Post-Vavilov Standards of Review in Canadian Courts

Marie is a Regulated Canadian Immigration consultant. IRCC recently refused one of her client’s applications. Consequently, Marie has encouraged her client to hire a lawyer and file for a Judicial Review. She believes the officer was incorrect in their decision. However, the lawyer explains to her that since the Vavilov decision, the standard of review in Canadian courts is Reasonableness rather than Correctness. Marie wonders what this means and how it could affect the Federal Court decision.

What is Deference?

Although this article focuses on the Standards of Review, I mention deference frequently. Therefore, it is a good idea to explore this concept first. However, remember that my focus is on the Canadian legal system.

In the legal and administrative review context, Deference refers to the principle that courts respect and defer to the decisions of administrative bodies or lower courts. This means that higher courts often avoid substituting their own judgment for that of the original decision-maker, especially when the latter has specialized expertise or understanding in a particular area.

The idea behind deference is to acknowledge and respect the autonomy and knowledge of specialized entities, ensuring that decisions are not overturned without substantial justification.

Defining the Standards of Review: Correctness, Reasonableness, and Patent Unreasonableness

Before delving into the intricacies of Vavilov and its implications, it’s essential to understand the foundational standards of review that have shaped Canadian administrative law.

• Correctness represents a non-deferential approach, demanding a single, definitive answer. Under this standard, courts undertake their analysis. Consequently, ensuring the decision aligns with the correct interpretation of the law or facts and substituting their judgment if necessary.
• Reasonableness, in contrast, embodies deference. Courts recognize that multiple acceptable outcomes might emerge from a given set of circumstances. The emphasis isn’t on whether the Court agrees with the decision but on whether it is justifiable, transparent, and intelligible within its legal and factual context.
• Historically, there was a third standard: Patent Unreasonableness. This was an even more deferential standard than reasonableness. This standard allowed the judge to overturn a decision only if glaringly erroneous. The Dunsmuir decision almost eliminated this standard, and the Vavilov ignored it completely.

Please note that the Standard of Review differs from the Standard of Proof. We use the latter to explore how an immigration officer reviews an application. The former is about the court’s oversight.

The Legacy of Vavilov: Setting the Context

The Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov marked a seminal shift in Canadian administrative law. It wasn’t merely a verdict on a particular case but a foundational reassessment of how courts should approach administrative decisions. Before this landmark ruling, the landscape was rife with ambiguity, often causing confusion among practitioners about the appropriate standard of review.

The intent behind Vavilov was to bring coherence and predictability to the field. By clearly articulating the default standard and the exceptions, the Supreme Court sought to simplify judicial review, making it more accessible and understandable for legal professionals and the public.

From Three Standards to Two: The Evolution of Judicial Review

The journey from three review standards to two signifies the Canadian courts’ evolving understanding of administrative decision-making. While correctness and reasonableness have remained constants, the third standard, patent unreasonableness, was deeply embedded in historical labour decisions. Its elimination in the 2008 Dunsmuir decision was a move towards simplification.

However, the post-Vavilov landscape has sharpened this focus even further. By emphasizing a binary system, the Court hoped to reduce ambiguities and provide a more transparent framework for practitioners to navigate the intricacies of judicial reviews.

Diving Deep: Understanding the Reasonableness Standard

At its core, the reasonableness standard embodies judicial deference. It acknowledges that administrative bodies, given their expertise, might arrive at decisions that courts wouldn’t necessarily reach independently. Yet, as long as these decisions are justifiable, transparent, and intelligible, they should be respected.

Reasonableness isn’t carte blanche. Courts ensure that decisions align with the legal and factual contexts. For instance, if an administrative body were to overlook a crucial statutory provision or give undue weight to an irrelevant factor, such a decision could be deemed unreasonable, even under this deferential standard.

When Courts Demand Correctness: Exceptions to the Rule

While Vavilov solidified reasonableness as the default standard, it carefully carved out scenarios where correctness remains relevant. These situations often revolve around broader legal implications or fundamental rights. For example, questions involving constitutional divisions of power, or those central to the legal system as a whole, demand precise and uniform answers. The following list briefly explores potential circumstances where correctness could be an appropriate standard of review.

• Constitutional Questions: Issues that involve the division of powers between federal and provincial governments or Charter issues.
• Questions of Central Importance to the Legal System: These questions have significance beyond the immediate case.
• Questions Regarding Jurisdictional Boundaries: When multiple administrative bodies may have authority over the same subject matter, the court uses the correctness standard to determine which body has jurisdiction.
• When Legislation Explicitly Specifies: Some statutes specifically indicate the standard of review to be applied, which may be correctness.
• When reviewing a Minister’s Decision, Decisions made by ministers are sometimes reviewed under a correctness standard, although this is less common after Vavilov.

One might recall cases where jurisdictional boundaries between administrative bodies were in question. In such instances, courts adopt the correctness standard to provide a definitive resolution, thereby limiting each body’s authority.

Comparing Pre and Post-Vavilov Landscapes

The pre-Vavilov landscape was often seen as a maze, where navigating the correct standard of review was a challenge, even for seasoned practitioners. With multiple standards and nuanced distinctions, predicting a court’s approach was sometimes a Herculean task.

However, post-Vavilov, the landscape resembled a well-marked path more than a labyrinth. With explicit defaults and delineated exceptions, practitioners were equipped with a more predictable, structured framework. This shift was not merely academic; it had profound implications for how cases were argued and decided.

Real-world Implications: Case Studies After Vavilov

The accurate measure of Vavilov’s impact lies in its application in subsequent cases. Consider Bell Canada v. Canada (Attorney General), where the Supreme Court’s application of the correctness standard redefined the CRTC’s jurisdiction over certain advertising matters. In contrast, other decisions post-Vavilov had showcased the Court’s deference, upholding administrative decisions under the reasonableness standard even when they seemed contentious.

These cases underline a fundamental tenet: while Vavilov provides the framework, its interpretation and application will continually evolve, shaped by each case’s unique facts and legal challenges.

Future Outlook: The Next Chapter in Canadian Administrative Law

Vavilov, while comprehensive, is not the end but rather a significant chapter in the ongoing evolution of Canadian administrative law. As new challenges emerge and the legal landscape shifts, how the principles of Vavilov are applied will be crucial.

For practitioners, staying abreast of this evolution is paramount. Engaging with new case law, participating in discussions, and understanding the nuanced applications of Vavilov’s principles will be essential in navigating the future of administrative law in Canada.

Hire Al Parsai for Speeches and Courses

If you want to hire me as a speaker, please complete the following form.