Appeals and Judicial Review - Vavilov. Canada (Minister of Citizenship and Immigration) v. Vavilov
The case of Canada (Minister of Citizenship and Immigration) v. Vavilov (SCC, 2019) is very important for administrative law, an area of law hugely important for the lives of Canadians. So I have gone through it line by line and set forth my own 'take' on it, as it will be key to the issues for some time to come.
Just before the Christmas holiday break the Supreme Court of Canada released it's decision in Canada (Minister of Citizenship and Immigration) v. Vavilov (SCC, 2019). The case is unique both for it's manner of creation (being the result of intentionally wide consultation with government, advocacy, academic, practitioner, clinic and more groups) and for the range of law that it addresses (in effect, all of the courts' relationship with executive and legislative government).
Ostensibly the issue is about 'standard of review' in judicial review (JR), and it can be described as a rework of the task the court set itself in Dunsmuir - but in so doing the court necessarily revisits the issue of judicial deference ['justiciability'] in relation to the government from the ground up, both for judicial review and statutory appeals.
'Justiciability' refers to when and how the courts may pass judgment on administrative acts and the decisions of statutory administrative tribunals - in short, all executive actions. That this issue covers the three arms of government (executive, legislative and judicial) gives an idea of the range of the case. I have the feeling that if the court took a slightly different approach to it's task, we could have seen a fundamental (and truly 'seismic') reduction of the judiciary's role in our country, rather than what we did see - which was a reform in administrative law both in the areas of judicial review and statutory appeals. No Canadian legal practitioner can ignore this case.
That's not to say the case is well-presented for what it does. I found myself frustrated when reading the case with issues that should have been made clear. Primary among them the switch from discussion of JR to appeals and back again, the necessity of hiving off self-justification from 'new law', the useful but oddly located discussion of written reasons, and the prolonged veering into statutory interpretation. This frustration bleeds into sarcasm at times, for which I apologize (if necessary). But, in fairness, I don't recall ever having read a ruling like them - almost a negotiated 'what do you think of this?' kind of effort. If I am right in that, then honest feedback seems the appropriate response, indeed the required one.
That said, following is a summary of the majority's ruling. Hopefully it is concise, as the original has much unnecessary self-justification and hesitancy in it's expression. As one critical of the desperate disorganization in the common law world, brought about by the scattered fashion in which we locate key law in thousands and thousands of pages, I would have relished simpler and shorter instructions from the Supreme Court in this essential area of law.
I use some of the court's main 'Table of Contents' headers to organize my summary, and I've added a lot of 'Notes' throughout, as they seemed called for. The sarcasm comes quite naturally.
I. Need for Clarification and Simplification of the Law of Judicial Review
(a) Dunsmuir Law
The case starts with Dunsmuir and an identification of the present state of judicial review jurisprudence, which it views as in need of correction.
It summarizes Dunsmuir (SCC, 2008) as follows:
'Reasonableness' is based on a sort-of justiciability compromise, not being too judicially aggressive when we are dealing with the acts of the executive government's efforts (remember, the case is ostensibly about judicial review, not appeals), but still allowing the court's role in this review. An essential aspect of the 'reasonableness' standard of review (which is much underplayed) is that [para 8]:
- there are two standards of judicial review (JR) review: reasonableness and correctness;
- most JR questions have a reasonableness standard "including, presumptively, when a decision maker interprets its enabling statute";
- 'correctness' standard of review applies to identifiable categories, and where "the context indicates that the legislature intended ... correctness" (the court foreshadows that there are problems with that).
... that standard has come to be routinely applied even where the legislature has provided for a different institutional structure through a statutory appeal mechanism.That is, the court is saying the 'reasonableness' has become erroneously applied to statutory appeals, not just JRs.
(b) Vavilov Law
Keep in mind that Vavilov is ostensibly about JRs, not appeals. I found this distinction sneaking up on me when reading the full case.
II. Determining the Applicable Standard of Review
- 'reasonableness' is the standard of review presumption in all JR cases;
- exceptions (which require a 'correctness' standard of review) apply where there is (i) a clear indication of legislative intent or (ii) by the rule of law;
- we also need an improved 'reasonableness' methodology, to combat the 'plausible is enough' [my phrasing] criticism;
The 'plausible is enough' criticism is that reasonabless, not correctness, results in inconsistent rulings on the same points of law.
- reasonableness must reflect the deference the courts owe to the executive government (you will see this being a repeated theme);
- "administrative decision makers must adopt a culture of justification" [para 14]:
... a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified. What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place [para 15].
Note: There are two situations where reasonableness is rebutted [para 17]:
'Reasonableness' is the presumptive standard of review in JR, we've got that. But most of this section is about exceptions to that (when the correctness standard of review applies) - and one of the exceptions is statutory appeals. To consider appeals as an exception to a JR rule, seems misplaced to me - if anything they are procedures of equal rank.
(i) Legislation Requires
Where there are legislated JR standards, and "(i)t will also be the case where the legislature has provided a statutory appeal mechanism from an administrative decision to a court, thereby signalling the legislature’s intent that appellate standards apply when a court reviews the decision".
(ii) Where Rule of Law Requires
These are "... constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies."
Note: A. Presumption That Reasonableness Is the Applicable Standard
I earlier commented on the ruling's unfortunate tendency to divert into self-justification, and it occurs here on the issue of the 'contextual approach'. I imagine academics know this as a recognizable thing but as best I can tell it refers to the issue of 'expertise' to determine the standard of review, ie. the more expertise the administrative decision-maker has, the more deference it should be granted by the courts. This seems redundant in the just-past affirmation of the 'presumption of reasonableness' and it's limited exceptions, but they do go on about it much more. I'll skip that as it doesn't add anything useful.
Note: Legislators can't immunize themselves from JR "because judicial review is protected by s. 96 of the Constitution Act, 1867" [para 24]. But the justiciability concern can be embodied in the general presumption of deference (ie. reasonableness), and this is broader than deference regarding the parent statute.
We start off with more about the 'presumption of reasonabless', but this time with another exception for 'procedural fairness and natural justice' [para 23]. I've never understood why these two are exempted from the reasonableness/correctness dichotomy, as they seem to me to be plain 'correctness' candidates.
Note: B. Derogation From the Presumption of Reasonableness Review on the Basis of Legislative Intent
There's more expertise stuff here, but the point is that it (now according to the court) has no role in standard of review anymore: ie. the 'contextual analysis' is dead [para 27-31]. Towards the end of these paras the court engages in some gratuitous and self-excusing recuperation of the value of 'expertise', which makes me just want to say: 'people you're the SCC, you don't need to explain yourselves, we just want to know what the law is now.'
Vavilov can be viewed simply as reflecting increased respect for directions in legislation re judicial review, really asserting an almost literal reading of the statutes in this respect. The presence of appeal mechanisms (which as all legislative in nature) is the major form of this.
As the court states unnecessarily [para 33]:
- "it may explicitly prescribe through statute what standard courts should apply when reviewing decisions of a particular administrative decision maker"; and
- "it may direct that derogation from the presumption of reasonableness review is appropriate by providing for a statutory appeal mechanism from an administrative decision maker to a court, thereby signalling the application of appellate standards."
Note: (1) Legislated Standards of Review
I was annoyed when I first read these references to 'appellate standards'. They seemed to be working up to something big, but 'appellate standards' really means the old 'standard of review' workhorses (there's a bit more later):
. issues of law = correctness,
. facts = palpable and overriding
Unsurprisingly, the court affords legislation a high respect: "We continue to be of the view that where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law [para 35].
(2) Statutory Appeal Mechanisms
Here we find the term 'appellate standards' of review finally defined, they are the standard ones: law is 'correctness', facts are 'palpable and overriding error' - and for mixed fact and law it is 'palpable and overriding error' "where the legal principle is not readily extricable". That's what applies when the legislation is silent on the standard of review - if the legislation addresses it, then those standards will be respected [para 37].
This, oddly, is a live issue in the case: that legislated appeal mechanisms and their attendent terms should be respected. This shows the degree to which the courts collectively have strayed and required 'correction': "there is no satisfactory justification for the recent trend in this Court’s jurisprudence to give no effect to statutory rights of appeal in the standard of review analysis absent exceptional wording: ..." [para 41]. The court blames this on Dunsmuir, and the relative silence in the case on the issue [para 43].
The court clarifies the effect of appeal legislation on the standard of review [para 50-52]:
i. whether appeal as of right or with leave, there is no difference once leave is granted;
ii. where legislation sets out terms that apply to JR, but no appeal, the standard of review is not appellate;
iii. where there is a circumscribed (limited) appeal right, JR still exists and reasonableness is the standard of review for the JR.
Note: C. The Applicable Standard Is Correctness Where Required by the Rule of Law
This standard of review was applied in the sister case to Vavilov: Bell Canada v. Canada (Attorney General) (SCC, 2019). That case dealt with a statutory appeal to the CRTC on a legal issue, and the court held that the standard of review was correctness.
Note: Even in a JR, 'correctness' applies as the standard of review for [para 53]:
We're off appeals and back to JR now.
And, "(w)hen applying the correctness standard, the reviewing court may choose either to uphold the administrative decision maker’s determination or to substitute its own view ... " [para 54].
- constitutional issues;
- "general questions of law of central importance to the legal system as a whole" [examples are set out in paras 60-61], and
- "questions regarding the jurisdictional boundaries between two or more administrative bodies".
D. A Note Regarding Jurisdictional Questions
The court makes much out of abolishing any sort of jurisdictional issues (for correctness) on the theory that any 'jurisdictional' administrative law issue is just one of interpreting it's parent statute [para 66]. Any such issues may be dealt with under reasonableness' [para 67].
The court again asserts (not-very-convincingly) that there is no risk of admin decision-makers applying inconsistent jurisdictional standards across different cases (not that it won't happen, just that it won't be a problem) [para 68]. This is a recurrent theme: the acceptance (in the name of deference) of inconsistent rulings inherent in the reasonableness standard of review, though the court goes out of it's way to cite administrative safeguards against this (eg. tribunal 'Consolidated Bathurst' meetings. interpretation guidelines, and just general common sense) [see 'E', immediately below].
E. Other Circumstances Requiring a Derogation from the Presumption of Reasonableness Review
In summary, there are five exception to the 'reasonableness standard of review' [para 69]:
The court expressly considered another 'correctness' exception for "legal questions regarding which there is persistent discord or internal disagreement within an administrative body leading to legal incoherence". But it held that a 'robust reasonable standard' and "internal administrative processes to promote consistency and with legislative oversight" can deal with this [para 71-72].
- legislated standards of review;
- statutory appeal mechanisms;
- constitutional questions;
- general questions of law of central importance to the legal system as a whole; and
- questions regarding jurisdictional boundaries between administrative bodies.
(they refer to these last three as required by 'rule of law')
III. Performing Reasonableness Review
A. Procedural Fairness and Substantive Review [really, a frustrating consideration of the value of written reasons]
This section of the ruling purports to provide some procedure to the JR 'reasonableness' task. But like so much of the ruling it diverges into issues that have only indirect relevance to the stated issue, and this one annoys me the most - purporting to deal with 'reasonableness', but really side-stepping (ultimately inconclusively) into the salutory value of written reasons.
Baker is the leading procedural fairness case and the court cites it and it's fairness criteria, from which it veers quite unabashedly into a praising of 'written reasons' (presumably, as evidence showing 'reasonableness') and how fairness would be so well-served in all of it's these criteria by written reasons. These Baker criteria are cited as [para 77]:
(1) the nature of the decision being made and the process followed in making it;
(2) the nature of the statutory scheme;
(3) the importance of the decision to the individual or individuals affected;
(4) the legitimate expectations of the person challenging the decision; and
(5) the choices of procedure made by the administrative decision maker itself
I kept reading for a confirmation that any future admin JR (or appeal) case requires responsive written reasons to be 'reasonable' or 'correct', as the case may be, but to no avail. It appears just to be a nice thing for administrators to do, but not of course a requirement.
All is not lost, as the court clarifies that written reasons "tend to be required" in those cases where:
"Cases in which written reasons tend to be required include those in which the decision-making process gives the parties participatory rights, an adverse decision would have a significant impact on an individual or there is a right of appeal: ..."It took me a while to come up with a case where those factors were not present, but I was assisted by the court citing one themselves, where "the court will often uncover a clear rationale for the decision" despite the absence of written reasons, here a case challenging a municipal by-law [para 137]. This situation does occur well enough, but why it could not be dealt with by a primary 'no written reasons = unreasonable' rule, with suitable exceptions (like by-law challenges) - saddens and frustrates me.
At paras 79-80, we are treated to a litany of good 'fairness' purposes that call for written reasons: legitimacy, preventing arbitrariness, forcing decision makers to treat it seriously, etc. Again to naught, and why? I mean, you are the Supreme Court of Canada - you are entitled, indeed mandated, to make good law. You've called us all here today to hear your directions on good admin law - so just do it!
B. Reasonableness Review Is Concerned With the Decision-making Process and Its Outcomes
Starting out with this topic we are met with a profound insight when considering the 'reasonableness' of an admin act or decision:
"... 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" [para 83].Hmm ... a reasonable decision can't be 'unreasonable'. Deep, so deep it escapes me. But it soon becomes clear that this profundity is (again) only to make the point about how everything would go so much better, if we just had more ... wait for it, 'written reasons'! [para 84-87]. I agree, why don't we - could it be that the SCC doesn't insist on them? Just a thought.
C. Reasonableness Is a Single Standard That Accounts for Context
This section is more niceness about reasonableness and how wonderful it really is, this time (unusually) not about written reasons.
D. Formal Reasons for a Decision Should Be Read in Light of the Record and With Due Sensitivity to the Administrative Setting in Which They Were Given
We're back to written reasons again [para 91] - what they can and can't do when they are issued.
Also, in these few paras the court is apparently sucking up to the 'expertise' crowd again by saying that specialized tribunal rulings must be respected and understood, though the reviewing court should not 'fill in' reasons when the tribunal misses them:
"Where a decision maker’s rationale for an essential element of the decision is not addressed in the reasons and cannot be inferred from the record, the decision will generally fail to meet the requisite standard of justification, transparency and intelligibility" [para 98].Translation: neither the tribunal nor the court can 'make stuff up', particularly if it is key and material stuff. Good to know.
E. A Reasonable Decision Is One That Is Both Based on an Internally Coherent Reasoning and Justified in Light of the Legal and Factual Constraints That Bear on the Decision [really, statutory interpretation]
When I first read this over-long title I was tempted to say out-loud: 'really, I thought that a reasonable decision was one based on internally IN-coherent reasoning and that DISREGARDED the law and facts of the case', silly me. Then I saw that magic and familiar phrase that signals 'reasons' (and as we all know, the good ones are written), the hallmarks of reasonableness: "justification, transparency and intelligibility" [para 99]. That phrase that we saw embraced in this ruling earlier:
 Reasons facilitate meaningful judicial review by shedding light on the rationale for a decision: Baker, at para. 39. In Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (CanLII),  3 S.C.R. 708, the Court reaffirmed that “the purpose of reasons, when they are required, is to demonstrate ‘justification, transparency and intelligibility’” ...So, despite the ostensibly new topic, we can see that we're back to 'reasons' again. The court pushes through,from paras 99-135 on variations of the same theme, that incoherency and disregarding the law and facts are 'bad' - just in case we forget.
There are some emphases to be harvested, such as the profundities that:
There's more, but I'll skip them because they're .... well, pointless and obvious.
- examples of internal rationality includes "logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise" [para 104];
- parent statutes are important [para 108-109].
Where we finally get into something new (and not obvious) is at para 115 where the court starts it's treatment of statutory interpretation (an important topic), so well-established in Rizzo's “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament" [para 117].
In particular we see that "(m)atters of statutory interpretation are not treated uniquely and, as with other questions of law, may be evaluated on a reasonableness standard." I was heartened to see that statutory interpretation is ranked as a "question of law", such that in the appeal context at least they will be subject to the correctness standard [para 115]. But with reasonableness review it's a different story [para 116]:
Reasonableness review functions differently. Where reasonableness is the applicable standard on a question of statutory interpretation, the reviewing court does not undertake a de novo analysis of the question or “ask itself what the correct decision would have been”: Ryan, at para. 50. Instead, just as it does when applying the reasonableness standard in reviewing questions of fact, discretion or policy, the court must examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached."'As a whole' - don't know what that means for the life of me. I suspect you don't either.
What I do like is the new addition to Rizzo's statutory interpretation stuff, "text, context and purpose", *and* that this addition applies (apparently) to both reasonable (admin) and correct (court) interpretations [para 118, 120-122]:
But whatever form the interpretive exercise takes, the merits of an administrative decision maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision. In this sense, the usual principles of statutory interpretation apply equally when an administrative decision maker interprets a provision. ... This seems to me as directly as this court can say what needs to be said on the issue: ie. statutory interpretations have to be 'correct', no mucking about. It's an exception to the 'reasonableness' standard, even for judicial reviews. Ahh, I can dream can't I?
The administrative decision maker’s task is to interpret the contested provision in a manner consistent with the text, context and purpose, applying its particular insight into the statutory scheme at issue. It cannot adopt an interpretation it knows to be inferior — albeit plausible — merely because the interpretation in question appears to be available and is expedient. The decision maker’s responsibility is to discern meaning and legislative intent, not to “everse-engineer” a desired outcome.
Oh yes, and they have to have regard to the cases "text, context and purpose" - can't forget that.
IV. Role of Prior Jurisprudence
Lastly, the significance of Vavilov the case can't be understated [para 143]:
These reasons set out a holistic revision of the framework for determining the applicable standard of review. A court seeking to determine what standard is appropriate in a case before it should look to these reasons first in order to determine how this general framework applies to that case.I've never seen that, or anything like it before, in any other case. In means: 'lawyers, start here first - the old stuff may be useful, but ... well, 'start here first'.
So, god help us, now we have to start here ...