Procedure - Ground for Appeal: Abuse of Discretion Defined

Abuse of Discretion

1.                       Black's Law Dictionary (8th ed. 2004), at Page 31 defines ABUSE OF DISCRETION and ABUSE OF PROCESS As follows:

ABUSE OF DISCRETION

abuse of discretion.

1. An adjudicator's failure to exercise sound, reasonable, and legal decision-making.

2. An appellate court's standard for reviewing a decision that is asserted to be

grossly unsound, unreasonable, illegal, or unsupported by the evidence.

ABUSE OF PROCESS

abuse of process. The improper and tortious use of a legitimately issued court process to obtain a result that is either unlawful or beyond the process's scope.

2.                       The topic of unreasonable use of the discretion  was examined in Slaight communications inc. v. Davidson as follows:

Parliament cannot have intended to authorize such an unreasonable use of the discretion conferred by it.  A discretion is never absolute, regardless of the terms in which it is conferred.  This is a long‑established principle.   H. W. R. Wade, in his text titled Administrative Law (4th ed. 1977), says the following at pp. 336-37: 

   For more than three centuries it has been accepted that discretionary power conferred upon public authorities is not absolute, even within its apparent boundaries, but is subject to general legal limitations.  These limitations are expressed in a variety of different ways, as by saying that discretion must be exercised reasonably and in good faith, that relevant considerations only must be taken into account, that there must be no malversation of any kind, or that the decision must not be arbitrary or capricious.  [Emphasis added.] 

   This limitation on the exercise of administrative discretion has been clearly recognized in our law, by Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227, and Blanchard v. Control Data Canada Ltd., 1984 CanLII 27 (SCC), [1984] 2 S.C.R. 476, inter alia.  Whether it is the interpretation of legislation that is unreasonable or the order made in my view matters no more than the question of whether the error is one of law or of fact.  An administrative tribunal exercising discretion can never do so unreasonably.  To reiterate what I said earlier in Blanchard, supra, at pp. 494-95: 

An administrative tribunal has the necessary jurisdiction to make a mistake, and even a serious one, but not to be unreasonable.  The unreasonable finding is no less fatal to jurisdiction because the finding is one of fact rather than law.  An unreasonable finding is what justifies intervention by the courts. 

Not only is the distinction between error of law and of fact superfluous in light of an unreasonable finding or conclusion, but the reference to error itself is as well.  Indeed, though all errors do not lead to unreasonable findings, every unreasonable finding results from an error (whether of law, fact, or a combination of the two), which is unreasonable. 

 In conclusion, an unreasonable finding, whatever its origin, affects the jurisdiction of the tribunal.

Slaight communications inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 SCR 1038,

3.                       The Supreme Court of Canada reviewed Abuse of process in the case of R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 SCR 979:

In summary, abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community's sense of fair play and decency.  The concepts of oppressiveness and vexatiousness underline the interest of the accused in a fair trial.  But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice.  I add that I would read these criteria cumulatively.   While Wilson J. in R. v. Keyowski, 1988 CanLII 74 (SCC), [1988] 1 S.C.R. 657, at pp. 658-59, used the conjunction "or" in relation to the two conditions, both concepts seem to me to be integral to the jurisprudence surrounding the remedy of a stay of proceedings and the considerations discussed in R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, and R. v. Conway, supra.   It is not every example of unfairness or vexatiousness in a trial which gives rise to concerns of abuse of process.  Abuse of process connotes unfairness and vexatiousness of such a degree that it contravenes our fundamental notions of justice and thus undermines the integrity of the judicial process.   To borrow the language of Conway, the affront to fair play and decency must be disproportionate to the societal interest…

4.                       In Matondo,  Justice Harington of the federal Court of Canada wrote:

"To be capricious is to be so irregular as to appear to be ungoverned by law."

          Matondo v Canada, 2005 FC 416,  

5.                       Justice Barnes of the Court of Appeals of Mississippi wrote, in Public Employees:

"A capricious decision is done without reason, in a whimsical manner, implying either a lack of understanding of or disregard for the surrounding facts and settled controlling principles."

6.                       In Gloucester (City) v. Bennett, 124 DLR 3d 495 (Ontario Supreme Court, 1981) Justice Montgomery adopted these words to distinguish capricious from arbitrary:

"To act arbitrarily is to act without any reasonable cause.

"To act capriciously is to act without any apparent reason."

         Gloucester (City) v. Bennett, 124 DLR 3d 495 (Ontario Supreme Court, 1981)

7.                       So, too, did Justice Bryan in Alabama Department of Youth Services:

"A decision is not arbitrary where there is a reasonable justification for the decision or where the determination is founded upon adequate principles or fixed standards.

"A decision is capricious if it is so unreasonable as to shock the sense of justice and indicate lack of fair and careful consideration."

         Alabama Department of Youth Services v. State Personnel Board., 7 So. 3d 380 (2008)

8.                       Abuse of discretion is “a failure to take into proper consideration the facts and law relating to a particular matter; an Arbitrary or unreasonable departure from precedent and settled judicial custom”. Where a trial court must exercise discretion in deciding a question, it must do so in a way that is not clearly against logic and the evidence. An improvident exercise of discretion is an error of law and grounds for reversing a decision on appeal. It does not, however, necessarily amount to bad faith, intentional wrong, or misconduct by the trial judge.

9.                       The Supreme Court of Canada reviewed The Standard of Patent Unreasonableness in  C.U.P.E. v. Ontario :

A.     The Standard of Patent Unreasonableness 

20                              Before answering this question, it is helpful to review some of the ways that this Court has articulated the test for patent unreasonableness.  These are not independent, alternative tests.  They are simply ways of getting at the single question: What makes something patently unreasonable? 

21                              In Suresh, supra, at para. 41, this Court indicated that a patently unreasonable decision is one that is unreasonable on its face, unsupported by evidence, or vitiated by failure to consider the proper factors or apply the appropriate procedures.  This linkage of the nominate grounds for abuse of discretion with the patent unreasonableness standard demonstrates the unified approach to review of discretionary decision making set out by L’Heureux-Dubé J. in Baker, supra.  Other formulations of the test for patent unreasonableness are also helpful.  Most relevantly in this appeal, other formulations assist in construing the terms “vitiated by failure to consider the proper factors”.  A reweighing or reconsideration of factors that were originally considered will not suffice to vitiate the decision. Furthermore, it is not necessarily sufficient that a new relevant factor be invoked to vitiate the ministerial decision. 

22                              In Ryan, supra, Iacobucci J. writes that “[a] decision that is patently unreasonable is so flawed that no amount of curial deference can justify letting it stand” (para. 52). 

23                              In Southam, supra, Iacobucci J. distinguishes the reasonableness simpliciter standard from that of patent unreasonableness.  He states that the difference lies “in the immediacy or obviousness of the defect.  If the defect is apparent on the face of the tribunal’s reasons, then the tribunal’s decision is patently unreasonable.”  A decision is not patently unreasonable, he says, “if it takes some significant searching or testing to find the defect”.  He says too that “once the lines of the problem have come into focus, . . . the unreasonableness will be evident” (para. 57).  Another way of getting at the evident quality of the unreasonableness is to say that once identified, a defect rendering a decision patently unreasonable “can be explained simply and easily” (Ryan, supra, at para. 52). 

24                              In Canada (Attorney General) v. Public Service Alliance of Canada, 1993 CanLII 125 (SCC), [1993] 1 S.C.R. 941 (“PSAC”), Cory J. states that the “very strict test” of patent unreasonableness is whether the decision is “clearly irrational, that is to say evidently not in accordance with reason” (pp. 963-64). 

      C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29 (CanLII), [2003] 1 SCR 539, paragraph 20 – 25.

10.                   The courts will intervene if it is established that the subject decision is patently unreasonable in the sense of irrational or perverse or (in language adopted in Coughlan, at para. 72) “so gratuitous and oppressive that no reasonable person could think [it] justified”.