Docket: T-2185-24
Citation: 2025 FC 1322
Montréal, Quebec, July 23, 2025
PRESENT: Mr. Justice Gascon
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BETWEEN: |
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ANIKET JOSHI |
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Applicant |
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and |
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ATTORNEY GENERAL OF CANADA |
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Respondent |
JUDGMENT AND REASONS
I. Overview
[1] This case illustrates the tension between two principles established by the Supreme Court of Canada in its landmark Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] decision regarding the sufficiency of reasons in the context of reasonableness review. On the one hand, the well-accepted ability of reviewing courts to read administrative decisions in light of the record before the decision maker. On the other hand, the requirement for responsive justification in the reasons provided by the administrative decision maker, the degree of which will depend on the administrative regime at issue and the stakes at hand.
[2] The applicant, Aniket Joshi, seeks judicial review of a decision dated August 13, 2024 [Decision] whereby the Public Service Commission of Canada [PSC] dismissed his appeal and confirmed the initial decision invalidating his Second Language Evaluation – Oral Language Assessment [SLE OLA] test result. The PSC invalidated Mr. Joshi’s test result because it noted various irregularities with the standardized administration of the test. These irregularities were detailed in an “Incident Report – Irregularities with a Test”
[Incident Report], which was not referred to in the Decision nor communicated or mentioned to Mr. Joshi until this application for judicial review.
[3] Mr. Joshi submits that the Decision is unreasonable because it is insufficient, fails to meet the standard of transparent and intelligible justification, and fails to engage with the factual matrix of the case, namely, his disabilities and approved accommodations.
[4] For the reasons that follow, I agree with Mr. Joshi and his application for judicial review will therefore be granted. In this case, I find that the Decision cannot be saved by the record and is unreasonable. While administrative decisions may be read in light of the record before the decision maker, this cannot be done in order to supplant the total absence of formal reasons. This is precisely what the respondent, the Attorney General of Canada [AGC], invites the Court to do by relying on the Incident Report to fashion reasons for the Decision, even though the Decision itself contains no substantive reasons. The PSC cannot fail to provide any formal reasons and nevertheless expect that its Decision will be upheld on the basis of an internal report that was never alluded to in its reasons nor communicated to Mr. Joshi (Vavilov at para 95).
II. Background
A. The factual context
(1) The PSC and the SLE OLA
[5] The PSC is an independent agency that is responsible for safeguarding the integrity of staffing processes within the Canadian government. The PSC’s mandate includes the appointment, or to provide for the appointment, of persons to or from within the public service (Public Service Employment Act, SC 2003, c 22 at sections 12, 13, 11(a) [PSEA]). The PSEA stresses the importance that Canada continues to benefit from a public service that is based on merit and that can serve the public with integrity, in the official language of their choice. To this end, the PSEA emphasizes the PSC’s role in assessing merit in appointments to or from within the public service. An appointment on merit is made when the PSC is satisfied that the person meets the essential qualifications for the work to be performed, including official language proficiency (subsection 30(1) and paragraph (2)(a) of the PSEA).
[6] In conformity with the PSEA, the PSC may use any assessment method that it considers appropriate to determine whether a person meets the qualifications for an appointment based on merit (section 36 of the PSEA). Before applying the assessment method, the PSC must identify if the assessment method includes or creates biases or barriers that disadvantage persons belonging to any equity-seeking group. If so, the PSC must “make reasonable efforts to remove it or to mitigate its impact on those persons”
(subsection 36(2) of the PSEA).
[7] The SLE OLA was designed to assess the Treasury Board Secretariat’s Qualification Standards in Relation to Official Languages, where there are generally three levels of proficiency: A (beginner), B (intermediate), and C (advanced). The assessment process is also informed by various policies, guidelines, and practices implemented by the PSC. Departments can order the SLE OLA for multiple purposes to confirm if a test taker meets the language requirements of a bilingual position. Regardless of the purpose, the result may be used in the context of an immediate or future appointment process to ensure merit is met.
[8] The Personnel Psychology Centre [PPC] is the unit responsible within the PSC for administering the SLE OLA. PPC staff are qualified and trained professionals who combine expertise in the personnel assessment field with broad experience in the public sector. They have specific knowledge and experience in identifying and responding to assessment needs related to personnel selection and development.
(2) Mr. Joshi’s SLE OLA test order and the Assessment Accommodations Report [AAR]
[9] Mr. Joshi has worked as a Technical Advisor at the Canadian Border Service Agency [CBSA] since 2020. Due to a traumatic brain injury, he suffers from numerous disabilities that require accommodations. Among other things, these disabilities result in him: hesitating while speaking; losing his train of thought; processing information slowly; forgetting what he is saying or reading; and being confused, fatigued, and anxious during moments of high stress.
[10] Mr. Joshi underwent intensive French training with the CBSA Official Languages School from September 2023 to June 2024. In the context of this training, the PPC received a test order for a SLE OLA for Mr. Joshi’s planned C-level testing for French oral proficiency. The test order provided that special accommodations were required due to Mr. Joshi’s disabilities.
[11] On June 5, 2024, an Assessment Specialist with the PPC issued the AAR for Mr. Joshi’s SLE OLA. The AAR outlines the assessment accommodations required for a candidate’s assessment in the context of a PSC test. Assessment accommodations in AARs are created exclusively for the assessed candidate for a single completion of a test. An AAR cannot be used for any other test, including a retest. Should the assessed candidate be invited to a retest and require accommodations, a new request for assessment accommodations must be submitted.
[12] Under “test format,”
the AAR stated that Mr. Joshi “will be tested with the Oral Language Assessment (OLA), which is administered remotely on MS Teams.”
The AAR permitted Mr. Joshi to use the captions feature (i.e., subtitles) on the MS Teams platform. The AAR set out that Mr. Joshi needed to make arrangements to be alone in a quiet environment where he would not be disturbed during the test. It was noted that arrangements would be made to allow for more time, as needed. A pre-test was to be scheduled several days prior to the test in order to go through the accommodation plan and test instructions.
[13] The AAR also provided for an optional warm-up on the day of the test, where the appointed assessor [Assessor] was to offer Mr. Joshi a brief informal conversation to put him at ease. Regarding the conduct of the test session, the AAR noted:
● As in all SLE – OLA tests, the Assessor will ask clear, concise, and precise questions;
● The Assessor will provide some context before asking the main questions and inform Mr. Joshi when she is changing subject;
● Mr. Joshi may sometimes briefly pause when speaking to find words and therefore not complete his sentence or answer, meaning that he is encouraged to use synonyms or other words to explain what he means when he cannot find the word that he is looking for;
● When Mr. Joshi cannot find the word he is looking for, he may take a brief pause to think about what he would like to say before continuing his answer;
● Should Mr. Joshi’s message lack clarity, the Assessor will ask him to repeat, clarify, provide further explanation, or ask a follow-up question;
● Vocabulary will be rated following the usual criteria;
● If Mr. Joshi gets off topic or loses his train of thought when responding to a question, the Assessor should help him by re-directing him back to the topic or the question that was being discussed;
● Mr. Joshi may request another question if he does not know the answer to a question or if a topic is sensitive for personal or confidential reasons;
● Mr. Joshi is permitted to request additional repetitions of test questions, which will not affect the rating of the test as long as the number of repetitions is reasonable and appropriate;
● Going over the test instructions is not an assessed portion of the test, and the test instructions can be repeated as many times as needed; and
● Mr. Joshi can take notes, but they should only consist of key-words and ideas to help him organize his thoughts.
(3) The noted irregularities during the SLE OLA
[14] When administered remotely, the conditions for the SLE OLA are set out in the standard test instructions, procedures, and protocol that are read aloud prior to the test [Testing Conditions]. A candidate must consult the Terms of Use [Terms] prior to the test. By agreeing to be tested, the candidate agrees to follow the Terms. These Terms include that the candidate will not complete the test with assistance from other resources or misuse information to selectively advantage themselves. The Terms set out the potential consequences for non-compliance.
[15] On July 9, 2024, Mr. Joshi completed the SLE OLA remotely over MS Teams with the agreed-upon accommodations during the test. He obtained a C-level result.
[16] After the exam, the Assessor filled out the Incident Report, which noted that the OLA SLE was conducted with the required accommodations. The Assessor also observed that Mr. Joshi mentioned that he was having problems with his connection at the start of the test, so he disconnected and reconnected. The Assessor did not experience any technical difficulties on her end.
[17] The Incident Report provides a detailed factual account of the Assessor’s observations and interventions at Part II. The Assessor noted that Mr. Joshi appeared to be reading an answer because the Assessor observed that he was looking down, his eyes were moving as if he was reading a text, his intonation was unnatural, and his sentences became very well constructed. The Assessor intervened, stating that she saw that Mr. Joshi was looking down, and requested that he confirm that he was not using resources during the exam. Mr. Joshi confirmed this.
[18] After this intervention, Mr. Joshi’s eye movements were less obvious; however, he continued to look down throughout the test, with glances at the camera from time to time. Since it was a test with accommodation measures and the Assessor noted that Mr. Joshi had mentioned multiple times that he was very anxious, the Assessor determined that she would not intervene again to request another similar confirmation that he was not using external resources.
[19] The Assessor noted her concerns were influenced by her observations of the drastic change in Mr. Joshi’s language proficiency between the test and the non-assessed portions. For example, the Assessor compared Mr. Joshi’s performance during the test with his language proficiency during the pre-test session, or during the review of the instructions and AAR on the day of the test. This observed change in performance included Mr. Joshi using English words when he could not find the correct French word, failing to understand the use of the word “
réchauffement”
(“warm-up”
), and resorting to anglicisms. As noted by the Assessor, Mr. Joshi did not incur any such difficulties during the assessed portions.
(4) The quality assurance review
[20] Under Part III of the Incident Report, a Quality Assurance Consultant [QA Consultant] provided her expert opinion after listening to the audio recording of the test. The QA Consultant found that, based on the noted visual observations by the Assessor as well as her assessment of the audio recording, it was more likely than not that Mr. Joshi engaged in unauthorized behaviour during the examination.
[21] In particular, the QA Consultant’s assessment was consistent with the Assessor’s regarding Mr. Joshi’s language proficiency when comparing the pre-test and test performance. Mr. Joshi adopted a slow rhythm with many hesitations and pauses while speaking during the test. Mr. Joshi also committed multiple errors in vocabulary and grammar. The QA Consultant noted that Mr. Joshi indicated that he would use an “e-ink”
note-taking device.
[22] The QA Consultant observed that while the Assessor was going over the assessment accommodations in French, Mr. Joshi did not understand the difference between “
réchauffement”
(warm-up) and “
pause”
(break). As a result, the Assessor had to explain the difference in English.
[23] The QA Consultant noted Mr. Joshi committed a few basic errors to start the test, but the conversation was not impeded. It was only once Mr. Joshi made no errors when responding to a specific question, that the Assessor intervened and stated that she saw Mr. Joshi looking down. It was at this time that the Assessor requested that he confirm that he was not using resources. He responded “yes, I confirm.
”
[24] The QA Consultant noted that Mr. Joshi, while making a number of vocabulary and grammatical mistakes for simple words and structures, provided satisfactory responses to the questions in Part A. There was then a small technical issue and Mr. Joshi had to reconnect.
[25] As for Part B of the test, the QA Consultant found that Mr. Joshi’s performance significantly changed. He committed almost no errors, adopted a more sophisticated vocabulary, and his few errors were attributable more to poor pronunciation. The simple and complex grammatical structures were almost all perfectly constructed. However, Mr. Joshi’s intonation was unnatural. The QA Consultant also noted that Mr. Joshi always took a pause before answering, but that this pause was of an acceptable duration and did not interrupt the fluidity of the conversation. During the pauses, it is noted that Mr. Joshi was no longer heard to be typing on his device. A few times, Mr. Joshi began to respond, paused, and then resumed.
[26] At the end of the test, the QA Consultant noted that when the Assessor asked and repeated a question, it appears that Mr. Joshi wanted to take some time to think about his response but instead stated that he needed a moment because his computer was having an issue. He then requested that the Assessor repeat the question, and his ensuing response contained almost no errors.
(5) The PPC’s deliberations over the Incident Report
[27] On July 12, 2024, the QA Consultant sent the Incident Report to PPC’s Test Defense unit. It was initially received by Dr. Aoife Brennan, Head of Test Defense at the PPC. Dr. Brennan sought clarity on the use of “e-ink.”
She acknowledged that accommodations were in place during the test but noted concerns that Mr. Joshi did not respect the Testing Conditions. Dr. Brennan included an overview of Mr. Joshi’s previous second language testing results and her understanding of the use of “e-ink.”
Jennifer MacDonald, Senior Director at the PPC, also found the results were suspicious and requested proposed next steps.
[28] Dr. Glenn Thompson, Senior Assessment Specialist, subsequently took carriage of the case from Dr. Brennan, and reviewed the matter. Dr. Thompson was of the opinion that the test should be invalidated, with conditions imposed on retest. Putting aside observed irregularities that could be explained by the accommodation measures, she believed that the rest of the evidence easily met the PPC’s standard for invalidation. Dr. Thompson noted that, when correlated with visual observations of suspected cheating behaviour, the shift in performance from Part A to Part B of the SLE OLA would be sufficient on its own to invalidate the test result. Dr. Thompson had no concerns over the use of e-ink.
[29] Ms. MacDonald also agreed with the decision to invalidate, with a condition for in-person retesting. The matter was also referred to PSC investigations.
B. The PSC’s Decision
[30] On July 19, 2024, the Test Defense unit of the PPC completed Part IV of the Incident Report and confirmed the decision to invalidate Mr. Joshi’s test result. Part IV includes various standardized boxes to be marked based on the circumstances. Under “Additional conditions for retesting,”
the box for “In person testing required in a controlled setting”
was marked. The boxes marked to indicate the reasons were the following: (a) failure to abide by the terms and conditions for taking the test; (b) the test was not administered according to standardized protocol; and (c) Mr. Joshi failed to comply with test instructions.
[31] Under “other reasons,”
the PPC elaborated on the reasoning, including an express acknowledgement of the accommodation measures. Even taking account the accommodation measures, the PPC concluded that there was reason to doubt that Mr. Joshi respected the Testing Conditions and Terms of the SLE OLA. The PPC continued to distinguish between the observations that can plausibly be explained by the accommodations — and must be disregarded — and those that can be otherwise considered. The observations that could plausibly be explained by the accommodations were any pauses or lack of fluidity, and any “reading”
eye movements that occurred while the Assessor was speaking (due to the use of subtitles).
[32] The observations that were ultimately considered included the following:
● Mr. Joshi looking down while answering — the reasons acknowledge that this could be linked to legitimate note taking;
● Mr. Joshi’s eye movements were consistent with reading while answering (in section A);
● Mr. Joshi’s performance suddenly improved in section A, which corroborated the Assessor’s visual observations consistent with reading, which were immediately followed by the Assessor’s intervention to remind Mr. Joshi that he cannot use external resources;
● Mr. Joshi’s unnatural intonation when compared to the non-assessed segments and the non-suspect linguistic samples while answering during the test;
● The big fluctuation in performance between the non-assessed and assessed portions, where Mr. Joshi committed basic errors and demonstrated a lack of comprehension during the non-assessed portion, compared with sophisticated, elaborate, and largely error-free answers in the assessed portions. The reasons, however, acknowledge that this could be partly explained by rehearsed responses, memorization, and extra vigilance by Mr. Joshi during the assessed portions;
● Mr. Joshi disconnected due to a technical issue and his performance drastically improved when reconnecting;
● Near the end of the test, Mr. Joshi explained that a pause resulted from a technical issue rather than pausing to think about his answer — the reasons acknowledge this could be explained by a legitimate technical issue.
[33] At the time, the PPC’s system did not allow for a test result to be invalidated without a test score being logged into the system. Mr. Joshi’s C-level result was accordingly consigned.
[34] On July 23, 2024, the SLE Administrative Team mistakenly sent Mr. Joshi’s C-level test result to the test requestor at CBSA, which was then communicated to Mr. Joshi. The very next day, a PPC Assessment Specialist emailed the CBSA that Mr. Joshi’s test result was invalidated. The email mentioned that some irregularities with the standardized administration of the SLE OLA were noted and that an in-person retest was required. The email also noted that the PPC reserved the right to invalidate the next result if the in-person condition was not respected. Importantly, however, the PPC Assessment Specialist did not refer to nor attach the Incident Report in her email. The CBSA then forwarded the email to Mr. Joshi. The same day, Mr. Joshi requested an appeal and asked for further information regarding the alleged “irregularities.”
In his appeal email, he noted his disabilities and need for accommodation.
[35] On August 12, 2024, Mr. Joshi’s union representative also communicated with Dr. Brennan, asking for the justification behind the July 24, 2024 invalidation and requesting reconsideration of the decision. This email again noted Mr. Joshi’s approved accommodations and functional limitations as a result of his disabilities.
[36] On August 13, 2024, Dr. Brennan dismissed Mr. Joshi’s appeal on behalf on the PSC and issued the Decision under review. In her one-page email, Dr. Brennan confirmed that she reviewed the file and agreed with the initial decision to invalidate Mr. Joshi’s test result. She explained that senior experts reviewed the file and had reason to believe that Mr. Joshi contravened the Terms and Testing Conditions by accessing “external resources”
during the test, which resulted in the imposition of the in-person retest, i.e., in a controlled setting. In cases of doubt, it is the PSC’s policy to retest candidates in a controlled setting so that they can render a test result that they have confidence in. Dr. Brennan further clarified that in-person testing was previously required for all SLE testing prior to the COVID-19 pandemic, and that it remains an option. Lastly, she confirmed that she was aware of Mr. Joshi’s concern about in-person testing but advised that his next request for accommodations will be evaluated in light of the in-person context of the retest. In the Decision, Dr. Brennan further mentioned that the facts surrounding Mr. Joshi’s test raised concerns of suspected “cheating.”
[37] Importantly, Dr. Brennan made no reference to the Incident Report in the Decision and did not attach it when informing Mr. Joshi that his appeal was dismissed.
C. Standard of review
[38] It is not disputed that the standard of reasonableness applies to the review of the merits of PSC decisions such as the Decision (see for example: Musende v Canada (Attorney General), 2025 FC 52 at para 22). This is confirmed by the Supreme Court’s landmark decision in Vavilov, where the court established a presumption that the standard of reasonableness is the applicable standard in judicial reviews of the merits of administrative decisions (Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at para 7 [Mason]).
[39] Where the applicable standard of review is reasonableness, the role of a reviewing court is to examine the reasons given by the administrative decision maker and to determine whether the decision is based on “an internally coherent and rational chain of analysis”
and is “justified in relation to the facts and law that constrain the decision maker”
(Vavilov at para 85; Mason at para 64). The reviewing court must therefore ask whether the “decision bears the hallmarks of reasonableness—justification, transparency and intelligibility”
(Vavilov at para 99). Both the outcome of the decision and its reasoning process must be considered in assessing whether these hallmarks are met (Vavilov at paras 15, 95, 136).
[40] Such a review must include a rigorous evaluation of administrative decisions. However, as part of its analysis of the reasonableness of a decision, the reviewing court must take a “reasons first”
approach and begin its inquiry by examining the reasons provided with “respectful attention,”
seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion (Mason at paras 58, 60; Vavilov at para 84). The reviewing court must adopt an attitude of restraint and intervene “only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process”
(Vavilov at para 13), without “reweighing and reassessing the evidence”
before it (Vavilov at para 125).
[41] The onus is on the party challenging the decision to prove that it is unreasonable. Flaws must be more than superficial for the reviewing court to overturn an administrative decision. The court must be satisfied that there are “sufficiently serious shortcomings”
(Vavilov at para 100).
III. Analysis
A. Preliminary issues
[42] Before dealing with the merits of this case, I must first rule on the three preliminary issues raised by the parties and discussed at the hearing.
(1) The Decision under review is Dr. Brennan’s appeal decision
[43] The AGC submits that Mr. Joshi attempts to improperly challenge two decisions within a single judicial review without seeking leave pursuant to section 302 of the Federal Courts Rules, SOR/98-106 [Rules]. The AGC points out that Mr. Joshi contests both the July 24, 2024 initial decision to invalidate his test result and the August 13, 2024 appeal decision. The AGC concludes that this judicial review is limited to assessing the reasonableness of the appeal decision rendered by Dr. Brennan.
[44] At the hearing, counsel for Mr. Joshi conceded that the Decision under review is indeed Dr. Brennan’s appeal decision.
[45] I agree with the parties. Where the decision under review results from an administrative appeal, the Court will only review the appellate decision. The original decision is not before the Court (Frank v Blood Tribe, 2018 FC 1016 at para 61). That said, the initial decision forms part of the reasons in support of the Decision under review, as Dr. Brennan confirmed the former.
(2) Paragraphs 21–62 of the Brennan Affidavit are inadmissible
[46] Mr. Joshi submits that paragraphs 21–62 of the AGC’s affidavit — sworn by Dr. Brennan — [Brennan Affidavit] are improper and ought to be struck in their entirety or afforded no weight. Mr. Joshi believes that these paragraphs constitute an improper attempt to bolster the record that was before the PSC. He also argues that, contrary to Rule 81(1), the Brennan Affidavit contains hearsay, as paragraphs 21–62 allegedly go beyond the personal knowledge of Dr. Brennan.
[47] In response, the AGC maintains that the impugned paragraphs in the Brennan Affidavit are admissible because they provide important evidence as to how the PSC’s process was conducted, how the Decision was made, the steps taken, and how information was communicated. This information, says the AGC, would assist the Court in better understanding the invalidation determination process and in considering the arguments raised by Mr. Joshi (Telus Communications Inc v Vidéotron Ltée, 2022 FC 726 at paras 72, 76). Moreover, even if the information at paragraphs 21–62 could be said to be outside the record, the AGC claims that it would be admissible under the “background information exception”
recognized by the jurisprudence. As for Mr. Joshi’s hearsay-related arguments, the AGC responds that the Brennan Affidavit is admissible under the Federal Court of Appeal’s guidance in Coldwater First Nation v Canada (Attorney General), 2019 FCA 292 at paras 42–49 [Coldwater]).
[48] I do not agree with the AGC and find that the impugned paragraphs of the Brennan Affidavit cannot be admitted or given any weight.
[49] While they can sometimes be helpful, affidavits from administrative decision makers themselves on judicial review have nevertheless been met with caution by the courts. On judicial review, the record before the Court must be that which was before the decision maker, meaning that the Court cannot normally review evidence that was not before said decision maker (Gittens v Canada (Attorney General), 2019 FCA 256 at para 14; Tsleil-Waututh Nation v Canada (Attorney General), 2017 FCA 128 at paras 97–98 [Tsleil-Waututh]; Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at para 19 [Access Copyright]; Lapointe v Canada (Attorney General), 2024 FC 172 at para 12 [Lapointe]; Fortier v Canada (Attorney General), 2022 FC 374 at para 17).
[50] As explained by the Federal Court of Appeal, “[t]he essential purpose of judicial review is the review of decisions, not the determination, by trial de novo, of questions that were not adequately canvassed in evidence at the tribunal or trial court”
(Access Copyright at para 19). Administrative decisions are final and are merely to be reviewed, not redetermined. By virtue of the principle of finality of administrative decisions, a decision maker cannot use judicial review as an opportunity to “amend, vary, qualify or supplement”
its reasons (Canada (Attorney General) v Quadrini, 2010 FCA 246 at para 31).
[51] However, there are some exceptions to the prohibition against new evidence on judicial review. Those limited exceptions extend to materials that: (1) provide general background assisting the reviewing court in understanding the issues; (2) demonstrate procedural defects or a breach of procedural fairness in the administrative process; or (3) highlight the complete absence of evidence before the decision maker (Tsleil‐Waututh at para 98; Bernard v Canada (Revenue Agency), 2015 FCA 263 at paras 23–25 [Bernard]; Access Copyright at paras 19–20; Lapointe at para 12; Nshogoza v Canada (Citizenship and Immigration), 2015 FC 1211 at paras 16–18). In order to be admissible, an affidavit from a decision maker cannot venture outside these areas.
[52] In this case, there can be no doubt that the information contained at paragraphs 21–62 of the Brennan Affidavit is outside the record. Unlike the Incident Report, it is not within the Certified Tribunal Record filed before the Court. In consequence, the impugned paragraphs must fall under one of the above exceptions to be admissible, namely, the “background information exception”
as argued by the AGC.
[53] I am not persuaded that the Brennan Affidavit falls within the “background information exception.”
Under that exception, an affidavit from a decision maker can only be accepted when it provides, in a neutral and uncontroversial manner, general background information that may assist the court in understanding the issues relevant to the judicial review, including the procedures that took place before the decision maker. This exception does not enable the admission of new information going to the merits, only a summary of the evidence relevant to the decision maker’s decision-making. In no way is the reviewing court encouraged to usurp the decision maker’s statutory role as merits-decider by admitting affidavit evidence going to the merits of the matter (Bernard at paras 21, 23). This applies even to affidavit evidence coming from decision makers themselves. An affidavit from a decision maker cannot be used as an after-the-fact means of augmenting or bootstrapping the reasons they provided.
[54] In this case, the Brennan Affidavit manifestly went much farther than simply providing background and context and crossed the Rubicon by venturing into improper bolstering of the Decision. In her affidavit, Dr. Brennan restated and reviewed the grounds and reasoning for her conclusions. Here, the bulk of the Brennan Affidavit greatly elaborates on the laconic reasons stated in the Decision itself. The Brennan Affidavit explains in great detail the observed irregularities and the assessment of such irregularities by PPC personnel. Far from being tied to something said in the Decision itself, the impugned paragraphs of the Brennan Affidavit discuss merits issues that were entirely absent in Dr. Brennan’s August 13, 2024 email. Paragraphs 42–59 are especially problematic, where Dr. Brennan delves into her own reasoning at length. There is nothing in those paragraphs that could not have been included in her reasons for the Decision. As to paragraphs 60–62, they contain irrelevant information that post-dates the Decision.
[55] In my view, this form of affidavit is inappropriate and cannot be admitted or given any weight by reviewing courts. As I previously found with another affidavit from an administrative decision maker, “[d]ecision-makers are obliged to state and disclose the complete bases for their decision in the decision itself, at the time of the decision and, as such, they cannot be permitted to fill in the gaps in the record or supplement the grounds for decision”
(Shahzad v Canada (Citizenship and Immigration), 2017 FC 999 at para 22 [Shahzad], citing Stemijon Investments Ltd v Canada (Attorney General), 2011 FCA 299 at para 41; see also Guo v Canada (Citizenship and Immigration), 2022 FC 883 at para 14).
[56] On judicial review, courts can look at the reasons of the decision maker, and even at the record itself, in order to determine the reasonableness of a decision (Vavilov at para 94; Zeifmans LLP v Canada, 2022 FCA 160 at paras 9–10 [Zeifmans]). But enabling decision makers to reinforce their decision or remedying it by writing better reasons in the form of an affidavit would be like asking the applicant to “hit a moving target”
(Shahzad at para 22, citing, inter alia, Sapru v Canada (Citizenship and Immigration), 2011 FCA 35 at para 52).
[57] Considering the above, there is no need to discuss Mr. Joshi’s hearsay-related concerns with the Brennan Affidavit. That said, I will nonetheless mention that the “corporate subordinate exception,”
which is an application of the principled approach to hearsay, would have saved the Brennan Affidavit on this front (Cavan Speciality Advertising Ltd v Promotions Universelles inc (Universal Promotions), 2025 FC 205 at para 39 [Cavan]; Merck Sharp & Dohme Corp v Pharmascience Inc, 2022 FC 417 at para 48).
[58] The “corporate subordinate exception”
refers to situations where an affiant is acting in a supervisory capacity in relation to specific corporate actions within their own organization and testifies about actions accomplished through subordinates under their supervision. In those situations, a supervisor is not required to be directly involved in all of the conduct, activities, and events involving their department, in order to be able to make statements about these conduct, activities or events, and the supervisor can be found to have sufficient first-hand knowledge of such actions to be able to testify about them (Coldwater at paras 42, 46; Pfizer Canada Inc v Teva Canada Limited Pfizer, 2016 FCA 161 at paras 105–116; Cavan at paras 39–42).
[59] In this case, Dr. Brennan is the Head of Test Defense at the PPC. She was evidently acting in a supervisory capacity towards the other PPC employees at issue, especially the Assessor and Dr. Thompson. It is by virtue of her responsibilities within the PPC and by the fact that she was acting in a supervisory capacity that Dr. Brennan could testify about the work or actions of members of her team without necessarily having direct knowledge of each and every fact within her affidavit.
[60] For those reasons, I conclude that paragraphs 21–62 of the Brennan Affidavit are inadmissible and have therefore not been considered for the purpose of this judgment.
(3) The Charter arguments are not properly before the Court
[61] In his written submissions, counsel for the AGC contests counsel for Mr. Joshi’s written submissions regarding Commission scolaire francophone des Territoires du Nord-Ouest v Northwest Territories (Education, Culture and Employment), 2023 SCC 31 [CSFTNO] and Doré v Barreau du Québec, 2012 SCC 12 [Doré]. The Doré framework applies to administrative decisions that directly infringe rights or engages a value underlying one or more right provided in the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] (CSFTNO at para 69).
[62] The AGC points out that Mr. Joshi’s Notice of Application does not include any reference to the Charter in the grounds, relief sought, or legislation relied upon. The AGC therefore argues that Mr. Joshi’s submissions related to the Charter are contrary to Rule 301(e).
[63] At the hearing, counsel for Mr. Joshi did not address any of her written submissions related to the Charter. Nonetheless, I agree with the AGC that they are not properly before the Court and will consequently be disregarded in my assessment of this judicial review. Rule 301(e) provides that a notice of application must contain “a complete and concise statement of the grounds intended to be argued, including a reference to any statutory provision or rule to be relied on.”
As explained by Justice Stratas, “a ‘complete’ statement of grounds means all the legal bases and material facts that, if taken as true, will support granting the relief sought”
(JP Morgan Asset Management (Canada) Inc v Canada (National Revenue), 2013 FCA 250 at para 39; see also Canada (Attorney General) v Iris Technologies Inc, 2021 FCA 244 at para 12 [Iris]).
[64] Here, the Notice of Application is indeed devoid of any Charter argument. The Court will not consider grounds that have not been raised in a notice of application. If Mr. Joshi truly intended to raise Charter grounds before this Court, then he should have amended his Notice of Application (Republic of Cyprus (Commerce and Industry) v International Cheese Council of Canada, 2011 FCA 201 at para 15; Boubala v Khwaja, 2023 FC 658 at paras 26–27). Subject to limited exceptions, Rule 301 is a mandatory provision with which both the Court and the parties must abide (Iris at para 38). Mr. Joshi has not raised any exceptional circumstances which would enable me to exercise my limited discretion to nevertheless consider his Charter arguments (see, a contrario: Tl’azt’en Nation v Sam, 2013 FC 226 at para 7).
B. The Decision is unreasonable
[65] Turning to the merits of this case, Mr. Joshi submits that the Decision is unreasonable because it is insufficient, fails to meet the standard of transparent and intelligible justification, and fails to engage with the factual matrix of the case, including his disabilities and necessary accommodations. He believes that the Decision does not account for the context of his SLE OLA test, during which he had been afforded accommodations thanks to the AAR’s recognition of his disabilities. He also stresses that the PSC allegedly failed to provide reasons explaining why his test result was invalidated and indicating that it had considered how the approved accommodations may have impacted any perceived irregularities in the test process. In Mr. Joshi’s view, had his disabilities and accommodations been meaningfully considered by the PSC, the former’s concerns as to the validity of his test result would have been easily addressed and explained.
[66] The AGC replies that the Decision was made for reasons completely unrelated to Mr. Joshi’s disabilities. The AGC submits that the Incident Report clearly shows how Mr. Joshi’s assessment accommodations implemented pursuant to the AAR were balanced in the PPC’s review of the observed irregularities during the test.
[67] With respect, I am not convinced by the AGC’s submissions. On the contrary, I rather find that the Decision is unreasonable in light of the “culture of justification”
now required in Canadian administrative law (Vavilov at para 14). It is no longer enough for the outcome of an administrative decision to be justifiable. The administrative decision maker must also justify its decision (Vavilov at para 86). Here, the PSC failed to do the latter.
[68] I do not dispute that the Decision is entitled to considerable deference. When Parliament leaves technical assessments to specialized administrative bodies such as the PSC, it signals that those bodies — not the courts — are best positioned to make judgments on complex, expertise-driven matters (Universal Ostrich Farms Inc v Canada (Food Inspection Agency), 2025 FC 878 at para 6 [Universal Ostrich Farms]). As explained by Justice Russel Zinn, “[w]hen conducting a reasonableness review of decisions involving highly scientific and technical subject matters, courts must pay careful attention to the decision-maker’s expertise”
(Universal Ostrich Farms at para 69, citing Vavilov at paras 92–93). This expertise deserves particular deference on the assessment of facts (Vavilov at para 125).
[69] However, deference does not mean that I should turn a blind eye to unjustified rulings.
(1) Vavilov’s culture of justification
[70] In Vavilov, the Supreme Court ruled that, pursuant to the principles of justification and transparency, an administrative decision maker’s reasons must meaningfully account for the “central issues and concerns raised by the parties”
(Vavilov at para 127). This concept of “responsive reasons”
or of “sufficiency of reasons”
relates to the duty of procedural fairness, more specifically audi alteram partem — the right to be heard, which requires that individuals should have the opportunity to present their case fully and fairly. The rationale for this is clearly set out in Vavilov: “reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties”
[italics in original] (Vavilov at para 127). Indeed, reasons function as a tangible shield against the dangers of arbitrariness and even the mere perception of it in the exercise of public power (Vavilov at para 79).
[71] I remind, however, that reviewing courts cannot expect administrative decision makers to respond to every argument submitted to them, or to make an explicit finding on each constituent element leading to their conclusion (Vavilov at para 128). Put another way, written reasons must never be assessed against a standard of perfection (Vavilov at para 91; Canadian Pacific Railway Company v Sauvé, 2024 FCA 171 at para 16).
[72] Importantly, the degree of justification will vary depending on the administrative context in which the decision was made and the stakes at issue. The review of an administrative decision cannot be divorced from the institutional context in which the decision was made, meaning that formal reasons must be read with due sensitivity to the applicable administrative regime (Vavilov at paras 91, 103). Turning to the stakes, where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect these high stakes. This is notably the case for decisions with consequences that threaten an “individual’s life, liberty, dignity, or livelihood”
(Vavilov at para 133), including the loss of refugee protection (Ravandi v Canada (Citizenship and Immigration), 2020 FC 761 at paras 27–28). On the other hand, where the stakes are on the lower end, less justification is required, even though some is still needed.
[73] For example, applying the above two considerations to the visa context, the high-volume administrative setting of visa offices as well as the modest impact on an applicant (they can always submit a new visa application) mean that a visa officer is generally not required to give extensive reasons for a refusal, provided that they give an understandable explanation of why the visa was refused (Gill v Canada (Citizenship and Immigration), 2021 FC 1441 at para 7; see also: Afuah v Canada (Citizenship and Immigration), 2021 FC 596 at paras 10–11). However, even in such a context, formal reasons for a decision must always be given.
(2) The PSC failed to provide any reasons for the Decision
[74] In the present case, I find the Decision unreasonable because the PSC utterly failed in its duty to justify the outcome of the Decision to Mr. Joshi. Besides the vague mention of the existence of some irregularities and of the use of external resources, neither the Decision nor the initial invalidation decision offer any substantive reasons for the rejection of Mr. Joshi’s test result.
[75] In her written submissions and at the hearing, counsel for the AGC extensively referred to the Incident Report for explanations for the Decision. Yet, this report was never communicated to Mr. Joshi until he received it in the context of this judicial review. The Decision does not even make a passing reference to the Incident Report. Consequently, Mr. Joshi was regrettably not provided any meaningful explanation for the invalidation of his test result until he launched this legal proceeding. All he was told was that his test result had been invalidated because “[s]ome irregularities with the standardized administration of the test were noted”
and he might have been accessing “external resources”
during the test.
[76] Worse still, before the Decision was issued, both Mr. Joshi and his union representative had expressly asked for clarifications as to the reasons behind the initial invalidation decision of July 24, 2024, especially considering Mr. Joshi’s disabilities and approved accommodations. Dr. Brennan’s reasons in the Decision did not provide any such clarifications. As I suggested at the hearing, Dr. Brennan could have easily attached the Incident Report to her email dismissing the appeal or at least briefly summarized the findings from the Incident Report. She did not do so. Not only did Dr. Brennan omit to meaningfully address a key issue raised on appeal — Mr. Joshi’s disabilities and accommodations, but she more generally failed to provide any substantive reasoning whatsoever. She did not identify any of the numerous irregularities that were detailed in the Incident Report.
[77] As mentioned earlier, I am fully aware that reviewing courts may read the written reasons provided by the administrative decision maker in light of the record when conducting reasonableness review (Vavilov at para 94; Zeifmans at paras 9–10). This enables the Court to “connect the dots on the page where the lines, and the direction they are headed, may be readily drawn”
(Vavilov at para 97, citing Komolafe v Canada (Citizenship and Immigration), 2013 FC 431 at para 11 [Komolafe]). Under the Vavilov framework, an administrative decision should therefore be left in place if reviewing courts can discern from the record why the decision was made and the decision is otherwise reasonable. In short, the reasons on key issues can sometimes be implicit. Based on the entire record, the reviewing court must be convinced, from explicit words in reasons or from implicit things in the record or both, that the decision maker was alive to the key issues raised by the parties and reached a reasonable decision on them (Zeifmans at para 10, citing Vavilov at paras 120–122 and Canada (Citizenship and Immigration) v Mason, 2021 FCA 156 at paras 38–42, rev’ on other grounds 2023 SCC 21).
[78] As such, reviewing courts must resist the temptation of insisting on the sort of express, lengthy, and detailed reasons that, if asked to do the job themselves, they might have chosen to provide. Parliament intended that administrative processes be timely, efficient, and effective (Zeifmans at para 9, citing Vavilov at paras 91–94).
[79] For instance, it is well established that decision letters by visa officers must be read together with any relevant notes from the Global Case Management System [GCMS] to understand fully the reasons for a decision (Lotfikazemi v Canada (Citizenship and Immigration), 2024 FC 691 at para 11; Jamali v Canada (Citizenship and Immigration), 2023 FC 1328 at para 46; Ezou v Canada (Citizenship and Immigration), 2021 FC 251 at para 17 [Ezou]; Rabbani v Canada (Citizenship and Immigration), 2020 FC 257 at para 35). Doing so may resolve ambiguities that may have been created by the decision letter.
[80] However, “reviewing courts must keep in mind the principle that the exercise of public power must be justified, intelligible and transparent, not in the abstract, but to the individuals subject to it”
[emphasis added] (Vavilov at para 95). It is therefore unacceptable for an administrative decision maker to provide formal reasons that fail to justify its decision or that contain a fundamental gap in reasoning. In the words of the Supreme Court, “[t]o allow a reviewing court to do so would be to allow an administrative decision maker to abdicate its responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion”
(Vavilov at para 96). Accordingly, a reviewing court “must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable”
(Vavilov at para 99).
[81] In short, the Vavilov approach requires an understandable path from input to result. The reviewing court must be able to discern the reasons (transparency) and the reasons must be logical (intelligible).
[82] Here, it is not a situation where somewhat flawed written reasons can be cured by delving into the record. There are no substantive written reasons at all. Reviewing courts cannot “connect the dots”
on a page that simply does not exist. Where an administrative decision merely states a conclusion without supplying any formal reasons, justifying it based on the record would be speculating as to what the decision maker was thinking, or supplying reasons that were not given to the parties (Vavilov at para 97, citing Komolafe at para 11). Such conduct is forbidden on judicial review and usurps the role of the decision maker as the merits decider.
[83] Notwithstanding the Incident Report, we do not know how Dr. Brennan took into account the concerns that Mr. Joshi and his union representative raised on appeal. The record does not contain any evidence relating specifically to Dr. Brennan’s reasoning, only evidence pertaining to the initial invalidation decision. I cannot speculate as to what Dr. Brennan was thinking when considering Mr. Joshi’s appeal, or supply reasons where there are none.
[84] In my view, the situation before me is somewhat analogous to that in Ezou, where a decision refusing an application for permanent residence was quashed because the decision letter communicated to the applicant offered no explanation on why his application was refused. The immigration officer simply stated that they were not satisfied that the applicant satisfied the statutory requirements and omitted to provide any reasons whatsoever. The explanatory sentence stopped after the word “because.”
Granting the application for judicial review, Justice William F. Pentney found that it was impossible to “connect the dots”
in this instance, as the decision letter “was lacking any explanation for the reasons for the decision; it simply declared a conclusion”
(Ezou at para 24). What is more, the officer’s GCMS notes were not communicated to the applicant until he filed his application for judicial review (Ezou at para 26).
[85] In his reasons, Justice Pentney also clarified that Ezou should not be read as departing from the long-accepted doctrine that, in immigration matters, GCMS notes can form part of the decision. Justice Pentney explained that a decision letter that merely stated “application refused”
could not be sustained as reasonable even if the CGMS notes showed a detailed and thorough analysis, because in that instance the notes would not simply form part of the decision. Indeed, they would be expressing the entirety of the reasoning (Ezou at para 25).
[86] Mere conclusory statements without any explanation nor analysis are insufficient to meet the Vavilov standard for justification, as they do not provide the Court with an ability to understand how the decision maker reached its conclusion (Katoch v Canada (Attorney General), 2024 FC 744 at para 13).
[87] In this case, the Decision simply declares a conclusion: the invalidation of Mr. Joshi’s test result, without more. The outcome of the Decision may well be justifiable, but the Decision itself is not justified. Even if the outcome of the Decision may be reasonable, it is not open to me to substitute my own justification for such outcome (Vavilov at para 96). This alone suffices to render the Decision unreasonable, regardless of the findings expressed in the Incident Report.
[88] The AGC essentially asks that I rely exclusively on the Incident Report to make up for the lack of reasons in the Decision. I do not agree. The record cannot, in and of itself, compensate for an absence of reasoning in administrative decisions. There is one exception to this rule, where the decision-making process at hand does not easily lend itself to producing reasons, such as the adoption of a bylaw by a municipality and the holding of a vote by a law society (Vavilov at paras 137–138). This is evidently not the case here. Nothing within the PSC’s decision-making process prevented it from providing reasons to Mr. Joshi.
[89] Besides those situations where the decision-making process at issue does not call for reasons, the decision maker must always communicate a modicum of formal reasons to the applicant. Indeed, 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”
(Vavilov at para 95). The PSC cannot expect the Decision to be upheld of the basis of crucial internal records — namely, the Incident Report — that it kept to itself.
[90] The AGC’s position implies little or no distinction between the decision and the record, which runs afoul of the culture of justification now at the heart of Canadian administrative law. It could also enable or entice creative counsel to supply purported reasoning for a decision, contrary to Vavilov (Sedoh v Canada (Citizenship and Immigration), 2021 FC 1431 at para 34).
[91] What is more, I do not agree with the AGC’s view that the stakes at issue are low. It is true that Mr. Joshi has been afforded the opportunity for a retest with conditions and the opportunity to submit a new accommodation request. In other words, the Decision may not be fatal to Mr. Joshi’s career advancement. That said, the Decision expressly states that it involves a case of “suspected cheating”
by Mr. Joshi, as acknowledged by Dr. Brennan. Even a finding of suspected cheating — as opposed to established cheating — is a stain on one’s career and reputation. While the stakes may not be at the highest end of the spectrum, they are not exceedingly low. Here, Mr. Joshi was found to be a suspected cheater without being given any explanation. It may not be a decision with consequences that threaten Mr. Joshi’s life or liberty, but it certainly has some actual or potential impact on his “dignity”
and “livelihood”
(Vavilov at para 133).
[92] Moreover, even if I were to qualify the Decision’s references to “irregularities”
and “external resources”
as reasons, they would be wholly unintelligible. The Decision does not clarify what irregularities or external resources Dr. Brennan was referring to on appeal. These references assist neither me nor Mr. Joshi in understanding the PSC’s reasoning.
[93] To conclude, the Decision is unreasonable because the PSC only communicated the outcome reached to Mr. Joshi and failed to provide him with any reasons. It is not enough for an administrative decision maker to arrive at a reasonable conclusion; the decision maker must also show the affected party the work it did to reach this conclusion (Vavilov at para 86). The PSC failed to show its work to Mr. Joshi and therefore to justify the Decision.
C. The appropriate remedy
[94] Mr. Joshi submits that this is a situation where it would be appropriate for the Court to quash the Decision and reinstate Mr. Joshi’s C-level result, rather than remitting the matter to the PSC for redetermination. He believes that remitting the matter would be pointless and that there is only one reasonable outcome, i.e., the restoration of his C-level result.
[95] I do not agree and I will instead return the matter to the PSC for redetermination. There can be no doubt that more than one reasonable outcome is possible here.
[96] In Vavilov, the Supreme Court pointed out that a reviewing court has some discretion as to the remedies to be granted when it quashes an unreasonable decision by an administrative decision maker, with the majority warning against the “endless merry-go-round of judicial reviews and subsequent reconsiderations”
(Vavilov at paras 140–42). Thus, it may sometimes be appropriate to refuse to remit a case to an administrative decision maker “where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose”
(Vavilov at para 142; see also: Pepa v Canada (Citizenship and Immigration), 2025 SCC 21 at para 121; Mobil Oil Canada Ltd v Canada Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), [1994] 1 S.C.R. 202 at pp 228–230; Canada (Attorney General) v Chu, 2022 FCA 105 at para 9; Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100 at paras 99–100, aff’d 2022 SCC 30).
[97] When deciding on the appropriate remedy, it is important to remember that the Court’s discretion not to remit the matter for redetermination should be exercised only in the “clearest of circumstances”
and if the evidence can truly lead only to one result (Canada (Attorney General) v Impex Solutions Inc, 2020 FCA 171 at paras 90–92). Such an exercise of discretion is exceptional in nature and must by no means become the norm.
[98] Here, I have only found the Decision to be unreasonable due to a lack of justification. I make no comment on the reasonableness of the outcome of the Decision. These reasons should therefore not be construed as an approval or disapproval of the factual findings contained within the Incident Report. Upon redetermination, the PSC may well maintain its invalidation of Mr. Joshi’s test result while this time providing adequate justification. It will be up to the PSC, not this Court, to decide.
IV. Conclusion
[99] For the reasons set forth above, Mr. Joshi’s application for judicial review is granted. Here, the PSC failed to justify the Decision to Mr. Joshi, and the existence of the Incident Report cannot overcome the PSC’s justificatory failure. In an administrative context where formal reasons are expected, the Court cannot delve into the record for the purpose of fashioning reasons where none were given (Vavilov at paras 95–96). This failure in the PSC’s duty of responsive justification causes me to “lose confidence in the outcome reached”
(Vavilov at para 106). The Decision is consequently unreasonable. I must remit the matter to the PSC for redetermination, as there is more than one reasonable possible outcome.
[100] Mr. Joshi is entitled to his costs, and the parties have agreed on an all-inclusive, lump sum of $2,500.
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