The spies who saved judicial review: The top 10 takeaways from Vavilov
The Supreme Court of Canada has revolutionized administrative law (again) with its new standard of review decision, Canada (Minister of Citizenship and Immigration) v Vavilov. The decision reflects a 7:2 split in the Court – Chief Justice Wagner and six other Justices jointly authored the majority reasons, while Justices Abella and Karakatsanis wrote separate concurring reasons that read like a vigorous dissent.
Vavilov starts with a spy story.
Mr. Vavilov, the initial applicant for judicial review, was born in Canada. His parents were undercover Russian spies (they literally provided Canadian inspiration for The Americans). Vavilov discovered their secret at the age of 16, when his parents were arrested in the United States for espionage, along with several other Russian spies. Mr. Vavilov was subsequently unable to renew his Canadian passport but was issued a Canadian citizenship certificate (a prerequisite to a new passport).
In 2014, the Registrar of Canadian Citizenship cancelled Mr. Vavilov’s citizenship certificate. The Registrar determined that Mr. Vavilov’s parents were “employees or representatives” of the Russian government and were therefore exempt from the rule that individuals born in Canada acquire Canadian citizenship by birth. The Supreme Court of Canada found that the Registrar’s interpretation of this section of the Citizenship Act was unreasonable (mainly because Vavilov’s parents, as spies, did not have diplomatic privileges and immunities), quashed her decision, and directed that Mr. Vavilov is, indeed, a Canadian citizen.
The law of Vavilov may be even more intriguing than the facts, at least for practitioners of administrative law and followers of the Supreme Court’s ever-evolving and conflicting jurisprudence on standard of review. Here are our top-10 takeaways, distilled from the 343-paragraph decision. They can be grouped into two categories: defining the standard of review and applying the standard of review.
Defining the Standard
- Reasonableness is now the presumed standard of review “in all cases.”
The starting point of the Court’s “revised framework” is the “presumption that reasonableness is the applicable standard of review” for all matters under judicial review (para 10). The real work lies in defining reasonableness, and then applying it to a particular administrative decision.
- There are two ways to rebut the presumption of reasonableness:
(a) Where there is “a clear indication of legislative intent” that the reasonableness standard does not apply.
This exception would be triggered where the legislature has indicated that the correctness standard should be applied, but — and this is huge — also in cases of statutory appeals (see point 3, below).
(b) Where the rule of law so requires.
Here’s where the majority’s analysis gets a bit “court-centric” (in the words of Justices Abella and Karakatsanis). Despite rejecting categorical approaches elsewhere in the standard of review analysis, the majority held that the rule of law will require a correctness standard to be applied to “certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies” (para 17).
The constitutional category makes sense (and, the majority clarified, it will apply where section 35 Aboriginal and treaty rights are at issue), although the majority expressly declined to reconcile this new framework with the Doré analysis applied in administrative cases where Charter rights are implicated (para 57).
The “jurisdictional boundaries” category seems fair, too. The majority made clear that this is not a return to the old days of “true” jurisdictional questions about the scope of the decision maker’s authority, which are no longer “a distinct category attracting correctness review” (para 65). Instead, the “jurisdictional boundaries” category is quite narrow and will only apply where there appears to be an operational conflict “between two or more administrative bodies.” In that case, the correctness standard must be applied to resolve the conflict.
It’s the middle category of “general questions of law of central importance to the legal system as a whole” that is likely to generate uncertainty — and litigation — going forward (music to admin lawyers’ ears, but not necessarily a win for clarity in administrative law).
The majority offered some examples of questions that may fit the “central importance” threshold (like limitations on solicitor-client privilege) or may not (like whether a certain administrative decision maker may grant a particular remedy). The majority denied that this is now “a broad catch-all category for correctness review”, but it may play out that way in practice. Many types of decisions will, arguably, have “implications beyond the decision at hand” and could benefit from “uniform and consistent answers” (para 59).
New categories for correctness review will only be recognized in “exceptional” circumstances.
- Appellate standards of review should be applied in statutory appeals.
This may be the most significant change coming from Vavilov. (As the concurring Justices pointed out. Note their interesting and lengthy discussion of stare decisis, which — somewhat unusually for the SCC — relies quite heavily on jurisprudence of the US Supreme Court.) Where the legislation provides an explicit right of appeal, appellate standards of review must be applied, regardless of whether the legislation includes a leave requirement and regardless of whether the right of appeal is limited to certain types of questions.
From now on, an appeal is an appeal — not a judicial review.
So, in statutory appeals, the touchstone is now Housen v Nikolaisen, not Dunsmuir (or Vavilov). Under Housen, the correctness standard is applied to questions of law, while the “palpable and overriding error” standard applies to questions of fact and mixed fact and law. On judicial review, reasonableness is the default, even for legal questions.
This potentially monumental change in the law will broaden the scope of issues reviewed for correctness and, perhaps, lead to more administrative decisions being overturned. Or, as Justices Abella and Karakatsanis put it: “This has the potential to cause a stampede of litigation” (para 251).
Again: good news for litigators, who often enjoy a stampede (and vindication for those who adhere to a less deferential philosophy of administrative law).
The Court has already had a chance to apply this new regime, in Vavilov’s companion case of Bell Canada v Canada (Attorney General). With Justices Abella and Karakatsanis firmly in dissent, the majority applied the appellate standard of review of correctness to quash a decision and order of the CRTC that would have exempted the Super Bowl from the Broadcasting Act’s “simultaneous substitution” regime and allowed Canadians to watch the US Super Bowl commercials.
- Legislative intent is the reason for reasonableness – the “polar star.”
The majority and concurring reasons conduct a healthy debate about the underlying rationale for reasonableness as the presumptive standard of review. For the majority, there is one answer, and that is legislative intent — not the presumed expertise of administrative bodies, the efficiency of administrative processes, or even access to justice. As the majority wrote (at para 30): “it is the very fact that the legislature has chosen to delegate authority which justifies a default position of reasonableness review.” This brings the law on standard of review full circle, as it was initially developed as a way to discern legislative intent.
- Dunsmuir isn’t (quite) dead, but the contextual approach is.
While the majority stated that the “revised framework will continue to be guided by the principles” of Dunsmuir v New Brunswick, Vavilov represents a significant departure from Dunsmuir. In particular: “courts should no longer engage in a contextual inquiry to determine the standard of review or to rebut the presumption of reasonableness review” (paras 2 and 69). So Dunsmuir’s contextual approach is dead, even if the broad strokes of the decision live on.
- Reasonableness review and correctness review really are different exercises.
The standard of review debate can be esoteric, so it was helpful for the majority to distinguish between what a court is actually doing when it conducts reasonableness review versus correctness review: “the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place” (para 15).
Applying the Standard
- Reasons are now even more essential.
The majority emphasized the importance of administrative decision makers providing reasons that are transparent and analytically coherent, not only for the benefit of reviewing courts, but also for the benefit of the parties. In short, sound reasons enhance the legitimacy of the administrative process.
In striving (or struggling) to uphold a decision as reasonable, courts must no longer consider whether the outcome falls within a “range” of reasonable conclusions, or try to supplement the reasons provided by the administrative body to justify the outcome. The reviewing court must review the analysis as well as the outcome: “it is not enough for the outcome of a decision to be justifiable. … the decision must also be justified” (para 86).
When applying the reasonableness standard, reviewing courts should still consider the record, evidence, and submissions that were before the administrative body, along with “publicly available policies or guidelines that informed the decision maker’s work, and past decisions of the relevant administrative body” (para 94). The record will do even more work in cases where the administrative body was not required to produce reasons (the majority cited, as one example, the law society votes in the Trinity Western cases).
- “Unreasonable” means fundamentally flawed.
The majority pointed to “two types of fundamental flaws” that will make a decision unreasonable: (a) if there is “a failure of rationality internal to the reasoning process” (which goes back to the importance of reasons, as discussed above), or (b) if the decision is “untenable in light of the relevant factual and legal constraints that bear on it” (para 101).
The majority was careful to say it was not issuing “a checklist for conducting reasonableness review”, but the factual and legal “constraints” to be considered on reasonableness review certainly seems like one. Justices Abella and Karakatsanis thought so too, warning that these constraints “may function in practice as a wide-ranging catalogue of hypothetical errors to justify quashing an administrative decision” (para 284).
The “factual and legal” constraints include “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” (para 106). Expect lawyers to have a field day arguing over when a decision is “untenable” (and therefore unreasonable) based on these factors.
While the majority stayed with reconsideration as the most appropriate remedy in successful judicial reviews, it also expanded the scenarios where the reviewing court should decide the matter instead of remitting. These factors (listed at para 142) are connected with access to justice concerns, and avoiding the “merry go round” of judicial review.
- Administrative decision makers should (sort of?) apply the modern principle of statutory interpretation.
The majority noted that statutory interpretation is not to be “treated uniquely” in applying the reasonableness standard, but still thought it “necessary to provide additional guidance to reviewing courts on this point” (para 115).
According to the majority, administrative decision makers are not necessarily required to expressly apply the modern principle of statutory interpretation the same way a court would. However, reviewing courts should assume that administrative decision makers have reached an interpretation consistent with this principle: “the merits of an administrative decision maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision” (para 120). This is another issue likely to be litigated under the Vavilov regime.
- Pre-Vavilov precedents are of questionable value.
From now on, the standard of review analysis will definitely start, and maybe end, with Vavilov. The majority suggested that “past precedents will often continue to provide helpful guidance” where Vavilov doesn’t provide a complete answer (para 143). But so much has changed that litigants and lawyers will have to proceed with caution in relying upon pre-Vavilov case law.
Both sets of reasons in Vavilov are alive to the importance of administrative law in the everyday lives of Canadians. As the majority remarked, “Many administrative decision makers are entrusted with an extraordinary degree of power over the lives of ordinary people, including the most vulnerable among us.” Vavilov confirms that reviewing courts are an important check on that power — and that “judicial justice” might trump “administrative justice” more often than before.
This update is intended for general information only. If you have questions about the above, please contact one of the authors, or a member of our Labour & Employment group.
Click here to subscribe to Stewart McKelvey Thought Leadership.
Brian Johnston, QC, Killian McParland and Bhreagh Ross On April 6, 2021, Stewart McKelvey was advised by the Federal Labour Program that the Labour Program’s Forward Regulatory Plan 2021–23 (“Plan”) is now available and includes details and timing on 21…Read More
Jennifer Taylor and Bhreagh Ross In the recent Reference re Greenhouse Gas Pollution Pricing Act (“GGPPA Reference”), the judges of the Supreme Court of Canada unanimously agreed that climate change is real and dangerous.…Read More
We are pleased to present the fifth installment of Beyond the border, a publication aimed at providing the latest information to clients about new programs and other immigration-related information that may be pertinent to employers of…Read More
Richard Jordan Is a worker under a contract “of” service or contract “for” service? The former means a worker is an employee whereas the latter means a worker is an independent contractor. The answer to…Read More
Kevin Landry and William Wojcik In September 2020 the Supreme Court of Canada heard Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, a case featuring appeals from Ontario, Saskatchewan, and Alberta with respect to…Read More
Christopher Marr, TEP and David Slipp Effective March 1, 2021 in all provinces of Canada, other than Ontario and Quebec (to be effective there on July 1, 2021), securities laws related to the distribution of…Read More
Kevin Landry and Emily Murray On March 8, 2021, Health Canada released draft guidance on personal production of cannabis for medical purposes (“Guidance Document”). At present, the Guidance Document is being circulated for public comment for…Read More