Responsive Reasons in Administrative Law: Canada and Ireland

This is the latest post in my series on ‘Responsive Reasons’: for the previous posts, see here and here

I will suggest in this section that the common law is further evolving to require reasons to be responsive. That is, reasons for decision must be responsive to the evidence before the decision-maker and submissions made by the parties.

Responsiveness has two aspects: first, the decision-maker must actually ground its decision in the evidence and submissions; second, the grounding must be adequate.

As to the first aspect, the question for a reviewing court is binary: did the decision-maker respond or not to a relevant point? True, there is some need for judgment on the part of the court as to whether a particular point was relevant but once that judgment has been exercised, determining responsiveness is binary and, indeed, does not require any consideration of the merits of the decision.

As to the second aspect, determining adequacy certainly requires the exercise of judgment. In some cases, however, this determination will be straightforward: where the decision-maker has given reasons that are conclusory or perfunctory – boilerplate being particularly troublesome – then a conclusion of unreasonableness will follow. Of course, in a case where the reasons given on a particular point are more extensive, determining adequacy will require closer consideration of the merits of a decision and the weight accorded by the decision-maker by to various considerations but even here the judge is not required to engage in any forbidden reweighing.

I will consider case law from Canada and Ireland, where responsiveness has been most extensively developed, before turning to the United Kingdom.

A.    Canada

The Supreme Court of Canada has gone the furthest in requiring that reasons be responsive. Its decision in Vavilov sets out Canada’s judicial review framework. Three general points are worth highlighting. First, administrative decision makers must adopt a culture of justification and demonstrate that their exercise of delegated public power can be “justified to citizens in terms of rationality and fairness”.[1] Second, reasoned decision-making is said to be “the lynchpin of institutional legitimacy”.[2] Third, in order to be reasonable a decision must be based on “internally coherent reasoning” and “must be justified in relation to the constellation of law and facts that are relevant to the decision”.[3]

These general, high-level points were given further detailed specification. In terms of responsiveness, Vavilov requires responsiveness to the factual matrix, the submissions of the parties and the individual interests of those severely affected by a decision.

First, “[t]he decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them”.[4] Second, the decision-maker must “meaningfully grapple with key issues or central arguments raised by the parties” and a failure to do so “may call into question whether the decision maker was actually alert and sensitive to the matter before it”.[5] Third, the decision-maker must take account of harsh consequences of a decision on an individual:

The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention. This includes decisions with consequences that threaten an individual’s life, liberty, dignity or livelihood.[6]

The central principles here are justification and responsiveness. A decision must be justified in view of the legal and factual constraints: mere boilerplate or conclusory statements about having considered all the evidence will not be enough, as the decision-maker must demonstrate that its decision is actually justified in view of the facts and the law. The decision must also respond to the circumstances: the evidence, the submissions of the parties and the interests of those affected by the decision (where the consequences for them would be severe). Justification and responsiveness have to be explicit; their presence is not lightly to be inferred by a reviewing court.[7]

B.    Ireland

The Irish Supreme Court has developed a similar idea of responsiveness. In Balz and Heubach v An Bord Pleanála,[8] the Board had rejected a submission in relation to a planning application on the basis that it was irrelevant. The Court held that this response was insufficient in the circumstances:

It is a basic element of any decision-making affecting the public that relevant submissions should be addressed and an explanation given why they are not accepted, if indeed that is the case. This is fundamental not just to the law, but also to the trust which members of the public are required to have in decision making institutions if the individuals concerned/, and the public more generally, are to be expected to accept decisions with which, in some cases, they may profoundly disagree, and with whose consequences they may have to live.[9]

In the subsequent case of Naisiunta Leictreacht (NECI) v Labour Court,[10] the Supreme Court reiterated the requirement of responsiveness, here in the context of the making of an order setting terms and conditions of employment in a sector of the economy. Putting the point pithily, McKechnie J held that “a decision-maker must engage with significant submissions”.[11]

In both Balz and NECI there is also an emphasis on justification, just as there was in the Supreme Court of Canada’s decision in Vavilov. The use of boilerplate language was expressly criticized in Balz:

It is unsettling, for example, that when an issue arises where it is suggested that the Inspector (and therefore the Board) has not given consideration to a particular matter, it should be met by the bare response that such consideration was given (for a limited purpose) and “nothing has been proven to the contrary”. Similarly, while the introductory statement in the Board’s decision that it has considered everything it was obliged to consider, and nothing it was not permitted to consider, may charitably be dismissed as little more than administrative throat-clearing before proceeding to the substantive decision, it has an unfortunate tone, at once defensive and circular. If language is adopted to provide a carapace for the decision which makes it resistant to legal challenge, it may have the less desirable consequence of also repelling the understanding and comprehension which should be the object of any decision.[12]

Similarly, in NECI, there were a “series of significant questions raised” about the applicable criteria and, “[h]aving been legitimately raised, these points required to be dealt with by a response, in substance, giving reasons”.[13]

[1] 2019 SCC 65, at para. 14.

[2] 2019 SCC 65, at para. 76.

[3] 2019 SCC 65, at para. 105.

[4] 2019 SCC 65, at para. 126.

[5] 2019 SCC 65, at paras. 127-128.

[6] 2019 SCC 65, at para. 133.

[7] Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, at para. 97.

[8] [2019] IESC 90.

[9] [2019] IESC 90, at para. 57.

[10] [2021] IESC 36.

[11] [2021] IESC 36, at para. 155.

[12] [2019] IESC 90, at para. 46.

[13] [2021] IESC 36, at para. 169.

This content has been updated on April 29, 2024 at 09:16.