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Mar 11, 2020

Tribunals and courts: Defining reasonableness

By Marco P. Falco
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My first article in this series discussed the legal controversy over the standard of review that Canadian courts should apply when reviewing administrative decision making. This article will continue by posing the question: What does reasonableness review mean?

Assuming reasonableness review is the applicable standard, Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65 establishes that this standard of review is not a “rubber stamp” by the courts. Reasonableness “does not give administrative decision makers free reign in interpreting their enabling statutes, and therefore does not give them licence to enlarge their powers beyond what the legislature intended.”

Rather, reasonableness review attempts to strike a balance between the legislative choice to confer decision-making authority onto an administrative tribunal and the courts’ constitutional role as the gatekeeper of the rule of law.

The onus is on the party challenging the decision to prove it is unreasonable.

Thus, one of the key aspects of reasonableness review is an analysis of the reasons of the administrative decision maker. The written reasons of the tribunal are not be assessed on a standard of perfection. To the contrary, the decision will be analyzed in context.

Respectful attention to a decision maker’s expertise means that while the decision may at first glance appear “puzzling or counterintuitive” to the court, it may very well represent a reasonable approach given the administrative scheme in which the decision was made. The decision maker’s reasons should be read “in light of the history and context of proceedings in which they were rendered.”

Vavilov further establishes that a reasonable decision is one:

  • Based on internally coherent reasoning; and
  • Justified in light of the legal and factual constraints that bear on the decision.

In deciding whether a decision is reasonable, courts must have regard for a range of factors, including the statutory scheme, other relevant statutory or common law, the principles of statutory interpretation, the evidence before the decision maker and facts of which the decision maker 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 to whom it applies.

Appropriate remedy for an unreasonable decision

Where a decision is unreasonable, Vavilov establishes that “it will most often be appropriate to remit the matter to the decision maker” to have the decision reconsidered in light of the court’s reasons. The court, however, should in limited circumstances decline to remit the matter back to the tribunal.

This occurs where it is obvious to the court that a particular outcome is inevitable and remitting the matter back would serve no useful purpose.

In exercising this discretion, the court considers the following factors: delay, fairness to the parties, the urgency of providing a resolution to the dispute, the nature of the particular statutory regime, whether the decision maker had a genuine opportunity to weigh in on the issue, costs to the parties and the efficient use of public resources.

Dawning of new age of judicial review

Vavilov represents a significant and ambitious undertaking. The primary achievements of Vavilov appear to be:

  1. The establishment of reasonableness as the presumptive standard of review;
  2. The principle that reasonableness review is not a “rubber stamp” by the courts;
  3. The application of ordinary appellate standards of review where there is a statutory right of appeal from the administrative decision; and
  4. A principled approach to deciding when courts should remit an unreasonable decision back to the administrative decision maker for reconsideration.

Broadly speaking, the import of Vavilov has yet to be determined. But its primary theme is clear: the standard of review is not simply a grammar used by courts to arrive at a preordained conclusion, but an earnest method for applying judicial scrutiny to administrative decisions.

This is the second of a two-part series. Read part one: Tribunals and courts: New era of judicial review.

This article was originally published by The Lawyer’s Daily, part of LexisNexis Canada Inc.