Canada (Minister of Citizenship and Immigration) v Vavilov: The Supreme Court of Canada Gifts Administrative Law a New Standard of Review Analysis

The much-anticipated Bell-NFL-Vavilov trilogy of administrative law appeals was released on December 19, 2019, providing answers to lawyers and legal scholars who have long speculated the fate of the standard of review to be applied in administrative decisions in Canada. The appeals, heard together in the Supreme Court of Canada (the “Court”) in December 2018, were intended to “provide an opportunity to consider the nature and scope of judicial review of administrative action, as addressed in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 (Application for Leave, 2018) [Dunsmuir].” In giving judgement just over a year later, a majority of the Court used the decision in the third appeal, Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], to do exactly that and articulate a new approach to determine the applicable standard of review.

Background Information

Mr. Vavilov was born in Canada. His parents were foreign nationals working on assignment for the Russian foreign intelligence service, posing as Canadians under assumed names. Vavilov was unaware of his parents’ secret until 2010, when they were arrested in the United States and charged with espionage.

Following his parents’ arrest, Vavilov attempted to renew his Canadian passport. His efforts proved unsuccessful until 2013, when he was issued a certificate of Canadian citizenship. In 2014, the Canadian Registrar of Citizenship cancelled his certificate. Under section 3(2)(a) of the Citizenship Act, children of a “diplomatic or consular officer or other representative or employee in Canada of a foreign government” are exempt from the general rule that individuals born in Canada acquire Canadian citizenship by birth. According to the Registrar’s interpretation of the Act, since Vavilov’s parents were “employees” or “representatives” of Russia at the time of his birth, he was exempt from the general rule. Vavilov applied for judicial review of the Registrar’s decision. According to the Supreme Court of Canada, the Registrar’s interpretation of the Citizenship Act was unreasonable, the decision was quashed, and the Court directed that Vavilov is a Canadian citizen (Vavilov, para 194-196).

SCC Majority Decision

While the facts are intriguing, it is the majority decision in Vavilov that has attained considerable interest, in that it has delivered clarity on the applicable standard of review analysis to be applied in administrative decisions. In what follows, I will provide an overview of the Vavilov standard of review analysis.

Step 1: Presumption of Reasonableness

The starting point of the majority’s “revised framework” for determining the standard of review a court should apply where the merits of an administrative decision are challenged is a “presumption of reasonableness,” which applies to all matters under judicial review (Vavilov, para 16). This is not much of a change from existing jurisprudence, given the entrenchment of deference in pre-Vavilov cases. However, what is new are the circumstances in which this presumption of reasonableness may be rebutted.

Step 2: Rebutting the Presumption of Reasonableness

The presumption of reasonableness review can be rebutted in two situations:

1. Where there is a clear indication of legislative intent that the reasonableness standard does not apply.

According to the majority, where the legislature explicitly prescribes through statute what standard courts should apply when reviewing decisions of a particular decision maker, the presumption of reasonableness may be rebutted (Vavilov, para 33). It follows that where a legislature has indicated that courts are to apply the standard of correctness, that standard must be applied (Vavilov, para 35).

The presumption of reasonableness may also be rebutted where the legislature has provided a statutory appeal mechanism from an administrative decision to a court. Where a legislature has provided that parties may appeal from an administrative decision to a court, either as of right or with leave, the majority held that a court hearing such an appeal is to apply appellate standards of review to that decision (Vavilov, para 37). For example, if the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (Vavilov, para 37).

This emphasis on statutory appeal rights departs from the Court’s jurisprudence, where the case law had not previously placed any weight on such rights. However, the Court commented that this shift is necessary to bring coherence and balance to the standard of review analysis, where statutory appeal mechanisms are a clear signal of legislative intent with respect to the applicable standard of review (Vavilov, paras 38, 49).

2. Where the rule of law requires that the standard of correctness be applied.

The majority in Vavilov held that the rule of law requires courts to apply the standard of correctness for certain types of legal questions. When applying the correctness standard, the reviewing court may choose either to uphold the administrative decision maker’s determination or substitute its own view (Vavilov, para 54).

The majority provides a non-exhaustive list of the types of questions where a correctness standard is required:

1. Constitutional questions: questions regarding the division of powers between Parliament and the provinces, the relationship between the legislature and the other branches of the state, the scope of Aboriginal and treaty rights under section 35 of the Constitution Act, 1982, and other constitutional matters require a “final and determinate answer” from the courts (Vavilov, para 55). On such matters, the standard of correctness must be applied.
2. General questions of law of importance to the legal system as a whole: these questions require a “single determinate answer.” A correctness standard provides a greater degree of legal certainty than reasonableness review allows and hence, must be applied to these questions. The Court’s jurisprudence provides examples of questions of law that have been held to be of central importance to the legal system as a whole, including: the appropriateness of limits on solicitor-client privilege or when an administrative proceeding will be barred by the doctrines of res judicata and abuse of process (Vavilov, para 60).  Interestingly, the majority clarifies that the expertise of an administrative decision maker is no longer a consideration in identifying such questions. The majority also stressed that merely because a question is “of wider public concern” it may not amount to a question of central importance (Vavilov, para 61).
3. Questions regarding the jurisdictional boundaries between two or more administrative bodies: while administrative decisions are rarely contested on this basis, the majority held that the rule of law requires courts to intervene where one administrative body has interpreted the scope of its authority in a manner that is incompatible with the jurisdiction of another (Vavilov, para 64).

What is notable about the majority decision in Vavilov is that it eliminated two circumstances where the courts could previously rebut the presumption of reasonableness: where an administrative decision raised a “true question of jurisdiction” and where a “contextual inquiry” determines that a correctness standard of review should apply (Vavilov, paras 65, 69).

Performing Reasonableness Review

The majority explains that the focus of reasonableness review must take into account both the decision maker’s reasoning process for a decision, as well as the outcome that was reached (Vavilov, para 83). To determine whether a decision is “reasonable,” a reviewing court must ask whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constrains that bear on the decision (Vavilov, para 99).

The burden is on the party challenging the decision to show that it is unreasonable. The reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency (Vavilov, para 100).

The majority outlined two ways in which an administrative decision can be unreasonable:

1. An unreasonable decision is based on internally incoherent reasoning.

To be reasonable, a decision must be based on reasoning that is both rational and logical. According to the majority, a decision will be unreasonable if the reasons for it, read holistically, fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis (Vavilov, para 103). Decisions may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas or unfounded generalizations (Vavilov, para 104). Ultimately, a reviewing court must be satisfied that the decision maker’s reasoning “adds up” (Vavilov, para 104).

2. A decision can be unreasonable in light of the legal and factual constraints that bear on the decision.

To be reasonable, a decision must be justified in relation to the law and facts that are relevant to the decision and operate as constrains on the decision maker in the exercise of its delegated powers. The majority highlights some elements that are relevant in evaluating whether a given decision is reasonable, including (Vavilov, para 106):

• the governing statutory scheme;
• other statutory or common law constraints on a decision maker;
• principles of statutory interpretation;
• the evidentiary record;
• submissions of the parties;
• an administrative body’s past practices and past decisions; and
• the impact of the decision on an affected party.

If a decision fails to adhere to the preceding elements of reasonableness, a reviewing court may find the decision unreasonable.

While in many cases, neither the duty of procedural fairness nor the statutory scheme will require that formal reasons for a decision be given at all, where the duty of procedural fairness or the legislative scheme mandates that reasons be given to an affected party but none have been given, that failure will generally require the decision to be set aside and the matter remitted to the decision maker (Vavilov, para 136).

Analysis

The Supreme Court of Canada’s decision in Vavilov ought to be praised for providing clarity to the substantive review analysis in administrative law. Since Dunsmuir, there has been widespread frustration and confusion about the standard of review analysis. Lawyers and legal scholars have spent considerable time debating when a particular administrative decision should be entitled deference and, if so, how to apply the reasonableness standard of review. Thanks to the Court’s decision in Vavilov, we now have some answers.

What is notable about the Vavilov decision is the emphasis placed on the rule of law, which now plays a more prominent role in standard of review analyses. As well, the majority’s guidance on how the reasonableness standard is to be applied – a standard that has long frustrated many in the legal community – deserves recognition.

The legal community has welcomed the decision in Vavilov with praise. Some lawyers have commented that the clarity provided by Vavilov will help both practitioners and clients, noting that in advising clients on the merits of a judicial review or appeal, lawyers will be able to give a stronger opinion as to what standard of review the court is likely to apply [1]. Others in the legal community have commended the Court’s efforts in providing clarity on the role of statutory appeal mechanisms, which have not been given appropriate weight in previous jurisprudence.

Despite its praise, there is criticism of the majority decision in Vavilov. The concurring decision of Justices Abella and Karakatsanis in Vavilov notes that the majority’s approach to the standard of review analysis “will be a roadblock to its promise of simplicity” (Vavilov, para 252). Among their concerns with the majority’s decision include its disregard for precedent and stare decisis, its invitation for courts to apply correctness review to legal questions where the administrative scheme includes a right of appeal and that it unjustifiably ignores the specialized expertise of decision makers,  (Vavilov, paras 230, 245, and 254). With regard to the concurrence’s latter issue, I find Justices Abella and Karakatsanis’ opinion unconvincing. There are a number of compelling rationales for the legislature to delegate the administration of a statutory scheme to a particular decision maker other than expertise, including a decision maker’s ability to render decisions promptly and efficiently (Vavilov, para 29).  The previous presumption of deference to a decision maker based on expertise is therefore overbroad.

Only time will tell whether Vavilov has succeeded in clarifying and simplifying the judicial review of administrative decisions.

[1] https://nationalmagazine.ca/en-ca/articles/law/rule-of-law/2019/presumption-of-reasonableness