The Supreme Court of Canada recently released three much anticipated administrative law decisions. This week we will look at the first decision. Next week we will discuss the other two. All three decisions relate to the “standard of review” applied by courts when reviewing decisions of administrative decision makers. The standard of review is the level to which a court will scrutinize decisions of administrative bodies.
One purpose underlying administrative decision making is to allow justice to be brought “closer to the people”.
One problem, though, is that these decision makers often lack independence.
Another problem is that the decision makers may have no legal expertise.
They may routinely make problematic decisions or adopt processes that are unfair.
Given this, it is not surprising that these decisions are regularly challenged in court. The recent court cases change the framework that will be applied in judicial reviews.
The first decision in the trilogy, Canada (Minister of Citizenship and Immigration) v. Vavilov, was an immigration case. Mr. Vavilov was born in Canada in 1994 to two Russian spies. He was unaware of his parents’ secret identity. After his parents were arrested and returned to Russia, Mr. Vavilov applied to renew his Canadian passport. The Canadian registrar of citizenship cancelled his citizenship.
The issue before the Supreme Court of Canada was whether the registrar’s decision was valid. The court unanimously held that the decision was invalid because it was unreasonable. It found that the registrar had not properly considered lawmakers’ debates, previous court decisions, the text of the Citizenship Act, and international law.
In the course of making its decision, the court rewrote the analytical framework to be applied when deciding the standard of review. The starting point will be to assume “that the legislature intended the administrative decision maker to function with a minimum of judicial interference.” This assumption can be displaced in certain circumstances.
One such circumstance is when the rule of law requires the court to closely scrutinize the decision. This includes cases involving “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.”
In these cases, a “correctness” standard applies. A correctness standard means that the courts give little deference to the administrative decision maker. The court reviews the decision in its entirety. This is contrasted with the “reasonableness” standard, under which the court assesses whether the decision falls within a range of acceptable outcomes that reflect the facts and the law. A correctness standard generally results in greater judicial scrutiny of the decision.
As a result of the Vavilov decision, the expertise of the administrative decision maker will be less important than in the past.
The Court also identified two types of fundamental flaws that may lead to a decision being unreasonable.
“The first is a failure of rationality internal to the reasoning process.” “The second arises when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it.”
From time to time, lawyers who practice administrative law must explain to clients why an incorrect decision was left undisturbed by a court, because the court applied a “reasonableness” standard.
If this twists your mind, you are not alone. This is mental gymnastics at its best – or its worst, depending on your point of view.
“Reasonableness” standards can sometimes result in injustices being left undisturbed. While this certainly does not happen in anywhere close to all cases, when this happens, it may feel to individuals like navel gazing within the legal profession.
It is ironic that an area of law that is supposed to be accessible to the masses is saddled with this level of complexity. This is especially vexing for self-represented litigants who try to challenge administrative decisions in court.
This case is sure to be the subject of much discussion among lawyers, academics and others. It gives rise to many questions, including how it will be applied, and how it interacts with certain other Supreme Court of Canada decisions.
Despite the Court’s laudable attempt to clarify the law in this area, one thing remains clear. As long as a “reasonableness” standard continues to exist, the “standard of review” will remain a central question in administrative law.
This is a slightly modified version of an article that is appearing in the Kelowna Daily Courier, the Kelowna Capital News and other online publications on or about December 28, 2019. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or through our website at inspirelaw.ca.