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Mar 4, 2020

Tribunals and courts: New era of judicial review

By Marco P. Falco
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Over the past decade, nothing has led to more spilled ink than the standard of review Canadian courts should apply when reviewing administrative decision making. Should the court show deference to the tribunal interpreting its governing statute? Does the case raise legal questions beyond the expertise of the decision maker, such that only courts should decide them? 

In 2008, the Supreme Court of Canada clarified the standard of judicial review in Dunsmuir v. New Brunswick 2008 sec 9. But Dunsmuir led to uncertainty with age. Canadian courts began applying reasonableness review routinely, treating it like a "rubber stamp." 

So it is no surprise that the Supreme Court of Canada took the opportunity to focus the standard of review landscape in two companion decisions in late 2019, Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 sec 65, and Bell Canada v. Canada (AG) 2019 sec 66 (collectively, Vavilov).

Vavilov resolves two primary concerns: 

  1. How does the court reach the standard of review by which the administrative decision will be analyzed?
  2. How is "reasonableness review" to be applied?

A principled presumption 

Vavilov marks the end of the "contextual approach" for determining the standard of review. 

It begins with the principle that reasonableness is the presumptive standard by which courts will scrutinize administrative decision-making. The presumption is that courts will defer to the tribunal's analysis, unless the decision proves to be unreasonable. 
This presumption applies not only to the decision maker's interpretation of its constituent act, but to other aspects of its decision. 

Reasonableness review shows adequate deference to the legislature's choice to confer the decision ­making function to an administrative decision maker, as opposed to the courts. 

Presumption of reasonableness can be rebutted 

The presumption of reasonableness of review can be rebutted. It can be displaced by other standards of review, including correctness or the standards of review applicable in other contexts. 

Vavilov identifies two general circumstances where courts may derogate from reasonableness review:

  • Where the legislature has indicated an intent to apply a less deferential standard of review; or
  • Where correctness review is required to protect the rule of law.

Legislative intent to derogate from reasonableness review 

The presumption of reasonableness review may be rebutted where the legislature has indicated that a different standard of review applies. This occurs where: 

  • There is clear statutory language in the governing act that codifies the applicable standard of review; or
  • The legislature has created a statutory appeal mechanism from the tribunal's decision to the courts.

In the latter circumstance, the court must now apply the ordinary appellate standards of review set out in the Supreme Court of Canada's 2002 decision Housen v. Nikolaisen 2002 sec 33 - namely, the deferential standard of "palpable and overriding error" applies to questions of fact and the less deferential appellate standard of "correctness" applies to questions of law, with questions of mixed fact and law lying across a spectrum. This is based on the notion that an appeal is an appeal. According to the court, the same standards of review governing an appeal in a commercial litigation dispute ought to be those applied on an appeal from an administrative tribunal. 

Correctness review required by rule of law 

The presumption of reasonableness review may also be displaced as required by the rule of law. This occurs where: 

  • Constitutional questions are at issue. The courts have the final say on how the supreme law of the land is to be interpreted;
  • The issues engage "general questions of law of central importance to the legal system as a whole." Correctness review is required to allow the courts to resolve legal issues that are of
    "fundamental importance and broad applicability"; and
  • There are questions regarding the jurisdictional boundaries between two or more administrative bodies. Courts are required to intervene and apply the correctness standard where one tribunal interprets the scope of its jurisdiction in a manner that is incongruous with the jurisdiction of another.

This is the first of a two-part series. 

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