SCC re-rewrites the standard of review

The Supreme Court has revamped administrative law, setting out a new framework for judicial review of administrative decisions, and providing much-needed guidance on its application. 

What you need to know

• Statutory appeals. The Court reversed decades of precedent and held that, where a legislature has created a statutory appeal from an administrative decision, questions of law will be reviewed on a correctness standard, and questions of fact or mixed fact and law will be reviewed for palpable and overriding error.
• Presumption of reasonableness review. In applications for judicial review of administrative decisions, courts must presumptively apply the reasonableness standard of review. This new rule replaces the old contextual approach to determining the standard of review.

• Other exceptions to reasonableness review. The Court largely maintained the other instances where correctness review would apply, such as constitutional questions, questions of law of central importance to the legal system; and when addressing questions regarding the jurisdictional boundaries between two or more administrative bodies.

• Reasonableness review defined. The Court also provided important guidance on how to conduct reasonableness review. Reasonableness review is concerned with both the decision-making process and its outcomes. To be reasonable, the court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic. A decision must also be justified in light of the legal and factual context, including, most importantly, the governing statutory scheme.
• Fewer disputes about the standard of review and more about the application. While the Court has simplified the process for determining the standard of review, it has provided a more robust — and arguably more interventionist — approach to reasonableness. Going forward, disputes under the new framework will likely be about whether the decision is reasonable, not whether reasonableness applies.

Background

Every decade for the past 40 years, the Supreme Court of Canada has revisited the question on what standard to use when reviewing administrative decision-makers’ interpretations of their constituting statutes. In Dunsmuir (2008), the Court settled on two standards of review: "correctness," in which the Court conducts the analysis afresh, and "reasonableness" which asks whether "the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law." While simple in theory, the Dunsmuir framework did not live up to its "promise of simplicity and predictability."

Ten years later, the Supreme Court granted leave to a series of administrative law cases indicating that it would be reconsidering this issue. The background of the cases are as follows:

• In Vavilov (2019 SCC 65), the lead decision, a child’s citizenship was at stake. Alexander Vavilov was born in Canada, but his citizenship was revoked when his parents were discovered to be Russian spies. The Registrar held that Vavilov was not a Canadian citizen under the Citizenship Act. The decision was upheld on judicial review to the Federal Court (applying the correctness standard) but quashed by the Federal Court of Appeal (applying a reasonableness standard).
• In Bell Canada/National Football League (NFL) (2019 SCC 66), the Court reviewed a decision of the Canadian Radio-television and Telecommunications Commission. Canadian broadcasters simultaneously substitute their feed, featuring Canadian commercials, for US feeds, featuring US commercials. Acting under its power to make an order regarding "programming services," the CRTC issued an order prohibiting this substitution for the Super Bowl. Bell Canada and the NFL appealed the decision to the Federal Court of Appeal, arguing that the CRTC lacked the authority to make this order. Adopting a reasonableness standard, the Court dismissed the appeal; in its view, the CRTC was entitled to deference in its interpretation of its home statute.  

Decision

In the lead decision, Vavilov, the court set out a two-stage approach to judicial review. First, a reviewing court must determine the standard of review. The Court held that reasonableness is the presumptive standard for all decisions. However, the Court also recognized important exceptions to that presumption:

• Exceptions based on legislative intent. Where the legislature prescribes a standard of review (as is done in British Columbia), the court must apply that standard. Similarly, where the legislature provides a statutory right of appeal, the court must apply the appellate standards of review (meaning, correctness review on questions of law). This was an important change in the law. Statutory appeal rights are common. This change has the potential to affect appeals from hundreds of administrative decision-makers.
• Exceptions based on the nature of the question. The Court held that, in some circumstances, the rule of law requires courts to review using a correctness standard. The correctness standard will apply to (1) constitutional questions, (2) general questions of law of central importance to the legal system as a whole, and (3) questions regarding the jurisdictional boundaries between two or more administrative bodies. The Court cautioned that any further exceptions should be "exceptional."

The Court also provided welcome clarity on two issues. First, the Court abolished "jurisdictional questions" as a separate category. Second, while "expertise remains a relevant consideration," it is no longer part of the framework.

The Court provided very comprehensive guidance on how to conduct reasonableness review. It rejected the idea of a court conducting its own analysis and determining the range of reasonable outcomes. Instead, it held that the starting point for reasonableness review is the reasons provided by the decision-maker. The analysis looks at whether the decision is justified on two levels: (i) whether it is "based on an internally coherent and rational chain of analysis" and (ii) whether it is "is justified in relation to the facts and law that constrain the decision maker." The Court provides a detailed discussion of potentially relevant factual and legal considerations and explained how to analyze them. For example, while an administrative decision-maker need not undertake a formal construction exercise, they must interpret statutes consistently with the modern principles of statutory interpretation.

In Vavilov, the Court applied the reasonableness standard (there was no exception to rebut the presumption). It held that the Registrar’s failure to justify her decision with respect to legislation as a whole, the jurisprudence cited by the Registrar’s analyst, the principles of international law, and the potential consequences of the decision on Mr. Vavilov, rendered her decision unreasonable. The Court quashed the decision and restored Mr. Vavilov’s citizenship.

In Bell/NFL, the Court applied the correctness standard because the judicial review was taken under a statutory appeal mechanism in the Broadcasting Act. The Court undertook its own analysis of the CRTC’s authority in relation to “programming services” and held that it did not include the power to add a condition on a television service provider’s carriage of a specific program. As a result, the Court quashed the CRTC’s order.

Considerations

Vavilov and the Court’s framework for reasonableness review will be the source of discussion and debate for years to come. While the Court has simplified the standard of review and provided robust guidance about how to conduct reasonableness review, correctness review for statutory appeals will have a significant impact. The Court has also introduced more ways in which a decision can be found to be unreasonable. Indeed, in dissent, Justices Abella and Karakatsanis characterized the majority’s reasons as "a eulogy for deference."

So far, that has not been the case. In Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, released today, the Court applied the new framework in the context of a decision made by the Occupational Health and Safety Tribunal Canada, affording deference to the administrative tribunal on a reasonableness standard. The majority (with Justices Abella and Martin dissenting) overturned the Federal Court of Appeal’s decision and restored the Tribunal’s decision holding that Canada Post’s work place inspection obligation applied only to the parts of the work place over which it had control. It therefore did not apply to letter carrier routes. Torys was counsel for Canada Post in that appeal.