On the Blurry Line Between Substance and Procedure? Syndicat des employées et employés professionnels et de bureau, section locale 574, SEPB, CTC-FTQ c. Groupe Pages jaunes Cie, 2015 QCCA 918
When an administrative decision-maker hears argument but decides a point on another ground, what is the appropriate posture of a reviewing court? Is this a matter of procedural fairness, because it goes to the ability of the parties to make full and complete submissions, or is it a matter of substantive reasonableness, because it goes to the thoroughness of the reasons provided? Two recent Canadian appellate decisions highlight the blurred line between procedural and substantive review. The cases are not identical, but nonetheless provide food for thought.
In Syndicat des employées et employés professionnels et de bureau, section locale 574, SEPB, CTC-FTQ c. Groupe Pages jaunes Cie, 2015 QCCA 918, Savard J.A. treated the matter as one of procedural fairness. Here, a labour arbitrator decided that a letter of agreement between a trade union and a company only applied to employees hired before a certain date. But this particular interpretation was proposed by neither party. Applying a standard of correctness — a point worth noting — Savard J.A. held that there was no breach of procedural fairness on the facts, because the parties had ample opportunity to argue the interpretive ins and outs of the agreement at issue:
Cette question relevait sans contredit de l’interprétation de la Lettre d’entente sur laquelle les parties ont plaidé de façon exhaustive. Elles ont répliqué de part et d’autre aux moyens soulevés par chacune d’elles. L’arbitre, à la lumière de ces seules observations, a retenu sa propre interprétation de la Lettre d’entente, conformément au mandat que les parties lui avaient confié. Je ne peux y voir ici une violation des règles de justice naturelle, celles-ci ayant pleinement été entendues (at para. 43).
The result here is not problematic. But the reasoning might be, for it suggests that in any case where a decision-maker rests a decision on an argument not provided by the parties, a reviewing court can assess the decision on a standard of correctness. This even though the Supreme Court advised in Newfoundland Nurses that an administrative decision ought to be upheld even if it does not include “all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred…” (at para. 16).
One might contrast Savard J.A.’s approach in Groupe Pages jaunes with the resolution of the slightly different problem that arose in Bell Canada v. Amtelecom Limited Partnership, 2015 FCA 126: a retrospective application of a new policy by the telecommunications regulator was problematic because in its decision, “the CRTC did not explicitly address this issue even though the matter was argued before it and it was provided with a legal opinion which said it did not have the power to make such an order” (at para. 24). Pelletier J.A. treated this as a matter of substantive reasonableness rather than one of procedural fairness (at para. 26):
How then is a reviewing Court to proceed in circumstances such as this? Generally speaking, the matter should be remitted to the tribunal to allow it to give reasons which can then form the basis of a reasonableness analysis. However, given the fact that June 3, 2015, is rapidly approaching, that is not an option here. Where a reasonable basis for the decision is apparent to the reviewing court, the decision should simply be upheld as reasonable. However, it will generally be inappropriate to find that there is no reasonable basis for the tribunal’s decision without giving it an opportunity to provide one: see Alberta Teachers at paragraph 55. While this is very respectful of a tribunal’s jurisdiction, it is cold comfort indeed to the parties, particularly in a case such as this where the point in issue was argued before the tribunal. In such a case, fairness to the parties requires that the reviewing court undertake its own standard of review analysis and, if it concludes that the applicable standard is reasonableness, assess the reasonableness of the decision. This is what I propose to do (at para. 27).
As I noted previously, Pelletier J.A. upheld the decision as reasonable.
I think it is more respectful of the Supreme Court’s judicial review hymn sheet to treat issues relating to the sufficiency of a decision-maker’s response to arguments as going to substantive reasonableness. Only a complete failure to give reasons is treated as a breach of procedural fairness; partial failures go to substantive reasonableness. Applying similar logic to Groupe Pages jaunes, a complete failure to permit argument would be a breach of procedural fairness (though presumably the decision-maker would retain some margin of appreciation as to excluding irrelevant arguments), but partial failures like the one at issue in Groupe Pages jaunes would go to substantive reasonableness. This is a straightforward argument based on doctrinal consistency, but I cannot help observing that applying a deferential approach to procedural fairness issues would do away with these borderline cases altogether.
This content has been updated on June 5, 2015 at 12:59.