In late 2019, the Supreme Court of Canada (the “SCC”) released its much anticipated trilogy of decisions in which it revamped the framework for judicial review of administrative decisions, and attempted to bring further clarity and simplicity to the standard of review questions that have plagued Canadian law for decades. The decisions: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; Bell Canada v. Canada (attorney General), 2019 SCC 66 – Heard together with National Football League v. Canada (Attorney General) shall be referred to as the “Vavilov” decision.
In the landmark Vavilov decision, the SCC revisited the judicial review framework it previously set out in Dunsmuir v. New Brunswick, 2008 SCC 9 (“Dunsmuir“), which was developed to be a more coherent and workable way to address the various questions arising with respect to the standard of review. Unfortunately, the Dunsmuir framework led to more confusion than clarity. The Majority of the Court noted that debates over the proper standard in Dunsmuir and its application let to inconsistent application which overshadowed the merits of cases and ultimately limited access to justice.
In the result, the Court revised the judicial framework in Dunsmuir in two material ways. First the standard of review for administrative decisions is now presumptively reasonableness, unless there is a different legislative standard prescribed, or the rule of law necessitates that the correctness standard apply. Second, the Court clarified the proper application of the reasonableness standard.
Main Take-Aways from Vavilov
The Court noted that two aspects of the Dunsmuir framework needed clarification: (1) the analysis for determining the standard of review; and (2) the need for better guidance from the SCC for the proper application of the reasonableness standard.
Using the framework outlined below, the Court held that the focus for courts should now be on the merits of a decision, and not an analysis of which standard to apply.
Given the significant changes implemented by the new framework, pre-Vavilov precedents will have limited, if any value.
The Revised Standard of Review Analysis: Presumption of reasonableness with two exceptions
The Court held that Canadian courts will still use the two standards of review: reasonableness and correctness. However, the analysis for which standard to apply now begins with the presumption that the standard of review is one of reasonableness in all cases. It is therefore no longer necessary for courts to engage in a contextual inquiry to identify the appropriate standard. Consequently, the Court held that the relative expertise of an administrative decision maker (the “Decision Maker”) is no longer relevant to a determination of the standard of review. The Decision Maker’s expertise may, however, inform the reasonableness analysis.
Rebutting the Presumption
The presumption of reasonableness can be rebutted in two situations: (1) where the legislature has indicated that it intends a different standard applies; and (2) where the rule of law requires that the standard of correctness should be applied.
(1) Legislative Intent
Where the legislature provides for a statutory appeal mechanism, or otherwise prescribes a specific applicable standard of review in the Decision Maker’s governing statue, then the court will review the decision on the appellate standards of review. As such, the applicable standard is to be determined with reference to the nature of the question and to the jurisprudence on appellate standard of reviews.
For example, where the court hears an appeal of an administrative decision on a question of law, including on statutory interpretation and the scope of a Decision Maker’s authority, it will apply the standard of correctness. Where the scope of the statutory appeal includes questions of fact or questions of fixed fact and law, however, it will apply the standard of palpable and overriding error.
(2) The Rule of Law
The SCC determined that a standard of correctness will apply to questions engaging the rule of law, examples of which including the following.
The rule of law will be engaged for constitutional questions, including questions regarding the division of powers between Parliament and the provinces, the relationship between the legislature and other branches of the state, and the scope of Aboriginal and treaty rights under section 35 of the Constitution Act, 1982, enacted as Schedule B to the Canada Act 1982, 1982, c. 11.
In addition, the rule of law will be engaged where there are general questions of law of central importance to the legal system as a whole, including for example, the scope of solicitor-client privilege.
The rule of law will also be engaged where there are questions related to the jurisdictional boundaries between two or more administrative bodies. For example, where one administrative body has interpreted the scope of its authority in a manner that is incompatible with the jurisdiction of another.
Proper Application of the Reasonableness Standard
The Court also commented on the proper application of the reasonableness review, what the standard entails, and how it should be applied.
Applying Vavilov, a court conducting a reasonableness analysis must focus on the decision the Decision Maker actually made, including the justification offered for that decision and consider only whether the decision made by the Decision Maker was reasonable, including both the rationale for the decision and the outcome that was determined.
Conversely, a court applying the reasonableness standard should not ask what decision it would have made in place of the Decision Maker, attempt to ascertain the range of possible outcomes, conduct a new analysis, or seek to determine the correct solution to the problem.
The Court labeled the above approach the “principled approach” to the reasonableness review which puts the reasons of the decision maker first.
Two Flaws That Make a Decision Unreasonable
The Majority of the Court identified two fundamental flaws that render a decision unreasonable: (1) where there is a failure of rationality internal to the reasoning process; and (2) when a decision is untenable in light of the relevant factual and legal constraints that bear on it.
Examples of irrational decisions include when the reasons fail to reveal a rational chain of analysis or where the conclusion reached cannot follow from the analysis undertaken.
According to the SCC, elements relevant in evaluating whether a given decision is untenable include:
- the governing statutory scheme;
- other relevant statutory or common law;
- the principles of statutory interpretation;
- the evidence before the Decision Maker and the facts 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 SCC noted that, where the impact on an individual’s rights and interests in severe, the Decision Maker’s reasons must reflect the stakes. Similarly, in a circumstance where the result is harsh on an individual, the Decision Maker must explain why its decision best reflects the legislature’s intention.
The SCC held that the above is not a checklist, and the significance of one element versus another may vary depending on the context.
Remedy if the Decision is Overturned
The SCC noted that the appropriate remedy will most often be to have the reviewing court remit the matter back to the Decision Maker for reconsideration with the benefit of the court’s conclusions and directions. However, the SCC also noted that there may be circumstances when remitting the decision back to the Decision Maker may not be appropriate.
Declining to remit the decision back to the Decision Maker may be appropriate where:
- it is evident that a particular outcome is inevitable and remitting the case would serve no useful purpose;
- doing so would cause considerable delay;
- fairness to the parties requires it;
- there is urgency to providing a resolution to the dispute;
- the nature of a particular regulatory regime requires it;
- the Decision Maker had a genuine opportunity to weigh in on the question;
- there are significant cost considerations to the parties; or
- where the efficient use of public resources may require it.
It remains to be seen whether the Vavilov framework will streamline and achieve consistency and predictability in the outcome of reviews of administrative law decisions. As noted in our recent post here, Vavilov already appears to have given rise to a number of unintended consequences.
However, what is clear, is that the Vavilov decision is a “must-read” for lawyers practicing before administrative tribunals. We will continue to monitor its application and will report on further developments.
Canada (Minister of Citizenship and Immigration) v. Vavilov,  SCJ No 65, 2019 2019 SCC 65
Bell Canada v. Canada (attorney General); National Football League v. Canada (Attorney General),  SCJ No 66, 2019 SCC 66 (two appeals)