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Judicial Review - Standard of Review Post-Vavilov II

. Ahousaht First Nation v. Canada (Indian Affairs and Northern Development)

In Ahousaht First Nation v. Canada (Indian Affairs and Northern Development) (Fed CA, 2021) the Federal Court of Appeal noted that the standard of review for administrative fairness is in effect one of 'correctness':
[31] The standard of review on issues of procedural fairness is essentially correctness: Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502 at para. 79. As stated in Vidéotron Ltée v. Canada (Shared Services), 2019 FCA 307, 313 A.C.W.S. (3d) 299 at para. 12:
Issues of procedural fairness are to be reviewed on a correctness standard. While it may be that “no standard of review is being applied” when a court considers issues of procedural fairness because the question is “whether the procedure was fair having regard to all the circumstances,” this Court’s review is “best reflected in the correctness standard” for such issues (Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2018] F.C.J. No. 382 at para. 54).
. Abbott v. Canada (Attorney General)

In Abbott v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal set out the appellate standard of review where the judicial review application generated fresh findings at the first instance:
[17] The standard set out in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 usually applies to an appeal from the judgment of a first instance court in an application for judicial review. However, this Court has held that "“where the application judge made findings of fact or mixed fact and law based on the consideration of evidence at first instance, rather than on a review of the administrative decision, these findings are reviewable on the Housen standard”" (Apotex Inc. v. Canada (Health), 2018 FCA 147, 157 C.P.R. (4th) 289, para. 57; Sturgeon Lake Cree Nation v. Hamelin, 2018 FCA 131, 424 D.L.R. (4th) 366, paras. 36-37). This is effectively the case here. Therefore, the appellate standard of palpable and overriding error applies to the Judge’s findings of fact, or mixed fact and law, regarding the respondents’ authorization to issue the directive.
. Canada (Attorney General) v. Ennis

In Canada (Attorney General) v. Ennis (Fed CA, 2021) the Federal Court of Appeal interprets the Vavilov approach to judicial review standard of review:
[48] Turning first to the Federal Court’s review of the merits of the Commission’s decision under the reasonableness standard, the Supreme Court of Canada underscored in paragraph 81 of Vavilov that the reasons of an administrative decision-maker are the starting point for reasonableness review where, as here, reasons are given. The requisite inquiry involves asking whether the decision-maker’s decision was a reasonable one. The reviewing court is therefore not to ask what decision the court would have made. "“Reasonableness review is methodologically distinct from correctness review”": Vavilov at para. 12. To use the words of the majority in Vavilov:
83. […] the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome. The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, 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. The Federal Court of Appeal noted in Delios v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171, that, “as reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did”: at para. 28; see also Ryan, at paras. 50-51. 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. [Emphasis added.]
[49] Rather than proceeding in this fashion, the Federal Court instead asked itself how it would have ruled on whether there was sufficient evidence to send the complaint to the Tribunal for further inquiry. As noted, the Federal Court described its role in paragraph 32 of its reasons as being charged with determining whether the evidence before the Commission was sufficient to warrant inquiry, stating that its role was to determine "“whether this is so”".

[50] With respect, this approach is erroneous. It is not for the Federal Court (or this Court on appeal) to question whether there was sufficient evidence before the Commission to warrant referral of Mr. Ennis’ complaint to the Tribunal for inquiry. Such a question is identical to asking whether the Commission was correct in its conclusion as to the sufficiency of the evidence. This is correctness and not reasonableness review.

[51] Under reasonableness review, contrary to the approach taken by the Federal Court, the question for the reviewing court is rather whether the Commission’s determination that the evidence was insufficient was a reasonable one that it was open to the Commission to have made. In asking itself the wrong question, the Federal Court fell into error. This led to its erroneously re-evaluating the sufficiency of the evidence that was before the Commission.

[52] This erroneous approach is evident at several places in the Federal Court’s reasons. For example, it stated:
35. Absent an explanation by the Commission as to its reason for departing from the conclusions of the Assessor, which were based on a broader and more in-depth consideration of adverse impacts, it is not possible to conclude that the Commission’s conclusion was reasonable.

[…]

37. The Commission further failed to inquire whether such evidence was available. If it was and it was not produced, the Commission ought to have returned the s 49 Report for further detail.

38. The Commission also failed to consider a relevant issue – whether being on a wait list for 10 years in the mental condition of the Applicant caused adverse impacts. If the Commission did consider that issue, there is nothing that would suggest it did.

39. In respect of the failure to show specific needs arising from the Applicant’s disabilities, the Commission failed to consider whether the security of proper housing – given the Applicant’s mental condition – is a specific need.

40. Again, to the extent that the Assessor did not address that issue, it was unreasonable for the Commission not to inquire or cause the Assessor to inquire. To the extent that the Assessor’s conclusion of intersectional, adverse effects reflects the Applicant’s needs, the Commission has failed to explain why it did not accept the Assessor’s conclusion.

[...]

45. In my view, given the Assessor’s conclusions particularly as to lack of clarity and INAC’s further and substantive financial submissions in response to the s 49 Report, the Commission engaged in an improper weighing of evidence as between the Assessor’s analysis and INAC’s position.

46. While it is not sufficient for success for a complainant to merely allege someone is lying (as the complainant’s father did), it was clear that the Commission accepted INAC’s version of events without the benefit of expert and other evidence which the Assessor said was necessary to bring clarity to the situation.

[...]

48. The Commission’s criticism of the Applicant in not rebutting INAC’s evidence is unfair. A complainant is not generally in a position to secure that type of information nor can a complainant be expected to analyze such information. It is within the powers of the Commission’s assessor to secure and analyse that evidence. It was unfair to impose this evidentiary and analytical burden on a complainant in these circumstances.

49. At this stage of the process it is for the Assessor to pursue that line of inquiry. The Assessor did exactly that and could not resolve the matter. It is for the Tribunal not the Commission to resolve lack of clarity.
[53] What the Federal Court instead ought to have done is to have asked itself whether the Commission’s decision was one that it reasonably could have made.

[54] As noted by the Supreme Court of Canada in Vavilov, there are two types of fundamental flaws that may render a decision unreasonable: either a flaw of rationality in the reasoning process or instances where the decision is untenable in light of the factual and legal constraints that bear upon it (at para. 101). Most challenges, including the present one, centre on the second of these potential flaws.

[55] The Supreme Court provided a non-exhaustive list in Vavilov of factual and legal constraints against which administrative decisions may be measured to ascertain if they are tenable. These constraints include:
. the decision-maker’s governing legislation, which may, for example, (i) set boundaries on the decision-maker’s powers (at para. 108), (ii) require or allow the decision-maker to draw on its unique expertise, which may be different from that of a court (at paras. 31, 93), (iii) contain definitions, principles or formulas that prescribe the exercise of discretion (at paras. 108-109) or (iv) be drafted in narrow or open-ended language (at para. 110);

. other statutory or common law, which may constrain the decision-maker, depending on context (at paras. 111-114);

. principles of statutory interpretation, which mean that the administrative decision-maker’s interpretation "“must be consistent with the text, context and purpose of the provision”" (at para. 120);

. the evidence before the decision-maker, but it is not for the reviewing court to re-weigh the evidence. Rather, it may intervene only where "“the decision-maker has fundamentally misapprehended or failed to account for the evidence before it”" (at para. 126);

. the parties’ submissions to the administrative decision-maker, which require the decision-maker to address key arguments made (at paras. 127-128);

. the decision-maker’s past practices and decisions, which the administrative decision-maker cannot depart from without adequate explanation (at paras. 129, 131); and

. the impact of the decision on the affected individual(s) (at paras. 133-135).
....

[67] While the finality of a decision to dismiss a complaint means that the decision has an important impact for the complainant, this factor, in and of itself, does not transform reasonableness review into correctness review. As was noted by Justice Mainville, writing for this Court in Keith v. Canada (Correctional Service), 2012 FCA 117, 431 N.R. 121:
47. The decision of the Commission to dismiss a complaint under paragraph 44(3)(b) of the Act is a final decision made at an early stage, but in such case — contrary to a decision refusing to deal with a complaint under section 41 — the decision is made with the benefit and in the light of an investigation pursuant to section 43. Such a decision should be reviewed on a reasonableness standard, but as was said in Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.) at paragraph 59, and recently reiterated in Halifax at paragraph 44, reasonableness is a single concept that “takes its colour” from the particular context. In this case, the nature of the Commission’s role and the place of the paragraph 44(3)(b) decision in the process contemplated by the Act are important aspects of that context, and must be taken into account in applying the reasonableness standard.

48. In my view, a reviewing court should defer to the Commission’s findings of fact resulting from the section 43 investigation, and to its findings of law falling within its mandate. Should these findings be found to be reasonable, a reviewing court should then consider whether the dismissal of the complaint at an early stage pursuant to paragraph 44(3)(b) of the Act was a reasonable conclusion to draw having regard to these findings and taking into account that the decision to dismiss is a final decision precluding further investigation or inquiry under the Act.

49. This formulation ensures that both the decision of the Commission and the process contemplated by the Act are treated with appropriate judicial deference having regard to the nature of a dismissal under paragraph 44(3)(b). The pre-Dunsmuir jurisprudence of this Court dealing with judicial review of Commission decisions dismissing complaints pursuant to paragraph 44(3)(b) of the Act supports such a formulation: Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3 F.C.R. 392 (F.C.A.).
. Speck v. OLRB

In Speck v. OLRB (Div Ct, 2021) the Divisional Court nicely sets out the post-Vavilov standard of review for judicial review, including exceptions from reasonableness:
STANDARD OF REVIEW

[23] The parties agree that the standard of review in respect of both the Board’s interim and its final decision dismissing the applicant’s s. 96 application for delay is the presumptive standard of reasonableness as discussed in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 23.

[24] The reasonableness standard assesses whether there is justification, transparency and intelligibility within the decision-making process and whether the decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law: Vavilov, paras. 99-100.

[25] The reasonableness standard can be rebutted where a different standard has been explicitly prescribed by statute, or where the Legislature has provided for a statutory appeal mechanism and where the judicial review falls into one of three categories: constitutional questions, general questions of law of central importance to the legal system as a whole, and questions regarding the jurisdictional boundaries between two or more administrative bodies: Vavilov, at paras. 17, 53 and 69.

[26] The applicant submits that the Board’s decision concerning his Charter argument involves a constitutional issue requiring the standard of correctness. The responding parties disagree and submit that the issue before the Board was not a constitutional one and accordingly the presumptive standard of reasonableness is not rebutted.

[27] Where the issue being determined is whether a statutory provision contravenes the Charter, the standard of review is correctness. Where, however, the Charter is invoked as an aid to interpretation, the standard of review is reasonableness: Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, at paras. 42, 57-58; Vavilov, at para. 57.

[28] There is no standard of review with respect to procedural fairness. Rather, the reviewing court must conduct an assessment of the particular situation having regard to the factors set out by the Supreme Court of Canada in Baker v. Canada, 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817.
. Williams Lake Indian Band v. Canada (Indian Affairs and Northern Development)

In Williams Lake Indian Band v. Canada (Indian Affairs and Northern Development) (Fed CA, 2021) the Federal Court of Appeal summarizes the new 'reasonableness' standard from the recent Vavilov case on judicial review:
[34] In its recent decision in Vavilov, the Supreme Court of Canada provided extensive guidance on how courts are to conduct a reasonableness assessment. Where the decision-maker provides reasons, the starting point is the decision of the administrative decision-maker; the requisite inquiry involves determining whether the reasoning process and result reached are reasonable as opposed to whether they are the ones the reviewing court would have adopted (at paras. 15, 81, 82-87, 99, 116). Moreover, reasonableness review requires that courts intervene only where necessary to safeguard the legality, rationality and fairness of the administrative decision-making process. The focus of the inquiry is thus on ensuring that the decision as a whole, when viewed in context, is transparent, intelligible and justified (at paras. 15, 85, 99, 116, 137).

[35] The Supreme Court further indicated that there are two types of flaws that may render a decision unreasonable: either a flaw of rationality in the reasoning process or instances where the decision is untenable in light of the factual and legal constraints that bear upon it (at para. 101). Most challenges, including the present one, centre on the second of these potential flaws.

[36] The Supreme Court provided a non-exhaustive list in Vavilov of factual and legal constraints against which administrative decisions may be measured to ascertain if they are tenable. These constraints include:
. the decision-maker’s governing legislation, which may set boundaries on the decision-maker’s powers (at para. 108), require or allow the decision-maker to draw on its unique expertise, which may be different from that of a court (at paras. 31, 93), contain definitions, principles or formulas that prescribe the exercise of discretion (at paras. 108-109) or be drafted in narrow or open-ended language (at para. 110);

. other statutory or common law, which may constrain the decision-maker, depending on context (at paras. 111-114);

. principles of statutory interpretation, which mean that the administrative decision-maker’s interpretation "“must be consistent with the text, context and purpose of the provision”" (at para. 120);

. the evidence before the decision-maker, but it is not for the reviewing court to re-weigh the evidence. Rather, it may intervene only where "“the decision maker has fundamentally misapprehended or failed to account for the evidence before it”" (at para. 126);

. the parties’ submissions to the administrative decision-maker, which require the decision-maker to address key arguments made (at paras. 127-128);

. the decision-maker’s past practices and decisions, which the administrative decision-maker cannot depart from without adequate explanation (at paras. 129, 131); and

. the impact of the decision on the affected individual(s) (at paras. 133-135).
. Elementary Teachers’ Federation of Ontario v. Bluewater District School Board

In Elementary Teachers’ Federation of Ontario v. Bluewater District School Board (Div Ct, 2021) the Divisional Court considers the meaning of 'reasonableness' as the standard of review for judicial review applications:
[51] The task of this court is to determine whether the arbitrator’s decision reveals a “line of analysis…that could reasonably lead the tribunal from the evidence before it to the conclusion at which is arrived”: Vavilov, para. 102. The decision no doubt does so. While ETFO’s interpretation is one possible interpretation, it is by no means the only possible interpretation.
. Canada (Attorney General) v. Burke,

In Canada (Attorney General) v. Burke, (Fed CA, 2021) the Federal Court of Appeal noted that principles of equity and common law may vary from each other between administrative and court-contexts (under Vavilov) and still remain 'reasonable' [the judicial review standard of review]:
[5] As the questions before the two adjudicators who ruled on the two different grievances submitted by the respondent were different, it was entirely reasonable for Adjudicator Olsen in the second case to have declined to follow the comments that the applicant sought to rely on. Moreover, as was recently noted by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 at paragraph 113, citing its earlier decision in Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616 (Nor-Man), "“… administrative decision makers will not necessarily be required to apply equitable and common law principles in the same manner as courts in order for their decisions to be reasonable”". Indeed, in Nor-Man, the Supreme Court upheld a labour arbitrator’s decision, who had applied the doctrine of promissory estoppel in a way the employer asserted was different from the way in which a court would apply the doctrine.
. National Grocers Co. Ltd. V. United Food and Commercial Workers Union, Local 1000A

In National Grocers Co. Ltd. V. United Food and Commercial Workers Union, Local 1000A (Div Ct, 2020) a panel of the Divisional Court set out their take on Vavilov's standard of review of 'reasonableness', for judicial review. Readers should note the court's recognition of the counter-intuitive reality that a reasonableness standard tolerates different interpretation of the same law in different cases [para 52]:
The Standard of Review

[43] The parties agree that the standard of review of the issues regarding the interpretation of O. Reg. 285/01 in this case is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. Issues of natural justice and procedural fairness are effectively assessed on a correctness basis.

[44] Reasonableness, although a single standard, must take account of context. The restatement of the standard of review in Vavilov, therefore, sets out additional principles, factors and considerations for the application of reasonableness review to the circumstances of a particular case. I will briefly outline some of those which have particular relevance to the circumstances of this case.

[45] In performing reasonableness review, the court must focus on justification and methodological consistency. Reasonableness review is concerned with both the decision-making process and with its outcomes. A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker: Vavilov, at para. 85.

[46] A reviewing court must begin its inquiry into the reasonableness of the decision by examining the reasons provided with respectful attention and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion: Vavilov, at para. 84. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility. It is not enough for a decision to be justifiable; the decision must also be justified by way of its reasoning process. Although a decision may have reached a not unreasonable outcome, it will nevertheless be unreasonable if arrived at the on the basis of an unreasonable chain of analysis: Vavilov, at para. 87.

[47] What is reasonable in a given context will always depend on the constraints imposed by the legal and factual context of the particular decision under review. These contextual constraints dictate the limits and contours of the space in which the decision maker may act and the types of solutions that it may adopt: Vavilov, at para. 90.

[48] The burden is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. Alleged flaws must be more than merely superficial or peripheral to the merits of the decision. The court must be satisfied that the flaws are sufficiently central or significant to render the decision unreasonable: Vavilov, at para. 100.

[49] Under the second component of the reasonableness test, the elements of the legal and factual context of the decision operate as constraints on the decision maker in the exercise of its delegated powers. These include the governing statutory scheme, other relevant statutory or common law, the principles of statutory interpretation, the evidence before the decision maker, 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: Vavilov, at paras. 105 and 106.

[50] The governing statutory scheme is generally the most salient aspect of the legal context relevant to a particular decision. While an administrative body may have considerable discretion in making a particular decision, that decision must ultimately comply with the rationale and purview of the statutory scheme under which it is adopted: Vavilov, at para. 108.

[51] Whatever form the interpretive exercise takes, the merits of an administrative decision maker’s interpretation of relevant statutory provisions must be consistent with the text, context and purpose of the provision. The usual principles of statutory interpretation apply equally when the decision maker interprets a provision: Vavilov, at para. 120. The 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 “reverse engineer” a desired outcome: Vavilov, at para. 121.

[52] The reviewing court does not conduct a de novo analysis to determine the “correct” interpretation of the disputed provision: Vavilov, at para. 116. The Supreme Court has acknowledged the legitimacy of multiple reasonable interpretations of statutory language, especially in cases where “the statutory language is less than crystal clear”: British Columbia (Securities Commission) v. McLean, 2013 SCC 67, [2013] 3 S.C.R. 895 at para. 37. In the course of reviewing a decision, however, it may become clear that the interplay of text, context and purpose leaves room only for a single reasonable interpretation which is at odds with the interpretation given by the decision maker, or that the decision maker’s interpretation falls outside a range of reasonable outcomes, based on the facts and the law: Vavilov, at para. 124.
. Nguyen (Re)

In Nguyen (Re) (Ont CA, 2020) the Court of Appeal interprets Vavilov on 'reasonableness':
[28] This court may allow an appeal against a disposition of the Board where the disposition is “unreasonable or cannot be supported by the evidence”: Criminal Code, s. 672.78(1)(a). A reasonable decision is one where the Board’s “reasoning process and the outcome” reflects “an internally coherent and rational chain of analysis…that is justified in relation to the facts and law”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 83, 85; Re Ahmadzai, 2020 ONCA 169, at paras. 12-13. A proper appreciation of the evidence is related to whether the resulting decision is reasonable, as “[t]he reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it”: Vavilov, at para. 126; Re Ahmadzai, at para. 23.
. Toronto Police Services Board v. Toronto Police Association et al.

In Toronto Police Services Board v. Toronto Police Association et al. (Div Ct, 2020) the Divisional Court summarized important points from Vavilov on a judicial review application:
[25] There is no dispute between the parties that the applicable standard of review is reasonableness.

[26] Pursuant to the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the guiding principles for deciding whether a decision is reasonable include the following:
a. Reasonableness is concerned with justification, transparency and intelligibility. A decision is unreasonable if it is internally incoherent or if it is untenable having regard to the relevant factual and legal constraints.

b. The party challenging the decision has the burden of showing that it is unreasonable. A court should not set aside a decision based on minor flaws or peripheral shortcomings. To justify a finding of unreasonableness, the flaws or shortcomings must be sufficiently central or significant to the merits of the decision.

c. The role of the court is to review the decision and not to decide the issue afresh. The focus of the reasonableness inquiry is therefore on the decision making process and the outcome.

d. It is not the role of a reviewing court to re-weigh the evidence and make factual findings. Absent exceptional circumstances, a reviewing court should not interfere with a tribunal’s factual findings.


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