Administrative law has been the subject of almost constant revision in Canada. One leading judge – and a gifted thinker in the field – once described administrative law as a “never-ending construction site” where one crew builds structures and a later one tears them down to build anew. And, like every construction site, there were complaints. Even the former Chief Justice of Canada confessed that administrative law had grown into “a barbed and occluded thicket” where only confusion was found. Undeterred, the Supreme Court of Canada announced when granting leave in Vavilov that it was seeking submissions regarding “the nature and scope of judicial review.” The Canadian Bar Association intervened. It was time to deconstruct – and rebuild – administrative law (again).
Released by the court on Dec. 19, 2019, the decision in Vavilov represents the next chapter in the history of administrative law. It does not, however, appear to be the last. With the benefit of submissions from well-respected amici curiae and twenty-four other intervenors, the court charted an ambitious course to clarify two main issues: (1) determining the applicable standard of review for administrative decisions; and (2) explaining how to review administrative decisions for reasonableness. Upon review, the reasons from the court in Vavilov do deliver much needed clarity in these areas.
Determining the standard of review
The standard of review analysis now begins with a presumption in Vavilov that reasonableness is the applicable standard in all cases. This presumption will only be rebutted in two situations:
- First, it will be rebutted when the legislature has explicitly prescribed the applicable standard. It will also occur when the legislature has provided a statutory appeal mechanism. In those cases, the applicable standard will be determined by identifying the type of question and applying the existing standards for appellate review (correctness or palpable and overriding error).
- Second, it will be rebutted when the rule of law requires that the correctness standard be applied. This will be the case for certain legal questions, namely: (i) constitutional questions; (ii) general questions of law of central importance to the legal system as a whole; and (iii) questions related to the jurisdictional boundaries between two or more administrative bodies.
Finally, the court confirmed in Vavilov that the elusive jurisdictional question was no longer a distinct category of correctness review.
Applying the standard of review
Reasonableness review, as directed in Vavilov, means that courts will intervene in administrative matters only when it is “truly necessary” in order to safeguard the legality, rationality, or fairness of the administrative process. In cases where reasons are required, they will be the starting point for review and the primary mechanism by which a decision-maker can show that its decision is reasonable. This same “starting point” for review had also been identified by the Canadian Bar Association in its factum to the court.
According to Vavilov, two types of flaws will generally result in an administrative decision being unreasonable:
- First, a decision will be unreasonable when there has been a failure of rationality within the reasoning process. To be reasonable, a decision must be based on coherent reasoning that is both rational and logical. In other words, a reviewing court must be able to trace the decision-maker’s reasoning without encountering any fatal flaws in its overall logic.
- Second, a decision will be unreasonable when it is untenable in light of the applicable factual and legal constraints. These contextual constraints define the space within which a decision-maker can reach a reasonable decision. They include: (i) the governing statutory scheme; (ii) relevant statutory or common law; (iii) the principles of statutory interpretation; (iv) the evidence; (v) the submissions; (vi) the past practices and decisions of the decision-maker; and (vii) the potential impact of the decision.
Finally, the court directed in Vavilov that matters of statutory interpretation are not to be treated uniquely and, like other questions of law, they will generally be evaluated by a reviewing court on the reasonableness standard. However, those who interpret the law – whether courts or administrative decision makers – must now do so in a manner that is consistent with the modern principle of statutory interpretation.
Epilogue
One of the threads woven through the reasons in Vavilov is the development of a “culture of justification” in administrative decision-making. This insistence on responsive justifications from decision-makers is one of the most interesting developments in Vavilov. It may also become the next chapter in the history of administrative law in Canada. The Canadian Bar Association, for its part, had emphasized in its factum to the court the importance of reasoned justifications from both reviewing courts and administrative decision-makers. It was felt that such a commitment would not only reinforce deference for legislative choices, but also contribute to the rule of law. As shared with the court in Vavilov, for those directly affected by an administrative or judicial decision, justification – the reason why – matters.
It remains to be seen whether the construction site has finally closed in the field of administrative law. For now, all that can safely be said is that the latest path through the thicket is the one cut out by the court in Vavilov.
Jonathan M. Coady, Q.C., is a partner with Stewart McKelvey in Charlottetown. He represented the CBA in its intervention.