Date: 20100610
Dockets: A-277-09
A-318-09
Citation: 2010 FCA 158
CORAM: LÉTOURNEAU
J.A.
PELLETIER
J.A.
STRATAS
J.A.
BETWEEN:
VANCOUVER INTERNATIONAL AIRPORT AUTHORITY
AND YVR PROJECT MANAGEMENT LTD.
Applicants
and
PUBLIC SERVICE ALLIANCE OF CANADA
Respondent
REASONS FOR JUDGMENT
STRATAS J.A.
[1]
The
applicant employers’ main submission is that the Canada
Industrial Labour Board has given inadequate reasons in support of certain
rulings against them. These rulings appear in two Board decisions: a decision
dated June 3, 2009 (2009 CIRB LD2148; file A-277-09 in this Court) and a
further decision dated July 24, 2009 (2009 CIRB LD2172; file A-318-09 in this
Court). For the reasons below, I agree with the applicants’ main submission.
The reasons of the Board are inadequate.
[2]
The
Board was dealing with the issue whether certain new job positions created by
the applicant employers fell within the bargaining unit that the respondent union
is certified to represent. In its two decisions, the Board ruled upon 66 job
positions. It ruled that 43 job positions should be excluded from the
bargaining unit and 23 job positions should be included into the bargaining
unit.
[3]
In
this Court, the applicants brought two applications for judicial review against
the two decisions. Their applications challenged the 23 inclusions. The
respondent did not seek judicial review of any of the Board’s rulings.
Therefore, only the Board’s rulings on the 23 inclusions are before this Court.
[4]
Before
this matter arrived in this Court, the applicants asked the Board to reconsider
its decisions. The Board declined to do so. In this Court, the parties agreed
that the Board’s two decisions remained in place, completely unaffected by the reconsideration.
They agreed that this Court should hear and determine the applications for
judicial review, which have now been consolidated.
A. The parties’
submissions
[5]
At
the outset of the parties’ submissions, there was some common ground. The parties
agreed that the Board was obligated to give reasons in support of its rulings
in this case.
[6]
I
agree. On the matters before it, the Board was obligated to provide the parties
with procedural fairness. The Board adjudicated legal and factual issues of significance
for the affected parties, namely whether certain positions were included or
excluded from the bargaining unit.
[7]
Nothing
in these reasons for judgment should be taken as suggesting that all
administrative decision-makers must give reasons in all circumstances. It
depends. In Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 at paragraph 43, the Supreme Court regarded the common law obligation
to provide reasons as a subset of the duty to afford procedural fairness to the
parties. In that case, the Supreme Court held that a Minister deciding a
refugee claim owed the claimant a duty of procedural fairness and, due to the
importance of the decision to the claimant, the claimant needed to know why her
claim was dismissed. Baker emphasizes at paragraphs 23 to 28 that the
level of procedural fairness to be afforded depends upon the circumstances and
may vary from no obligation whatsoever, to a high obligation. Finally, there are
some administrative decision-makers that are not obligated to afford procedural
fairness at all: Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R.
653 at page 670.
[8]
On
the central issue of adequacy of reasons, the applicants submitted that after
reading the Board’s reasons, they do not know why 23 job positions were
included in the bargaining unit. For many of the positions, the Board offered
only a single, curt conclusion, nothing more.
[9]
The
respondent disagreed. While the reasons were brief, the parties could
understand why the Board ruled in the way it did. The parties knew the relevant
principles, there had been a lengthy back-and-forth over the years on these
issues, and a Board officer had released a very detailed report setting out
principles and factual findings. That report should be regarded as part of the
Board’s rationale for its decision, says the respondent, citing this Court’s
decision in Sketchley v. Canada, 2005 FCA 404, [2006] 3 F.C.R. 392.
[10]
An
assumption underlies the respondent’s submissions: whether reasons are adequate
depends on whether they fulfil, in a minimal way, certain purposes and
functions. Distilling the respondent’s submissions to their essence, the
respondent says that the main purpose of reasons is to ensure that the parties
know why the Board decided in the way that it did.
B. Analysis
(1) Introduction
[11]
I
agree that the adequacy of reasons is to be assessed against the purposes that
underlie the giving of reasons. Put another way, “adequate
reasons are those that serve the functions for which the duty to provide them
was imposed”: VIA Rail Canada Inc. v. National Transportation Agency,
[2001] 2 F.C. 25 at paragraph 21 (C.A). This has been the consistent
approach of the Supreme Court and this Court: R. v. Sheppard, [2002] 1
S.C.R. 869; R. v. Braich, [2002] 1 S.C.R. 903; R. v. R.E.M.,
[2008] 3 S.C.R. 3; Canadian Association of Broadcasters v. Society of
Composers, Authors and Music Publishers of Canada 2006 FCA 337, 54 C.P.R.
(4th) 15.
[12]
However,
as will be seen, I do not agree with the respondent that the reasons of
administrative decision-makers are adequate just because the parties know why
they won or lost. The reasons of administrative decision-makers also must
fulfil other purposes. In this case, the Board’s reasons are inadequate because
they do not fulfil, even at a minimum, many of these purposes.
(2) The purposes
underlying the giving of reasons in the administrative law context
[13]
The
Supreme Court has identified some of the purposes underlying the giving of
reasons in the administrative law context, albeit in only three cases, and only
briefly. These purposes include “fairness to the parties” and “justification,
transparency and intelligibility”: Baker, supra at paragraph 43; Dunsmuir
v. New Brunswick, [2008] 1 S.C.R. 190 at paragraph 47. In the area of Ministerial
discretion in the extradition context, the Supreme Court in Lake v. Canada,
[2008] 1 S.C.R. 761 at paragraph 46 has emphasized that the reasons must inform
the parties why the result was reached. They must also make it possible for the
supervising court to review the decision.
[14]
Our
Court has held that reasons in the administrative law context must provide an
assurance to the parties that their submissions have been considered, enable
the reviewing court to conduct a meaningful review, and be transparent so that
regulatees can receive guidance: Canadian Association of Broadcasters, supra
at paragraph 11; VIA Rail Canada Inc., supra at
paragraphs 17 to 22.
[15]
In
the area of criminal law, the Supreme Court has more fully developed the
purposes underlying the giving of reasons. These should not be imported
uncritically into the administrative law area, as the two areas have important
differences. Nevertheless, there is some overlap with the purposes and
functions identified above. Enough information must be given so parties can
assess whether or not to exercise their rights of review, the supervising court
can review what has been done, and the public can scrutinize what has happened:
Sheppard, supra at paragraphs 15 and 24; R.E.M., supra.
[16]
Where,
as here, an administrative decision-maker, acting under a procedural duty to
receive and consider full submissions, is adjudicating on a matter of
significance, what sort of reasons must it give? From the above authorities,
and bearing in mind a number of fundamental principles in the administrative
law context, the adequacy of the decision-maker’s reasons in situations such as
this must be evaluated with four fundamental purposes in mind:
(a)
The substantive purpose. At least in a minimal way,
the substance of the decision must be understood, along with why the
administrative decision-maker ruled in the way that it did.
(b)
The procedural purpose. The parties must be able to
decide whether or not to invoke their rights to have the decision reviewed by a
supervising court. This is an aspect of procedural fairness in administrative
law. If the bases underlying the decision are withheld, a party cannot assess
whether the bases give rise to a ground for review.
(c)
The accountability purpose. There must be enough
information about the decision and its bases so that the supervising court can
assess, meaningfully, whether the decision-maker met minimum standards of
legality. This role of supervising courts is an important aspect of the rule of
law and must be respected: Crevier v. Attorney General of Quebec, [1981]
2 S.C.R. 220; Dunsmuir, supra at paragraphs 27 to 31. In cases
where the standard of review is reasonableness, the supervising court must
assess “whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law”: Dunsmuir,
supra at paragraph 47. If the supervising court has been prevented from
assessing this because too little information has been provided, the reasons
are inadequate: see, e.g., Canadian Association of Broadcasters,
supra at paragraph 11.
(d)
The “justification, transparency and intelligibility” purpose: Dunsmuir,
supra at paragraph 47. This purpose overlaps, to some extent, with the
substantive purpose. Justification and intelligibility are present when a basis
for a decision has been given, and the basis is understandable, with some
discernable rationality and logic. Transparency speaks to the ability of
observers to scrutinize and understand what an administrative decision-maker
has decided and why. In this case, this would include the parties to the
proceeding, the employees whose positions were in issue, and employees,
employers, unions and businesses that may face similar issues in the future. Transparency,
though, is not just limited to observers who have a specific interest in the
decision. The broader public also has an interest in transparency: in this
case, the Board is a public institution of government and part of our
democratic governance structure.
[17]
The
reasons of administrative decision-makers in situations such as this must
fulfil these purposes at a minimum. As courts assess whether these purposes
have been fulfilled, there are a number of important principles, established by
the authorities, to be kept firmly in mind:
(a)
The relevancy of extraneous material. The respondent emphasized
that information about why an administrative decision-maker ruled in the way
that it did can sometimes be found in the record of the case and the
surrounding context. I agree. Reasons form part of a broader context.
Information that fulfils the above purposes can come from various sources. For
example, there may be oral or written reasons of the decision-maker and those
reasons may be amplified or clarified by extraneous material, such as notes in
the decision-maker’s file and other matters in the record. Even where no
reasons have been given, extraneous material may suffice when it can be taken
to express the basis for the decision. Baker, supra, provides us
with a good example of this, where the Supreme Court found that notes in the
administrative file adequately expressed the basis for the decision. See also Hill
v. Hamilton-Wentworth Police Services Board, [2007] 3 S.C.R. 129 at
paragraph 101 for the role of extraneous materials in the assessment of
adequacy of reasons.
(b)
The adequacy of reasons is not measured by the pound. The task is not
to count the number of words or weigh the amount of ink spilled on the page.
Instead, the task is to ask whether reasons, with an eye to their context and
the evidentiary record, satisfy, in a minimal way, the fundamental purposes,
above. Often, a handful of well-chosen words can suffice. In this regard, the
respondent emphasized that very brief reasons with short-form expressions can
be adequate. That is true, as long as the fundamental purposes, above, are met
at a minimum. In this regard, the respondent cited the example of the Board
sometimes issuing orders without reasons. Whether such orders are adequate
depends on the facts of a specific case, but the methodology for assessing
adequacy is clear: the preambles, recitals and provisions of the orders, when
viewed with an eye to their context and the evidentiary record, must satisfy, in
a minimal way, the fundamental purposes, above.
(c)
The relevance of Parliamentary intention and the administrative
context. Judge-made rulings on adequacy of reasons must not be allowed to
frustrate Parliament’s intention to remit subject-matters to specialized
administrative decision-makers. In many cases, Parliament has set out
procedures or has given them the power to develop procedures suitable to their
specialization, aimed at achieving cost-effective, timely justice. In assessing
the adequacy of reasons, courts should make allowances for the “day to day
realities” of administrative tribunals, a number of which are staffed by
non-lawyers: Baker, supra at paragraph 44; Clifford v. Ontario
Municipal Employees Retirement System (2009), 98 O.R. (3d) 210 at paragraph
27 (C.A.). Allowance should also be given for short-form modes of expression
that are rooted in the expertise of the administrative decision-maker. However,
these allowances must not be allowed to whittle down the standards too far. Reasons
must address fundamental purposes – purposes that, as we have seen, are founded
on such fundamental principles as accountability, the rule of law, procedural
fairness, and transparency.
(d)
Judicial restraint. The court’s assessment of reasons is aimed only
at ensuring that legal minimums are met; it is not an exercise in editorial control
or literary criticism. See Sheppard, supra at paragraph 26.
[18]
In
the above statement of purposes and principles, nothing should be taken to
encourage administrative decision-makers to aim only for the legal minimums,
and no higher. Administrative decision-makers should strive to follow best
practices so that the public gets the service it deserves, including providing exemplary
reasons of high standard: for an example of one authority’s helpful view of best
practices, see Ombudsman Saskatchewan, Practice Essentials for Administrative
Tribunals (2009), online: Ombudsman Saskatchewan <http://www.ombudsman.sk.ca/uploads/document/files/omb-tribunal-guide_web-en-1.pdf>.
(3) Application
of these principles to this case
[19]
Measured
against the fundamental concerns and principles, set out above, the Board’s
reasons fall well short of the mark. They are inadequate.
[20]
In
13 of the 23 positions found to be in the bargaining unit, the Board simply
wrote that “there is no basis to exclude given the job duties,” “there is no
basis in the information supplied to exclude the position from the unit,” or
“job duties do not require exclusion.” Did the Board apply any principles in
these rulings? If so, what are the principles? It is a mystery. The applicants
have no idea why they lost, they cannot meaningfully assess whether a judicial
review is warranted or formulate any grounds for it in the case of these 13
positions, this Court is unable to conduct any meaningful supervisory role, and
there is no transparency, justification or intelligibility in the senses set
out above. All we have are conclusions, laudably definitive, but frustratingly
opaque.
[21]
In
effect, for these 13 positions, the Board is telling the parties, this Court,
and all others, “Trust us, we got it right.” In this regard, this case is
strikingly similar to Canadian Association of Broadcasters, supra, where
the administrative decision-maker asserted a bottom-line conclusion with no
supporting information, in effect immunizing itself from review and
accountability.
[22]
In
6 of the 23 positions found to be in the bargaining unit, the Board offered
slightly more than a bare conclusion in support of its ruling. On these
occasions, the Board included a position in the bargaining unit because it was
“at the same level on the organizational chart” or because it was similar, for
some undisclosed reason, to a position in the bargaining unit. What was it
about the level on the organizational chart or the particular position that led
to this conclusion? It is a mystery. In effect, the Board is saying, “Trust us,
but here is a hint.” But the hint does not shed light on the bases for its
decision.
[23]
The
respondent gamely attempted to support the reasons of the Board, sparse as they
are. It emphasized that the principles that the Board normally employs in cases
such as this one are fairly well-developed and understood by many employers,
unions and observers of this area of law. Further, a fairly large number of
positions, 66, were in issue, each involving highly specific facts. The
respondent stressed that care must be taken not to impose too high an
obligation to provide reasons on the Board, affecting its ability to operate
efficiently.
[24]
I
accept that these factors can influence the Court’s assessment of the adequacy
of the Board’s reasons. These factors speak to the issue of whether some allowance
should be given to reflect the practical, daily realities that this administrative
decision-maker must face. But the fundamental purposes underlying the adequacy
of reasons, such as the transparency concern and the supervisory concern, must
still be addressed at a minimum. The Board’s obligation to write adequate
reasons and address fundamental purposes cannot be reduced to naught.
[25]
In
this case, the purposes underlying the requirement of adequate reasons could
have been met without any difficulty, consistent with the practical realities
facing the Board. With just a handful of words – “Throughout this decision, we
apply the principles in [case name]” – the Board could have shown that it was
following some principle. From there, the Board might have written a sentence
or two to identify how the principle applies to each position, or to groups of
positions that raise similar considerations. A sentence or two, sitting
alongside the record in this case, might have disclosed exactly why the Board
ruled in the way it did, and might have addressed all of the fundamental
concerns underlying the provision of adequate reasons.
[26]
So
far, I have dealt with 19 of the 23 positions that the Board included into the
bargaining unit. In the case of the remaining four positions, “payroll
assistant,” human resource advisor,” “contracts manager,” and “project
manager,” the Board did write a sentence or two. But the bases identified in
those sentences seem to conflict with the bases provided for exclusion of other
positions: sometimes one factor is determinative, other times an entirely
different factor seems determinative. The salient concern here is
intelligibility. A single paragraph, perhaps at the start of the reasons could
have set out the operative principles to be followed along with governing
authority. Then the Board’s “sentence or two” approach might have been perfectly
adequate. It might have met any intelligibility concerns by eliminating any apparent
inconsistency in principle.
[27]
As
for extraneous material, it is of no assistance in understanding the Board’s
reasons. In the circumstances of this case and given the sparseness of the
Board’s reasons, it is impossible to see anything in the evidentiary record,
including the investigation report, as helping to supply a rationale for the
Board’s decision. It was open to the Board to adopt, through express language
or by implication, portions of the record as a basis for its conclusions (see Sketchley,
supra at paragraph 37), but the Board did not do this.
(4) Other
grounds of review
[28]
The
applicants raised other grounds of review of the Board’s decision. These arose
primarily as a result of the Board’s reference to positions on an organizational
chart in support of some of its rulings. This led the applicants to note that a
position on an organizational chart, by itself, cannot lead in principle to a
conclusion that a position should be included in the bargaining unit. To the
applicants, this gave rise to two legitimate grounds of judicial review: the
taking into account of an irrelevant consideration and the failure to take into
account relevant considerations.
[29]
We
simply cannot assess these grounds of judicial review because of the absence of
adequate reasons. Quite simply, the considerations and principles that the
Board took into account, relevant or irrelevant, are not adequately apparent.
In any event, it is unnecessary to deal with these other grounds of review in
this case.
C. Conclusion
[30]
The
Board’s decisions to include 23 positions into the bargaining unit should be
quashed, because its reasons are inadequate.
[31]
The
applicants asked that the matter be remitted to a differently constituted panel
of the Board. I would remit the matter back to the Board, but there is no
reason why the matter must be sent to a differently constituted panel. Such a
requirement is imposed when there are concerns about the capacity, capability,
fairness or propriety of the original panel to rule on a matter if it were to
be sent back to them. As best as we can assess from the Board’s truncated
reasons and the parties’ submissions, no such concerns exist here.
[32]
Therefore,
I would allow both applications for judicial review, with costs in file
A-318-09 up to the date of consolidation (September 19, 2009) and costs throughout
in A-277-09. I would quash the decisions of the Board (2009 CIRB LD2148 and
2009 CIRB LD2172) with respect to the 23 positions that the Board decided were
included in the bargaining unit. I would remit these 23 inclusions back to the
Board for redetermination.
"David
Stratas"
“I
agree
Gilles Létourneau J.A.”
“I
agree
J.D. Denis Pelletier J.A.”
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