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Judicial Review - Legal Conflict with Reasonableness Standard of Review

These are cases that, in my view, highlight an intentional and unnecessary complexity in the Vavilov judicial review doctrine. In judicially reviewing a lower decision or act, Vavilov allows the court to tolerate different legal interpretations from different presiding tribunals - of the same tribunal - below. That is, Tribunal A on Tuesday may reach a different legal interpretation from the same Tribunal B on Friday - and the courts can tolerate that. I called this 'local reasonableness' - the focus is on that Tribunal's 'internal coherence' with each decision, as long as it has this local coherence, it can stand judicial review. When I first graped this implication, as a form of justiciability (here, out of respect for the legislature which creates the tribunals) I was stunned. Surely to god we want consistent law everywhere - I assumed? Apparently not ...

I expect this is going to be a growing issue of dispute in Canadian law.

. Mammoet Canada Eastern Ltd. v. International Union of Operating Engineers

In Mammoet Canada Eastern Ltd. v. International Union of Operating Engineers (Div Court, 2022) the Divisional Court applies the judicial review 'local reasonableness' doctrine from Vavilov, here reviewing a labour arbitrator decision:
[29] The application of a reasonableness standard of review implicitly recognises that there may be more than one reasonable interpretation of an agreement.


[46] To adapt what was said by the Court of Appeal in RBC Dominion Securities, at para. 36, in rejecting its proposed interpretation, the Vice-Chair did not, as the applicant alleges, fail to apply proper contract interpretation principles; rather, he applied the principles, just not in the manner proposed by the applicant.
. Municipal Property Assessment Corporation v. Claireville Holdings Limited

In Municipal Property Assessment Corporation v. Claireville Holdings Limited (Div Court, 2022) the Divisional Court stated the odd implications of the Vavilov doctrine allowing different tribunal reasoning to apply in different administrative cases:
The Issue of Conflicting Decisions

[30] MPAC argues that the Board made a third legal error when it determined that the member in Loblaw Properties erred by not following Toronto Airways.

[31] In my view, this is not a question of law. As noted in Vavilov, administrative decision makers are not bound by their previous decisions in the same sense that courts are bound by stare decisis. The Board’s comments on the merits of the decision in Loblaw Properties were to explain why it preferred the methodology of arriving at a property’s current value as explained in Toronto Airways. It is not a legal error to have done so.
. Canada (Attorney General) v. Hull

In Canada (Attorney General) v. Hull (Fed CA, 2022) the Federal Court of Appeal made this simple statement which suggests that it does not see any 'local reasonableness' problem, essentially conducting it's legal finding task in a pre-Vavilov 'correctness' standard of review fashion:
[33] Thus, I find that the Appeal Division’s decision is unreasonable because it did not follow a binding precedent in which the same provision has been interpreted (Vavilov at para. 112).
. Canada (Attorney General) v. Burke

In Canada (Attorney General) v. Burke (Fed CA, 2022) the Federal Court of Appeal considered the standard of review (SOR) for judicial review, with what I suspect is frustration with the Vavilov doctrine allowing varying legal interpretations (SS: see italics, which are mine). The case reflected a sharp difference in statutory interpretation in the Old Age Security system (an issue which Vavilov requires to be assessed on a 'reasonableness' SOR):
V. Standard of Review

[25] The standard of review applicable to decisions of the Appeal Division is that of reasonableness: Canada (Attorney General) v. Redman, 2020 FCA 209 at para. 12; Cameron v. Canada (Attorney General), 2018 FCA 100 at para. 3. This includes decisions involving questions of statutory interpretation: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 115.

[26] This is the case even where there has been persistent discord on questions of law in an administrative body’s decisions: Vavilov, above at paras. 72, 129. Where, however, a decision maker departs from longstanding practices or established internal authority, it bears the justificatory burden of explaining that departure in its reasons. If the decision maker does not satisfy this burden, the decision will be unreasonable: Vavilov, above at para. 131.

[27] That said, it would be antithetical to the rule of law and would lead to legal incoherence if the meaning of a law was to depend on the identity of the individual decision maker. Rather than considering this to be a situation where the correctness standard of review ought to be applied, however, the Supreme Court stated that the more robust form of reasonableness review described in Vavilov is capable of guarding against threats to the rule of law: Vavilov, above at para. 72.

[28] In reviewing the interpretation of statutory provisions by administrative tribunals, the reviewing court does not undertake its own, de novo analysis of the question. Nor does it ask itself what the correct interpretation of the legislation should be. Instead, as is the case where a reviewing court is applying the reasonableness standard to 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, in order to determine whether the decision was reasonable: Vavilov, above at paras. 75, 83 and 116.

[29] In so doing, the reviewing court must focus on the decision maker’s interpretation, keeping in mind that there may be more than one reasonable interpretation of legislation available to an administrative decision maker, based on the text, context and purpose of the legislation: Canada (Minister of Citizenship and Immigration) v. Mason, 2021 FCA 156 at paras. 16, 18.

[30] That said, the decision maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision in question. A decision maker cannot adopt an interpretation it knows to be inferior, even if it is plausible, because the interpretation in question appears to be both available and expedient. The decision maker’s responsibility is to discern meaning and legislative intent, and not to "“reverse-engineer”" its analysis in order to achieve a desired outcome: Vavilov, above at paras. 120, 121.
. Peters First Nation v. Engstrom

In Peters First Nation v. Engstrom (Fed CA, 2021) the Federal Court of Appeal cited how the SCC had undertaken to make it clear when there was only one possible statutory interpretation - given the Vavilov JR 'reasonableness' standard's potential for multiple such interpretations:
[29] The Supreme Court has consistently held there will be circumstances where the ordinary tools of statutory interpretation will make it clear that there is only one reasonable interpretation (see, e.g., Vavilov at para. 124; Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770 at para. 35; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471 at para. 64; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895 at para. 38). This Court, and other appellate courts across Canada have also recognized that reasonableness encompasses situations where there is only one possible interpretation (see, e.g., Nova Tube Inc./Nova Steel Inc. v. Conares Metal Supply Ltd., 2019 FCA 52, 2019 CarswellNat 14755 at para. 61; English v. Richmond (City), 2021 BCCA 442, 2021 CarswellBC 3665 at para. 120; Ontario Nurses’ Association v. Participating Nursing Homes, 2021 ONCA 148, 154 O.R. (3d) 225 at para. 84).

[30] For the reasons outlined above, the term "“natural child”" can only have one reasonable meaning. This is not a term for which there is a range of reasonable outcomes.


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