A tale of espionage allows the Supreme Court to further reform the standard of review analysis

Canada Publication December 2019

In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the Supreme Court ruled that the son of Russian spies who lived in Canada under false identities at the time of his birth was entitled to retain his Canadian citizenship. This matter stems from a decision that was handed down by an administrative body, the Canadian Registrar of Citizenship.

The Supreme Court saw this and another case involving an administrative decision rendered by the CRTC1 as the perfect opportunity to revise the entire analytical framework that applies to judicial reviews. This decision’s scope will reach far beyond immigration and broadcasting and will impact all areas subject to administrative law, including employment law and labour relations.

One of the first things that the Supreme Court does in Vavilov is bring a few clarifications to the analytical framework that was developed in the well-known case of Dunsmuir2regarding the application of standards of review in matters of judicial review.

The court clearly explains that the standard of review analysis must begin with the presumption that reasonableness is the applicable standard in all cases. This presumption, however, is set aside in two types of situations.

First, the presumption will be set aside where the legislature explicitly prescribes the applicable standard of review, usually in the administrative body’s enabling statute.

For example, this will be the case where the legislature has provided a mechanism, either as of right or with leave, to appeal to a court from an administrative decision. This means that if there is a right to appeal, it is the standards of review specific to appeals that will now apply. Previously, the Supreme Court had ruled that it was the judicial review standards that applied to an appeal from an administrative decision. The court has therefore done a complete about face and set aside its own case law on the subject. 

Second, the presumption will be set aside, and it will be the standard of correctness that applies to certain classes of well-defined questions, such as:

  1. constitutional questions;
  2. general questions of law of central importance to the legal system as a whole;3 and
  3. questions related to the jurisdictional boundaries between two or more administrative bodies. 

The class of truly jurisdictional questions is no longer subject to the standard of correctness. The Supreme Court has just abolished this class that had been recognized in Dunsmuir in what is yet another example of the Supreme Court overturning its own jurisprudence.

Under Dunsmuir, the presumption of reasonableness could be rebutted by resorting to a contextual inquiry.4 However, the Supreme Court clearly states that courts no longer need to engage in such contextual inquiries.

Finally, the Supreme Court gives specific instructions on how to apply the reasonableness standard. Without going over all of the court’s teachings, it would be expedient here to point out the following:

  • The analysis must focus on the reasons of the administrative decision, not just on its outcome;
  • The administrative decision maker’s expertise must be taken into account;
  • To be reasonable, a decision must be based on reasoning that is coherent, rational and logical;
  • The reasonableness of a decision will depend on the constraints imposed by the legal and factual context imposed on the decision maker, such as the governing statutory scheme, other statutory law, the principles of statutory interpretation, the evidence before the decision maker and the facts of which the latter may take notice, the submissions of the parties, the past practices and decisions of the administrative body and the potential impact of the decision on the individual;
  • The administrative decision maker must take the modern principle of statutory interpretation into account, which is to say that the words of a statute must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament;
  • It is possible that there is only a single reasonable interpretation of a statute;
  • A decision will be unreasonable if the decision maker fundamentally misapprehended or failed to account for the evidence;
  • Where a decision maker departs from established authority, it bears the burden of explaining that departure.

The Supreme Court has taken pains to clarify and simplify the standard of review analysis. We must now look to future case law to see whether this umpteenth reform will have achieved this highly commendable goal. 

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