Key takeaways from the Supreme Court’s decision to revise the Standard of Review Framework in Vavilov
By Kathryn Hart
The Supreme Court of Canada recently introduced changes to the law of judicial review in its highly anticipated decision, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. In Vavilov, the Court adopted a revised framework for the judicial review of decisions by administrative boards, tribunals and other administrative decision-makers.Vavilov is now the leading authority on the standard of review of administrative decisions in Canada.
Although much of Vavilov merely confirms or refines the existing approach to standard of review, there are several important takeaways from the Court’s decision that alter the law of judicial review. Additionally, Vavilov makes two significant changes to the law of judicial review that will likely be further developed by lower courts and are worth monitoring.
- Reasonableness is now presumed to apply: Prior to Vavilov, reasonableness was presumed to apply when an administrative decision-maker interpreted its “home” legislation. Following Vavilov, reasonableness now presumptively applies to any review of an administrative decision on the merits.
- Exceptions to reasonableness review: In Vavilov, the Court overturned precedent by holding that the presumption of reasonableness is rebutted where the legislation provides for an appeal from an administrative decision to a court. The presumption is also rebutted where the applicable standard of review is set out in legislation.
- Categories of questions attracting correctness: The Court largely maintained the categories of questions that rebut reasonableness: constitutional questions, general questions of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies. Significantly, Vavilov has eliminated jurisdictional questions—that is, questions regarding whether the decision-maker’s statutory authority permits it to decide a particular matter—as a distinct category attracting correctness review.
- Reasonableness review is “robust”: Pre-Vavilov, the Court had suggested that if a decision-maker’s outcome fell within a range of reasonable outcomes, the decision could be upheld even if the reasoning was deficient or flawed. However, the Court clarified in Vavilov that it is not enough for the outcome of a decision to be reasonable. Both the outcome and the reasoning that justifies the outcome must be reasonable.
- Vavilov does not apply to reviews regarding procedural fairness or natural justice: The Vavilov framework applies only to reviews of administrative decisions on the merits, and not to reviews related to a breach of natural justice or the duty of procedural fairness. However, the distinction between decisions on the merits and procedural decisions may not be clear-cut. For example, a BC court recently applied the Vavilov framework to a decision not to grant an adjournment.
- Doré lives (for now): Although constitutional questions attract correctness, the Court expressly stated in Vavilov that its previous decision in Doré v. Québec (Tribunal des professions), 2012 SCC 12 has not been overturned. Doré held that administrative decisions that are alleged to limit Charter rights are reviewed for reasonableness.
Changes to the Law of Judicial Review to Monitor: “Robust” Reasonableness and Statutory Appeals
The Vavilov framework introduced the following significant changes to the law that will likely be further developed by lower courts and merit close monitoring.
A More Robust Form of Reasonableness?
Under the Vavilov framework, reasonableness is a “robust” form of review, requiring the reviewing court to examine whether both the outcome and the reasoning justifying the outcome is reasonable. An otherwise reasonable outcome cannot stand if it was reached on an improper basis.
Several recent cases applying Vavilov suggest that an administrative decision-maker’s reasoning will be subjected to stricter scrutiny under reasonableness review. For example, the Quebec Court of Appeal held that it was unreasonable for a professional disciplinary body to fail to address a relevant regulatory provision in its reasons. In other cases, decisions were found to be unreasonable on the basis that the reasoning “lacked analysis,” lacked basic responsiveness to the evidence, failed to engage with the applicant’s arguments, failed to grapple with a critical factual issue or failed to take into account relevant factors established by case law. However, the Manitoba Court of Appeal recently held that a decision by a city tax collector was reasonable even though the reasoning for the decision was conclusory and very sparse. In that case, the Court had to look to the record, which included evidence that was only before the reviewing judge, and supplemented the reasoning justifying the outcome.
Although it is too early to predict how Vavilov’s “robust” reasonableness will be applied, it appears that generally courts will focus more closely on the reasoning for a particular decision and whether it takes into account key issues, evidence, case law and arguments.
Statutory Appeals: Appellate Standards Now Apply, not Correctness/Reasonableness
Arguably the most significant change introduced by Vavilov is with respect to statutory appeals. Where legislation provides for an appeal from an administrative decision to a court, either as of right or with leave, appellate standards of review now automatically apply. Under appellate standards of review, questions of law are reviewed for correctness. For questions of fact and questions of mixed fact and law where the legal principle is not readily extricable, the standard is palpable and overriding error.
This new approach will likely have a significant impact on administrative decision-makers that are typically subject to statutory appeals, such as professional disciplinary tribunals and economic regulators. Previously, decisions by these administrative bodies would commonly be reviewed for reasonableness. However, under the Vavilov framework, questions of law in the context of a statutory appeal do not attract deference and are now reviewed for correctness.
For an example, consider the companion case to Vavilov, Bell Canada v. Canada (Attorney General), 2019 SCC 66. In Bell Canada, the question at issue was whether the Canadian Radio-television and Telecommunications Commission (“CRTC”) lacked authority under one of its home statutes to make a particular order. The CTRC is subject to a statutory appeal. Prior to Vavilov, this question would likely have attracted reasonableness. But post-Vavilov, since this raised a question of law, correctness applied.
This switch from deference to correctness raises the issue of how courts will approach questions of law that fall squarely within an administrative decision-maker’s specialized expertise. Bell Canada indicates that little deference will be paid. However, courts may be reticent to substitute their own interpretation of an expert tribunal’s home or closely related statutes. In applying Vavilov, an Ontario court held that in reviewing for correctness, courts may still pay a measure of deference to the administrative decision-maker’s interpretation of its home statute, given its specialized function. By contrast, in another recent Ontario decision, a court did not consider the administrative tribunal’s rationale for its decision in detail, even though the question at issue fell within the tribunal’s expert knowledge.
Under the Vavilov framework, courts will also have to determine which appellate standard applies by considering whether the issue on review is a question of law or a question of fact or mixed law and fact. This will involve examining whether a question of law can be extricated from a question of mixed law and fact. Although questions of fact and mixed fact and law will be reviewed for palpable and overriding error, which is a highly deferential standard that is arguably more deferential than the “robust” standard of reasonableness articulated in Vavilov, a court may identify an extricable question of law, which will attract correctness.
Therefore, although Vavilov has simplified the standard of review through the presumption of reasonableness, in the context of statutory appeals the battleground may have shifted to which appellate standard of review applies. In order to clear up potential uncertainty, courts may attempt to provide some guidance in this area. For example, the Alberta Court of Appeal recently held that in the context of professional disciplinary appeals, the interpretation of the governing statute is reviewed for correctness, while questions of mixed fact and law include the standard of practice the profession expects in any particular case and whether, on the facts, the professional has met that standard. Judicial decisions involving statutory appeals should be closely watched to see if lower courts provide additional guidance with respect to which appellate standard will apply.
Statutory Appeals and Arbitration Decisions
Previously, arbitration decisions were generally reviewed for reasonableness. This has changed in Manitoba after Vavilov: the appeal of an arbitration decision pursuant to s. 44(2) of the Arbitration Act is now subject to the appellate standard of correctness. That being said, it is arguable that reasonableness applies if the appeal is by way of an arbitration agreement and not via the statutory appeal in the Arbitration Act. An Ontario court recently held that if the appeal is not pursuant to the Arbitration Act but is rather by way of agreement by the parties (e.g. if the parties have agreed to an appeal clause in the arbitration agreement), then reasonableness may apply, as the appeal is not subject to a statutory appeal clause. This area of the law is worth watching to see if lower courts resolve this uncertainty.