October 14, 2022
…the exercise of public power must be justified, intelligible and transparent, not in the abstract, but to the individuals subject to it.”
So said the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, the 2019 case which restated the approach that courts take to a judicial review of an administrative decision.
Without reasons, the court cannot know if the tribunal answered the correct question, and if that answer is reasonable.
THE ISSUE
Not all administrative decisions result in concise reasons like those given by judges in court, or adjudicators at formal tribunals. That is because many administrative decisions are made in less formal situations – see for example Trinity Western University v. Law Society of Upper Canada, where the courts had to parse the reasons out of the debates of the benchers (directors) of the Law Society.
In Vavilov, “the Court emphasized that administrative decisions are not to be held to a standard of perfection. In reviewing a decision for reasonableness, the Court should take account of the context in which the decision was made, including the decision-maker’s expertise and the history and context of the proceedings”.[1]
The Trinity Western approach though remains the exception, not the rule. It might be applied to debates of a municipal council, but it is “unacceptable for an administrative decision maker to provide an affected party formal reasons that fail to justify its decision, but nevertheless expect that its decision would be upheld on the basis of internal records that were not available to that party.”[2]
THE CASE
This paradox came to a head in Guelph and Area Right to Life v. City of Guelph, a judicial review of a municipal decision relating to right to life advertisements on transit buses. Two Supreme Court decisions establish that in those circumstances, the City is required to “balance its legislative objectives against the applicant’s right to freedom of expression.”[3]
The City had adopted a code of acceptable advertising. That policy provided that any member of the public could complain to Advertising Standards Canada, a national not-for-profit body. Complaints are investigated, and decisions made by a majority vote of members of its council. The council notified the parties, with brief reasons. This did not, however, immediately result in the ads being rejected. That determination was made by a city representative. That person did not give formal reasons, so upon the judicial review, the city attempted to rely upon an affidavit in which that person explained their decision.
The Divisional Court refused to consider the affidavit, for the reasons quoted above. Once that further explanation was rejected, the court was left with no evidence that there had been an exercise of balancing interests and a minimal impact analysis as earlier cases required under the Charter of Rights and Freedoms. Without that evidence, the City’s decision did not meet the requirement of reasonableness,
The court did comment that even if the judges had considered the affidavit, the analysis would have been insufficient, so the result would be the same – the analysis by the transit manager was not “robust” enough.
Nor, in the court’s opinion, was the review by Ad Standards. These ads constitute political free speech, which attracts more deference and greater freedom than commercial speech – when Ad Standards reviews commercial ads, they are typically worried about accuracy or truthfulness. Political opinions, being statements of opinion, not fact, cannot be judged as to truthfulness.
THE RESULT
The issue of the appropriateness of the ads was sent back to the City for a decision that follows the balancing test. It was not a foregone conclusion that the City ought to allow the ads on their buses, but the City will have to consider the competing considerations.
TAKEAWAYS
- Municipal decision makers must be aware of the need to give full and transparent explanations for their decisions when they announce their decisions.
- There are no second chances to correct or add to those reasons.
- Decisions which impact on rights under the Charter must reflect a balancing process mandated by prior cases.
- In situations where non-lawyers will frequently have to make these decisions, having a lawyer drafted template for decision-making will increase the likelihood of the reasons being seen to be reasonable.
- In service training of administrative decision makers is also recommended.
WHAT WEILERS LLP CAN DO FOR YOU
Weilers LLP provides a full range of services to municipalities and other decision makers across Northwestern Ontario from policy development and drafting through training and representation on judicial reviews.
We also frequently represent organizations impacted by administrative decisions who wish to challenge the decisions, or simply require assistance finding a pathway to a better result.
Whether you are an administrative decision maker, or the person affected by a decision, we may be the right lawyers for you. Give us a call.
[1] Guelph and Area Right to Life v. City of Guelph, 2022 ONSC 43 (CanLII), <https://canlii.ca/t/jm057> at para. 73 (“Guelph“).
[2] Guelph at para. 73.
[3] Guelph at para. 2.