Vavilov and Administrative Law's New Standard of Review Framework
Nicole Morin, 3L, Volume 78 Senior Editor
In its long-anticipated decisions in Bell Canada v Canada (Attorney General); National Football League v Canada (Attorney General), 2019 SCC 66 and Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65, the Supreme Court of Canada [SCC] has set out a new framework for standard of review analysis in Canadian administrative law. The SCC heard a trilogy of cases which provided the platform for a revision of standard of review analysis. This blog post will focus on the third appeal – Vavilov – which is the backdrop to a decision calling for fundamental change to approaching standard of review.
This post does not aim to address the potential implications of Vavilov, which will emerge as courts begin to apply the framework. Nor does it seek to evaluate the merits of the decision. Rather, my aim is to summarize key takeaways from the decision, and lay out the fundamentals of the framework. And, to any law students who happen to be reading and taking administrative law, my hope is this begins to fill the void that represents past years’ exam maps.
The Facts of Vavilov
Alexander Vavilov was born in Toronto in 1994. [1] He believed he was a citizen of Canada, and lived his life as such. [2] Unbeknownst to Mr. Vavilov, his parents were working for the Russian foreign intelligence services and on assignment in Canada at the time of his birth and for the duration of his life in Canada. [3] In 2010, Mr. Vavilov’s parents were arrested and found guilty in the United States for espionage. [4] Their Canadian citizenship was revoked, and they were returned to Russia [5].
Mr. Vavilov, however, sought to remain in Canada. His passport renewal applications were unsuccessful. [6] While he subsequently obtained a Canadian citizenship certificate in 2013, this was subsequently cancelled by the Canadian Registrar of Citizenship in 2014 pursuant to s. 3(2)(a) of the Citizenship Act. [7]
The relevant provisions of the Citizenship Act read as follows:
3 (1) Subject to this Act, a person is a citizen if
(a) the person was born in Canada after February 14, 1977;
[…] [8]
(2) Paragraph (1)(a) does not apply to a person if, at the time of his birth, neither of his parents was a citizen or lawfully admitted to Canada for permanent residence and either of his parents was
(a) a diplomatic or consular officer or other representative or employee in Canada of a foreign government;
(b) an employee in the service of a person referred to in paragraph (a); or
(c) an officer or employee in Canada of a specialized agency of the United Nations or an officer or employee in Canada of any other international organization to whom there are granted, by or under any Act of Parliament, diplomatic privileges and immunities certified by the Minister of Foreign Affairs to be equivalent to those granted to a person or persons referred to in paragraph (a). [9]
The Registrar’s decision was upheld at the Federal Court, but Mr. Vavilov’s appeal to the Federal Court of Appeal was successful, and the Registrar’s decision was quashed. [10]
The New Framework for Standard of Review Analysis
From the outset, the majority acknowledges that “Dunsmuir’s promise of simplicity and predictability…has not been fully realized.” [11] Their decision in Vavilov is thus an attempt to streamline standard of review analysis, and to un-muddy the waters in a post-Dunsmuir Canada. The SCC’s decision in Vavilov addresses two overarching issues: the selection of a standard of review, and the contents of reasonableness review.
Selecting the standard of review
Unsurprisingly, the majority establishes reasonableness as the presumptive standard of review. There are a number of elements in this presumption that are of particular note, even if, in the result, they capture what has developed in prior jurisprudence.
The majority takes the opportunity to make explicit the conceptual basis for reasonableness review: legislative intent. [12] While they also reference the significant body of jurisprudence citing expertise as a core justification, expertise is folded into legislative intent. [13] It is but one reason that a legislature may choose to delegate authority to an administrative decision maker, amongst many, including “a decision maker’s proximity and responsiveness to stakeholders, ability to render decisions promptly, flexibly and efficiently, and ability to provide simplified and streamlined proceedings intended to promote access to justice.” [14] A consideration of expertise is moved into reasonableness review itself, and no longer factors in at the stage of selecting the standard of review. [15]
The majority outlines two circumstances where the presumption of reasonableness can be rebutted. [16] The first circumstance is if there is a clear indication that the legislature intends there to be a different standard of review. [17] Of particular significance is the majority’s elaboration of legislative intent within the context of a statutory right of appeal. [18] The majority distinguishes between review of a decision, and an appeal to the courts from a decision. [19] If a statutory right of appeal is available, then appellate standards of review apply. [20] This means, for questions of law, correctness is required. [21] For questions of fact and those of mixed fact and law (to the extent the factual and legal issues cannot be separated), an administrative decision can only be overturned in the presence of a palpable and overriding error. [22]
In their concurring reasons, Abella and Karakatsanis JJ lay out the jurisprudence that considered and rejected precisely this argument. [23] Nevertheless, the majority argues their departure from precedent is justified in light of (1) judicial and academic criticism of the court’s approach to statutory appeal rights; (2) the fact there is “no satisfactory justification for the recent trend in the Court’s jurisprudence to give no effect to statutory rights of appeal in the standard of review analysis absent exceptional wording”; and (3) the comprehensive and considered examination of the standard of review analysis in the relevant appeals. [24] The majority notes that the lack of emphasis on statutory appeal clauses was grounded in the “specialization” of certain administrative decision makers. [25] However, because respect for legislative intent is the conceptual underpinning of deference, “[i]t would be inconsistent with this conceptual basis for the presumption of reasonableness review to disregard clear indications that the legislature has intentionally chosen a more involved role for the courts.” [26] Moreover, the majority’s treatment of statutory appeal clauses “conclusively closes the door on the application of a contextual analysis to determine the applicable standard” which has plagued standard of review jurisprudence. [27]
A statutory appeal right that requires leave to a court still attracts appellate standards of review. [28] However, the appeal right is distinguishable from judicial review. A litigant is faced with two paths. The first is to use the statutory right of appeal, which would attract an appellate standard of review. [29] The second would be to apply for judicial review, which would not. If a party chooses to bring an application for judicial review, the standard of reasonableness is not rebutted by the presence of a statutory right of appeal so long as the right of appeal is circumscribed. [30] The court would have to determine whether correctness or reasonableness applies.
The presumption of reasonableness can also be rebutted if required by the rule of law. [31] In such circumstances, correctness review is required. The categories wherein the rule of law requires correctness review laid out by the majority are as follows:
Constitutional questions;
General questions of law of central importance to the legal system as a whole; and
Questions regarding the jurisdictional boundaries between two or more administrative bodies.
The categories of correctness review are familiar and largely mirror precedent. Constitutional questions are of such importance they require a final and determinate answer from the courts. [32] General questions of law of central importance to the legal system as a whole require a single answer because of their broad applicability and importance throughout the legal environment as a whole. [33] Correctness review in the context of questions of the jurisdictional boundaries between two or more administrative bodies is necessary because “the rule of law cannot tolerate conflicting orders and proceedings where they result in a true operational conflict between two administrative bodies, pulling a party in two different and incompatible directions.” [34] Furthermore, “the recognition of any new basis for correctness review would be exceptional and would need to be consistent with the framework and the overarching principles set out in these reasons.” [35]
There are two key ways in which the majority moves away from precedent. The first is the removal of a requirement that the questions under the second category be outside the expertise of the decision maker. [36] This is unsurprising, in light of expertise being folded into reasonableness review, and its removal as a standalone justification for judicial deference outside the context of legislative intent. Secondly, the majority removes true questions of jurisdiction as a category attracting correctness review. In their view, the robustness of reasonableness review sufficiently guards against administrative decision makers exceeding the lawful bounds of their authority. [37]
What does reasonableness require?
While the majority’s discussion surrounding the selection of standards of review offers categorical clarity, the confusion of contextual analysis has the potential to reappear within reasonableness review.
Nevertheless, a few elements of reasonableness are clear. Reasonableness review, states the majority, “finds its starting point in judicial restraint and respects the distinct role of administrative decision makers.” [38] A reviewing court is not to ask how they would have resolved an issue. [39] The burden to prove a decision is unreasonable rests on the party seeking to overturn the decision. [40] A reviewing court should thus focus on whether the applicant has demonstrated the decision is unreasonable. [41] It is not the role of a court to “ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem.” [42]
If procedural fairness requires reasons, then a “principled approach to reasonableness review is one which puts those reasons first.” [43] It requires consideration of both the outcome of the decision and the reasoning process. Even if an outcome may be reasonable that is not enough – “[w]here reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies.” [44] Nor can a reviewing court substitute its own justification for the outcome. The SCC makes clear that, “[t]o the extent that cases such as Newfoundland Nurses and Alberta Teachers have been taken as suggesting otherwise, such a view is mistaken.” [45] A reviewing court may look to the result of the decision alone if no reasons have been provided. [46]
The SCC lays out two qualities of a reasonable decision. Firstly, a decision must be internally coherent. [47] It must be rational and logical. [48] If a reviewing court is unable to trace the decision maker’s reasoning without running into a fatal flaw in their logic, then the decision is unreasonable.[49] The SCC takes care to note that the reviewing court should take a holistic view of the decision maker’s process in determining whether their reasoning can be traced, including but not limited to the written reasons (if provided). [50]
Secondly, a reasonable decision is one that is justified in light of the legal and factual constraints that bear on the decision. [51] It remains to be seen whether this second category will reopen the Pandora’s Box that is contextual analysis.
The majority lists numerous factual and legal constraints, while noting their list is not exhaustive. The constraints set out are as follows:
(a) The governing statutory scheme
(b) Other statutory or common law
(c) Principles of statutory interpretation
(d) Evidence before the decision maker
(e) Submissions of the parties
(f) Past practices and past decisions
(g) Impact of the decision on the affected individual [52]
Impact on Precedent
The majority acknowledges the development of a new standard of review framework has variable levels of impact on precedent. For example, “cases concerning general questions of law of central importance to the legal system as a whole or those relating to jurisdictional boundaries between two or more administrative bodies, will continue to apply essentially without modification.” [53] On the other end of the spectrum, however, lie prior cases involving statutory rights of appeal, which will have little weight in light of the court’s shift in interpretation of legislative intent. [54] What lies between both ends will have to be determined in light of each emerging case. As such, the SCC notes that a reviewing court may need to request submissions from counsel on standard of review if there is a question as to what standard applies, and what such a standard requires. [55]
Application to Mr. Vavilov’s Case
The majority upheld the Court of Appeal’s decision. Firstly, they determined the applicable standard of review was reasonableness. [56] There was no indication of legislative intent requiring a different standard of review, nor did the issue fall under any of the categories attracting correctness review. [57]
The Registrar’s decision was found to be unreasonable. [58] In coming to their decision, the majority found that the words of s. 3(2)(a) applied only to those who had obtained diplomatic privileges and immunities in virtue of their parents’ status. [59] In support of their interpretation, the majority referenced the words of the relevant provision, supporting international law and the jurisprudence on s. 3(2)(a). [60] Despite evidence showing the Registrar was aware of her novel interpretation of s. 3(2)(a), she did not provide a justification for the interpretation. [61] Moreover, the Registrar had failed to consider the implications of her interpretation, which potentially impacted the citizenship of more individuals than just the children of spies. [62]
A Note on the Concurrence
In their concurrence, Abella and Karakatsanis JJ agree with the majority’s conclusion and dismissed the appeal on the ground that the Registrar’s decision was unreasonable. [63] They also agree that there should have be a presumption of reasonableness, and that the contextual approach should be rejected. [64]
However, they vehemently criticize the framework set forward by the majority and how it departs from precedent. Some key differences between the concurrence and the majority are as follows:
The concurrence takes an overarching issue with the majority’s disregard for precedent and stare decisis, and argues the majority fails to justify meeting the thigh threshold that is required for overturning precedent. [65] This undermines the rationales of stare decisis, which include “consistent affirmation, reliance interests and the possibility of legislative correction.” [66]
The concurrence rejects the majority’s treatment of statutory rights of appeal. They argue it fails to respect a vast body of precedent that rejects statutory rights of appeal as independent indicators of a legislative intent to require appellate standards of review. The majority’s interpretation of “appeal” as requiring a different standard of appeal is unjustified. [67] Moreover, the concurrence argues that the majority’s treatment of statutory rights of appeal is inconsistent with their treatment of privative clauses, “which play no role in its standard of review framework.” [68]
The concurrence criticizes the majority’s rejection of expertise as a standalone conceptual foundation of deference. Again, they argue the majority neglects to adequately respect precedent that identifies expertise as a core rationale for deference. [69]
The concurrence argues the majority takes a court-centric view of the rule of law, which does not address the realistic role of administrative actors in society. By failing to recognize rule of law as relying on the expertise of administrative decision makers, the majority erodes access to justice by opening the door to lengthier and costlier litigation. [70]
By setting forward specific factors to be considered by a reviewing court, the concurrence argues the majority’s framework will result in “line-by-line” reasonableness review. [71]
Notes
[1] Vavilov, at para 147.
[2] Vavilov, at para at 149.
[3] Vavilov, at paras 147-149.
[4] Vavilov, at para 149.
[5] Vavilov, at paras 149-150.
[6] Vavilov, at para 150.
[7] Vavilov, at para 150.
[8] Citizenship Act, RSC 1985, c C-29, s 3(1)(a).
[9] Citizenship Act at s 3(2).
[10] Vavilov, at para 164.
[11] Vavilov, at para 7.
[12] Vavilov, at para 26.
[13] Vavilov, at paras 27-29.
[14] Vavilov, at para 29.
[15] Vavilov, at para 31.
[16] Vavilov, at para 34.
[17] Vavilov, at para 36.
[18] Vavilov, at para 36.
[19] Vavilov, at para 44.
[20] Vavilov, at para 37.
[21] Vavilov, at para 37.
[22] Vavilov, at para 37.
[23] Vavilov, at para 225-229
[24] Vavilov, at paras 39-52.
[25] Vavilov, at para 46.
[26] Vavilov, at para 46.
[27] Vavilov, at para 47.
[28] Vavilov, at para 50.
[29] Vavilov, at para 51.
[30] Vavilov, at para 52.
[31] Vavilov, at para 53.
[32] Vavilov, at para 55.
[33] Vavilov, at para 59.
[34] Vavilov, at para 64.
[35] Vavilov, at para 70.
[36] Vavilov, at para 58.
[37] Vavilov, at para 68.
[38] Vavilov, at para 13.
[39] Vavilov, at para 75.
[40] Vavilov, at para 100.
[41] Vavilov, at para 100.
[42] Vavilov, at para 83.
[43] Vavilov, at para 84.
[44] Vavilov, at para 86.
[45] Vavilov, at para 96.
[46] Vavilov, at para 138.
[47] Vavilov, at para 102.
[48] Vavilov, at para 102.
[49] Vavilov, at paras 102-103.
[50] Vavilov, at paras 102-103.
[51] Vavilov, at para 105.
[52] Vavilov, at paras 108-135.
[53] Vavilov, at para 143.
[54] Vavilov, at para 143.
[55] Vavilov, at para 144.
[56] Vavilov, at paras 169-170.
[57] Vavilov, at para 170.
[58] Vavilov, at para 172.
[59] Vavilov, at para 173.
[60] Vavilov, at paras 174-188.
[61] Vavilov, at para 190.
[62] Vavilov, at paras 190-193.
[63] Vavilov, at para 342.
[64] Vavilov, at paras 200, 202-229.
[65] Vavilov, at paras 254-271.
[66] Vavilov, at para 272.
[67] Vavilov, at paras 246-249.
[68] Vavilov, at para 248.
[69] Vavilov, at paras 235-239.
[70] Vavilov, at paras 240-244.
[71] Vavilov, at para 284.