In a rare pronouncement, in Vavilov v Canada (Minister of Citizenship and Immigration), 2019 SCC 65, the Supreme Court of Canada (SCC) has reset the framework that governs how courts should review decisions made by administrative decision-makers, including ministers, their agents, tribunals, boards, commissions and other agencies.  The decision will affect judicial oversight of virtually every area of government and regulated activity.   

In Vavilov, the SCC unanimously adopted the reasonableness standard of review as presumptively applying in all cases on a court's review of administrative decisions. The SCC eschewed both the contextual analysis prescribed to determine the standard of review that was applicable under the "pragmatic functional approach" set out in Dunsmuir v New Brunswick, 2008 SCC 9, as well as jurisdictional questions as a distinct exception to the reasonableness standard of review. 

A seven-member majority of the SCC then proceeded to establish five exceptions in which the presumption of reasonableness review would be rebutted.  While not completely closing the door to recognizing new bases for derogations from the reasonableness standard, the Vavilov majority clearly signalled that such cases would be exceptional.  The exceptions, based on legislative intent or as required by the rule of law, are:

  1. where the legislature has indicated that it intends a different standard to apply, as for example, where the legislature explicitly prescribes through statute what standard should apply;
  2. where the statutory scheme provides for a statutory appeal either as of right or with leave, thereby signalling the application of the standards of appellate review;
  3. where the rule of law requires the decision to be correct, such as where the matter involves:
    1. constitutional questions;
    2. questions of law of central importance to the legal system as a whole; and
    3. questions related to the jurisdictional boundaries between two or more administrative bodies.

In these situations, the presumption of reasonableness review would be rebutted and the applicable standard of review will depend on legislated standards or on the nature of the questions to which the matter gives rise.  In a statutory appeal, the reviewing court will apply standards akin to those established under Housen v Nikolaisen, 2002 SCC 33 as applicable to appellate court review of lower courts' decisions.  In particular, the correctness standard would apply to questions of law and jurisdiction, including questions of statutory interpretation and those related to the scope of the decision-maker's authority.  Questions of fact, or of mixed fact and law, are reviewable solely for palpable and overriding error. The adoption of the standards of review applicable to appellate review of lower court decisions represents a significant departure from the previous state of the law.

Where the matter implicates the rule of law, the correctness standard of review will apply, such that the reviewing court determines the correct decision rather than accepting 'reasonable' decisions and outcomes.  The exceptions that the majority in Vavilov has regrouped under the rubric of matters giving rise to rule of law considerations preserve three of the categories of exceptions from the standard of reasonableness that were available under Dunsmuir

The Vavilov majority also provides guidance on how courts are to conduct a reasonableness review. On one hand, the majority stated, "courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process."  This invokes the principle of judicial restraint and a demonstration of "respect for the distinct role of administrative decision-makers."  On the other hand, the Vavilov majority cautioned that reasonableness review is not a "'rubber-stamping' process or a means to shelter decision-makers from accountability," and that under a reasonableness review, the reviewing court should ask itself whether the decision as a whole is "transparent, intelligible and justified", including to the persons subject to the decision.

The final element of the Court's analysis addresses the remedy courts should grant where they find an administrative decision to be unreasonable.  Vavilov guides courts not to make the decision for themselves, but instead to quash (or void) an unreasonable decision, and remit the matter back to the decision-maker for reconsideration with the benefit of the reviewing court's reasons. There are limited exceptions to this general rule:

  1. Where remitting the matter would "stymie the timely and effective resolution of matters in a manner that no legislature could have intended", or
  2. Where remitting the matter back would serve no useful purpose because a "particular outcome is inevitable."

In such situations, the reviewing court would issue the decision that the administrative decision-maker should have made. 

It remains to be seen whether Vavilov will provide the much-sought predictability and simplicity that previous administrative law frameworks have failed to achieve. The guidance provided by the majority in Vavilov on the conduct of a reasonableness review – in particular, that reviewing courts are charged with ensuring the rationality and logic of the decision and with reviewing the full "constellation of law and facts" applicable to it – veers distinctly towards what a reviewing court would do when reviewing the correctness of a decision.  Indeed, the minority reasons of Justices Abella and Karakatsanis, while supporting the majority's general presumption of a reasonableness standard of review, rejected the new framework set out by the majority and expressed concern that excluding consideration of an administrative decision-maker's expertise and specialized focus "will yield all too easily to justifications for a correctness-oriented framework." Combined with the broader application of correctness review where indicated by legislation, Vavilov portends an expansion of the supervisory jurisdiction of reviewing courts in administrative law.  This expansion of the court's supervisory jurisdiction may provoke a legislative response that defines the specific standard of review applicable to administrative decisions of some bodies.    

The SCC's analysis and reasoning are detailed and complex, and represent a marked departure from the prior law.  This note is intended as an alert to a significant change in the law that will affect a vast range of administrative decision-making with concomitant effects on individuals, corporations and entities.  Vavilov will have an immediate impact on the many cases presently before federal and provincial courts, and every future statutory appeal or application for judicial review.  We encourage you to contact Greg Kane, Monica Song, Gord Tarnowsky or David Wotherspoon for specific advice on the impact of Vavilov on your matters.

With contributions from David Konkin (Calgary) and Geoff White (Ottawa).

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