The Supreme Court’s Decision in Vavilov: A New Framework for Reasonableness ReviewCanada (Ministre de la Citoyenneté et de l’Immigration) c. Vavilov, 2019 CSC 65 (CanLII)
Throughout Canada, federal and provincial governments have created a complex web of administrative tribunals, officers, and other officials who are given the delegated authority to make significant decisions that impact the everyday lives of Canadians. These include immigration officers who review and approve visa applications, assessment review boards who review municipal property tax assessments, labour relations boards, the Canadian Radio-television and Telecommunications Commission, the Canadian Energy Regulator, and a myriad of others.
Courts exercise a “supervisory” function over administrative tribunals, which is known as “judicial review.” This is to ensure that tribunals operate within their legislated jurisdiction, follow fair procedures, and make reasonable decisions consistent with Canadian law. However, the extent to which courts should show deference to decisions made by administrative tribunals on judicial review (known as the “standard of review”) and when it is appropriate to intervene to quash decisions has been a subject of considerable debate, confusion and controversy in recent years.
The Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (and its companion decision Bell Canada v. Canada (Attorney General), 2019 SCC 66) attempts to resolve that debate. Vavilov provides the most comprehensive review and reformulation of the law on the standard of review in over a decade, and in many ways departs from previous jurisprudence.
This blog post provides a high-level overview of the debate and controversy which led to the Supreme Court’s decision in Vavilov, and describes some of the more significant clarifications and changes made by the Supreme Court in Vavilov to the law on selecting and applying the appropriate standard of review.
i) Dunsmuir and the Controversy on Standard of Review Pre Vavilov
In 2008, the Supreme Court of Canada released its decision in Dunsmuir v. New Brunswick, 2008 SCC 9, which was intended to simplify the law on selecting the appropriate standard of review. The Court indicated that a contextual analysis of the tribunal’s expertise, its enabling legislation and other factors was required to determine the level of deference to be shown by courts to decisions made by a particular tribunal. Several known categories which call for a less deferential “correctness” standard of review were prescribed, including constitutional questions, issues of general importance to the legal system as a whole and beyond the tribunal’s area of expertise, and true questions of jurisdiction. For other decisions where a tribunal possesses specialized expertise in a particular area, and the enabling legislation suggests the legislature intended for the tribunal to be shown greater deference, courts were directed to apply the more deferential “reasonableness” standard of review. In applying the “reasonableness” standard, the Supreme Court mandated that lower courts determine whether the decision “falls within a range of possible, acceptable outcomes” based on the facts and law, and not substitute its own preferred reasoning for that of the tribunal’s, although little specific direction was given on how a reasonableness review should be conducted in practice.
In the eleven years since the release of Dunsmuir, lower courts, legal practitioners, academics and members of the public have expressed confusion on how to select the appropriate standard of review, and how to apply the more deferential “reasonableness” standard. For example:
- If a tribunal is interpreting legislation, can it really be said that the tribunal possesses greater expertise than the Court to interpret statutes?
- What if the tribunal’s interpretation of a statute does not correspond with how the Court might interpret it?
- If the appointees to a tribunal do not have any particular training or expertise in the matters which come before them, should any deference be shown by the Court to their decisions?
Different courts came to different conclusions on these and other questions, leading to uncertainty and confusion in the law of choosing and applying the standard of review.
The Supreme Court’s decision in Vavilov addresses these two issues head-on: how should a Court select the appropriate standard of review, and how should a Court apply the more deferential “reasonableness” standard of review? The following is a high-level summary of the framework prescribed by Vavilov for these two issues.
ii) Selecting the Appropriate Standard of Review
Vavilov simplifies the process for determining the applicable standard of review. Vavilov abolishes the “contextual” approach prescribed by Dunsmuir, noting this analysis is overly complex, and has often overshadowed a review of the merits of the actual decision. Instead, the presumption in all cases is that the more deferential “reasonableness” standard should apply, unless the legislature has expressly prescribed a different standard of review by statute, or the issue on judicial review falls into one of three categories which call for less deference to be shown: constitutional questions, general questions of law that are important to the legal system as a whole, and the jurisdictional boundaries between administrative bodies.
By shifting the test towards a presumption that the reasonableness standard should apply, the “relative expertise of the tribunal” is no longer a relevant consideration in determining the standard of review (see Vavilov at paras 27-28). Instead, Courts are to show respect for the legislature’s “institutional design choice”, and in the absence of a contrary direction, the Court should assume that the legislature’s choice to create a tribunal to adjudicate certain matters means by implication that it intended for the Court to play a minimal role in those matters.
One of the most significant changes made by the Supreme Court is how courts should interpret statutory appeal mechanisms (see Vavilov at paras 36-52). Previously, the Supreme Court has applied a similar analytical framework to determining the standard of review applicable to administrative tribunals for both judicial reviews and statutory appeals. The majority of the Supreme Court has now expressly disclaimed this line of authority, and instead has indicated that the legislature’s choice of creating a right of “appeal” should be assumed to mean that the less deferential framework of appellate review should apply, following the Supreme Court’s decision in Housen v. Nikolaisen, 2002 SCC 33. In essence, a statutory right of appeal reflects the legislature’s intent to give the Court a more robust role in supervising and reviewing the tribunal’s decisions and functions, and makes the Court an active participant in the overall decision-making process. This represents a significant change in the law, and may cause legislatures to review statutory appeal clauses to determine if amendments are required to properly reflect the legislature’s intentions with respect to the applicable standard of review.
The Supreme Court has affirmed that the legislature retains the jurisdiction to depart from the common law and specify a different standard of review by statute (within the limits prescribed by the rule of law), citing British Columbia’s Administrative Tribunals Act as an example.
iii) Applying the “Reasonableness” Standard of Review
In several important respects, Vavilov clarifies what it means for a court to show deference to a decision made by an administrative decision-maker under the “reasonableness” standard of review. Vavilov represents the Supreme Court’s most comprehensive effort to date to provide direction on this issue, as previous decisions have tended to focus more on selecting the appropriate standard, as opposed to applying it. Overall, Vavilov sets high standards for tribunals to meet, perhaps higher than the standards applied in the past.
One of the criticisms of the “reasonableness” standard is that courts have become too deferential to administrative tribunals, creating a “two-tiered justice system”, where those subject to decisions made by administrative tribunals “are entitled only to an outcome somewhere between ‘good enough’ and ‘not quite wrong’” (para 11). The Supreme Court is sympathetic to this criticism, and addresses it by setting high standards for tribunals to provide detailed, cogent and rational reasons to justify their decisions.
First, the Supreme Court has indicated that the lower court’s focus must remain squarely on the “decision actually made”, which includes both the reasoning process, and the outcome. Courts are not to consider what decision they might have made in place of the tribunal, whether a range of possible conclusions are possible on the issue, or otherwise conduct a de novo analysis of the issue decided by the tribunal (para 83). The Court’s sole focus is on whether the decision reached by the tribunal is unreasonable.
The majority repeatedly emphasizes that the institutional legitimacy of tribunals and other administrative decision-makers is directly correlated to reasoned decision-making (para 74). While the Court affirms that written reasons are not required in all circumstances, courts should remain focused on the reasons given by the decision-maker in whatever form those reasons take. Reasons give tribunals an opportunity to carefully examine and articulate the basis upon which they have reached their decision (para 80), and they help facilitate meaningful judicial review.
Second, the Court directs that “a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov at para 85), and emphasizes that the decision must not only be justifiable, but properly and logically justified (para 86). In other words, the decision cannot be upheld on the “reasonableness” standard of review if a tribunal reaches an otherwise reasonable outcome based on flawed logic. Both outcome and process are considered together (para 87).
Third, the Court affirms that “reasonableness” remains a single standard, but how it is applied will vary depending on the context, given the wide variety of decisions and decision-makers who are subject to judicial review (paras 88-90).
Fourth, the Court affirms that judicial review includes a robust review of the record of proceedings and the administrative setting in which the decision was made (paras 91-98). If such a review demonstrates that the tribunal failed to consider relevant evidence or discloses a fundamental gap in the tribunal’s chain of analysis, the decision should be held as unreasonable even if the result, on its face, was not unreasonable (see paras 125-126). A critical consideration is whether the decision is justified and intelligible to the parties subject to the decision, in light of the evidence adduced before the decision-maker, and the parties’ submissions.
Fifth, the Supreme Court affirms that lower courts should not engage in a “treasure hunt for errors” and quash tribunal decisions on the basis of “minor missteps” (paras 99-101). This repeats the same caution expressed in previous Supreme Court decisions addressing standard of review, and confirms that errors in reasoning must be sufficiently serious to warrant court intervention. Within that analysis, the Supreme Court confirms that reasonable decisions must be internally logical, and cannot simply re-state the parties’ positions before setting out a peremptory conclusion without explaining how it reached that conclusion (para 102). The Court also emphasizes that the reasonableness of a decision will be guided by the relevant statutory scheme, and other applicable law (such as decisions which comment on the same or related legal issues), although the Court cautions that administrative decision-makers are not necessarily required to apply equitable and common law principles in the same manner as courts (para 113). Similarly, while tribunals are not bound by previous decisions made by the same tribunal, a panel that departs from an established precedent must explain why it is doing so (para 131).
The Supreme Court expressly states that courts should not apply a less deferential standard of review to issues where there is “persistent discord” within the tribunal on how such issues are to be resolved. The court’s role is not to manage the risk of persistently discordant or contradictory interpretations issued by the same administrative body, which differentiates judicial review from appellate review (para 132).
The Supreme Court provides detailed direction on how courts should review matters of statutory interpretation, and confirms that the standard of review remains “reasonableness” despite the fact courts regularly engage in their own interpretations of statutes. The Court confirms that the “modern approach” to statutory interpretation applies to interpretations conducted by administrative tribunals, and that such interpretations must be “consistent with the text, context and purpose of the provision” (paras 118-120). The Court notes that, in some cases, there may be only one “reasonable” interpretation if the statutory language is sufficiently clear and unambiguous (para 124), but cautions courts against pronouncing upon a definitive interpretation of a provision that is within the administrative tribunal’s home jurisdiction (para 124).
The Supreme Court also provides some direction on how courts should address decisions where no written reasons are issued (paras 136-138), and how to determine the proper remedy for when a decision is found to be unreasonable (paras 139-142).
Overall, the Supreme Court’s decision in Vavilov provides lower courts with a robust framework for both determining and applying the proper standard of review. The revised approach simplifies the analysis for determining the applicable standard of review, and for the first time, comprehensive direction is given for the application of the “reasonableness” standard of review. In general, Vavilov sets high standards for administrative decision-makers to aspire to; higher, perhaps, than the standards previously imposed. The Court was clearly troubled by the suggestion that administrative tribunals represent a type of “two-tiered” justice system, and Vavilov attempts to correct that by emphasizing the importance of rendering decisions that are logical, coherent, and based on a sound and defensible application of legal principles.