04 Mar A Vavilov Primer: Changes to the Administrative Standard of Review
A Vavilov Primer: Changes to the Administrative Standard of Review
Administrative law – and the administrative standard of review – can have a major impact on environmental law, given how many environmental issues are settled by administrative decision-makers. As a notable example, the Federal Court of Appeal’s recent decision in Tsleil-Waututh Nation v Canada (AG), 2018 FCA 153—colloquially known as the first Transmountain decision—dealt with a judicial review of the National Energy Board’s recommendation that federal cabinet approve the pipeline expansion and cabinet’s decision to do so. So, administrative law is important to understanding the law and procedure behind many important environmental decisions.
Lately, administrative law has taken the centre stage in a particularly noticeable way, because after a little over a year of waiting, the Supreme Court has finally released its decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. This decision has been highly anticipated, given the Court’s promise that it would revisit the framework it set out for conducting judicial reviews in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]. In light of the importance of this decision, this post will be dedicated to discussing Vavilov and the changes it brings to the law of judicial review.
By way of a brief introduction to the facts of the case, Alexander Vavilov was born in Canada. His parents were Russian spies living under fake names while pretending to be Canadian citizens. Mr. Vavilov had no idea about his parents’ false identity until he was 16, when his parents were arrested in the United States for conspiring to act as unregistered agents of a foreign government.
After his parents’ arrest and eventual deportation, Mr. Vavilov tried to renew his Canadian passport. He was told that despite his Canadian birth certificate, he would need to obtain a certificate of Canadian citizenship. Mr. Vavilov obtained the certificate and again applied for a passport. However, instead of a passport, he received a letter from the Canadian Registrar of Citizenship retracting his certificate of citizenship and explaining that he was not a Canadian citizen. This decision was reached based on the Registrar’s interpretation of s 3(2)(a) of the Citizenship Act, RSC 1985, c C-29.
In response to the Registrar’s letter, Mr. Vavilov applied for judicial review. The Federal Court dismissed his application. However, that decision was overturned on appeal by the Federal Court of Appeal. The Supreme Court, in turn, upheld the Court of Appeal’s decision and, rather than remitting the decision to the Registrar, declared Mr. Vavilov to be a Canadian citizen.
From a legal perspective, the decision in Vavilov focuses on two major issues:
- How should the standard of review of an administrative decision be determined?
- How should a reasonableness review be conducted?
The majority was written by Wagner, CJ and Moldaver, Gascon, Côté, Brown, Rowe and Martin JJ. Abella and Karakatsanis JJ wrote concurring reasons. For the purposes of this discussion, I will focus on the majority’s decision.
The biggest change to the law to come out of Vavilov is how to choose the standard of review for an administrative decision. From now on, the standard of review analysis begins with a presumption that reasonableness is the applicable standard. This presumption may be rebutted, but only in two circumstances. The first is where the legislature has indicated that a different standard applies. This occurs where the legislature explicitly prescribes the standard of review. It also occurs where the legislature has provided for a statutory appeal, in which case the appellate standards set out in Housen v Nikolaisen,  2 SCR 235 now apply to the courts’ review of the decision (i.e. correctness to questions of law; palpable and overriding error to questions of fact and questions of mixed fact and law with no extricable legal question).
The second circumstance in which the presumption of reasonableness is rebutted is where the rule of law requires it. This includes: constitutional questions, general questions of law of central importance to the legal system as a whole, and questions related to the jurisdictional boundaries between two or more administrative bodies. Importantly, jurisdictional questions are no longer included in this list, since they are more effectively dealt with as questions of statutory interpretation subject to a reasonableness review.
Further, while it is possible there are other issues requiring a correctness review, these will be rare. To attract the correctness standard, an issue must rise to the same level of significance as the explicitly named circumstances. This means that the issue must either show the same level of legislative intent as an explicit designation of the standard of review or the same level of importance to the rule of law as, for example, a constitutional question. For clarity, a correctness standard is not required where there is persistent discord among the decisions of an administrative tribunal. Rather, the Court accepts this as a normal function of administrative decision-making.
With respect to the second issue—namely, how a reasonableness review should be conducted—Vavilov largely affirms the approach laid out in Dunsmuir and subsequent cases, while providing a greater level of guidance for how that approach should be carried out. As the majority explains, a reasonableness review should focus on the decision made by the administrative decision-maker and not the decision the Court would have made. Where the administrative decision-maker has provided reasons, that should be the starting point for the review; the Court should by no means begin by determining what its own decision would have been.
Further, for a decision to be reasonable, it must be based on an internally coherent and rational chain of analysis. It must also be justified with respect to the applicable facts and law. To achieve this, both the outcome and the reasoning behind a decision must be reasonable: a reasonable outcome cannot stand if it was reached based on faulty reasoning.
That said, a decision does not need to be perfect to be reasonable. In Vavilov, the Court reiterates that a reviewing court should be mindful of the fact that an administrative decision-maker may not use the same legal techniques that a court would use. Instead, the Court should be attentive to specialized knowledge used in making an administrative decision. The Court should also be attentive to the evidence and submissions that were before the decision-maker, as well as the history of the proceedings. However, the Court may not substitute its own reasons for the reasons of the administrative decision-maker or supplement the decision with reasons that were not given or implied by the context of the decision.
Moving forward, it will be interesting to see the impact that Vavilov has on how reviewing courts conduct a reasonableness review and whether, as some commentators have said, it will result in a higher level of scrutiny of administrative decisions. Either way, the framework laid out in Vavilov will almost certainly have an impact on future environmental decisions and the litigation that inevitably follows.
 See e.g. Shaun Fluker, “Vavilov on Standard of Review in Canadian Administrative Law” (6 February 2020), online: ABlawg https://ablawg.ca/2020/02/06/vavilov-on-standard-of-review-in-canadian-administrative-law/.
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