Nov 5, 2014

In Canada, judicial review of administrative decision-makers for reasonableness has two aspects: the reasons must be understandable and the decision must fall within a range of reasonable outcomes. This gives rise to a problem. What should a court do where a decision is reasonable, but the reasons contain important inaccuracies or are incoherent? I addressed the issue in a previous post. In J.D. Irving, Limited v. North Shore Forest Products Marketing Board et al., 2014 NBCA 42, at para. 38, remedial discretion was employed to correct an error in the decision-maker’s reasoning although the decision itself was upheld.

This issue came up in the context of a reviewing court’s power to quash parts of a decision in Agrium Vanscoy Potash Operations v United Steel Workers Local 7552, 2014 SKCA 79.

Here, an arbitrator issued a remedy even though the parties understood that there would be a separate hearing to address remedies. The first-instance judge quashed the remedial part of the decision. The Court of Appeal affirmed.

Richards C.J.S. agreed that “it is not possible to quash reasons for decision while leaving the decision itself intact” (at para. 22, citing Libby, McNeill & Libby of Canada Ltd. v. United Automobile, Aerospace and Agricultural Implement Workers of America (1978), 91 D.L.R. (3d) 281 (Ont. C.A.)). But this, in his view, was a case of severability: “it is possible to quash only one aspect of a decision if that aspect is clearly excisable from the rest of the decision” (at para. 23).


[28] I conclude, therefore, that the decision of the [first-instance] judge cannot be set aside on the basis he was not entitled to quash only para. 133 of the arbitrator’s decision. Paragraph 133 deals solely with the question of remedy and is clearly excisable from the balance of her ruling. Indeed, Agrium itself effectively acknowledged that the question of the possible breach of the collective agreement and the question of the remedy for any such breach were independent issues when it agreed the grievance should proceed in two separate stages. Only the arbitrator’s decision with respect to remedy was made in contravention of the audi alteram partem principle. As a result, the Chambers judge was entitled to quash only that part of her decision.


Of course, this is a very limited response to the problem of incoherent reasons, because it allows a reviewing court to sever a decision only where one of the components is clearly excisable from the rest. So I wonder (idly!) whether the old rule that reasons can never be quashed on their own may be due for some modification in the near future.