Oct 19, 2020

A Non-Lawyer’s Guide to Change in Court Scrutiny of Administrative Decisions

Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII)

The Supreme Court of Canada made an important decision changing the way courts will review the actions or decisions of administrative bodies, including regulators of professions. The phrase “standard of review” describes in words how closely courts will scrutinize regulatory action. Before the decision of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, http://canlii.ca/t/j46kb, courts would give a lot of deference to how regulators interpreted their own statutes and to the decisions regulators made. This is called the “reasonableness standard of review”. Only where the legal issues raised were of a general nature (e.g., interpreting the Canadian Constitution, applying to legal system as a whole), or where procedural unfairness occurred would the courts closely scrutinize regulatory action. This close scrutiny is called the “correctness standard of review”.

The above approach by the courts will remain much the same for actions by regulators where there is no formal right of appeal to the courts. For example, many regulators can make decisions on complaints and, often, on registration matters, without a formal right of appeal to the courts. Regulators will probably notice little change in those activities. However, where a regulator’s statute provides for a formal right of appeal to the courts, as is often the case in discipline matters, courts will now show little deference when it comes to all legal issues (e.g., how to interpret one’s enabling statute; the scope of the committee’s authority). For issues of fact (e.g., what the evidence proved) or mixed fact and law (e.g., whether the conduct amounts to professional misconduct), deference will likely still be provided by courts.

Of course there is much more to the Vavilov decision than this brief overview can cover. However, this summary should help regulators prepare for more frequent legal challenges, particularly where there is a formal right of appeal to the courts.