On December 15, 2011 the Supreme Court of Canada (“Supreme Court“) issues its decision in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62,  3 SCR 708 (“Newfounland Nurses“).
In Newfoundland Nurses, the Supreme Court essentially abolished “adequacy of reasons” as a stand-alone ground for judicial review. Rather, the Supreme Court stated that an officer’s reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. The Supreme Court further stated that (citations removed for ease of reading):
Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion. In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.
The fact that there may be an alternative interpretation of the agreement to that provided by the arbitrator does not inevitably lead to the conclusion that the arbitrator’s decision should be set aside if the decision itself is in the realm of reasonable outcomes. Reviewing judges should pay “respectful attention” to the decision-maker’s reasons, and be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fateful.
As one immigration lawyer put it, the Department of Justice (the “DOJ“) has since argued that under the Newfoundland Nurses reasonableness standard the Federal Court must uphold a tribunal’s decision as long as it falls within the most extremely close to unreasonable range of possibilities that the most extreme officer dictates. In one case of mine, the DOJ even argued that there could basically be no reasons so long as the Federal Court thought that the decision was a possibly correct one that the tribunal could reach. But is this really the case?
In a previous blog post I mentioned a case in which the Federal Court pushed back against this rigid interpretation of Newfoundland Nurses.
It has continued to do so.
In Komolafe v. Canada (Citizenship and Immigration Canada), 2013 FC 431,Justice Rennie stated that:
Newfoundland Nurses is not an open invitation to the Court to provide reasons that were not given, nor is it licence to guess what findings might have been made or to speculate as to what the tribunal might have been thinking. This is particularly so where the reasons are silent on a critical issue. It is ironic that Newfoundland Nurses, a case which at its core is about deference and standard of review, is urged as authority for the supervisory court to do the task that the decision maker did not do, to supply the reasons that might have been given and make findings of fact that were not made. This is to turn the jurisprudence on its head. Newfoundland Nurses allows reviewing courts to connect the dots on the page where the lines, and the direction they are headed, may be readily drawn. Here, there were no dots on the page.
In Benoit v. Canada (Citizenship and Immigration Canada), 2013 FC 185, the Federal Court further held that:
In my view, no amount of “supplement[ing],” to quote Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 12, salvages the officer’s decision. The Regulations clearly require that only a “substantial” number of the duties be performed. That is the test. The officer in this case singles out only parts of two of the eight main duties from NOC 6211 and on that basis concluded that Ms. Benoit’s experience at the Granite did not qualify.
In Canada (Citizenship and Immigration) v. Grdan, 2014 FC 187, Justice Roy reiterated that the Federal Court is not there to pore through tribunal records to reach its own conclusion, stating that:
In the case at bar, we ended up at the hearing looking for evidence in the record and speculating as to what the Board may have meant. The reviewing court is not there “to supply the reasons that might have been given or make findings of fact that were not made”. It does not matter that the decision is rendered orally or after deliberations.
In Roshan v. Canada (Citizenship and Immigration), Justice Bell overturned a decision, stating that:
These unanswered questions lead me to conclude that, while the decision may be within a range of possible, acceptable outcomes, it is not defensible in respect of the facts and law. Furthermore, in my view, while there may be some degree of transparency in the Officer’s approach, I find the reasons neither justifiable, nor transparent.
In reaching this conclusion, I am mindful of the fact that this Court should not unnecessarily parse the Officer’s decision and that I should consider whether there is, in the record, evidence upon which the Officer could have reasonably reached the conclusion she did. Because of my unanswered questions and my inability to divine how the Officer chose to disregard key evidence from Mr. Onley and the Department of State, I am unable to apply Newfoundland Nurses to save the impugned decision.
In Chakanyuka v. Canada (Immigration, Refugees, and Citizenship), Justice Southcott stated:
The Applicants rely on the jurisprudence of this Court, in which judicial review has been granted in the absence of reasons justifying a decision (see Jasim v Canada (Minister of Citizenship and Immigration), 2003 FC 1017, at paras 18-19; Bajraktarevic v Canada (Minister of Citizenship and Immigration) 2006 FC 123, at para 18; Cobham v Canada (Minister of Citizenship and Immigration), 2009 FC 585, at para 26; Webb v Canada (Minister of Citizenship and Immigration), 2012 FC 1060, at para 31) and in particular Adu v Canada (Minister of Citizenship and Immigration), 2005 FC 565 [Adu], where Justice Mactavish held as follows at paragraph 14:
In my view, these ‘reasons’ are not really reasons at all, essentially consisting of a review of the facts and the statement of a conclusion, without any analysis to back it up. That is, the officer simply reviewed the positive factors militating in favour of granting the application, concluding that, in her view, these factors were not sufficient to justify the granting of an exemption, without any explanation as to why that is. This is not sufficient, as it leaves the applicants in the unenviable position of not knowing why their application was rejected.
I am conscious that adequacy of reasons is not a stand-alone basis for quashing a decision. Rather, the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes (see Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at para 14, [Newfoundland Nurses]). However, I do not consider these principles to detract from the reasoning in Adu, that a decision must contain analysis, explaining how the decision-maker arrived at his or her conclusion. Otherwise, the applicant has not received reasons at all.
The list of cases in which the Federal Court has held that the decisions of visa officers must still be intelligible despite Newfoundland Nurses goes on, and covers a wide variety of areas of immigration law. As a result of numerous Federal Court cases, including those mentioned above, the current state of the application of Newfoundland Nurses is perhaps best summarized in two paragraphs of the Federal Court’s recent decision in Millik v. Canada (Citizenship and Immigration Canada), 2015 FC 82, where Justice Boswell stated (citations removed):
Visa officers render discretionary decisions which are reviewable on the standard of reasonableness. The Supreme Court has stated that reasonableness requires “justification, transparency and intelligibility within the decision-making process” as well as a decision which falls “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.
The insufficiency of reasons is not “a stand-alone basis for quashing a decision.” However, reasons must “allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes.” The Court does not have a licence to fill in the gaps in a decision or to speculate as to what the decision-maker was thinking.