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Presumption of reasonableness

The Supreme Court clarifies the standard of review.

Supreme Court of Canada at night in winter

The children of Russian spies are indeed Canadian citizens. The CRTC’s decision to allow American Super Bowl ads was unreasonable. And there’s a new framework for standard of review in administrative law decisions: there’s a presumption that reasonableness is the applicable standard in all cases. The Supreme Court of Canada has handed down its decisions in Bell Canada, et al. v. Attorney General of CanadaNational Football League, et al. v. Attorney General of Canada, and Minister of Citizenship and Immigration v. Alexander Vavilov.


The hope has been that the trilogy would refine the jurisprudence on the standard of review on administrative action that came out of the top court’s 2008 ruling in Dunsmuir v. New Brunswick. What emerges is a call on courts to be more deferential to the institutional design of administrative bodies, while also calling on those administrative bodies to have a culture of justification.


“The CBA welcomes the decision, and appreciates the Court having taken the time to weigh in and address the serious issues that the CBA and its administrative law section had with respect to the standard of review, and to provide guidance,” Christopher Wirth, partner with Keel Cottrelle LLP in Toronto.


Wirth, also the president of the CBA’s Administrative Law section, says that clarity around the standard of review helps practitioners and clients.


“In advising clients on the merits of a judicial review or appeal, you’ll be able to give a stronger opinion on the client as to what standard of review the court is likely to apply,” he says. “It’s going to be helpful for lawyers in preparing arguments because if there is more clarity as a result of this decision when it comes to standard of review, you’re not going to need to spend as much time on your materials and in your arguments to address that.”


“The court has started off on a better note with more expansive and coherent reasoning and guidance for lower courts than was the case in Dunsmuir in 2008,” says Pam Hrick, associate with Stockwoods LLP Barristers in Toronto, and secretary of the CBA’s Administrative Law section. “You could see in the reasons they were really grappling with the doctrine and principles underpinning judicial review, and they are setting out a framework that tries to tie the court’s guidance to those principles.”


According to Andrew Bernstein, a partner with Torys LLP in Toronto, the determination that statutory appeals will be decided under appellate rules as opposed to the judicial review rule made a significant impact on the Bell and NFL cases. In those matters, the Federal Court of Appeal had applied a reasonableness approach because that was what the SCC had previously said that they should do.


But the new guidance dictated otherwise. “That’s a significant change and will have a major impact on the way that statutory appeals are dealt with by the courts,” says Bernstein, adding that reasonableness reviews have changed significantly.


“A court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision-maker, attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision-maker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the problem,” the majority wrote in their Vavilov ruling.


Instead, the court held that the two main fundamental flaws that make decisions unreasonable are that there is a “failure of rationality internal to the reasoning process,” and that a “decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it.”


Jonathan Coady, a partner with Stewart McKelvey in Charlottetown, wrote the CBA’s intervenor factum to the SCC for the trilogy. He says that the CBA’s overriding objective of clarity in the standard of review was achieved. But there will likely be some concern that deference or respect has evaporated for decision-makers that have a statutory appeal mechanism to the court.


“The court has helpfully ended our pursuit of true questions of jurisdiction,” says Coady. “Over the past decade, that pursuit has not been helpful to the analysis, and we now know that that pursuit has ended.”


As well, the court has identified the starting point for a review – the reasons that have been delivered by the administrative decision-maker. This has reinforced deference and clarified where lawyers and reviewing courts should begin their analyses.


For Hrick, the call for a culture of justification is a reminder that it is the public who uses these administrative tribunals, who come to the courts seeking relief.


“It was a nod to these particular administrative decision-makers, that they have a particular responsibility in light of their role in serving the public to ensure that their decisions are justified and that they contribute to a culture of justification – that they can’t count on courts to shore-up decisions that haven’t adequately grappled with the issues that are before them,” says Hrick.


That doesn’t mean that every decision will require reasons, says Bernstein. But when reasons are provided, they must explain why the decision was taken, not just what the decision was.


“What is missing from the decision is a requirement for decision-makers to deliver reasons,” says Coady. “The court was not willing to go that far, but to their credit, they did helpfully identify […] the starting point for those decisions, which are the record that was before the tribunal, past decisions of the tribunal, and the enabling statute of the tribunal.”


Even in the absence of reasons, there is new clarity on where to look for the markers of reasonableness, which may make it easier for case law to develop, Coady adds.


“It’s an excellent decision – it’s one of the highest quality admin laws decisions we’ve seen in a long time from the Supreme Court,” says Bernstein. “They have done exactly what the bar and presumably the lower courts would do, which is set out some clear guidance.”


“I’m not sure that there is a more comprehensive explanation about how to do a reasonableness review anywhere in the Commonwealth,” says Bernstein. “This may not only be a precedent for Canada, but other Commonwealth jurisdictions.”


There is particular attention paid in the decision toward remedial discretion and the role it plays in access to justice, says Hrick. While the usual remedy in a finding of unreasonableness is to send the matter back to the administrative decision-maker for redetermination, the court in Vavilov articulated some factors that should be considered by a court when deciding what to do with an unreasonable decision – sending it back or deciding the matter itself. It is trying to “draw the attention back on those who are impacted in these proceedings,” she says. She still concedes that the approach to reviewing procedural fairness and natural justice questions and how much deference is owed to administrative decision-makers was not resolved in the decision.


Paul Daly, an administrative law professor at the University of Ottawa, says that the significant degree of consensus between the judges who generally see the world very differently is an impressive achievement.


“The majority decision is also commendably thorough,” says Daly, adding that the dissenting reasons from justices Rosalie Abella and Andromache Karakatsanis were compelling.


“They note, correctly, that the change to the framework for selecting the standard of review is a significant change from previous jurisprudence, and it does potentially open the door to more intrusive judicial review of administrative decisions on questions of law,” says Daly. “They land some punches there.”


Additionally, Daly says that they point to a risk that the majority’s articulation of the methodology of a reasonableness review risks becoming a box-ticking exercise.


Wirth also highlights the concerns in the dissent that there will be a higher standard of review to several tribunal decisions for which there is a statutory appeal than is being applied to them currently.


“They have some concerns that it is a step backwards,” says Wirth. “That remains to be seen.”