Vavilov: A Comprehensive review in brief

17 January 2020

The last weeks of 2019 presented a new trilogy from the Supreme Court of Canada, which clarified the law on standard of review and provided guidance on the application of the reasonableness standard. The primary case is Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, which has a fact pattern straight from the popular television series The Americans. It is followed by Bell v. Canada, 2019 SCC 66 and Canada Post Corp. v. Canada Union of Postal Workers, 2019 SCC 67.

In Vavilov, a seven-member majority of the Supreme Court attempts to clear up complexities and uncertainty brought on by Dunsmuir. In particular, it holds that "Dunsmuir's promise of simplicity and predictability has not been fully realized".[1] Vavilov attempts to shed light on the true meaning of "reasonableness", sets out what is required from the decision-maker, and how the reviewing Courts should be applying the standard of review.

This article, from Gowling WLG administrative law group, provides a rough-and-ready summary of the Vavilov decision.

The Takeaways from Vavilov:

The majority in Vavilov makes a number of holdings that will govern administrative law moving forward. The decision provides something for everyone: lawyers, decision-makers, and reviewing courts. The goals of the majority in Vavilov are clear: to clarify the standard of review analysis and avoid costly academic debate in the courts, and to provide courts with practical guidance on how to apply the reasonableness standard.

The following are key takeaways from the 214-page decision:

  • No longer should the standard of review be debated by lawyers and justices - reasonableness is assumed. Start with the presumption that reasonableness applies.[2]
  • The presumption of reasonableness is rebutted in two sets of situations:
    • First, where the legislature expresses an intention that a different standard should apply. It can do so in two ways:
      • By expressly providing for a standard in legislation; or
      • By providing for an express statutory appeal mechanism, which signals the legislature's intention that courts should scrutinize the decision on an appellate basis, using the standards provided for in Housen.[3]
    • Second, where the rule of law requires correctness be applied. The Court provides three examples:
      • First, constitutional questions (including those concerning the division of powers, the scope of Aboriginal rights, and the Charter) which require a determinate answer from the courts;[4]
      • Second, general questions of law of central importance to the legal system as a whole (such as the scope of parliamentary privilege);[5] and
      • Third, questions regarding jurisdictional boundaries between two or more administrative bodies.[6]
  • As a note to advocates: reasons are not always required and a decision may be reviewed on the record.[7] Decision-makers are not expected to deploy the same reasoning tools as lawyers or judges - their expertise lies elsewhere.[8] Moreover, formalistic statutory interpretation will not always be required from decision-makers.
  • And as a note to decision-makers: "adopt a culture of justification" to demonstrate your entitlement to your body's delegated public powers.[9] It is integral that decision-makers are seen to be both rational and fair. [10] Although you are not bound by previous decisions, you "must be concerned with the general consistency of administrative decisions."[11]

The New Reasonableness Review

In extolling the virtues of the standard of reasonableness, the majority in Vavilov outlined reasonableness will depend on the factual and legal context. This is an adaptation of the previous test, built on a long line of cases, which encouraged the review of the expertise of the decision-maker, consideration of the home statute, and the like.

The Court is clear that Reasonableness review remains"methodologically distinct" from that of a correctness review. The requirement from decision-makers is that their decision is both logical and rational, and that it falls within the relevant factual and legal constraints

Reasons are not required for all administrative decisions; however, where they are provided, they remain the primary focus. The majority in Vavilov emphasizes that on reasonableness review is concerned both with the administrative decision maker's reasoning process and its outcome.[12] Importantly, it is through written reasons that the institutional experience of a decision-maker is demonstrated and how its specialized knowledge can be weighed. All decisions must be considered within the context that these decisions stem from delegated public power and must be "justified, intelligible and transparent".[13]

Vavilov sets out two, albeit abstract, categories of fundamental flaws that can render administrative decisions unreasonable. First, there are failures of rationality internal to the reasoning process, such as clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or absurd premises.[14] Second, a decision will be unreasonable where it fails to comply with the relevant factual or legal constraints, including those imposed by administrative body's governing statute, the common law and other statutes, the principles of statutory interpretation, the evidence before the decision-maker, the submissions of the parties, the body's past practices and decisions, and the impact of the decision on the affected individual.

Vavilov provides direction to judges on the applicable standard of review, to decision-makers on how to avoid the pitfalls which may lead to being overturned on review, and lastly to lawyers on how you may be able to challenge an unfavourable decision.

For more on the Vavilov decision and its companion cases, follow the Gowling WLG Administrative Law Group here.

[1] Para 7.

[2] Para 10.

[3] Para 36.

[4] Para 55

[5] Para 59-60.

[6] Para 63-64.

[7] Paras 93-96.

[8] Paras 91-94.

[9] Paras 3, 14. See also: para 307 and Dyzenhaus, David. "Dignity in Administrative Law: Judicial Deference in a Culture of Justification" (2012), 17 Rev. Const. Stud. 87.

[10] Paras 99-107.

[11] Para 129

[12] Para 87.

[13] Paras 94-96.

[14] Paras 101-104.

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