When Courts are asked to scrutinize tribunal or administrative decisions, the first question is the standard of judicial review they should apply. Should the Court show deference to the tribunal whose day-to-day job is to interpret its governing statute? On the other hand, does the case raise questions that are well beyond the expertise of the decision-maker that only Courts should decide them?

Canadian jurisprudence has for decades been consumed by these issues.

In 2008, the Supreme Court of Canada sought to clarify the standard of judicial review in Dunsmuir v. New Brunswick, 2008 SCC 9. Dunsmuir collapsed the former two standards of review of “patent unreasonableness” and “reasonableness” into one deferential standard known as “reasonableness review”.

But Dunsmuir has led to uncertainty with age. Canadian Courts began applying reasonableness review routinely, even where the Legislature expressly provided for a different standard. Judicial review proceedings became fraught with confusion and inconsistency.

So it is no surprise that the Supreme Court of Canada seized the opportunity to focus the standard of review landscape in two companion decisions in late 2019, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, and Bell Canada v. Canada (AG), 2019 SCC 66.

Vavilov resolves two issues:

  1. How does the Court determine the standard of review when assessing an administrative decision?
  2. How is the deferential standard of “reasonableness review” to be applied?

The Presumption of Reasonableness Review

Vavilov marks the end of the “contextual approach” to determining the standard of review.

It begins with the principle that the deferential standard of reasonableness is the prima facie standard Courts should apply when reviewing administrative decision-making. The Court now begins with the presumption that it will defer to the Tribunal’s analysis unless the decision proves to be unreasonable.

The presumption of reasonableness applies not only to the decision-maker’s interpretation of its constituent statute, but to other aspects of its decision. Moreover, the Tribunal’s expertise no longer plays a role in determining the standard of review.

Instead, the starting point is that the decision is to be analyzed through the lens of reasonableness review. This shows adequate deference to the Legislature’s choice to confer the decision-making function to an administrative decision-maker, rather than the Courts.

When Is the Presumption of Reasonableness Review Rebutted?

The presumption of reasonableness of review, however, can be rebutted. It can be displaced by other standards of review.

Vavilov identifies two general circumstances where Courts may derogate from reasonableness review, though the list of categories is not closed:

  1. where the Legislature has indicated an intent to apply a less deferential standard of review; or
  2. where correctness review is necessitated to protect the rule of law.

Legislative Intent to Derogate from Reasonableness Review

The presumption of reasonableness review may be rebutted where the Legislature has indicated that a different standard of review applies. This occurs where:

  1. there is clear statutory language in the governing Act that codifies the applicable standard of review, such as under British Columbia’s Administrative Tribunals Act, S.B.C. 2004, c.45;
  2. the Legislature has created a statutory appeal mechanism from the Tribunal’s decision to the Courts.

In cases where a statutory right of appeal exists, the Court must now apply the ordinary appellate standards of review set out in the Supreme Court of Canada’s 2002 decision Housen v. Nikolaisen, 2002 SCC 33—namely, the deferential standard of “palpable and overriding error” applies to questions of fact and the less deferential appellate standard of “correctness” applies to questions of law, with questions of mixed fact and law lying across a spectrum. The Court in Valivov reasoned that an appeal is an appeal. The same standards of review governing an appeal of a commercial litigation dispute ought to be those applied on an appeal from an administrative tribunal.

Where Correctness Review is Required by the Rule of Law

The presumption of reasonableness review may also now be displaced where respect for the rule of law requires that it be so.

This occurs where:

  1. Constitutional questions are at issue. The Courts have the final say on how the supreme law of the land is to be interpreted. Deference is not owed to Tribunals on issues engaging important questions like the division of powers, whether laws are constitutionally invalid under the Canadian Charter of Rights and Freedoms, or Aboriginal and treaty rights;
  2. The issues raised involve “general questions of law of central importance to the legal system as a whole”. Correctness review is required to allow the Courts to resolve legal issues that are of “fundamental importance and broad applicability”. Examples include questions about when an administrative proceeding will be barred by the doctrines of res judicata, the scope of the State’s duty of religious neutrality, the limits on solicitor-client privilege, and the scope of Parliamentary privilege; and
  3. There are questions regarding the jurisdictional boundaries between two or more administrative bodies. Courts are required to intervene and apply the correctness standard where one tribunal interprets the scope of its jurisdiction in a manner that is incongruous with the jurisdiction of another.

What does Reasonableness Review Mean?

Assuming reasonableness review is the applicable standard, Vavilov establishes that this standard is not a “rubber stamp” by the Courts. Reasonableness “does not give administrative decision makers free reign in interpreting their enabling statutes, and therefore does not give them license to enlarge their powers beyond what the legislature intended”.

Rather, according to the Court, reasonableness review essentially strikes a balance between the legislative choice to confer decision-making authority onto an administrative tribunal and the Courts’ constitutional role as the gatekeeper of the rule of law.

Vavilov holds:

…a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem…Instead, the reviewing court must consider only whether the decision made by the administrative decision maker—including both the rationale for the decision and the outcome to which it led—was unreasonable.

The onus is on the party challenging the decision to prove it is unreasonable.

Thus, one of the key aspects of reasonableness review is an analysis of the actual reasons of the .

The written reasons of the Tribunal are not be assessed on a standard of perfection. The decision must be examined in context.

Respectful attention to a decision-maker’s expertise means that while the decision may at first glance appear “puzzling or counterintuitive” to the Court, it may very well represent a reasonable approach given the administrative scheme in which the decision was made. The decision-maker’s reasons should be read “in light of the history and context of proceedings in which they were rendered”.

Vavilov further establishes that a reasonable decision is one:

  1. based on internally-coherent reasoning; and
  2. justified in light of the legal and factual constraints that bear on the decision.

This means the decision must be based on reason and logic. It is also to be assessed “in relation to the constellation of law and facts that are relevant to the decision”.

In deciding whether a decision is reasonable, Courts must have regard for a range of factors, including the statutory scheme, other relevant statutory or common law, the principles of statutory interpretation, the evidence before the decision maker and facts of which the decision maker may take notice, the submissions of the parties, the past practices and decisions of the administrative body, and the potential impact of the decision on the individual to whom it applies.

How Should Courts Determine the Appropriate Remedy for an Unreasonable Decision?

Where a decision is deemed to be unreasonable, Vavilov establishes that “it will most often be appropriate to remit the matter to the decision maker” to have the decision reconsidered in light of the Court’s reasons.

The Court, however, should in limited circumstances decline to remit the matter back to the Tribunal.

This occurs where it is obvious to the Court that a particular outcome is inevitable and remitting the matter back would serve no useful purpose.

In exercising this discretion, the Court considers delay, fairness to the parties, the urgency of providing a resolution to the dispute, the nature of the particular statutory regime, whether the decision maker had a genuine opportunity to weigh in on the issue, costs to the parties, and the efficient use of public resources.

The Brave New World of Judicial Review

Vavilov represents a significant and ambitious undertaking.

In 197 paragraphs, the majority of the Court seeks to lend cogency to the standard of review—a feat that eluded Dunsmuir.

The primary achievements of Vavilov appear to be:

  1. the entrenchment of reasonableness as the presumed standard of review;
  2. the clarification that reasonableness review is not a “rubber stamp” process by the Courts;
  3. the application of ordinary appellate standards of review where there is a statutory right of appeal; and
  4. a principled approach to deciding when Courts should remit an unreasonable decision back to the administrative decision-maker for reconsideration.

It will take years to determine the effect of the Vavilov methodology on administrative law in Canada.

The importance of Vavilov lies in its message that the standard of review is not simply a grammar used by Courts to arrive at a preordained conclusion, but an earnest way to apply judicial scrutiny to administrative decision-making.