When Can Judicial Review Of A Tribunal's Decision Include A Tribunal's Other Decisions?

When can a court review a tribunal's decisions, other than the decision under review, in determining whether the decision should be subject to a remedy on judicial review? This question arises from the recent Supreme Court of Canada decision on the standard of review of a tribunal's decision, Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47 [Capilano], in which the court stated, at paragraphs 37–38:

When procedural fairness requires a tribunal to provide some form of reasons, a complete failure to do so will amount to an error of law (Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (CanLII), [2011] 3 S.C.R. 708, at paras. 20–22).

However, when a tribunal's failure to provide any reasons does not breach procedural fairness, the reviewing court may consider the reasons "which could be offered" in support of the decision (Dunsmuir, at para. 48, quoting D. Dyzenhaus, "The Politics of Defence: Judicial Review and Democracy", in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286). In appropriate circumstances, this Court has, for example, drawn upon the reasons given by the same tribunal in other decisions (Alberta Teachers', at para. 56) and the submissions of the tribunal in this Court (McLean, at para. 72).

[Emphasis added]

The sources referenced by the court provide useful guidance on when a...