Alexion – Federal Court of Appeal indicates that, post-Vavilov, Courts should no longer “cooper up” administrative decisions under review

The Patented Medicine Prices Review Board found that the appellant (Alexion) had priced a drug (Soliris) excessively given that the list price was higher than the price in one of the seven countries used for comparison purposes. This decision represented a departure from the Board’s guidelines, yet the Board’s reasons for explaining its decision were inadequate (and “obfuscated” on a key point.)

Before quashing the Board’s decision and remitting the matter to it for redetermination, Stratas JA stated:

Before Vavilov, the Supreme Court instructed us to do our best to try to sustain the outcomes reached by administrators. Accordingly, to that end, reviewing courts could pick up an administrator’s pen and write supplemental reasons supporting the administrators’ outcomes. This sometimes put reviewing courts in the invidious and uncomfortable position of acting as a ghostwriter for administrators, coopering up their decisions. …

Vavilov recognizes the shortcomings in the former law and fixes them. It now requires us to ask if there is a sufficient reasoned explanation in support of the Board’s decision. If there is not, the decision is unreasonable and must be quashed.

Neal Armstrong. Summary of Alexion Pharmaceuticals Inc. v. Canada (Attorney General), 2021 FCA 157 under Federal Courts Act, s. 18.1(2).