VAVILOV – Shift for Canadian Admin Law?

By: Syed Jawad Quader

The writer is recent immigrant to Toronto and an NCA Candidate. He is a UK-trained Bangladeshi lawyer with 12+ years of legal experience in prominent legal positions.

While studying for my NCA exams, I came across jurists and academics who view Canadian Admin Law as being “in a state of flux”. The rapidness of its evolution in the last few decades (and the resulting confusion) is perhaps most palpable when it comes to ascertaining the standard of review a court is meant to apply when reviewing a decision of an administrative decision maker (ADM). Many consider the recent Supreme Court of Canada (SCC) decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, to represent a seismic shift in Admin Law. After reading the judgment, however, I am left wondering if that assessment is accurate. Without getting too technical, I will attempt to summarize why in the lines that follow.

The Canadian “Deferential” Approach to Reviewing ADMs’ Decisions

Legislatures often delegate decision-making power to ADMs, who comprise of public bodies, quasi-judicial tribunals or other public authorities. Admin law applies to ensure that such delegated power is properly exercised, where courts often play a supervisory role. In some jurisdictions, reviewing courts (often superior “constitutional” courts) assume complete supervisory authority to determine what the correct ADM decision should have been and to replace a non-concurring ADM decision with the decision deemed as correct by that reviewing court (such an approach is known in Canada as “the standard of correctness”). Canadian reviewing courts, however, have a different approach.

Since 1979 (after C.U.P.E. Local 963 v. New Brunswick Liquor Corporation [1979]), reviewing courts in Canada increasingly show deference to the legislative intent behind the delegation of authority to an ADM to make decisions in certain matters. Barring exceptions, Canadian reviewing courts generally do not decide whether a decision by an ADM is correct or not. Instead, they take a step back and merely consider whether the decision was reasonable or not (aka “the standard of reasonableness”). This allows reviewing courts to uphold the doctrine of separation of powers by being more deferential to the autonomy of the legislature while at the same time keeping courts’ supervisory role intact. It is only in exceptional circumstances when Canadian reviewing courts apply “the standard of correctness” to an impugned ADM decision.

The Pressing Confusion – When does which standard apply?

The confusion faced by reviewing courts centered around when they shall apply which of the two standards of review mentioned above. While acknowledging that the law is not articulate in this respect, SCC attempted to streamline and simplify the jurisprudence on this particular issue in its 2008 decision in Dunsmuir and in certain other subsequent decisions. In essence, a reviewing court was to undertake a contextual inquiry on the case before it in order to determine which standard of review to apply. In addition, the court was also to pay specific heed to the expertise of the ADM on the subject matter of the decision. If the outcome of the contextual inquiry did not require otherwise or if the ADM had expertise, the court would apply the standard of reasonableness. Just prior to Vavilov, it became rarer for reviewing courts to apply the standard of correctness when reviewing decisions by ADMs.

Unfortunately, confusion still remained regarding the specifics of the contextual approach and with which standard to apply.

The Distinction Between Appeals Vs. Judicial Reviews

Before going to the essence of the SCC judgment in Vavilov, it should be noted that a decision made by an ADM can require a court to review it in two ways: (a) by an appeal to that court in accordance with an appeals mechanism mandated by legislation; (b) by judicial review in exercise of a court’s inherent power under S96 of the Constitution Act, 1867 (per para 24, Vavilov). A comprehension of this fundamental distinction is crucial to understanding Vavilov.

The Revised Framework for Determining Standard of Review

The SCC released its judgment in the Vavilov case in December 2019. The object that the SCC set out to achieve was to reconsider and re-simplify the legal position on the applicable standard of review for appeals and judicial reviews preferred against decisions by ADMs. In carrying out that object, the SCC in Vavilov succinctly laid down a revised framework for all appellate and judicial review courts to follow in reviewing decisions by ADMs. I have tried to capture the essence of the framework in the following step-by-step outline in algorithmic terms for the sake of simplicity. Each step below is referenced with the relevant paragraphs from the Vavilov judgment.

First Step:       A reviewing court shall no longer engage in a “contextual inquiry” as per Dunsmuir, CHRC and McLean in order to determine the applicable standard of review (paragraphs 16 and 17).

Second Step:  A reviewing court shall presume reasonableness to be the applicable standard in all cases where it reviews an ADM decision. The presumption can be rebutted by any of the following exceptions (paragraph 17):

  • Where the legislature has indicated that it intends a different standard to apply in either of the following manners:
  • By explicitly prescribing the applicable standard; or
  • By providing a statutory appeal mechanism from an ADM decision to a court, in which case, the “appellate standards” shall apply, which (as per para 37) means:
    • The standard of “correctness” for questions of law, and
    • The standard of “overriding and palpable error” for questions of fact or mixed fact and law.
  • Where rule of law requires that the standard of correctness be applied, which will be the case when the appeal or judicial review application raises the following categories of questions:
  • Constitutional questions, including: questions on division of powers between parliament and the provinces, the relationship between the legislature and the other branches of the state, the scope of aboriginal and treaty rights and other constitutional matters (para 55),
    • but not including: where the ADM’s decision serves to unjustifiably limit the Charter rights of a particular person (para 57);
  • General questions of law that are of central importance to the legal system as a whole;
  • Questions related to jurisdictional boundaries between two or more administrative bodies, except:
    • “true questions of jurisdiction or vires”, i.e. “where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter” (para 65 and 67); and
  • Possible questions in future cases that are not within the contemplation of the court at present, but may, in “exceptional” cases, be recognized by the court as necessitating the establishment of other categories of exceptions to the presumption of reasonableness review (para 70).

Step Three:     If none of the exceptions in Step Two above applies, then apply the standard of reasonableness in line with the “guidance” prescribed by the SCC in para 73-142 of Vavilov.

Concluding Remarks on How Vavilov Changed Admin Law

In extrapolating the essence of Vavilov, it is my reading that the majority judgment of the SCC did not mean and intend to overhaul Canadian Admin Law, nor did it do so. The impact of Vavilov is only limited to the jurisprudence on the applicable standard of review. The two principal ways in which Vavilov did indeed change prior jurisprudence related to the applicable standard of review are as follows:

(a)     Instead of engaging in a consideration of the expertise of the ADM and in a contextual inquiry to determine the applicable standard of review, the reviewing court shall now automatically presume that “reasonableness” is the standard of review to be applied. The presumption shall however be rebutted on certain grounds. Expertise shall no longer be relevant in rebutting the presumption.

(b)     Instead of applying the standard of reasonableness to all statutory appeals and judicial reviews of decisions of ADMs, the reviewing court shall now apply “appellate standards” for any appeal made to it following any appellate provision in the enabling legislation.

Aside from these alterations, it is my reading that Vavilov merely served to re-articulate existing jurisprudence concerning the applicable standard of review. This view is echoed by the judgment passed by the two dissenting judges in Vavilov, whose dissent was grounded in their views that (a) the expertise of ADMs ought to have continued to play a part in determining the applicable standard of review and (b) the standard of reasonableness ought to apply to statutory appeals from decisions of ADMs.

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