Municipal councils are not courts. Their reasons should not be scrutinized with the same criteria as judicial reasons. Decisions by councils are made by a vote. The Votes take into account the public interest. They may reflect political considerations.
552197 B.C. Ltd. v. City of Abbotsford, 2007 BCCA 162 at para. 14
There have been a number of cases in recent years, including the landmark Supreme Court of Canada case Dunsmuir v. New Brunswick, 2008 SCC 9, wherein the Courts have acknowledged that administrative tribunals must be accorded deference in exercising their decision-making powers, while still making decisions that fall within the range of what the Court considers to be a possible, acceptable outcome. Key in the process of judicial review is an analysis of the reasons given by the administrative body for the decision that was made.
The sufficiency of reasons was at the forefront of two cases recently released by the Supreme Court of British Columbia. Both cases involved judicial review of a decision by the Surrey City Council to deny the renewal of a Chauffeur’s Permit, in an appeal brought under section 36(7) of the Motor Vehicle Act. Though the cases are factually similar, the outcomes are quite different.
In the case of Nasir Ahmed v. City of Surrey, 2011 BCSC 694, released on May 31, 2011, Mr. Ahmed’s application for renewal of his Chauffeur’s Permit was denied by RCMP due to allegations of sexual assault. Mr. Ahmed appealed the denial of his permit to the Surrey City Council. After deliberating in private, Council denied Mr. Ahmed’s appeal and upheld the RCMP’s refusal of the permit. Mr. Ahmed was not provided with reasons for the Council’s decision, however he was sent a copy of the minutes of the appeal along with the RCMP report presented to Council.
On judicial review, the Honourable Mr. Justice Rogers upheld City Council’s denial of Mr. Ahmed’s appeal, finding that the decision of Council was rationally connected to the evidence before it. With regard to sufficiency of reasons, the Court held that despite City Council’s failure to articulate its reasons, the Court could consider the record as a whole before Council at the appeal, and from that record infer the criteria and evidence the Council considered in making its decision.
In Johal v. City of Surrey, 2011 BCSC 710, released on June 6, 2011, Mr. Johal also appeared before Surrey City Council to appeal the RCMP’s denial of his Chauffeur’s Permit. RCMP initially denied the permit to Mr. Johal due to allegations of assault and criminal driving convictions. City Council denied the appeal and informed Mr. Johal of the ruling by way of a letter that simply stated that City Council would uphold the decision of the RCMP to refuse the permit. No additional reasons were given, nor were the minutes of the appeal included with the letter.
Upon review of the decision, the Honourable Madam Justice Ballance for the Supreme Court held that City Council had not met its duty to provide Mr. Johal with basic reasons explaining the outcome of his appeal. The Court further held that it was unable to ascertain whether City Council’s decision was reasonable, as per the test in Dunsmuir, due to the lack of reasons provided in support of the decision. Unlike the Court in Ahmed, Madam Justice Ballance was unwilling to infer the reasons for the decision based upon the record as a whole, due to policy concerns. At paragraph 29 of the decision, Madam Justice Ballance cited with approval the comments of the Alberta Court of Appeal in Macdonald v. Mineral Springs Hospital, 2008 ABCA 273 as follows:
…accepting the reasonableness of their decisions absent so much as a hint to how they reached them would also encourage tribunals not to explain themselves. Moreover, it would engage courts in doing the very work that legislatures intended tribunals to do. This outcome would also work against the basic purpose of judicial review, which is “to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes.”
Dunsmuir at para. 28
The absence of stated reasons, combined with the Court’s refusal to infer reasons, left the Court in Johal unable to determine what evidence had been considered on appeal. Accordingly, the matter was remitted back to Council for the provision of adequate reasons.
While the cases are similar, they can be distinguished on their facts. In Johal, new information came to light on Mr. Johal’s appeal, revealing that the facts upon which his Chauffer’s Permit was initially denied were materially incorrect. Looking at the relative outcome of the cases, one may posit that the Court is less likely to infer reasons for a Council’s decision when it cannot even properly ascertain the facts upon which the decision was made: in Ahmed, the Court had the minutes of the appeal and the RCMP report to rely on, whereas in Johal, no minutes of the appeal were provided, and it was not clear to the Court whether Council based its decision on the initial reasons of the RCMP (that were shown to be incorrect) or on the facts that came to light on appeal. This may account for the difference in the outcome of the two cases.
It is, however, noteworthy to consider that while Madame Justice Ballance accepted that the Court may infer reasons from the record, she expressly declined to take that approach in Johal due to policy concerns. Mr. Justice Rogers expressed no such policy concerns the in the Ahmed decision. It remains to be seen which approach the Courts will take in future when called upon to infer reasons from the record as a whole.
When it comes to providing reasons, an ounce of prevention is worth a pound of cure. While City Councils are not expected to function like Courts, these two cases illustrate that where a Council is acting in a quasi-judicial capacity, on judicial review the Court will undertake a thorough examination of the reasons for a decision to ensure there has been transparency and legitimacy in the decision-making process. In most circumstances, extensive reasons are not required, yet failing to provide even basic reasons may result in the decision being quashed or remitted back to Council, especially if due to conflicting or inconsistent facts the reasons cannot be inferred from the record.