How (Not to) Quash Inadequately Reasoned Decisions: Taman v. Canada (Attorney General), 2017 FCA 1
When Emilie Taman sought to run for office in the last Canadian general election, she was refused permission to do so by the Public Service Commission. That refusal has now been set aside: Taman v. Canada (Attorney General), 2017 FCA 1. However, as I will explain, it has been set aside in a way which is open to criticism, not least because it is inconsistent with the Supreme Court of Canada’s guidance to lower courts on how to deal with inadequately reasoned administrative decisions. Nonetheless, the case provides a useful means of demonstrating how Canadian courts applying the deferential reasonableness standard could strike down inadequately reasoned decisions in a way that is consistent with Supreme Court precedent. The Taman decision is timely because tomorrow the Supreme Court will hear a case that raises similar issues, which I described as “a snapshot of what’s wrong with Canadian administrative law“.
Taman was a federal prosecutor, who wished to stand for election to Parliament. Her immediate supervisor feared that standing for election would compromise her impartiality. But he also took the view that if she were unsuccessful in her campaign she could return to work without difficulty: any perception of partiality would die with her dreams of election. The Director of Public Prosecutions, however, took a different view, particularly because Taman might have to prosecute politically sensitive files. Ultimately, the Commission sided with the Director and refused permission to Taman (who ran anyway — unsuccessfully, as it turned out — and was fired). Taman’s application for judicial review was unsuccessful at first instance but successful on appeal, the Federal Court of Appeal concluding, per Pelletier J.A., that the Commission’s decision was unreasonable.
The relevant legislation recognizes “the right of employees to engage in political activities while maintaining the principle of political impartiality in the public service” (Public Service Employment Act, S.C. 2003, c. 22, s. 112). The following factors are relevant to making a determination about whether an employee’s impartiality would be compromised: “the nature of the election, the nature of the employee’s duties and the level and visibility of the employee’s position” (ibid., s. 114(6)).
Based on this, Pelletier J.A. concluded that the Commission “could reasonably be expected to have a clear idea of what would impair, or give the appearance of impairing, a public official’s ability to perform the duties of their employment in a politically impartial way” (at para. 20). This is especially important because officials have a duty of loyalty to the government they serve (Fraser v. Canada (Public Service Staff Relations Board),  2 S.C.R. 455). Here, Pelletier J.A. held, the Commission had not provided adequate reasons to justify its decision that Taman’s impartiality would be compromised. The Commission simply “equat[ed] autonomy, discretion and visibility with the impairment of Ms Taman’s ability to perform her duties with political impartiality”, uncritically accepting the Director’s “claim that a prosecutor’s candidacy and the significant allegiance to a political party and its platform implicit in that candidacy undermines the independence of the [office]” (at para. 35). In Pelletier J.A.’s view, the Commission seemed “to have proceeded on the basis of causal relationships that appeared to it to be self-evident” (at para. 36). It identified the statutory factors but did not “indicate how these factors led it to its ultimate conclusion” (at para. 38).
For Pelletier J.A. the same issues arose in relation to perception of impairment:
As pointed out by the Commission, the fact of seeking elected office would result in Ms Taman engaging in campaign activities in order to become known and recognizable in her riding and perhaps further afield. The result would be that when she resumed her duties, certain members of the public would, for a time, recognize her as having been a candidate for a particular political party. The more visible her position, the wider the recognition of her political affiliation. That said, how would her political affiliation, now publicly known, affect the perception of her ability to perform her duties in a politically impartial manner. It is important to distinguish between known political affiliation and political activity in the workplace. One must assume that Ms Taman would refrain from political activity in the workplace so that the sole basis for a perception of partiality in the discharge of her duties would be her known political affiliation. The question for the PSC is whether the fact that a public official’s political affiliation will become public knowledge is, in and of itself, a sufficient ground to refuse permission to seek elected office (at paras. 40-41).
As a result, the Commission’s decision “lack[ed] justification, transparency and intelligibility” (at para. 47).
The difficulty with Pelletier J.A.’s reasoning is that it is inconsistent with the approach to reasonableness review that has been mandated by the Supreme Court: “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” (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board),  3 SCR 708, at para. 14). Reviewing courts may even “look to the record for the purpose of assessing the reasonableness of the outcome” (at para. 15). Critically, the reasons for the decision need merely be comprehensible, not comprehensive:
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 [reasonableness] criteria are met (at para. 16).
In Taman’s case, the reasons given by the Commission might not have been comprehensive, but they were surely comprehensible. They went beyond boilerplate reasons or reasons that parrot the statutory terms, certainly when viewed in light of the record as a whole. This was not a case in which “the reasons for decision [were] non-existent, opaque or otherwise indiscernible” (Leahy v. Canada (Citizenship and Immigration), 2012 FCA 227, at para. 121).
When the same difficulty arose in MPSEP v. Tran, 2015 FCA 237, the case the Supreme Court will hear tomorrow (see my post here), a differently constituted bench of the Federal Court of Appeal felt that it had no option but to defer to the decision-maker even though his decision did not deal with very important principles of statutory interpretation.
How could Pelletier J.A. have written Taman (and how might the Supreme Court allow the appeal in Tran) in a way that is consistent with the Supreme Court’s guidance on the application of the reasonableness standard? As I have outlined in my most recent paper on the topic (“Struggling Towards Coherence”, at pp. 22-24) the first step is to identify “badges of unreasonableness” that taint the decision.
In Taman, the real problem seems to have been the failure of the Commission to take into account a relevant consideration, namely the duty of loyalty that public officials owe to the government. As Pelletier J.A. noted, “Unless one is prepared to assume (without evidence) that the more autonomy and discretion a public official has, the more likely they are to breach their duty of loyalty and behave (or be perceived to behave) in a partisan manner after having sought public office, one must ask how autonomy and discretion in a given official’s duties are indicative of how that official will behave (or be perceived to behave) following an unsuccessful attempt to be elected to office” (at para. 26). Similarly, in Tran, the decision-maker had failed to take into account the Charter arguments raised by the applicant and had failed to take into account the venerable principle of lenity (that penal statutes should be construed in favour of the individual). Failure to take into account a relevant consideration is a badge of unreasonableness: see also Dr. Q. v. College of Physicians and Surgeons of British Columbia,  1 SCR 226, at para. 24, describing the “nominate grounds” (such as relevancy of considerations) as “familiar landmarks”.
These badges of unreasonableness can be attached to the democratic principle and rule of law principle that underlie the Canadian law of judicial review (Dunsmuir v. New Brunswick,  1 SCR 190, at para. 27). In Taman, the duty of loyalty is a consideration that is necessarily implicit in the statutory scheme erected by Parliament: the link to democracy — the giving of effect to legislative intent — is clear. In Tran, Charter values and the principle of lenity sound in the rule of law, with its concern for the protection of individual interests.
The second step is to determine whether the badge of unreasonableness has nonetheless been satisfactorily explained by the decision-maker. How much is required by way of explanation will depend on the range of reasonable outcomes, a range again constructed by reference to the democratic and rule-of-law principles. In Taman, the range is surely quite narrow: the Commission was performing an adjudicative function, the statute and Supreme Court jurisprudence put down clear markers about how it should perform its function and Taman’s right to stand for election was at stake. In Tran, the range might be slightly larger given the discretionary nature of the decision, but given the individual interests at stake and the extent to which the decision-maker was obliged to have regard to narrow statutory criteria, the range could not be enormous.
In these circumstances, the reasons given by the decision-makers could be easily said to be inadequate. Not, as Pelletier J.A. suggested, inadequate per se, but inadequate because the reasons failed to adequately explain why relevant considerations were not taken into account (or, alternatively, why those considerations might not in fact be relevant). This would be a more satisfactory basis for the result in Taman and would equally justify the Supreme Court in returning the decision in Tran to the original decision-maker, who did not seem to provide any explanation at all for his failure to take relevant considerations into account (as I suggested in my previous post).
This content has been updated on January 12, 2017 at 11:27.