FACTS:
Canadian Nuclear Laboratories Ltd. (“CNL”) manages the Chalk River Laboratories site in Renfrew County, Ontario, which is owned by Atomic Energy of Canada Ltd. (“AECL”).
CNL proposed a near-surface disposal facility for low-level radioactive waste at Chalk River. For the location of the disposal facility, CNL considered four AECL-owned sites and ultimately selected the East Mattawa Road site at Chalk River. However, construction of the facility at that site would clear the habitat of three species protected under the Species at Risk Act (“SARA”). CNL applied for and received a permit from the Minister of Environment and Climate Change Canada (“ECCC”). The precondition at issue was s. 73(3)(a), which requires the Minister to be satisfied that all reasonable alternatives that would reduce the impact on the species have been considered and the best solution adopted.
Kebaowek First Nation and several environmental groups challenged the permit. The Federal Court found the decision to issue the permit unreasonable and quashed it. CNL appealed.
DECISION:
Appeal dismissed; permit set aside and remitted to the Minister for reconsideration (Biringer J.A.; Rennie and Pamel JJ.A. concurring).
The standard of review of the Minister’s decision was reasonableness.
Because no court had previously reviewed s. 73(3)(a), the provision required interpretation for the first time. Therefore, the decision maker must turn its mind to the principles of statutory interpretation. The central difficulty was that the Minister’s reasons offered no interpretation of “all reasonable alternatives” or “best solution” at all. None of the documents comprising the Minister’s reasons explained how the pool of candidate sites was narrowed to one, or why the East Mattawa Road site was the best solution.
The s. 73(3)(a) precondition uses open-ended terms. The statute does not say what counts as a reasonable alternative, how broad the set of alternatives must be, or what makes an option the best solution. The Federal Court of Appeal held that it is for the Minister to interpret the provision in the first instance, with the court reviewing that interpretation for reasonableness. Without knowing what the Minister took it to mean, the Court could not assess whether the statutory precondition had actually been met.
The Minister’s failure to justify its interpretation of the statutory provision rendered the decision unreasonable. Without that analytical framework, the reasons failed to meet Vavilov’s standards of transparency, intelligibility, and justification—regardless of whether the Chalk River site was in fact defensible. The Court remitted the matter for redetermination.
While the Federal Court, in quashing the Minister’s decision, had provided an analysis of “reasonable alternatives” in s. 73(3)(a), the Court of Appeal determined that this was not consistent with the “reasons first” approach to reasonableness review. Therefore, the Court of Appeal refused to contend with the Federal Court’s interpretation, other than to explicitly say the Minister is not bound by it on reconsideration.
On the judicial review application, the Attorney General sought to support the Minster’s decision by adducing an affidavit explaining the department’s approach to s. 73(3)(a). However, the Federal Court of Appeal refused to rely on the affidavit. The Court acknowledged that the interpretation set out in the affidavit would have been “a good start” had it actually grounded the permit decision, but it was not contained in the Minister’s decision. The Court affirmed that post hoc explanations cannot fill gaps in reasons—a process known as “bootstrapping.” If courts could use litigation evidence to supply the missing analysis, the duty to give justified reasons would do little practical work.
COMMENTARY:
The Federal Court of Appeal’s decision here is a strong endorsement of the principle that the Court cannot supply the reasons that the decision maker could have or should have offered. Even though the permit approval may have been defensible under the relevant statutory provision, the Court quashed the decision because the Minister failed to provide an interpretation of the statute. The Court will not define the standard itself, but it will require the Minister to identify the standard being applied and explain why the decision satisfies it.
The Court noted that, where the decision maker or court has not previously interpreted and explained a statutory provision, the decision maker must turn its own mind to the principles of statutory interpretation. This holding must be reconciled with the Supreme Court’s recognition in Vavilov that administrative decision makers cannot always be expected to deploy the same legal analysis as a court and that “‘[a]dministrative justice” will not always look like “judicial justice’”.[1] That being said, where it is interpreting a provision for the first time, the decision maker must provide an express statutory interpretation analysis. It cannot simply rely on the provision being straightforward or leave its interpretation implicit in the application.
While the Federal Court of Appeal’s judgment shows a strong dedication to “reasons first” reasonableness review, it does raise serious questions of efficiency and practicality. The parties have now litigated the issue to the Federal Court of Appeal with no definitive guidance on the proper interpretation of s. 73(3)(a). In fact, while the Federal Court had attempted to provide an interpretation of the section, the Court of Appeal expressly refused to engage with it and explicitly stated that it was not binding on the Minister. The Minister will therefore have to interpret the provision afresh, which may result in another round of judicial review. This creates added expense for the parties, and continued uncertainty over how SARA operates in practice.
The Federal Court of Appeal decision is also a strong rejection of a decision maker attempting to “bootstrap” its decision through affidavit evidence on judicial review. Bootstrapping asks the court to uphold the original decision on the basis of reasons supplied later. Remittal, by contrast, quashes the original decision and requires the Minister to make a fresh decision.
Yet, the effect of the two routes exposes a practical tension. On redetermination, the Minister could adopt a reasonable interpretation of s. 73(3)(a) and reach the same outcome by justifying it through a better-articulated set of reasons. The Court rejects bootstrapping because a decision must be justified when it is made, but it gives the Minister a lawful opportunity to do prospectively what she could not do retrospectively. Vavilov anticipated this concern, cautioning against an “endless merry-go-round of judicial reviews and subsequent reconsiderations” and noting that courts may decline to remit where a particular outcome is inevitable.[2] Whether this case presents such circumstances remains open, but the decision illustrates the practical limits of judicial review where the defect is inadequate justification.
[1] Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para. 92.
[2] Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 142.