the Applicant disagreed with the determination, he may contact the Labour Program. As noted above, the Applicant did so but the Labour Program found that the employer had complied with the requirements of the Canada Labour Code.
[15] On June 26, 2023, the Applicant sought to add the denial of his second NoO to Grievance 322231. The Labour Relations Advisor replied that the decision regarding the NoO fell outside the timeline of his second grievance, and therefore would change the nature of the grievance.
[16] She informed him that new events could only be considered through a separate grievance.
(2) Grievance 322274 [17] Therefore, on June 29, 2023, the Applicant filed his third grievance (Grievance 322274) which challenged the Labour Program’s decision regarding the Applicant’s second NoO. The Applicant also grieved management’s treatment of him in 2023, such as ignoring him, and allegedly censoring him. Grievance 322274 alleged discrimination on the part of management. For this grievance, the Applicant provided additional material documents consisting of some 400 pages.
[18] In fact, Grievance 322274 largely overlaps with Grievance 322231. It pertains to Article 16 of the EC Collective Agreement (no discrimination) on the ground of disability. As noted, it also raises new allegations of censorship and silencing by management. The corrective action requested by the Applicant for this grievance was once again for management to answer questions posed by the Applicant:
Overall, I would like to be accommodated with answers to all of my outstanding issues and questions and if management is not able to answer my questions, to be specifically told this and why. I want to be guided and have the freedom to share my experience in an appropriate way and a formal public apology for how I have been treated over the past two years. I would like an investigation into my second notice of occurrence and public investigation into how my situation has been handled as there could be corruption in the internal notice of occurrence process within TBS and how the Labour Program has dealt with my second notice of occurrence.
In addition to the questions that I have asked in my second grievance, in particular, I would like the following answered and corrective action taken.
1. If formal processes are ongoing, does it mean that management and the organization do not need to respond to and/or answer my outstanding questions and issues?
2. Is it fair and/or appropriate for management to ignore me for weeks and or months and repeatedly just point me to the formal processes rather than addressing the issues that I am raising that have had such a debilitating impact on me?
3. Is it fair that my entire management structure up to the new CHRO infringe on my freedom of speech to speak truth to power by directing me to cease emailing, writing, copying or otherwise directing questions to multiple individuals related to my outstanding issues and questions? This is very similar to what my executive director said to me but this direction was given from my entire management structure and in writing. What will be the impact if I disobey this direction and will I be punished and/or receive reprisal?
4. Is it fair to silence and censor me in the event that people may feel intimidated, without first giving me an opportunity to address any concerns they may have and or remove them from the correspondence if they so desire?
5. Despite my repeated engagement and follow-up, is it fair and/or appropriate that management never clarify that the rationale they told me a year after I raised the issue of fair treatment of Code 699 was not the full rationale of why we implemented code 699 at the beginning of the pandemic when I had my mental health illness directly related to COVID-19.
6. Is it fair and/or appropriate that management disregarded jurisprudence in my situation that states the employer has a duty to accommodate employees who appear to require it, even if they do not request it, on the basis of the “ordinary person test?” If an ordinary person had the same information about an employee as the employer has, would he or she realize that the employee required accommodation?”
7. Is it fair and/or appropriate for management to continue to not respond to my questions and issues for months when I have clearly said this is harming my mental health and I have asked for accommodation and provided a letter from my doctor stating that answering my questions would help with my rehabilitation?
8. Is it fair and/or appropriate that management has not apologized for their inaction and non-response, in some cases for over 2 years and counting, despite their commitment to do so?
9. Are the delays that I have experienced in being afforded a healthy and safe work environment fair and/or appropriate and as such should I bear the full impact of these delays?
10. Is it fair and/or appropriate for the organization to ask me to lie on my form and only agree to submit my work related mental health injury to the Labour Program if I indicate I intend to make a claim?
11. Is it fair and/or appropriate for the Labour Program to not respond to my complaint and questions for months?
12. Is it fair and/or appropriate for the Labour Program to subsequently change their determination when TBS clearly broke the harassment and violence prevention regulations?
13. Is it fair and/or appropriate that I be free to share all of the details of my experience and if so how can I do this in an appropriate fashion?
14.Is it fair and/or appropriate that I be a whistleblower pertaining to my situation because my organization has tried to silence me and has broken the harassment and violence prevention regulations and how can I do this to avoid breaking my duty of loyalty and avoid any disciplinary actions?
If management and/or those who have advised them deserve it, I would like them to return a portion of their performance pay and/or benefits commensurate with their involvement in my situation because they have not treated me fairly through their advice non-response and inaction. In many instances, their behavior has not demonstrated the key leadership competencies and this has had and continues to have a negative effect on me and my ability and freedom to work in a healthy and safe workplace.
[19] On September 5, 2023, the Applicant submitted 44 pages of additional written submissions in relation to his Grievances.
[20] The Grievances proceeded directly to the second level. After September 5, 2023, and before the second-level grievance hearing, the Applicant provided further additional documentation on September 15, 2023, and October 26, 2023.
[21] The second level grievance hearing was held on November 7, 2023. Following the second grievance hearing and before the second-level grievance decision was issued on December 8, 2023, the Applicant again added additional material on November 15, 2023, and again on November 17, 2023.
[22] Both grievances were denied at the second level on December 8, 2023. On December 15, 2023, the Applicant requested that the grievances be transmitted to the final level. In making his request, he submitted six additional pages of argument replying to the second level grievance decision. Again, he appended further material.
[23] On December 22, 2023, Mr. Andrew Lemieux, a Senior Labour Relations Advisor, invited the Applicant to his final level grievance hearing, to be held on January 22, 2024. In reply, the Applicant agreed and provided an “Abridged Compendium of Applicant’s Record.”
[24] The Final Level grievance hearing was held on January 22, 2024. The hearing was two hours long at the Applicant’s request, as opposed to the one hour normally afforded grievors. The documentary material comprised over 1,000 pages. A Final Level Grievance Response denying both grievances was issued on February 2, 2024.
C. Procedural note [25] Note that the Second Level Grievance Response which denied both grievances was also before the final level decision-maker, as was an accompanying Precis prepared by TBS staff that included a timeline of events and staff recommendations.
II. Decision under review [26] The Decision found that no wrongdoing or discrimination by the Employer occurred toward the Applicant. The Decision states it “reviewed the details surrounding the Employer’s denial of [the Applicant’s] request for Other Leave with Pay – Code 699 (‘Leave Code 699’) for the period May 1, 2020, to Nov 9, 2020, which was the subject of [his] previous grievance,” but held that “[a]s this matter is the subject of a separate grievance, it will not be addressed here.” See also Brown 2023, which reviewed this earlier and separate grievance and ordered it reconsidered; it was ultimately decided in his favour.
[27] Further, the Decision found that disagreeing with management and respectful communication of that disagreement was not a basis to fear reprisals, that there was no evidence of wrongdoing, and no evidence of reprisals:
The concerns you raised appear to be directly related to your own disagreement with how the Employer applied the policy governing the use of Leave Code 699 to your own situation. Having a different interpretation than the Employer of an Employer policy is not in itself a basis for an allegation of wrongdoing. Respectfully and appropriately communicating to your management that you disagree with the Employer’s interpretation of its own policy, without further evidence or particulars, is not a reasonable basis on which to fear reprisal from your management. Furthermore, I have not been presented with any evidence to lead me to conclude that any wrongdoing actually occurred. I have also not been presented with any evidence to lead me to conclude that you were subjected to reprisal as a result of respectfully and appropriately communicating disagreement with how the Employer had been applying the policy governing the use of Leave Code 699 to employees, or for any other reason.
…. I have not been presented with any evidence to lead me to conclude that your management was doing anything other than communicating to you their concerns, based on their observations during your gradual-return-to-work period, about whether you were well enough to return to work, or whether any workplace accommodations may be required to help support you in achieving a successful return to work. While I appreciate that you found these conversations difficult, your management was making good-faith efforts to facilitate a successful return to work.
[28] The Applicant had requested as corrective measure “an investigation into [his] second notice of occurrence and public investigation into how [his] situation has been handled,” raising concerns of potential corruption. On this issue, the Decision held the employer (TBS) had no jurisdiction to review the final decision of the Labour Program under the Canada Labour Code and that the appropriate recourse mechanism for the Applicant to raise such concerns is under the Labour Program, which is separate from TBS and in respect of which “TBS does not have any control.”
[29] The Decision concludes there was no wrongdoing or discrimination, and that the Applicant was obliged to adhere to the Government of Canada’s Values and Ethics Code for the Public Sector which sets out values and expected behaviours that guide public servants in all activities related to their professional duties. As a public servant, the Decision stated, “you have an obligation to work collaboratively and respectfully with your colleagues and to follow the direction of your management”:
It is clear to me that you disagree with how the Employer applied a policy to your personal situation. I do appreciate that you feel frustrated by this. Your management communicated to you on a number of occasions how it was applying a policy to your personal situation and responded to your questions and concerns. You then filed a grievance (322152) to formally present your disagreement, which is the proper forum in which to do so.
The Values and Ethics Code for the Public Sector describes the values and expected behaviours that guide public servants in all activities related to their professional duties. As a public servant, you have an obligation to work collaboratively and respectfully with your colleagues and to follow the direction of your management, notwithstanding any disagreement you may have with how your management has applied an internal policy to your personal situation. It is important for you to review and understand these obligations.
I strongly encourage you to find an appropriate and constructive way for you to manage what appears to be a very challenging issue for you. If you are unsure how to appropriately share your concerns or experiences, you should consult your direct manager for guidance and clarification. You are also reminded that the Employee Assistance Program is available to all employees and additional useful resources can be found on the Mental health and wellness hub.
Based on the information before me, I have concluded that no wrongdoing occurred and that you were not subject to discrimination. Consequently, the grievances and corrective actions are denied.
[30] I also note that the Decision relied on the Precis prepared by TBS staff, which specifically addresses the issues of whether the Applicant should have been accommodated in the form of receiving answers to his many questions. This Precis forms part of the Decision and states:
Non-Response:
Management responded to his inquiries reasonably and in good faith when appropriate. He sent repeated messages to large group of parties, and it took management some time to involve the necessary stakeholders to respond to his questions/concerns.
…
Management trying to Silence The grievor:
If an employee does not agree with a decision made, the expectation is to address the issue with their direct line of management. The email sent to the grievor on June 8, 2023, outlined the expectation for him to cease sending correspondence to all levels of government and if he has any concerns, to address them with his management team. The intent is not to silence him, only to have him communicate in the appropriate chain of command.
…
(5) Grievor’s repeated inquiries to management; direction grievor received from management to limit his communications beyond his immediate management
Over the past approximately three years, the grievor has repeatedly sent questions to various levels of management as well as to other individuals outside of the organization, including the Prime Minister. In many instances, the grievor did not receive replies. In some instances, the grievor received replies, however, the grievor does not feel that his questions were answered. He believes that he has suffered workplace violence or harassment as a result. He also believes that he has been discriminated against on the basis that his mental health disabilities necessitate an accommodation to receive timely replies to his inquiries and that he has suffered harm as a result of not receiving fulsome and timely response. All the grievor’s questions stem from his initial request for Leave Code 699 for his sick leave from approximately May to November 2020, though later questions also focus on what he believes was a failure by various parties to respond to his questions in a timely manner.
While it may have been preferable for management to have more promptly engaged with the employee to attempt to bring these inquiries to a closure, and to have directed the grievor to cease these repeated inquiries to a multitude of parties, it’s not clear that the grievor was subject to workplace harassment or violence, nor that the grievor was discriminated against. Indeed, these allegations were the subject of the grievor’s complaints contained with in the Notices of Occurrences, both of which were dismissed by the Designated Recipient. These dismissals were subsequently upheld by the Labour Program, the group responsible for compliance with the relevant legislative requirements, in its May 30, 2023, letter to the grievor.
Finally, the grievor appears to mistakenly believe that section 2(b) of the Canadian Charter of Rights and Freedoms, which establishes the right to freedom of expression, enshrines a right for him to communicate anything to anyone within his workplace organization, and to parties outside the organization about issues that have arisen during his ongoing employment. However, management does have discretion to direct the employee to limit his communications within the workplace to designated individuals, as well as to reasonably enforce workplace policies, even if this involves restricting what he may communicate and to whom.
[Emphasis added]
III. Issues [31] The Applicant (whose 29-page single-spaced Memorandum does not in any respect follow the format required by Rule 70 of the Federal Courts Rules, SOR/98-106 [Federal Courts Rules],) does not clearly set out his specific issues. Instead, his Memorandum generally raises whether the Decision is reasonable and whether the grievance process was procedurally fair.
[32] He also asks the Court to answer a number of questions that, in my respectful view are largely rhetorical and are not core issues to be determined on this application for judicial review. These include:
Should the organization’s decision to deny the Applicant’s grievance be set aside to be redetermined with instructions to reimburse the Applicant his salary for this time period in whole or in part; and if not, could it order the Applicant be allowed to utilize the sick leave credits he previously accumulated in lieu of the long term disability leave without he needed to take following May 26, 2021?
If there are noted concerns with accommodations while on a gradual return to work and an individual is in the process of undertaking a fitness to work assessment to determine appropriate accommodations, should management,
a)offer interim accommodations based on the “ordinary person test,” and/or;
b)wait to assess the individual up to his or her occupational group and level until appropriate accommodations are implemented?
Does a designated recipient have the right to unilaterally determine that a notice of occurrence does not meet the definition of harassment and violence?
If a principal party insists that they believe a notice of occurrence meets the definition of harassment and violence and insists on proceeding with an investigation, does the employer or designated recipient have the right to deny proceeding with an investigation?
Does the Labour Program have the authority to declare that certain individuals’ actions and conduct do not need to be investigated if other individuals similar actions and conduct have already been investigated, particularly in light of the fact that the investigation reports upon which this decision was made were determined by the Federal Court to be procedurally unfair?
Should there be an investigation into the Applicant’s second notice of occurrence?
Should I be censored and silenced from even engaging with my own management when it is impacting my health and wellbeing? Is mentioning people by name when I ask them questions intimidation?
[33] The Respondent raises the following issues:
An evidentiary issue regarding the Applicant’s reliance on unsworn facts as well as unsworn evidence that was not before the decision-maker;
Whether the internal grievance process leading to the decision under review was procedurally fair;
Whether the decision was reasonable;
If the application for judicial review is allowed, what is the appropriate remedy?
[34] Respectfully, the primary issues to be determined are whether the Decision is reasonable and whether the grievance process was procedurally fair.
IV. Standard of review [35] The parties agree, and I concur, that the standard of review for procedural fairness is correctness and the standard for the Decision itself is reasonableness.
A. Reasonableness [36] With regard to reasonableness, in Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67, issued at the same time as the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], the majority per Justice Rowe explains what is required for a reasonable decision, and what is required of a court reviewing on the reasonableness standard:
[31] A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov, at para. 85). Accordingly, when conducting reasonableness review “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at [the] conclusion” (Vavilov, at para. 84, quoting Dunsmuir, at para. 48). The reasons should be read holistically and contextually in order to understand “the basis on which a decision was made” (Vavilov, at para. 97, citing Newfoundland Nurses).
[32] A reviewing court should consider whether the decision as a whole is reasonable: “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review” (Vavilov, at para. 90). The reviewing court must ask “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para. 99, citing Dunsmuir, at paras. 47 and 74, and Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 13).
[33] Under reasonableness review, “[t]he burden is on the party challenging the decision to show that it is unreasonable” (Vavilov, at para. 100). The challenging party must satisfy the court “that any shortcomings or flaws relied on ... are sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100).
[Emphasis added]
[37] In the words of the Supreme Court of Canada in Vavilov, a reviewing court must be satisfied the decision-maker’s reasoning “adds up”:
[104] Similarly, the internal rationality of a decision may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise. This is not an invitation to hold administrative decision makers to the formalistic constraints and standards of academic logicians. However, a reviewing court must ultimately be satisfied that the decision maker’s reasoning “adds up”.
[105] In addition to the need for internally coherent reasoning, a decision, to be reasonable, must be justified in relation to the constellation of law and facts that are relevant to the decision: Dunsmuir, at para. 47; Catalyst, at para. 13; Nor-Man Regional Health Authority, at para. 6. Elements of the legal and factual contexts of a decision operate as constraints on the decision maker in the exercise of its delegated powers.
[106] It is unnecessary to catalogue all of the legal or factual considerations that could constrain an administrative decision maker in a particular case. However, in the sections that follow, we discuss a number of elements that will generally be relevant in evaluating whether a given decision is reasonable, namely: the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies. These elements are not a checklist for conducting reasonableness review, and they may vary in significance depending on the context. They are offered merely to highlight some elements of the surrounding context that can cause a reviewing court to lose confidence in the outcome reached.
[Emphasis added]
[38] The Supreme Court of Canada in Vavilov at paragraph 86 states, “it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision-maker to those to whom the decision applies.” Vavilov provides further guidance that a reviewing court decide based on the record before them:
[126] That being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir, para. 47. The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them: see Southam, at para. 56. The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. In Baker, for example, the decision maker had relied on irrelevant stereotypes and failed to consider relevant evidence, which led to a conclusion that there was a reasonable apprehension of bias: para. 48. Moreover, the decision maker’s approach would also have supported a finding that the decision was unreasonable on the basis that the decision maker showed that his conclusions were not based on the evidence that was actually before him: para. 48.
[Emphasis added]
[39] Vavilov makes it abundantly clear the role of this Court is not to reweigh and reassess the evidence unless there are “exceptional circumstances.” The Supreme Court of Canada instructs:
[125] It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”: CHRC, at para. 55; see also Khosa, at para. 64; Dr. Q, at paras. 41-42. Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: see Housen, at paras. 15-18; Dr. Q, at para. 38; Dunsmuir, at para. 53.
[Emphasis added]
[40] The Federal Court of Appeal held in Doyle v Canada (Attorney General), 2021 FCA 237 [Doyle] that the role of this Court is not to reweigh and reassess the evidence unless there is a fundamental error:
[3] In doing that, the Federal Court was quite right. Under this legislative scheme, the administrative decision-maker, here the Director, alone considers the evidence, decides on issues of admissibility and weight, assesses whether inferences should be drawn, and makes a de