Reviewing the standard

It is perhaps typical of Canada that one of the most contentious issues facing our Supreme Court is trying to come to a determination on the standard of review in administrative law matters. At the Canadian Bar Association’s administrative law and labour and employment law conference in Ottawa on November 8th, a panel of jurists offered their thoughts on the highly anticipated trilogy of SCC rulings that will hopefully clarify the standard. They also shared their thoughts on what the landscape may look like afterward.

In December of 2018, the top court heard three matters: Bell Canada, et al. v. Attorney General of Canada, National Football League, et al. v. Attorney General of Canada, and Minister of Citizenship and Immigration v. Alexander Vavilov. They were seen as an opportunity to refine the jurisprudence on the standard of review on administrative action that came out of Dunsmuir v. New Brunswick, decided in 2009. The SCC has until March 2020 to deliver its judgments before former Justice Clement Gascon’s ability to contribute to writing the decisions expires.

 “It was as close as you can get to a judicial commission of inquiry into the standard of review,” said Audrey Boctor, partner with IMK LLP in Montreal, who was appointed by the SCC as amicus curiae for the hearings on the trilogy of cases. “There are great expectations as to what may or may not come out of it.”

Boctor says that the three cases raise the plethora of issues that are currently plaguing administrative law – whether true questions of jurisdiction exist, whether the contextual approach in establishing procedural fairness is still valid, or whether that has been overtaken by the standard of reasonableness, with limited exceptions about correctness. Also, do appeal clauses matter? Is there is a single standard of reasonableness? And how should a reasonableness review be conducted?

“We’re hoping for some clarity,” said Boctor. “We’re hoping for a world where decisions are not 5:4 one way one week, and 5:4 the other way the next week.”

We might want to keep our fingers crossed. Boctor says she observed fundamental disagreement between the judges on the SCC on the proper role of courts and the position of administrative tribunals within that structure.

Victoria Jones, of de Villars Jones LLP in Edmonton, said that one of her hopes for the trilogy is for the court to provide a guide map for how to conduct a reasonableness review. But she also acknowledges that the court is divided, citing that Justice Rosalie Abella has stated that she believes reasonableness is the only standard needed.

“I hope that we can make this easier,” said Jones. “There can be different answers to the same question across provinces – that can’t be right in the sense that we need to have some certainty. There isn’t certainty in administrative law in a way that makes advising our clients easy or helpful.”

According to Jones, there needs better training for provincial superior court judges as to reasonableness. That’s because much of the jurisprudence comes from the Federal Court and Federal Court of Appeal.

William Shores, a partner with Shores Jardine LLP in Edmonton, noted that administrative law is fundamentally about the constitutional ability of legislatures to assign roles to agencies that are not the court. The correctness standard undermines that framework, he said.

“Reasonableness is a flexible standard that reflects the role of the administrative tribunals, and whether it’s by way of institutional design, or by way of expertise, it is essential to the functioning of the administrative law system that we have,” he said.

Shores added that it would have been great if one of the trilogy cases dealt with delegated legislation to demonstrate how the standard of review should apply.

Justice David Stratas of the Federal Court of Appeal, who wrote the majority decision in Vavilov, was also on the panel. Whatever the result – likely a compromise decision, possibly with some gaps or inconsistencies – the battlefield is likely to shift in its aftermath, he said. And the SCC will not grant leave to most cases involving the standard of review going forward.

“This idea that it’s all about the Supreme Court is heresy – it’s wrong,” said Stratas. “I think the battlefields are going to be the courts of appeal across this country, and there is a resolve in the courts of appeal to try to simplify the area, to make it practical, and more importantly, to make it accord with fundamental principles.”

The SCC has given courts of appeal room to tweak their decisions, Stratas said.

“Regardless of what the Supreme Court does, courts of appeal are going to be ready there with their own notions of what’s important, and we’ll try to clarify matters,” said Stratas. “I invite you as counsel to adopt a different view of the doctrine of precedent, to look to courts of appeal as problem solvers, to clean up whatever issues remain after the Supreme Court decides this case.”