Originally written on LinkedIn and NCA Network Blog
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 Vavilov 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 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 the 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 centred 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 the 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 the 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 objective 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.
Concluding Remarks
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.
What SJQuader Thinks 