Clifford v. The Attorney General of Ontario et al. [Indexed as: Clifford v. Ontario (Attorney General)]

98 O.R. (3d) 210

Court of Appeal for Ontario,

Goudge, Sharpe and R.P. Armstrong JJ.A.

September 23, 2009

Administrative law -- Duty to act fairly -- Sufficiency of reasons -- Appeal Sub-committee of Ontario Municipal Employees Retirement System noting that it had to decide whether respondent and deceased were in common-law relationship for at least three years prior to deceased's death and whether that relationship was still in place at time of his death -- Tribunal reviewing evidence and answering both questions in affirmative -- Tribunal having duty to give reasons -- Standard of review of duty to give reasons being correctness -- Functional assessment of sufficiency of reasons required -- Tribunal's reasons adequate as they explained why it answered questions as it did and they allowed for effective judicial review.

Administrative law -- Judicial review -- Standard of review -- Standard of review of tribunal's obligation to give reasons being correctness.

The deceased's ex-wife S was his named beneficiary under his OMERS pension plan. B asserted that she was the deceased's common-law partner at the time of his death. The President of OMERS concluded that B, and not S, was entitled to the surviving spousal benefit under the OMERS plan. S appealed to the Appeal Sub-committee of OMERS (the "Tribunal"). The Tribunal noted that it had to decide two questions: whether B and the deceased were in a common-law relationship for at least three years before his death; and whether that relationship was still in place at the time of his death. The Tribunal reviewed the evidence and answered both questions in the affirmative. S applied for judicial review of that decision. The Divisional Court found that the Tribunal was required to give reasons and that it failed to do so adequately. B and OMERS appealed.

Held, the appeal should be allowed.

Procedural fairness imposed a legal obligation on the Tribunal to give reasons for its decision. The standard of review of the obligation to give reasons is correctness. The sufficiency of reasons must be assessed functionally. In the context of administrative law, reasons must be sufficient to fulfill the purposes required of them, particularly to let the individual whose rights, privileges or interests are affected know why the decision was made and to permit effective judicial review. That is accomplished if the reasons, read in context, show why the tribunal acted as it did. The basis of the decision must be explained and that explanation must be logically linked to the decision made. The tribunal is not required to refer to every piece of evidence or set out every finding or conclusion in the process of arriving at the decision. In this case, the reasons were sufficient to meet the Tribunal's legal obligation. They demonstrated that the Tribunal grappled with the two live issues before it. From a functional perspective, they explained why the Tribunal gave the answers it did to those questions. They allowed for effective judicial review of the decision itself. As for the decision itself, it was reasonable. There was clearly ample evidence to support the Tribunal's answers to the questions before it. [page211]

APPEAL from the judgment of the Divisional Court (Molloy, J.C. Murray JJ.; Pitt J. dissenting) (2008), 2008 ON SCDC 26256, 90 O.R. (3d) 742, [2008] O.J. No. 2136 (Div. Ct.) allowing the application for judicial review of a decision of the Appeal Sub-committee of the Ontario Municipal Employees Retirement System.

Cases referred to Baker v. Canada (Minister of Citizenship and Immigration), 1999 SCC 699, [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, 174 D.L.R. (4th) 193, 243 N.R. 22, J.E. 99-1412, REJB 1999-13279, 14 Admin. L.R. (3d) 173, 1 Imm. L.R. (3d) 1, 89 A.C.W.S. (3d) 777; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, 164 A.C.W.S. (3d) 727, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65; R. v. R.E.M., [2008] 3 S.C.R. 3, [2008] S.C.J. No. 52, 2008 SCC 51, 235 C.C.C. (3d) 290, 83 B.C.L.R. (4th) 44, EYB 2008-148153, J.E. 2008-1861, [2008] 11 W.W.R. 383, 260 B.C.A.C. 40, 60 C.R. (6th) 1, 380 N.R. 47, 79 W.C.B. (2d) 321, 297 D.L.R. (4th) 577 Statutes referred to Ontario Municipal Employees Retirement System Act, 2006, S.O. 2006, c. 2 Pension Benefits Act, R.S.O. 1990, c. P.8

Terrence J. O'Sullivan and M. Paul Michell, for appellant OMERS.

Sheila Holmes, for appellant Bernadette Campbell.

John Legge, for respondent Sylvia Clifford.

The judgment of the court was delivered by

GOUDGE J.A.: -- A. Overview

[1] Where an administrative tribunal has a legal obligation to give reasons for its decision, on judicial review, what standard of review should the court apply in deciding whether it has done so? And then how does the court assess whether the reasons the tribunal provides are adequate to meet that legal obligation? Those are the principal questions raised by this appeal.

[2] In this case, the Divisional Court, by majority, assessed the reasons of the administrative tribunal against both a standard of reasonableness and the principles of natural justice and procedural fairness. It found the reasons inadequate to meet the tribunal's legal obligation. It therefore granted the application for judicial review and quashed the decision.

[3] For the reasons that follow, I would allow the appeal. In my view, the majority of the Divisional Court erred in applying the standard of reasonableness and in finding the reasons [page212] inadequate to meet the tribunal's legal obligation. I would apply the standard of correctness and conclude that the reasons given by the tribunal are adequate to meet its legal obligation.

[4] The Ontario Municipal Employees Retirement System ("OMERS") is a pension benefit system that is primarily for employees of Ontario municipalities. The administrative tribunal under scrutiny here is its Appeal Sub-committee (the "Tribunal"). Both OMERS and the Tribunal are governed by the Ontario Municipal Employees Retirement System Act, 2006, S.O. 2006, c. 2 and the Pension Benefits Act, R.S.O. 1990, c. P.8. Determinations of entitlement to a pension benefit are made in the first instance by the president of OMERS. Appeals from the president are heard by the Tribunal, a sub-committee of the OMERS Board, whose members typically consist either primarily or exclusively of non-lawyers. In this case, the Tribunal was comprised entirely of non-lawyers.

[5] The facts giving rise to the dispute in this case are not complicated. Tony Clifford was a Toronto firefighter and a member of OMERS. Sylvia Clifford and Tony Clifford were married in 1980. They had two children. They separated in 1996 and were legally divorced in January 2004. Mr. Clifford died without a will on February 20, 2005. Ms. Clifford is the named beneficiary under his OMERS pension plan.

[6] In 1999, Mr. Clifford moved into Bernadette Campbell's residence. Ms. Campbell asserts that they lived together as common-law partners until his death. It is undisputed that if this was so, Ms. Campbell, rather than Ms. Clifford, is entitled to the surviving spousal benefit from Mr. Clifford's OMERS pension.

[7] After Mr. Clifford's death, Ms. Campbell applied to OMERS for this benefit. Ms. Clifford contested the application, saying that Ms. Campbell and Mr. Clifford were not common-law spouses at the time of his death, and claiming the benefit for herself.

[8] At first instance, the president of OMERS concluded that Ms. Campbell and Mr. Clifford were living in a common-law relationship at the time of his death, and Ms. Campbell was therefore entitled to the surviving spousal benefit under his OMERS plan.

[9] Ms. Clifford appealed to the Tribunal. It conducted a hearing de novo into the matter. Twelve witnesses were heard over two days of evidence. Argument was received from counsel, and a full transcript of the hearing was produced.

[10] The Tribunal reserved its decision for several weeks and issued a decision dismissing Ms. Clifford's appeal. It set out the two questions it had to decide under the OMERS plan and governing legislation: whether Ms. Campbell and Mr. Clifford were in a common-law relationship for at least three years prior to his [page213] death; and whether this relationship was still in place at the time of his death.

[11] On the first question, it noted the uncontested evidence that Mr. Clifford moved into Ms. Campbell's residence in 1999. It then recited evidence supportive of Ms. Campbell's claim that they lived together as common-law partners, including evidence of many activities they engaged in together, and evidence of Ms. Campbell's involvement in his funeral arrangements, being named in the notice in the newspaper and receiving a share of his ashes, and finally evidence from neighbours of their own observations of the couple. On this basis, the Tribunal concluded that the necessary common-law relationship was established.

[12] The Tribunal then considered the second question. Mr. Clifford died in a motel while on a drinking binge. There was evidence that he had battled a serious drinking problem for some time and would, on occasion, move to a motel when on a binge, always returning to take up residence with Ms. Campbell. The Tribunal also referred to evidence from Mr. Clifford's union representative that shortly before his death, Ms. Campbell told the representative that the relationship had essentially ended and Mr. Clifford no longer resided with her. It also referred to Ms. Campbell's denial of this and recited other evidence tending to support her, such as the continued presence of many of his personal belongings and important papers in the home. The Tribunal concluded its decision this way:

[W]e are not persuaded that the conjugal relationship between Ms. Campbell and Mr. Clifford had terminated at the time of his death, and accordingly we dismiss the appeal of Ms. Clifford.

[13] Ms. Clifford applied for judicial review of the Tribunal's decision. Molloy J. for the majority of the Divisional Court concluded that the Tribunal was required to give reasons but had failed to adequately do so.

[14] The majority found that the Tribunal may have improperly reversed the onus of proof when it stated it was not persuaded that the conjugal relationship between Mr. Clifford and Ms. Campbell had terminated at the time of his death, but in the absence of any reasons beyond this single sentence, it was impossible to say. The majority also found that, despite hearing conflicting evidence on many points, the Tribunal made no findings of credibility or reliability and offered no reasons as to how its ultimate decision was reached. Finally, the majority listed a number of pieces of evidence that it felt would have been relevant for the Tribunal to consider in deciding if a common-law [page214] relationship existed and whether it had ended, but which the Tribunal did not refer to in its reasons.

[15] In addressing the appropriate standard of review, the majority noted that the Supreme Court of Canada had fundamentally changed the law in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9. Molloy J. concluded, at para. 31 of her reasons:

In Dunsmuir, the Supreme Court of Canada noted that "reasonableness" is not merely a function of outcome, but also refers to "the process of articulating the reasons". The Court also held that the concept of reasonableness requires "justification, transparency and intelligibility within the decision-making process". In the absence of reasons setting out what the Tribunal's decision-making process was, the Tribunal's decision cannot be said to be "justified" or "transparent" or "intelligible". It is incumbent on the Tribunal, particularly in a case of this nature, to articulate its reasons so that the parties will know the basis upon which the case was decided and the reviewing court can determine whether the decision is a "reasonable" one. The reasons in this case do not enable that process to be carried out. Accordingly, the decision is not a "reasonable one" and is also not in accordance with principles of natural justice and procedural fairness.

[16] Having found the reasons wanting, Molloy J. allowed the application and quashed the Tribunal's decision. B. Analysis

First issue: The legal obligation to give reasons

[17] It is surely desirable that public decision-makers empowered by law to make decisions affecting the rights, privileges or interests of individuals should, so far as possible, explain their decisions. This helps build public confidence in those decisions and is an important mechanism by which the decision makers can be held accountable. However, that reality does not impose on all public decision makers a legal obligation to give reasons for every decision. That is a much more nuanced issue.

[18] In this case, however, all parties conceded that the Tribunal had such a legal obligation. I agree.

[19] In Dunsmuir, at para. 79, the Supreme Court of Canada repeated that procedural fairness is a cornerstone of modern Canadian administrative law that requires public decision- makers to act fairly in coming to decisions that affect the rights, privileges or interests of an individual and that what this requires is to be decided in the specific context of each case. A decade earlier, Baker v. Canada (Minister of Citizenship and Immigration), 1999 SCC 699, [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39 established that in certain circumstances the duty of procedural fairness will include a requirement that an administrative tribunal provide reasons for its decision. [page215]

[20] All of the circumstances in a particular case must be considered in order to determine the content of the duty of procedural fairness, including whether it includes the obligation to give reasons. While acknowledging there may be other factors, Baker suggests five factors of relevance to determine the content of the duty of fairness: the nature of the decision being made and the process followed in making it; the nature of the statutory scheme being administered; the importance of the decision to the affected individual; the legitimate expectations of the person challenging the decision; and respect for the choice of procedures made by the administrative agency itself.

[21] In this case, several of these considerations make it particularly important that the Tribunal give reasons as part of its duty of procedural fairness. The decision determines significant legal rights as between Ms. Campbell and Ms. Clifford, and the process used involved hearing evidence and argument by counsel, much like a court process. This points to greater procedural protections closer to those provided by courts. The fact that the decision is the final step in the process also supports the need for greater procedural protections. The importance of determining entitlement to surviving spousal benefits to Ms. Campbell and Ms. Clifford is clear. In summary, to paraphrase Baker, at para. 43, it would be unfair for persons subject to a decision such as this one not to be told why the result was reached. In these circumstances, it is clear that procedural fairness imposes a legal obligation on the Tribunal to give reasons for its decision.

The second issue: The standard of review of the legal obligation to give reasons

[22] Where an administrative tribunal has a legal obligation to give reasons for its decision as part of its duty of procedural fairness, the question on judicial review is whether that legal obligation has been complied with. The court cannot give deference to the choice of a tribunal whether to give reasons. The court must ensure that the tribunal complies with its legal obligation. It must review what the tribunal has done and decide if it has complied. In the parlance of judicial review, the standard of review used by the court is correctness.

[23] In my view, this remains unchanged by Dunsmuir. In his concurring reasons in that case, Binnie J. makes clear that the courts cannot defer to the administrative decision-maker's choice of process where that decision maker is legally obliged to provide procedural fairness. He says this, at para. 129: [page216]

[A] fair procedure is said to be the handmaiden of justice. Accordingly, procedural limits are placed on administrative bodies by statute and the common law. These include the requirements of "procedural fairness", which will vary with the type of decision maker and the type of decision under review. On such matters, as well, the courts have the final say. The need for such procedural safeguards is obvious. Nobody should have his or her rights, interests or privileges adversely dealt with by an unjust process. (Emphasis added)

[24] With respect, I disagree with the suggestion that Dunsmuir now requires the reviewing court apply the standard of reasonableness to assess whether the administrative tribunal has complied with its duty of procedural fairness. There is no doubt that the reconsideration of the standards of judicial review in Dunsmuir and its conclusion that there should be only two standards (correctness and reasonableness) is an important jurisprudential development, most particularly where the application for judicial review challenges the substantive outcome of an administrative action. In such a context, the discussion in Dunsmuir of the choice of standard of review is vital in assessing that outcome. However, where, as here, the question is whether the administrative tribunal has complied with its duty of procedural fairness, the court must decide the question. As Binnie J. said, the court must have the final say.

Third issue: Assessing compliance with the legal obligation to give reasons

[25] Where an applicant for judicial review argues that an administrative tribunal with a legal obligation to give reasons for its decision has failed to do so, how is the court to determine if this obligation has been complied with?

[26] In the rare case where nothing is offered by the tribunal to support its decision, the question is readily answered in the negative. Where something is offered, the task is to determine whether, in the context of the particular case, this constitutes reasons sufficient to meet the tribunal's legal obligation.

[27] In Baker, where the Supreme Court of Canada first explained that in certain circumstances the duty of procedural fairness requires reasons to be given, it also cautioned that, although it has the final say, the reviewing court must use flexibility in determining what constitutes reasons sufficient to meet this obligation. As Baker stated, at para. 44, this approach recognizes the varied day-to-day realities of administrative agencies and the many ways that procedural fairness can be achieved.

[28] Important guidance is also provided by R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, [2008] S.C.J. No. 52, particularly paras. 15 to 35. [page217] Although a criminal case, the Supreme Court of Canada addresses the precise question of what in the context of a particular case constitutes reasons sufficient to meet the legal obligation to provide a written explanation for a decision. This is directly relevant to the case at bar.

[29] R.E.M. emphasizes that where reasons are legally required, their sufficiency must be assessed functionally. In the context of administrative law, reasons must be sufficient to fulfill the purposes required of them, particularly to let the individual whose rights, privileges or interests are affected know why the decision was made and to permit effective judicial review. As R.E.M. held, at para. 17, this is accomplished if the reasons, read in context, show why the tribunal decided as it did. The basis of the decision must be explained and this explanation must be logically linked to the decision made. This does not require that the tribunal refer to every piece of evidence or set out every finding or conclusion in the process of arriving at the decision. To paraphrase for the administrative law context what the court says in R.E.M., at para. 24, the "path" taken by the tribunal to reach its decision must be clear from the reasons read in the context of the proceeding, but it is not necessary that the tribunal describe every landmark along the way.

[30] R.E.M. also emphasizes that the assessment of whether reasons are sufficient to meet the legal obligation must pay careful attention to the circumstances of the particular case. That is, read in the context of the record and the live issues in the proceeding, the fundamental question is whether the reasons show that the tribunal grappled with the substance of the matter: see R.E.M., at para. 43.

[31] In addition, in my view, it is important to differentiate the task of assessing the adequacy of reasons given by an administrative tribunal from the task of assessing the substantive decision made. A challenge on judicial review to the sufficiency of reasons is a challenge to an aspect of the procedure used by the tribunal. The court must assess the reasons from a functional perspective to see if the basis for the decision is intelligible.

[32] This is to be distinguished from a challenge on judicial review to the outcome reached by the tribunal. That may require the court to examine not only the decision but the reasoning offered in support of it from a substantive perspective. Depending on the applicable standard of review, the court must determine whether the outcome and the reasoning supporting it are reasonable or correct. That is a very different [page218] task from assessing the sufficiency of the reasons in a functional sense.

Fourth issue: The sufficiency of the reasons in this case

[33] The Tribunal here was under a legal obligation to give reasons for its decision. It purported to do so. The question is whether those reasons are adequate to meet its legal obligation.

[34] It is uncontested that the Tribunal was presented with two live issues to decide: whether Ms. Campbell and Mr. Clifford had been in a common-law relationship for at least three years prior to his death; and whether this relationship was still in place at the time of his death. The Tribunal identified both questions, grappled with them one after the other and provided its answers to both.

[35] In explaining its answer to the first issue, the Tribunal recited evidence of the activities of Ms. Campbell and Mr. Clifford after 1999, and of Ms. Campbell after his death, that pointed to a common-law relationship for more than three years prior to Mr. Clifford's death. It also recited evidence to the same effect from their neighbours about the nature of their relationship. The Tribunal clearly accepted this evidence and found it a sufficient basis upon which to conclude that Ms. Campbell and Mr. Clifford had been in a common-law relationship for the necessary length of time before he died.

[36] The Tribunal addressed the second issue by first reciting Mr. Clifford's past pattern, absenting himself from Ms. Campbell's house while on a drinking binge but always returning. It then turned to whether anything was different about the drinking binge during which he died in February 2005. It referred to evidence that on that occasion, Ms. Campbell said to Mr. Clifford's union representative that the relationship had ended and her denial of this. It recited other evidence that tended to show that the relationship had indeed not terminated. It concluded by answering this question in Ms. Campbell's favour. It is clear that the Tribunal accepted this evidence of a continuing relationship at the time of Mr. Clifford's death and based its conclusion on that.

[37] The majority of the Divisional Court offered a number of reasons for finding that the tribunal breached its legal obligation to provide reasons for its decision.

[38] First, it said that no reasons were provided as to how that decision was reached. With respect, I disagree. The Tribunal gave reasons, as I have described.

[39] Second, the majority expressed concern that the Tribunal might have made significant errors on matters not addressed in [page219] its reasons. For example, it might have misapprehended evidence that it did not refer to. In my view, that is the wrong focus. The task is to determine whether what was said is sufficient, not what problems might have been with what was not said.

[40] Third, the majority faulted the Tribunal for not referring to evidence that could have led it to decide differently. Again, I disagree. As I have described, reasons need not refer to every piece of evidence to be sufficient, but must simply provide an adequate explanation of the basis upon which the decision was reached.

[41] Fourth, the Tribunal is criticized for making no findings of credibility or reliability. In my view, this is to misread the Tribunal's reasons. It set out the evidence in support of the conclusions reached on both issues. Clearly, the Tribunal found that evidence to be credible and reliable. This was open to the Tribunal to do.

[42] Finally, the majority said that the Tribunal might have improperly reversed the onus of proof by concluding that it was not persuaded that the common-law relationship had terminated at the time of Mr. Clifford's death and that this uncertainty rendered the reasons insufficient.

[43] I do not agree. As Baker indicated, recognition of the day-to-day realities of administrative agencies is important in the task of assessing sufficiency of reasons in the administrative law context. One of those realities is that many decisions by such agencies are made by non-lawyers. That includes this one. If the language used falls short of legal perfection in speaking to a straightforward issue that the tribunal can be assumed to be familiar with, this will not render the reasons insufficient, provided there is still an intelligible basis for the decision.

[44] In my view, these reasons are clearly sufficient to meet the Tribunal's legal obligation. Read in the context of the particular case, they demonstrate that the Tribunal grappled with the two live issues before it. From a functional perspective, they explain why the Tribunal gave the answers it did to those issues. Neither Ms. Clifford nor Ms. Campbell can be left in any doubt about that. Moreover, they allow for effective judicial review of the decision itself. The Tribunal did what was required of it to meet its legal obligation to provide reasons for its decision.

[45] As to the decision itself, all parties took the position before the Divisional Court that on judicial review such a challenge would require deference from the reviewing court. The question is whether the decision was reasonable. Here both the decision itself and the reasoning in support of it meet the standard of reasonableness. There was clearly ample evidence to [page220] support the Tribunal's answers to the two live issues before it. The Tribunal clearly accepted that evidence. It is not up to the court to second guess the Tribunal's findings. Having made these findings, the Tribunal's decision in favour of Ms. Campbell is fully justified. The decision meets the standard of reasonableness.

[46] For these reasons, I would allow the appeal and dismiss the application for judicial review. The appellant does not seek costs here or below. Ms. Campbell played a minor role supporting the appellant in both courts and is entitled only to a modest costs order, payable by Ms. Clifford, which I would fix at $1,000 in each court.

Appeal allowed.