Why Judicial Review Matters

Judicial review is the process through which courts supervise administrative decision-making. The legislatures have endowed administrative bodies, such as human rights tribunals, labour boards, and labour arbitrators, with the ability to make decisions touching on complex social and economic issues of fundamental importance to Canadians. The function of judicial review is to ensure the legality, the reasonableness, and the fairness of the administrative process and its outcomes. The "standard of review" refers to the extent to which the courts should defer to an administrative decision-maker in reviewing its decision.

The Old Approach - Dunsmuir

The decision of Dunsmuir v. New Brunswick was the last time the Supreme Court attempted to articulate a simplified approach to the standard of review. In Dunsmuir, the Court merged three standards of review into two: reasonableness and correctness. Under the correctness standard, a reviewing court does not show deference to the decision-maker's reasoning process. Under the reasonableness standard, deference is shown to the decision-maker; the decision must fall within a range of acceptable outcomes, but it need not be "correct".

Under the Dunsmuir framework, there was a presumption of reasonableness applied to certain categories of questions. That presumption could be rebutted in favour of the correctness standard in certain specified instances. Where the standard of review had to be determined, Dunsmuir directed courts to apply a number of contextual factors developed in earlier jurisprudence.

The New Approach - Vavilov

In the Vavilov trilogy, the Court seized the opportunity to re-examine its approach to judicial review of administrative decisions. The Court appointed two amici curiae, invited submissions on the standard of review issue, and granted leave to 27 interveners.

1.New Framework for Standard of Review

The Supreme Court has fundamentally revised the framework for determining the applicable standard of review. The new framework starts with a presumption that reasonableness is the applicable standard whenever a court reviews an administrative decision. This presumption of reasonableness can be rebutted in favour of a standard of correctness in two types of situations:

1. Where the legislature has indicated that it intends a different standard to apply; including:

a. Where the legislature explicitly prescribes the applicable standard of review; or

b. Where the legislature has provided a statutory appeal mechanism from an administrative decision to a court, thereby signalling the application of appellate standards when a court reviews the decision.

2. Where the rule of law requires that the standard of correctness be applied. This will be the case for certain categories of legal questions, namely 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.

Under this new framework, the contextual factor analysis is no longer required.

2.New Guidance on Applying the Reasonableness Standard

Vavilov is also significant because the Court provides additional guidance on the proper application of the reasonableness standard. In particular, the majority describes two types of fundamental flaws that may make a decision unreasonable:

1. Where the decision is not based on internally coherent reasoning; and

2. Where the decision is not justified in light of the legal and factual constraints bearing on the decision.

With respect to the second "fundamental flaw", the Court discusses a number of relevant considerations, including the governing statutory scheme, other relevant statutory or common law, the principles of statutory interpretation, the evidence before the decision-maker, 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.

Justices Abella and Karakatsanis concurred in the result but broke with the majority regarding the standard of review. They describe the majority's reasons as a "eulogy" for deference. They criticize the majority for veering away from the established deferential standard and for departing from precedent. In their view, the presumption of deference will "yield all too easily to justifications for a correctness-oriented framework."

Significance of Vavilov

Vavilov purports to make the standard of review jurisprudence more certain, coherent and workable going forward. This simplified approach aims to limit the time and resources spent by the parties addressing the applicable standard of review, before getting to the merits of the review.

The Court has expanded the types of administrative decisions where the reasonableness standard applies, while limiting the types of decisions in which the correctness standard applies. This appears to suggest there will be more presumptive deference to administrative decision-makers, such as labour relations boards, human rights adjudicators, and labour arbitrators.

However, as a result of the majority's decision, and as identified by Justices Abella and Karakatsanis in their concurring reasons, hundreds of administrative decision-makers subject to different kinds of statutory rights of appeal will now be subject to an irrebuttable presumption of correctness review. The focus on statutory rights of appeal is a departure from the Court's previous jurisprudence, and it means that a significant number of administrative decisions previously reviewed on a reasonableness standard will now be subject to review for correctness.

Finally, where the standard of reasonableness applies, reviewing courts may actually become less deferential. The reasonableness review described by the majority calls for a "robust" evaluation of administration decisions, and includes comprehensive guidance with respect to the type of scrutiny that should be applied in evaluating a decision. This could, in effect, result in less deference being afforded to administrative decision-makers under the reasonableness standard.

It remains to be seen whether Vavilov will bring the clarity and coherence it purports to achieve.

Note: This a reprint of an article by Jackie VanDerMeulen and Rachel Devon of Fasken.