Boilerplate in Decision-Making

Administrative boilerplate is probably legion in government, but of course, this is an empirical question. Nonetheless, I have read enough cases to know that individuals at the foot of administrative power—many times in front-line decision-making— are at least sometimes faced with deciphering reasons that purport to have “considered all the factors.”  Confronted, as well, with a strong presumption that decision-makers considered all of the evidence in the first place (Cepeda-Gutierrez), it is theoretically hard for applicants to move beyond boilerplate.

Besides internal administrative mechanisms that could—but may not—discourage this sort of behaviour, judicial review doctrine in Canada is starting to take notice of it. Here are a few recent cases:

Gill v Canada (Citizenship and Immigration), 2021 FC 1441

In this case, a visa officer in New Delhi used almost identical language to reject Gill’s application as another visa officer used in another denial out of New Delhi. The Court said [34]: “I note, however, that the use of identical template language to express not just the relevant legal test or framework, but the reasoning applicable to an applicant’s particular case undermines to at least some degree the presumption that the officer has considered and decided each individual case on its merits.”

Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157

In this case, the Federal Court of Appeal chastised the Patented Medicine Prices Review Board for, among other things, “conclusory” analysis that purported to consider all the evidence [43]. This was important for the Court: “At best, on this point the Board obfuscated, making it impossible for a reviewing court to know whether the Board has helped itself to a power it does not lawfully have. By obfuscating, the Board has effectively put itself beyond review on this point, asking the Court to sign a blank cheque in its favour. But this Court does not sign blank cheques. Administrators cannot put themselves in a position where they are not accountable.”

Publicover v Canada (Attorney General), 2021 FC 1460

In this case, the Minister of Fisheries and Oceans denied a request for a  lobster licence transfer. In her reasons, the Minister stated that she had considered “all the relevant circumstances” [16]. The Court was troubled by this boilerplate, because it did not show that the Minister connected her analysis to the actual law and policy governing the decision [62, 66].

These cases represent a decisive shift from pre-Vavilov caselaw. Gone is Newfoundland Nurses, which permitted courts to take these boilerplate statements and “supplement” them: Nfld Nurses, at para 12. Underlying this doctrinal innovation was an unqualified presumption about administrative decision-making: “To me, it represents a respectful appreciation that a wide range of specialized decision-makers routinely render decisions in their respective spheres of expertise, using concepts and language often unique to their areas and rendering decisions that are often counter-intuitive to a generalist” [13].

In the context of boilerplate, Nfld Nurses makes little sense. This is because boilerplate reasons do not do anything to show expertise or the use of specialized concepts or language. It is merely a “say-so” of the decision-maker. Even on the Dunsmuir standard, it was always hard to say–with a straight face– that this sort of reasoning is “justified, transparent, and intelligible.”

Second, Vavilov’s renewed focus on justification and a “reasons-first” approach will be, I think, a boon for those challenging front-line decision-making. There are necessary caveats: reasons are not always required, and in many administrative contexts (such as high-volume study permit decision-making), “extensive reasons are not required” (see Niyongabo v Canada (Citizenship and Immigration), 2021 FC 1238 at para 12). But even in these areas, courts could be more willing to subject front-line decision-making to a slightly higher bar in terms of reasoning.

Third, I think this turn of events marks a tension between the Cepeda-Gutierrez presumption of consideration and the culture of justification endorsed in Vavilov. This tension was pointed out, as I noted above, in Gill. The presumption of consideration makes sense from an efficiency standpoint: after all, legislatures delegate to decision-makers for a reason, and when they do, courts should generally not go on a line-by-line treasure hunt for error. But at the same time, these efficiency concerns should take a decidedly second place: as noted in Alexion, judicial review becomes difficult when there is only boilerplate shedding light on an ultimate decision; this is to say nothing, of course, of the dignitarian reasons why reasoned decision-making is desirable (see, for a recent analysis of these issues, Janina Boughey).

This is all for the best. Boilerplate may work well in a “top-down” culture of decision-making in which those subject to administrative power and courts are in the thrall of purported administrative expertise. No need, on this account, for a decision-maker to show their work; the “just trust us” ethic is what governs. But Vavilov has arguably changed things: gone is the presumption of expertise, and gone should also be the presumptions about reasoning. If expertise exists, it can and should be demonstrated through persuasive and responsive reasons that allow a court to determine the legal basis of a decision.