Some advocates raise many arguments in their submissions and adjudicators are left with the dilemma of deciding whether they have to address each one. The courts have been clear – an adjudicator only has to address the important ones – and it is up to the courts to decide what the important ones are and whether or not you they have been addressed.
A recent Federal Court of Appeal decision (Turner v. Attorney General 2012 FCA 159) has summarized the approach of the courts:
- • An adjudicator need not address each and every argument made: Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Association et al., [1975] 1 S.C.R. 382 at p. 391
- • The reasons provided, in the context of the full record before the adjudicator, must “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 . . .”: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 16
- • The adjudicator must consider the important points in issue and the reasons must show consideration of the main relevant factors: Via Rail Canada Inc. v. National Transportation Agency(C.A.), [2001] 2 F.C. 25 at para. 22.
- • The burden is on the party challenging the decision to demonstrate that any point or factor was of such importance that the adjudicator was legally bound to consider it: Stelco Inc. v. British Steel Canada Inc.(C.A.), [2000] 3 F.C. 282 at paras. 24 to 26.
Shifting standard of review
The Federal Court of Appeal held that whether an adjudicator has a legal obligation to consider an argument is part of his or her duty of procedural fairness – which is assessed by the courts on a standard of correctness. A court cannot defer to the adjudicator’s choice not to address an argument.
Once the court has decided that an argument must be considered, the court will then decide if the adjudicator actually addressed it, on a standard of reasonableness.
However, the Supreme Court has moved away from using the correctness standard in reviewing decisions: “Any challenge to the reasoning/result of the decision should therefore be made within the reasonableness analysis” (Newfoundland Nurses).
Has the argument been addressed, and does it matter to the outcome?
In determining whether the argument has been addressed, the court will look at the following:
- • The reasons
- • The record of the proceedings
- • The outcome of the proceedings
- • Whether the outcome of the proceedings would not have changed even if the argument had been addressed
- • Whether the argument was addressed implicitly and whether the implied decision has already been conclusively dealt with in other decisions of the same tribunal: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 (CanLII)
Conclusion
It can be tempting for an adjudicator to ignore arguments when there are so many to address and the answer seems relatively straightforward. However, unless those arguments are nonsensical or irrelevant, it remains a best practice to address them all – even if it is just briefly.