Scarborough Health Network v. Canadian Union of Public Employees, Local 5852, 2020 ONSC 4577

CITATION: Scarborough Health Network v. Canadian Union of Public Employees, Local 5852, 2020 ONSC 4577

DIVISIONAL COURT FILE NO.: 329/19

DATE: 20200722

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D.L. Corbett, Lederer and Sutherland JJ.

BETWEEN:

Frank Cesario and Amanda P. Cohen, for the Applicant

Steven M. Barrett, for the Respondent

Scarborough Health Network

Applicant

– and –

Canadian Union of Public Employees, Local 5852

Respondent

HEARD at Toronto: February 4, 2020

DECISION

LEDERER J.

[1] Pursuant to an order of the Minister of Health and Long-Term Care, made November 23, 2016, three hospital campuses were merged (the Birchmount and General campuses of The Scarborough Hospital and the Centenary campus of the Rouge Valley Health System). As a by-product, following a decision of the Ontario Labour Relations Board made on May 8, 2018 under the Public Sector Labour Relations Transition Act, 1997, six pre-merger groups of employees were reconstituted as a single bargaining unit represented by the Respondent. The new bargaining unit contains approximately 2,100 members. Although the hospital and the union agree on some terms for a new collective agreement, others remained outstanding, among them the issue of how to harmonize the wages of the different employee classifications coming from three previously separate locations. This, and other issues, became the subject of an “interest arbitration.”

[2] This is an application for judicial review brought by the employer of the interest arbitration award made with respect to the wage harmonization issue.

[3] The position of the union, said by Chair of the Board of Arbitration to be consistent with its approach in “numerous” other hospital mergers, was to harmonize like classifications to the higher (highest) of the applicable pre-existing wage rates.[^1] In submissions to the Board, the union noted that the “Integration Proposal for the merger, in weighing the benefits and costs of the merger, acknowledged the principle of harmonization to the higher salary level across the organizations….”[^2] The hospital argued that adopting a previously utilized approach, simply because it had been used in the past, was improper. The Board of Arbitration ought not to blindly follow arbitral precedents. As submitted on behalf of the hospital, the facts in this case are “unique and extreme”. The hospital supported this position by providing what it referred to as “a comprehensive review of industry comparisons that militates against [the approach advanced by the union]”[^3]

[4] The substance of the decision of the Board of Arbitration with respect to the harmonization of wage is found in six paragraphs.[^4] Of the six paragraphs:

• the first sets the issue (paragraph 3),

• the second notes the position of the union, in particular that the award should be retroactive (paragraph 4)

• the next two review the position of the hospital (paragraphs 5 and 6), and

• the fifth paragraph notes the Union response to the hospital, being that the arguments it made have been made before (paragraph 7).

[5] The last of the six paragraphs provides the resolution to the issue and the only explanation for the Board’s decision. It says:

There is a well-established pattern in the hospital sector of post-merger harmonization of wages to the higher rate. This pattern is reflected in numerous voluntary settlements, and Arbitrators have adopted this approach on the basis of replication (See, e.g., The Niagara Health System and Service Employees International Union, Local 204, July 5, 2002 (Kaplan) at p. 2-4, Participating Hospitals and Canadian Union of Public Employees, March 4, 2011 (Petryshen), Trillium Health Partners and CUPE, December 9, 2015 (Kaplan)). Having reviewed and carefully considered the parties materials and submissions, and on the basis of the principles identified in the opening section of our main local issues award, including my determination of the pay equity jurisdictional argument, I am satisfied that it is appropriate to replicate the established approach to post-merger wage harmonization.[^5] [Emphasis by underlining added]

[6] In harmonizing wages to the higher (highest) rate, the Board of Arbitration followed what happened in past cases. There is nothing to show that the Board considered the particular circumstances of this case. There is no analysis of the Hospital’s argument that this case is distinguishable from past cases. Past practice may be a relevant consideration, but there is no explanation why past practice, in this case, is so dispositive that other considerations need not be addressed at all.

[7] The quoted paragraph refers to “…the principles identified in the opening section of our main local issues award.” This adds little to the substance of the Board’s decision. Those principles are summarized in one of the paragraphs found in that section of the prior decision:

In addressing all of the issues before us, we have had regard to all of the materials before us which, in light of the number of hospitals and local unions, were voluminous. We have also had regard to the established principles of interest arbitration and the jurisprudence filed by the parties in support of the applicability of those principles. Without limiting the foregoing, we have had particular regard to the principles of replication, total compensation and demonstrated need. This last principle is of particular significance where a proposal deviates from established bargaining patterns in the sector.[^6]

[8] The statement that regard was had for issues raised, the voluminous material, and established principles, without analysis of those issues, materials and principles, is conclusory. It does not explain why the Board of Arbitration did what it did. Thus, the Board’s reasons do not fulfil their essential purpose:

Notwithstanding the important differences between the administrative context and the judicial context, reasons generally serve many of the same purposes in the former as in the latter: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 15 and 22-23. Reasons explain how and why a decision was made. They help to show affected parties that their arguments have been considered and demonstrate that the decision was made in a fair and lawful manner…[^7]

[9] What is an “interest arbitration”? It replaces collective bargaining. As Brown & Beatty explain, in an interest arbitration the Board sets the terms of the collective agreement:

The other, interest arbitration, from which grievance arbitration must be distinguished, is a form of dispute resolution in which the arbitrator makes the terms, conditions and rules which govern the employer-union-employee relationship. So characterized, interest arbitration functions as a surrogate for collective bargaining, and the awards of arbitration in these circumstances take the form of and serve the same purpose as collective agreements. [^8]

[10] The last sentence of Brown & Beatty’s explanation is important. They go on:

Normally, they do not contain reasons for decisions nor do they make findings of “right” or “wrong”.[^9]

[11] I do not agree with this proposition. There are interest arbitrations that contain reasons for decision. The issue in this case is whether the Board of Arbitration provided sufficient reasons for its decision. For the reasons that follow, I conclude that it did not.

[12] The Supreme Court of Canada stated in Dunsmuir v. New Brunswick:[^10]

In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.[^11]

[13] In this case the objection taken by the hospital to the award of the Board of Arbitration focuses on the first of the two sentences that make up this quotation. In effect, it is submitted that, by accepting the results of past awards without examination of the particular circumstances of this case, the decision fails to provide a substantive justification for its determination or any demonstration of the facts, reasoning or logic that support it, meaning that it lacks justification, intelligibility and transparency.

[14] In Canada (Minister of Citizenship and Immigration) v. Vavilov,[^12] Supreme Court of Canada has re-emphasized the importance of reviewing the internal logic of a decision in assessing its reasonableness:

On the one hand, courts must recognize the legitimacy and authority of administrative decision makers within their proper spheres and adopt an appropriate posture of respect. On the other hand, administrative decision makers must adopt a culture of justification and demonstrate that their exercise of delegated public power can be “justified to citizens in terms of rationality and fairness”.

In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified. What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place.[^13]

In this section of our reasons, we endeavour to provide that guidance. The approach we set out is one that focuses on justification, offers methodological consistency and reinforces the principle “that reasoned decision-making is the lynchpin of institutional legitimacy”.[^14]

[15] This approach, centred as it is on justification, requires that reasons demonstrate analysis of the submissions and positions of the parties. It is not enough to summarize the parties’ positions. Only through reasons can the parties know they that the issues of concern to them have been the subject of reasoned consideration:

The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties. The principle that the individual or individuals affected by a decision should have the opportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard… The concept of responsive reasons is inherently bound up with this principle, because reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties.

Reviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis”… or to “make an explicit finding on each constituent element, however subordinate, leading to its final conclusion” (para 16). To impose such expectations would have a paralyzing effect on the proper functioning of administrative bodies and would needlessly compromise important values such as efficiency and access to justice. However, a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it. In addition to assuring parties that their concerns have been heard, the process of drafting reasons with care and attention can alert the decision maker to inadvertent gaps and other flaws in its reasoning.[^15]

To be reasonable, a decision must be based on reasoning that is both rational and logical. It follows that a failure in this respect may lead a reviewing court to conclude that a decision must be set aside. Reasonableness review is not a “line-by-line treasure hunt for error”… However, the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”... Reasons that “simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion” will rarely assist a reviewing court in understanding the rationale underlying a decision and “are no substitute for statements of fact, analysis, inference and judgment”.[^16]

[16] In the hospital sector, interest arbitration is conducted under the authority of the Hospital Labour Disputes Arbitration Act[^17] which provides:

In making a decision or award, the board of arbitration shall take into consideration all factors it considers relevant, including the following criteria:

1. The employer’s ability to pay in light of its fiscal situation.

2. The extent to which services may have to be reduced, in light of the decision or award, if current funding and taxation levels are not increased.

3. The economic situation in Ontario and in the municipality where the hospital is located.

4. A comparison, as between the employees and other comparable employees in the public and private sectors, of the terms and conditions of employment and the nature of the work performed.

5. The employer’s ability to attract and retain qualified employees.[^18]

[17] An overarching principle which governs interest arbitration is “replication”. It provides that an interest arbitration award should, as closely as possible, reflect the agreement that the parties would have reached had they been able to reach an agreement in free collective bargaining:

There is a single coherent approach suggested by these authorities which may be stated as follows. The replication principle requires the panel to fashion an adjudicative replication of the bargain that the parties would have struck had free collective bargaining continued. The positions of the parties are relevant to frame the issues and to provide the bargaining matrix. However, it must be remembered that it is the parties' refusal to yield from their respective positions that necessitates third party intervention. Accordingly, the panel must resort to objective criteria, in preference to the subjective self-imposed limitations of the parties, in formulating an award. In other words, to adjudicatively replicate a likely "bargained" result, the panel must have regard to the market forces and economic realities that would have ultimately driven the parties to a bargain.[^19]

[18] “There is a certain amount of artifice involved in attempting to ‘replicate’ the agreement the parties ‘would have reached’. The very fact that third party intervention has been engaged means that the parties, based on their current positions, are at an impasse for which they see no resolution absent the intervention of the third party.”[^20] But this does not mean that the Board of Arbitration can rely on past awards without considering the specific circumstance of the parties before them, nor can it fail to account for the market and other conditions confronting the parties:

Arbitrator/selectors recognizing the limitations of third-party intervention have always looked to free collective bargaining for assistance in decisions concerning wage determination. The use of this criteria [sic] carries with it an implicit recognition that collective bargaining is an economic power struggle where wage determination is governed by market-place conditions and therefore, arbitrator/selectors have recognized that no union or employer is ever really satisfied with the ultimate wage settlement. But inherent in these settlements is a recognition of market conditions and what the exercise of an economic power struggle will yield or not yield at any given time. Settlements do not reflect satisfaction and are, in effect, an acquiescence by the parties in the exigencies of the market-place at a given time.[^21]

[19] The Board of Arbitration seems to have conceived of “replication” as a matter of repeating past practice. That is not what “replication” means in this context. As stated above, “replication” is a case-specific exercise, with its goal to achieve a collective agreement that these parties would have agreed between themselves. Precedent may play a role in assessing what the parties would have agreed: surely it is reasonable to consider what past parties have agreed in similar situations. But where, as here, one of the parties argues against the application of precedent, the Board must assess this argument. Equating precedent with the principle of replication, where one side seeks to distinguish precedent, is tautological reasoning, and fails the standard of justification in Dunsmuir and Vavilov.

[20] St. Gabriel’s Villa of Sudbury v. Ontario Nurses’ Association, relied upon by the union, is very different than this case. St. Gabriel’s Villa was a hospital and another care home operated together. The parties were negotiating a first collective agreement. The question of wage rates was among the issues referred to an interest arbitration. The union proposed that the nurses at St Gabriel’s should be paid the same as the nurses at the hospital. The Board of Arbitration agreed. The employer (St. Gabriel’s) sought judicial review, making much the same arguments as were made here. According to St. Gabriel’s, the Board failed to apply the considerations listed in section 9(1) of the Hospital Labour Disputes Arbitration Act and failed to explain why it chose the hospital comparator as opposed to the nursing home comparator. The Divisional Court noted that “the sufficiency of reasons is to be assessed in a contextual manner.”[^22] In that case the comparators were not other cases, involving other employers, in different circumstances. Instead, the comparators were a hospital and care home operated by the same employer:

In choosing the comparator that it did the Board noted that the home is extremely closely associated with a hospital with respect to which some key functions such as finance, nursing and labour relations are clearly integrated under a shared CEO…[^23]

[21] It was in this context that the decision was made. The appropriate comparator was the central issue in the case:

Here, the central issue as noted by the Board was the issue of the appropriate comparator group. There were only two possible options - the hospital nurses or the nursing home group.[^24]

It is clear that the comparator issue was treated as central by both sides… In these circumstances it is clear that the parties were all alive to the pros and cons of each argument.[^25]

[22] In the case before this court, the issue was not a choice between two comparators. The employer sought evaluation of the particular context of the hospital and the affected employees:

The hospital by contrast proposed a process that would require consideration of all relevant compensation and market factors in coming to an appropriate wage for each job classification on an individual basis…[^26]

[23] We make no comment as to the merits of the approach suggested by the employer. I say only that it demonstrates a different perspective, one which is directed to the particular context, and there is no indication in the decision that it, or the issues it raises, were assessed by the Board of Arbitration.

[24] In St. Gabriel’s Villa of Sudbury, the Court found that the reasons provided by the Board of Arbitration “…read as a whole and taking the context of interest arbitration and the issues at play in this case into account do meet the minimum standards of justification, transparency and intelligibility.”[^27] The Court went on:

While it might have been preferable or more prudent for the Board to include somewhat more detail as to why it chose the hospital comparator, and the reasons are very brief indeed, we find that taking account of the nature of the process, the evidence, submissions, issues and the reasons of the Board, the reasons are sufficient within the meaning of Dunsmuir, para. 47.[^28]

The same cannot be said in the case at bar, where there is little other than the acceptance of past cases as a rationale for the decision. Indeed, as I read St. Gabriel’s Villa of Sudbury, it assists the employer, not the union: by necessary implication it stands for the proposition that the Board of Arbitration must provide reasons – even if they are “very brief” – to satisfy “the minimum standards of justification, transparency and intelligibility.”

[25] Counsel for the union also referred to Omni Health Care Ltd. v. Canadian Union of Public Employees, Local 1909,[^29] which considered a number of arbitral decisions involving the same parties respecting several locations. This decision was argued to show the court respecting the proper limits on a review of an interest arbitration. But, in that case, the Court noted that the Boards of Arbitration for two of the locations did consider the ability of the employer to pay, the sort of specific contextual evidence that was not accounted for in the case before this court:

The Boards in the Willows Estate and Frost Manor cases were required by s. 10 the 1) of the Public Sector Prices and Compensation Review Act to consider the ability of the employers’ to pay in the light of existing provincial fiscal policy. It is clear from the reasons given by the Boards and from that decisions arrived at that they did take the employers’ ability to pay into consideration.[^30]

[26] The union argued that there was evidence before the Board of Arbitration to support the decision as reasonable. This submission cannot succeed. It is not a question of whether the decision could be justified on the evidence, but rather whether the decision was justified in the Board’s reasons, that is, whether the Board used evidence and analysis to come to a logical, transparent and, thus, reasonable decision.

Where, even if the reasons given by an administrative decision maker for a decision are read with sensitivity to the institutional setting and in light of the record, they contain a fundamental gap or reveal that the decision is based on an unreasonable chain of analysis, it is not ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision. Even if the outcome of the decision could be reasonable under different circumstances, it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome: Delta Air Lines, at paras. 26-28. To allow a reviewing court to do so would be to allow an administrative decision maker to abdicate its responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion. This would also amount to adopting an approach to reasonableness review focused solely on the outcome of a decision, to the exclusion of the rationale for that decision. To the extent that cases such as Newfoundland Nurses and Alberta Teachers have been taken as suggesting otherwise, such a view is mistaken.[^31]

[27] Counsel further submits that interest arbitration is more “legislative” than “adjudicative”. For this reason, the argument goes, interest arbitration decisions do not “normally” contain reasons or make findings about what is “right” or “wrong”. In my view, this case is not about “right” or “wrong”. It is about “why”. And it is not correct to say that arbitral decisions in interest arbitrations do not usually give reasons to explain “why” a decision has been made. For example:

1. Kingsway Arms Aurora Retirement Centre v. Unifor, 2018 96183 (Ont. L.A.) at para. 23:

We are of the view that the Employer has established a demonstrated need to establish a new wage schedule based on the different roles that have evolved over time. However, we do not believe that the Employer’s proposal of 1% lump sums in the first two years and a two-tiered wage schedule is fair and reasonable. A two-tiered wage schedule is not normative and in our opinion would not have been the outcome of free collective bargaining. In our view, the most likely outcome of free collective bargaining would have been a recognition that a new wage schedule, with distinct classifications, would be required to address the unique circumstances and evolving employee roles.

2. Christie Gardens Apartments and Care Inc v. Service Employees International Union, Local 1, 2013 84905 (Ont. L.A.) at para. 45:

We acknowledge that the Employer is in transition and will not be operating as a nursing home under the renewal collective agreement. However, we have also been advised by the Employer that the full integration of the new model will take approximately the same time frame as the renewal collective agreement.

3. HCN–Revera Lessee (Birkdale Place) LP v. Labourers’ International Union of America, Local 183, 2019 68513 (Ont. L.A.) at para. 34:

Finally, in relation to wages, we have taken into consideration the established pattern in this sector and the effect of the previous government’s increase of the provincial minimum wage. We have crafted an award that tries to reflect what we believe would have been the careful balancing of interests that would have been achieved in free collective bargaining.

4. Riverwood Senior Living v. United Steel, Paper And Forestry, Rubber, Manufacturing, Energy, Allied Industrial ND Service Workers International Union, 2018 116194 (Ont. L.A.) at para. 30:

In terms of the economic circumstances, we are of the view that the economic landscape has not changed significantly since the renegotiation of NAFTA, resulting in the new USMCA. The Union’s submission on this point is speculative at best. There is simply no evidence before us to suggest that the current economy has changed significantly since March 2018, when the Memorandum was negotiated.

5. Park Lane Chevrolet Cadillac Ltd. v United Food and Commercial Workers Canada, Local 175, 2016 60528 (Ont. L.A.) at para. 36:

In my view, the information provided by the Employer represents an effort to make an “inability to pay” argument. In terms of an inability to pay argument, it is well accepted that a party who asserts such an argument has the onus of justifying its’ position by presenting specific relevant financial information. It is not enough to simply assert an inability to pay and provide a limited amount of selective information. Rather, the information that must be provided ought to demonstrate a clear picture of the Employer’s financial situation to support their assertion of inability to pay. Thus, like free collective bargaining, an assertion of inability to pay at interest arbitration will likely fall on deaf ears unless such a claim is backed up by specific relevant financial information demonstrating an inability to pay what other similarly situated employers have agreed to provide to employees in the sector.

6. Regional Municipality of Peel v. Canadian Union of Public Employees, Local 966, 2018 9482 (Ont. L.A.) at para. 31:

We acknowledge that the Region’s other employees, represented by the Union with the right to strike, accepted a reduction in benefits. We also accept that these other bargaining units accepted the reduction in benefits as a trade-off for wage increases in the first and last year of their four year collective agreements. However, in our view, the difference in this situation, is that the benefit reductions being sought are not in the “ballpark” of what other comparable employees receive and to impose such a reduction would place these employees well outside the norm in relation to other comparable employees performing similar work in the sector. We also do not feel it is appropriate to reduce benefits while at the same time imposing a wage freeze.

7. Independent Electricity System Operator v. Society of Energy Professionals, 2015 52546 (Ont. L.A.) at paras. 38, 77-78:

In terms of pensions, the Society accepts that there has been “upward pressure on employee contributions”. However, the Society points out that their members are currently paying 7% of pensionable earning above and below the YMPE. This rate was reflected in an award issued by Arbitrator M. Picher in 2010 and is scheduled to revert to 5% below and 7% above YMPE effective January 1, 2016. The Society points out that the current rate is within the range of contributions other Society members make to other employer pension plans.

I acknowledge that the Divisional Court upheld Arbitrator Albertyn’s award. However, that only means that they found the award to be reasonable. That does not mean that I am bound to follow the award. In my view, the facts before me are quite distinguishable and lead me in a different direction.

In terms of the second factor, there is no dispute that the IESO is not currently experiencing any difficulty in attracting or retaining staff. Voluntary attrition rates have been negligible.

8. Police Services Board (Treaty Three Police Service) v. Public Service Alliance of Canada, 2012 77004 (Ont. L.A.) at First paragraph under the heading: Decision on Salaries, Retroactivity and Duration

The parties have presented me with two starkly different approaches to the salary question. The employer argues it can afford only a small increase in salaries, in keeping with the rates paid at other First Nations police services and the very low current inflation rates. The union seeks immediate parity with Ontario Provincial Police rates, including the OPP’s retention incentive. The union’s proposal would entail substantial increases for the officers, and particularly large increases for a relatively small number who have been with the service and its predecessors for eight years or more continuously and would thus be eligible for the retention incentive.

[28] In an interest arbitration, reasons should be given for decisions that reflect the arguments made by the parties, the interests at stake, and the significance of the issues decided. Reasons may not need to be elaborate or lengthy. Sometimes they may be “very brief”. But they must meet the minimum standards of justification, intelligibility and transparency. The impugned reasons in this case do not meet this standard. The Application is granted. The impugned decision is quashed and the issue of the harmonization of wages is returned to the Board of Arbitration. As agreed costs of $6750 are payable by the Respondent to the Applicant.

LEDERER J.

I agree _______________________________

D.L. CORBETT J.

I agree _______________________________

SUTHERLAND J.

Released: July 22, 2020

DIVISIONAL COURT FILE NO.: 329/19

DATE: 20200722

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D.L. Corbett, Lederer and Sutherland JJ.

BETWEEN:

Scarborough Health Network

Applicant

– and –

Canadian Union of Public Employees, Local 5852

Respondent

REASONS FOR DECISION

Released: July 22, 2020

[^1]: Scarborough Health Network v. Canadian Union of Public Employees, Local 5852, 2019 58078 (Ont. L.A.) (Interest Arbitration Award) at para. 3. [^2]: Ibid at para. 4. [^3]: Ibid at para. 5. [^4]: These paragraphs were authored by the Chair of the Board of Arbitration. The Union Nominee dissented, in part, but not as to the point in issue on this judicial review. The Employer Nominee dissented directly to the issue of concern. [^5]: Scarborough Health Network at para. 8. [^6]: Participating Hospitals v. Canadian Union of Public Employees, 2019 58060 (Ont. L.A.) at para. 5. [^7]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 79. [^8]: Brown and Beatty, Canadian Labour Arbitration, loose-leaf (2019) 5th ed. (Toronto: Thomson Reuters Canada Limited, 2019) at para. 10000 (Introduction). [^9]: Ibid. [^10]: 2008 SCC 9, [2008] 1 S.C.R. 190. [^11]: Ibid at para. 47. [^12]: Ibid. [^13]: Ibid at paras. 14 and 15 (para. 14 references: the Rt. Hon. B. McLachlin, “The Roles of Administrative Tribunals and Courts in Maintaining the Rule of Law” (1998) 12 C.J.A.L.P. 171, at p. 174 (emphasis deleted); see also M. Cohen-Eliya and I. Porat, “Proportionality and Justification” (2014) 64 U.T.L.J. 458, at pp. 467-70. [^14]: Ibid at para. 74, referencing the factum of amici curiae at para. 12. [^15]: Ibid at paras. 127-128, referencing: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 28 and 39; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at para. 25. [^16]: Ibid at para. 102 referencing Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458 at para. 54, citing Newfoundland Nurses at para. 14; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at para. 55; Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, at para. 56; R. A. Macdonald and D. Lametti, “Reasons for Decision in Administrative Law” (1990) 3 C.J.A.L.P. 123, at p. 139; and Gonzalez v. Canada (Minister of Citizenship and Immigration), 2014 FC 750, 27 Imm. L.R. (4th) 151, at paras. 57-59. [^17]: R.S.O. 1990, c. H. 14. [^18]: Ibid at s. 9(1.1). [^19]: Re University of Toronto v. U.T.F.A., [2006] O.L.A.A. No. 782 at para. 17. [^20]: Ibid at para. 11. [^21]: Ibid at para. 11 quoting from Re McMaster University and McMaster University Faculty Assn. (1990), 1990 12727 (ON LA), 13 L.A.C. (4th) 199 (Ont.) at 202. [^22]: Ibid at para. 7. [^23]: Ibid at para. 10. [^24]: Ibid at para. 9. [^25]: Ibid at para. 11. [^26]: Factum of the Applicant Scarborough Health Network at para. 4. [^27]: St. Gabriel’s Villa of Sudbury at para. 13. [^28]: Ibid at para. 13. [^29]: [1987] O.J. No. 2255 (Div. Ct.). [^30]: Ibid at para. 4. [^31]: Vavilov at para. 96.