Is adequacy of reasons question of law on appeal? | Sara Blake

By Sara Blake

Law360 Canada (September 21, 2022, 8:22 AM EDT) --
Sara Blake
Sara Blake
In Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) 2011 SCC 62, the Supreme Court of Canada ruled that the adequacy of a tribunal’s reasons for decision is not a stand-alone ground of judicial review.

This ground of judicial review appears to have been revived in cases where there is a statutory right of appeal to the court on a question of law. In Creelman v. Executive Director of Assessment for the Province of New Brunswick 2022 NBCA 13, the New Brunswick Court of Appeal ruled that the adequacy of a tribunal’s reasons is a ground of appeal on a question of law, attracting the standard of review of correctness.

The court upheld a decision of the Assessment and Planning Appeal Board which fixed the value of a property for assessment purposes. The property owner’s main ground of appeal was the failure of the board’s reasons to explain its choice of value.

I note that the statute in Creelman did not require the board to deliver reasons for the decision, but reasons are typically given by the board, with some cut and paste from prior decisions, which the court criticized.

The appeal was dismissed because the court found, first, that the value of a property is a finding of fact, not subject to appeal on a question of law. Second, the board’s choice of value was within the range of values established by expert evidence and within the scope of the board’s discretion to assess a value. The court did note, in obiter, that the board’s choice is not restricted by the evidence on value.

The court ruled that, on appellate review of the sufficiency of reasons, the question is narrowed to whether the reasons responded to the issues of the case, having regard to the evidence as a whole and the submissions.

The appellant alleged that this approach applied the standard of reasonableness. On my read, there is merit to that argument.

However, I question whether the adequacy of reasons should be classified as a question of law subject to a correctness standard of review on appeal. Correctness is the standard of review of the scope of discretion granted by statute because all questions of statutory interpretation are subject to the correctness standard. However, an exercise of discretion, within the scope granted by statute, engages the knowledge and experience of the tribunal in its regulatory sphere. This is entitled to judicial deference, which the court, on my read, granted.

In Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65, the Supreme Court of Canada ruled that “a decision will be unreasonable if the reasons for it, read holistically, fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis. A decision will also be unreasonable where the conclusion reached cannot follow from the analysis undertaken or if the reasons read in conjunction with the record do not make it possible to understand the decision maker’s reasoning on a critical point. Similarly, the internal rationality of a decision may be called into question if the reasons exhibit clear logical fallacies.” Though this ruling concerned judicial review, if applied on appeal, it describes a standard of palpable and overriding error.

In Creelman, the court accepted the appellant’s characterization of the adequacy of reasons as a question of procedural fairness subject to a standard of review of correctness. In a previous blog, I questioned the application of this standard to questions of procedural fairness.

Sara Blake is the author of Administrative Law in Canada, 7th edition, LexisNexis Canada. Her practice is restricted to clients who exercise statutory and regulatory powers.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, T
he Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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