There is no “one” solution to the delays in administrative justice in Canada. When a problem is caused by multiple reasons, it often takes multiple approaches to resolving it. The volume of disputes has grown over the last decade and the reasons for this are complex. Society is becoming more litigious, which could be due to an increased awareness of legal rights and also a reduced willingness to compromise. The volume of complaints or applications to tribunals is also partly due to the rise of self-represented parties, who may not have a full understanding of the law. One of the reasons for more disputes though does not get enough attention – the quality of initial decisions by administrative decision-makers.
There are many examples of poorly thought-out decisions affecting the rights of individuals rights. Here are a few recent examples.
In Joshi v. Canada (Attorney General), 2025 FC 1322, the applicant’s language assessment was overturned because of suspected cheating. However, the Public Service Commission issued the decision without providing any reasons or sharing the investigation report. This is an example of a fundamental breach of procedural fairness that should have been obvious to any decision-maker. I have recently written in more detail about this decision.
The Federal Court has been warning the Department of Citizenship and Immigration for some time about the pitfalls in relying on form letters or “boilerplate” reasons in denying visas. Near the end of the short decision in Kashefi v. Canada (Citizenship and Immigration), 2024 FC 856, Justice William Pentney provides a comment on the use of form letters in decision-making:
…I will simply note that there may be legitimate questions to be asked about the extent to which the current practice of providing “standard form” decision letters devoid of any meaningful details is consistent with Vavilov’s call for a “culture of justification.”
These concerns about “pro forma” decisions now also extend to the Canada Revenue Agency (CRA). In a recent decision (Pan v. Canada (Attorney General), 2025 FC 1925), the CRA did not explain why a debt was owed. The court noted: “While the use of form letters is common practice on the part of government agencies, sometimes the circumstances require more detail. This is one such case”.
In a recent decision from the Federal Court of Appeal (Jennings-Clyde (Vivatas, Inc.) v. Canada (Attorney General), 2025 FCA 225, the court spelled out the practical reasons for adequate explanations of administrative decisions (at paragraph 5):
- Adequate explanations lead often to more thinking, better thinking, and, thus, better decision-making. This is because administrative decision-makers, while they write up adequate explanations for their decisions, often discover gaps or flaws in their reasoning or the need for more submissions.
- Adequate explanations tell affected persons that the administrative decision-maker took on board their key arguments and rejected them for certain reasons: this vindicates the interests served by procedural fairness.
- Adequate explanations further the transparency, legitimacy and accountability of administrative decision-makers to the parties before them, other regulatees, reviewing courts, and the wider public—something needed more than ever in these days of widespread skepticism, cynicism, and mistrust of government.
An extensive survey of the administrative justice process in the United Kingdom by a working group of the Administrative Justice Council recently concluded that a significant contribution to backlogs was the quality of initial decisions:
By far the most efficient and cost-effective way of removing barriers to justice would be to improve the quality of administrative decision-making so that the need for a challenge in order to secure justice does not arise in the first place.
The report noted that poor decision-making creates a vicious cycle where inadequate initial decisions lead to more complex and costly legal processes. It also noted that poor administrative decision-making can expose underlying systemic issues within public services:
Addressing the root causes of these issues through better training, improved processes, and clearer communication can help reduce the volume of legal challenges and ultimately lower costs. Better feedback from the [administrative justice system] to decision-makers whose decisions are being successfully challenged could help to identify systemic failings that are causing avoidable harm to the subjects of those decisions, demand for advice, and costs to the justice system.
We have not had a similar survey of the contribution of poor administrative decisions to backlogs. Collecting that data would require separating out those applications allowed because of procedural errors (including non-transparent reasons) from those allowed on the merits. However, it is quite likely that poor or rushed decisions at the initial decision-making level are contributing to the volume of cases before tribunals and the courts.
Feedback is important for decision-makers. One would think that repeated successful applications based on procedurally unfair decision-making processes might result in a reduction in such cases. However, some of the same problems are repeatedly noted in Federal Court decisions.
Consequences for poor decisions are a bigger stick. However, the consequences of poor decisions are spread around and become minor for government decision-makers. Cost awards are often small – or for self-represented, usually non-existent.
Staff shortages also contribute to burnout and stress for decision-makers, that could lead to rushed and poor decisions. We are seeing cuts in staffing across all Canadian governments, although it is too early to say where those cuts will be concentrated. We can say with some certainty that there will not be an increase in staffing in most areas of government.
Training on decision-making is critical. However, governments are reducing operational costs and often the easiest budget item to cut is training. And, like most training, it is only effective if there is an associated culture change within decision-making bodies. There needs to be an incentive to apply new approaches to decision-making – necessitating a systemic culture change, rather than relying solely on individual decision-makers to change their approaches to decision making.
Justice David Stratas stressed the importance of addressing the quality of administrative decisions in Jennings-Clyde (Vivatas Inc.) (at paragraph 19):
Ensuring the wheels of justice, both administrative and judicial, turn quickly, adequately and properly is not a luxury, frill, or optional extra; it’s one of the most basic things governments owe to those they govern.
We are at a crisis point in the administration of justice. Continued lengthy delays and rising backlogs can lead to a loss of faith or trust in the justice system. Addressing the quality of decision-making at the initial intake level would be an important step toward addressing the issue.
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