What is undoubtedly an early holiday gift for administrative law practitioners, the Supreme Court of Canada has revealed a new framework for dealing with the standard of review in administrative law cases. The court has overruled previously standing precedence across the country in order to bring greater cohesion to this area of law by enshrining a reasonableness test applicable to all administrative decision makers, subject to certain exceptions. While this will undoubtedly achieve the stated objectives of providing clarity on the applicable standards of review and reducing the amount of time attempting to determine the standard of review in judicial proceedings, questions still remain about the on the ground applicability of the new regime.
The “trilogy” of cases consists of an appeal from a decision of the Minister of Citizenship and a joined appeal of the NFL and Bell Canada against the Canadian Radio-Television and Telecommunications Commission (CRTC). In Canada (Minister of Citizenship and Immigration) v. Vavilov, the court wrestled with whether or not elements of the Citizenship Act were intended to apply to the child of two Russian spies. In Bell Canada v. Canada (Attorney General), the court had to review the exercise of the CRTC’s powers pursuant to the Broadcasting Act, which resulted in the CRTC mandating that any carrier showing the Super Bowl was mandated to show the American, not Canadian, commercials.
The court used Vavilov to establish and clarify the new standard of review regime with its attendant exceptions, and then applied the new framework to the analysis in Bell Canada. In Vavilov, the court confirmed that Alexander Vavilov was indeed a citizen while in Bell Canada, the court allowed the appeal from the Federal Court of Appeal, finding that the CRTC’s interpretation of the Broadcasting Act did not give it the necessary jurisdiction and powers to make the previously made orders regarding Super Bowl programming.
The New Analysis
While the facts of the cases are interesting, the establishment of a new legal regime going forward is of significantly more importance to Canadian law. This regime applies only to “administrative decisions”, those being decisions not of judges, but of decision makers or tribunals that have been given their powers by the legislature. The new regime can be broken down as follows:
- The default is that a presumptive standard of review for any administrative decision is reasonableness in all instances.
- This reinforces judicial deference and dissuades judicial interference; and
- This deters long and complicated analyses about establishing the appropriate standard of review in individual cases.
- In the reasonableness analysis, the court does not ask what decision it would have made in place of the administrative decision maker. Instead, the court must focus on the decision maker's reasons for decision and consider only whether the decision, including the rationale and the outcome it led to, was unreasonable. Two common flaws that may render a decision unreasonable are:
- A failure to show internally coherent reasoning that is both rational and logical - this may result from a failure to consider certain elements of an analysis which cause there to be links in a chain of logic, or where an irrational or unsupported conclusion arises from the decision; and
- A fundamental flaw in the analysis that makes it untenable in light of the context in which it is made - this may result from a misunderstanding of the function of an act or regulatory scheme, improper consideration of the past practices and decisions of the administrative body, improper application of common law principles, and more.
- If the presumption of a reasonableness standard is rebutted, the correctness regime will apply.
- A correctness standard invites the court to undertake its own analysis in attempting to determine whether the administrative decision maker's interpretation of the law is correct.
- The court seemingly did not change the correctness analysis in either of these decisions.
- The presumption of reasonableness can be rebutted in two situations:
- In the case of clear statutory language intent – this may be shown through the specific wording of a statutory appeal mechanism from an administrative decision to a court; and
- Where the rule of law requires that the standard of correctness be applied (constitutional questions, general legal questions of central importance and questions related to jurisdictional boundaries between administrative bodies would likely fall into this category) – this is designed to provide for coherence and predictability.
The court did not necessarily change the types of remedies available upon judicial review, but provided further clarity on the rationale and factors that should be considered by judges when considering which remedy to offer. The standard remedy of remitting a decision back to a decision maker for review should not be slavishly adhered to. Rather, the courts must be guided by concerns for the proper administration of justice, access to justice concerns, and must keep an eye to cost-effective decision making.
Courts, when considering elements such as fairness to parties, the urgency of providing a resolution, and the sunk costs to the parties, may determine that it is more appropriate to not remit a matter back to the original decision maker, particularly when a particular outcome is seemingly inevitable. While the discretion to not remit did exist prior to the trilogy, it was more often than not carefully restricted to only those matters where only one correct answer could be arrived at. This new approach provides a gateway to the judiciary to consider the factual matrix before them and ensure that judicial and administrative resources are used as efficiently as possible.
The trilogy cases do provide a great deal of clarity, but were given in a 7-2 split decision. Justices Abella and Karakatsanis gave a strong dissent, suggesting that the majority’s decision might not provide as much cohesion to this area of law as might be hoped for.
The future will undoubtedly bring more fringe cases which will hopefully provide more clarity. One unanswered question is how the new analysis is to be applied to administrative decisions that do not have reasons. Another is whether the articulated flaws in reasoning that may render a decision unreasonable might allow for a correctness-like analysis in certain circumstances. The looming spectre of a strong dissenting opinion may also lead to litigation seeking to further test whether or not the new administrative regime is as fully formed and comprehensive as the majority has positioned it to be.
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