Jan 7, 2020

Signaling an increased willingness to overturn decisions of administrative tribunals, the Supreme Court of Canada has reformed the law governing judicial review in Vavilov, a case about the children of Russian spies, and in two Bell Canada cases over Super Bowl commercials.

The Vavilov trilogy concerns how Canadian courts review the decisions of administrative tribunals and government officials. The Supreme Court both revised the framework for determining the standard of review and issued extensive guidance on its application. Its reasons attempt to bring more coherence and predictability to a challenging area of law.

The trilogy's impacts will be felt by many who are subject to the expansive Canadian administrative state—in areas ranging from pipeline and major public infrastructure approvals, to professional regulation, intellectual property, environmental law, regulated industries, immigration, and many others.

Among the trilogy's pronouncements on the state of administrative law, two central points emerge:

  • the reasonableness standard of review will presumptively apply, subject to certain (and fewer) kinds of exceptions; and
  • review on a reasonableness standard is "robust", given the expectation that administrative decisions be "justified" in relation to their factual and legal context—raising the standard that administrative decisions must meet.

In each of the three cases, the Court overturned an administrative decision-maker. In Vavilov itself, the Court concluded that the Canadian Registrar of Citizenship's interpretation of her home statute was unreasonable. In the Bell Canada cases, the Court overturned determinations of the Canadian Radio-television and Telecommunications Commission, applying a correctness standard.

The New Standard of Review Framework in Vavilov

In Vavilov, the Court has reformed the existing framework for identifying the standard of review, and replaced it with a simple presumption of reasonableness. That presumption may be rebutted in certain limited circumstances.

The presumption of reasonableness will be rebutted: (1) where the legislature has expressed an intention for correctness review to apply, either by so stating or by providing a statutory right of appeal; or (2) where the rule of law requires a different standard of review by the court—a "correctness" standard.

The "rule of law" category is itself comprised of three types of cases that require decisions to be correct: cases involving (1) constitutional questions; (2) "general questions of law of central importance to the legal system as a whole"; and (3) questions on the jurisdictional boundaries between tribunals.

The theoretical underpinning of the presumption of reasonableness is that reviewing courts must defer to the "institutional design choices" of legislators. Where the legislature has chosen to give final decision-making authority to an administrative decision-maker rather than a court, the courts are to respect that choice by only applying a reasonableness standard of review. However, as a corollary, where the legislature has provided for an appeal to the courts, the standard of review will be the same as for any other appeal—meaning correctness will apply on questions of law.

In practice, this change may provide greater scope to parties challenging decisions of tribunals and other decision-makers in a statutory appeal process.

The Court made a clear effort to simplify the standard of review analysis. Its reasons in Vavilov eliminate so-called "contextual" factors in identifying the standard of review. The Dunsmuir "pragmatic and functional approach" predicated deference or its absence on four contextual factors, including the perennially controversial "expertise of the decision-maker". In the intervening years, a presumptive reasonableness standard had emerged, rebuttable by reference to contextual factors. Context will now play no role in finding the standard of review.

An open question in Vavilov's wake is the breadth of the "rule of law" category. We expect future litigation to focus on whether an issue may fall within the category of an issue of "central importance to the legal system as a whole" so as to attract a less deferential "correctness" review.

Applying the Reasonableness Standard of Review

Prior to the Vavilov trilogy, binding guidance from the Supreme Court on the application of the reasonableness standard was sparse. Judicial review litigants have long struggled to assess their prospects: what kind of error will justify a reversal of an administrative decision? What is sufficient to withstand a court's scrutiny?

As in its earlier jurisprudence, the Court addressed both of the opposing forces in judicial review: the need for "robust" judicial review to ensure the legitimate exercise of public power, and the need for courts to respect the expertise and jurisdiction of administrative decision-makers. The reasons and outcome in Vavilov seem to lean towards more rigorous judicial review.

The Court confirmed the existing hallmarks of reasonableness: "justification, transparency, and intelligibility." The Court also introduced a new refrain: to be reasonable, a decision must be "justified" in relation to the relevant "factual and legal constraints that bear on the decision." In assessing reasonableness, a court should consider both the outcome and the reasoning process used by the decision-maker.

Judicial deference to administrative decision-makers remains a central theme in the decision. The Court observed that "administrative justice" will not always look like "judicial justice", and directs that respectful attention be given to the demonstrated expertise of a decision-maker. Administrative decisions in highly specialized areas may use language and concepts unfamiliar to courts—but this is not a sign of unreasonableness. Vavilov confirms that the burden of establishing unreasonableness is on the applicant.

While contextual factors like a decision-maker's expertise no longer play any role in selecting the standard of review, they may be important to the court's evaluation of reasonableness. The Supreme Court described a non-exhaustive list of factors for consideration, including:

  • the governing statutory scheme;
  • other relevant statutory or common law;
  • the principles of statutory interpretation;
  • the evidence before the decision-maker and facts of which the decision-maker may take notice;
  • the submissions of the parties;
  • the past practices and decisions of the administrative body; and
  • the potential impact of the decision on the individual to whom it applies.

The Court underscored the importance of the reasons provided for the decision under review. A decision-maker's reasons are not only the starting point of judicial review, but are also fundamental to the legitimacy of administrative decision-making. Thus, a reviewing court must develop an understanding of the reasoning process behind a decision and evaluate its "internal coherence" and rationality. The reviewing court may not engage in a "treasure hunt for error", or a "formalistic statutory interpretation exercise."

If neither the duty of procedural fairness nor the statutory scheme requires an administrative decision-maker to provide reasons, the reviewing court must "look to the record as a whole" to determine whether the decision was reasonable. If the decision-maker has not provided reasons, "the analysis will then focus on the outcome rather than on the decision maker's reasoning process."

Although a reviewing court may focus on an outcome in the absence of reasons, the Court held that reviewing courts should not fashion their own reasons to buttress administrative decisions.

Whether the Court's guidance in Vavilov will assist courts as they endeavour to balance the need for meaningful review with the need for deference will be seen in cases to come.