New Year – New Standard of Review
Date: January 8, 2020
Just prior to the end of 2019, the Supreme Court of Canada established a new framework that is designed to guide lower courts on applying the standard of review in judicial review applications. The Court’s long-awaited “trilogy” of cases in Canada (Minister of Citizenship and Immigration) v Vavilov and the two companion appeals heard together in Bell Canada v Canada (Attorney General) represents an express departure and evolution from the framework that the Court set out in the case of Dunsmuir decided over a decade ago.
Administrative decision-makers, such as human rights tribunals and labour boards, are creatures of statute and, accordingly, their powers are limited by their enabling legislation. Often people look to the courts to determine whether an administrative tribunal has acted within the scope of its powers and to ensure the legality of the decisions that it makes. When a court reviews a decision of an administrative body, the standard to be applied in such review determines the amount of deference that should be afforded to the administrative decision-maker.
In 2008, the Supreme Court of Canada in Dunsmuir v New Brunswick set out two standards: correctness and reasonableness. When applying the correctness standard, a court will not show deference to the decision-maker’s reasoning process. It will undertake its own analysis of the question and decide whether it agrees with the determination of the decision- maker. A reasonableness standard under Dunsmuir asked whether the decision “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.”
The Supreme Court in Vavilov and Bell recognized that the current standards of review set out in Dunsmuir were “unclear and unduly complex.” Consequently, debates surrounding the appropriate standard and its application have overshadowed the review of cases on their merits. The Vavilov and Bell appeals represent an opportunity taken by the Court to consider and clarify the law applicable to the judicial review of administrative decisions and bring greater coherence and predictability to this area of law.
Reasonableness – The Rebuttable Presumption
The new approach to the standard of review set out in Vavilov and Bell begins with the presumption that an administrative decision is reasonable. Starting with the presumption of a reasonableness standard avoids the need for courts to engage in a contextual inquiry in order to identify the appropriate standard, thereby streamlining and simplifying the standard of review framework.
However, the Court set out two ways in which this presumption can be rebutted:
1. Where the legislature has indicated that it intends a different standard to apply. This will be the case where the legislature has:
(a) explicitly prescribed the applicable standard of review, or
(b) provided for a statutory appeal mechanism from an administrative decision to a court which signals the legislature’s intent that appellate standards apply when a court reviews the decision.
2. Where the rule of law requires that the standard of correctness be applied. This will be the case for certain categories of legal questions, namely:
(a) constitutional questions
(b) general questions of law of central importance to the legal system as a whole, and
(c) questions related to the jurisdictional boundaries between two or more administrative bodies.
While the Court left open the possibility that another category could be recognized as requiring a derogation from the presumption of reasonableness review in a future case, it stated that any new basis for correctness review would be “exceptional”.
Application of the Reasonableness Standard
The Court in Vavilov and Bell provides guidance as to how courts should apply the reasonableness standard of review. The starting point for the reasonableness review is to look at the reasons of the decision-maker. It is important to start here since courts will focus on reasons as the means of justification for the decision. Two types of fundamental flaws that will tend to make a decision unreasonable are:
1. Where there is a failure of rationality internal to the reasoning process, and
2. Where a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it. These constraints include:
(a) the governing statutory scheme
(b) other relevant statutory or common law
(c) the principles of statutory interpretation
(d) the evidence before the decision-maker and facts of which the decision-maker may take notice
(e) the submissions of the parties
(f) the past practices and decisions of the administrative body, and
(g) the potential impact of the decision on the individual to whom it applies.
Application to Vavilov and Bell
Vavilov, the leading decision in the trilogy, dealt with the question of an individual’s citizenship. Mr. Vavilov sought judicial review of a decision of the Registrar of Citizenship which had cancelled his certificate of Canadian citizenship. That decision was upheld by the Federal Court on the standard of correctness and was later overturned by the Federal Court of Appeal which applied the standard of reasonableness.
Applying the new framework for the standard of review, the Supreme Court of Canada held that the Registrar’s decision should be reviewed on the reasonableness standard and that the Registrar’s interpretation of the Citizenship Act was unreasonable.
In Bell, the companion appeals, Bell Canada and the National Football League (NFL) appealed a decision of the Canadian Radio-television and Telecommunications Commission (CRTC) involving advertising during the Super Bowl broadcast that allowed Canadians to view an American broadcast that featured American ads. Bell and the NFL sought judicial review of the CRTC’s decision and the decision was upheld by the Federal Court of Appeal.
The Supreme Court of Canada held that the presence of a statutory appeal route under the Broadcasting Act was a sign of legislative intent that rebutted the presumption of a standard of review based on reasonableness. As such, in Bell the Court applied the standard of correctness and quashed the CRTC’s order.
The Impact of Vavilov and Bell
The decisions in Vavilov and Bell bring clarity in the law when determining which standard of review should be used in a given case and provide guidance on how to apply it. The new approach set out by the majority of the Court is designed to encourage lower courts to perform a “robust form of reasonableness review.” Justices Abella and Karakatsanis concurred in the result with the majority, but dissented with respect to the majority’s approach to the standard of review, characterizing it as a “encomium for correctness and a eulogy for deference.”
It remains to be seen how lower courts across the country will apply this new guidance from the Supreme Court. One thing is certain: Vavilov is the new state of the art decision in judicial review and it will shape the arguments made by litigants in challenging, and defending, administrative decisions.
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