Administrative Law Update- Canada v. Vavilov

December 19, 2019

The Supreme Court of Canada has a holiday gift for the legal profession, a just-released case describing somewhat new rules for judicial review. Oh boy, does it come with batteries or do I have to wind it up myself?

The Vavilov case itself was easy. Everyone agreed that the Registrar had been unreasonable in her decision to refuse citizenship to a Canadian-born child of a spy on the basis that a spy was "a diplomatic or consular officer, or employee in Canada of a foreign government". Although I do have to admit that the facts were kind of fun and in the holiday spirit, so thanks for that, Supremes.

The majority went on to make a few changes to the rules about judicial review from Dunsmuir (which had apparently caused some confusion):

1. the reasonableness standard continues to apply in most situations, with the expected exceptions for constitutional questions, questions of general legal importance, and questions about the boundaries of jurisdiction for two administrative bodies; in these situations, the correctness standard applies
2. the correctness standard also applies where the legislature expressly indicates and (more controversially) where there is a right of appeal from an administrative body decision, the standard of review is correctness for questions of law and palpable error for other questions; the court refused to impute a correctness standard to issues where there is persistent discord within an administrative body (presumably leaving it ultimately to the legislature to fix those situations in mnay cases)
3. in conducting a reasonableness review, a court ought first to start with the reasons and from there, (in para. 85 of the decision):
"Developing an understanding of the reasoning that led to the administrative decision enables a reviewing court to assess whether the decision as a whole is reasonable. As we will explain in greater detail below, a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires that a reviewing court defer to such a decision."

The minority of the court had an issue with the supposed lack of deference to the expertise of the administrative tribunal arising from the right of appeal rules. The concern seems overblown to me.

David Corbett, the then Chair of the Workplace Safety and Insurance Appeals Tribunal, and Michelle Alton argued for the WSIAT and four other Appeals Tribunals in other provinces who intervened in the appeal. It seems clear that it was perceived to have some importance for the Tribunal.

What does the decision mean for the Tribunal? The standard of review will remain the same. There is no statutory right of appeal, and so it will remain one of reasonableness unless there is a constitutional question or one of general legal importance or (perhaps) if there is a question touching on the boundaries of the Appeals Tribunal and (say) the Human Rights Tribunal. But perhaps, the described method for conducting a reasonableness review may lead more to question whether the standard has been met.

I would argue that the standard of review on a reconsideration ought to be less stringent than on a judicial review. The Tribunal can and does consider new evidence in a reconsideration in some circumstances. Equally well, a minimum for upholding a decision on a reconsideration ought to be an "internally coherent and rational chain of analysis that is justified in relation to the facts and law that constrain the Tribunal". Most Tribunal decisions, in my view, do meet this standard, but at times upon reconsideration the Tribunal has emphasized the importance of finality of its decisions over an internally coherent and rational chain of analysis. Judicial review applications are not in the interests of the parties because of cost and not in the interests of the Tribunal because of implications for its reputation. The reconsideration power is, in my view, the best way for the Tribunal to avoid the problem, and for most of us on the injured worker side of things, a successful reconsideration request is a much more palatable option than a long-drawn out legal battle.

Here's the link to the Vavilov decision: