Issue #20: November 28, 2021

Vavilov in statutory interpretation, patent decision-making, and reasons

English v Richmond (City), 2021 BCCA 442 (November 24, 2021)

Context/Facts: This is an appeal by the City of Richmond from an order requiring it to issue a building permit for a cannabis greenhouse on land within the provincially regulated Agricultural Land Reserve. The initial decision to deny the permit was made under regulations under the Agricultural Land Commission Act (B.C.) which have the effect of restricting a local government’s authority to prohibit cannabis production within the Reserve. The initial decision to deny the permit made by the city’s Director of Building Approvals and building inspector was appealed by the property owner. Upon judicial review, the judge found the initial decision to be unreasonable. As a result, the judge ordered Richmond to issue the permit. The City of Richmond is now challenging the judge’s use of extrinsic evidence, his finding that the decision was unreasonable, and the order to issue the permit.  

Issue: Among many other issues, the main issue that concerns the principles of the Vavilov standard of review is whether the judge erred in admitting extrinsic evidence when determining if the decision by the City of Richmond’s Director of Building Approvals and building inspector was unreasonable.

Holding: The permit application should be remitted to Richmond for further consideration. Furthermore, the judge did not err in admitting the extrinsic evidence or in finding the inspector’s interpretation unreasonable. Admitting such evidence “does not offend the ‘limited supervisory jurisdiction of the court’” [88].

Analysis: This is a long case that repays careful reading, but there were two issues of note: (1) The strength of Vavilov’s reasonableness standard on legal questions; (2) the admissibility of extrinsic material to assist in interpretation.

One of the original questions that arose post-Vavilov was whether it would be “stronger” than Dunsmuir reasonableness. This is a tough question to answer because Vavilov is contextual: this means that whether the reasonableness barrier will erect a higher bar for decision-makers to clear will depend on the application of Vavilov’s legal and factual constraints [59].

On legal questions, this case suggests that Vavilov’s reasonableness standard is not an easy one to clear. Endorsing recent guidance from Stratas JA in the Federal Court of Appeal (see Canada (Citizenship and Immigration) v Mason, 2021 FCA 156; Entertainment Software Association v SOCAN, 2020 FCA 100, leave to appeal granted) and other cases, the Court concludes that Vavilov has set a slightly higher bar for administrative decision-makers [73]. And so in this case, the "interplay” between various elements of the text, context, and purpose left only one reasonable answer for the decision-maker to adopt. Interestingly, the application of the regulation in this case was not the decision-maker’s home statute, and the Court made note of this, concluding that he did not bring specialized expertise to the decision [122]. It was not enough that the “wording” of the regulation alone supported the administrative interpretation: “Vavilov’s reasonableness analysis is more rigorous than that” [68], and should include a broader determination of whether the conclusion is consistent with the modern approach.

This all seems right to me. On legal questions, Vavilov’s injunction that decisions must not only be justified but justifiable means that how a decision-maker reasons in relation to fundamental statutory constraints takes on greater importance than it did pre-Vavilov. What is perhaps surprising is that this case involved a municipal decision-maker; however, since the decision was the grant of a licence subject to legal requirements (as opposed to a polycentric bylaw), there was more room for the court to intervene.

On the question of admissibility, the court below admitted a number of documents not before the decision-maker, designed to “understand legislative purpose” [78]. In theory, this presents a problem because it is only the information that formed the “record” before the decision-maker that should be admissible on judicial review. The Court agreed that these documents should be admitted because “[i]t is well-settled under the modern approach to statutory interpretation that extrinsic aids have a role to pay in statutory analysis” [81]. Holding otherwise would “deprive the reviewing court of the fullness of the decision’s legal or factual context, including potential constraints that heavily condition the decision-maker’s exercise of authority” [83]. And the Court raises an important practical concern (one I addressed in an article last year in the UBC L Rev): such a prohibition “might also incentivize administrative officials to limit their interpretive consultation…and to keep their records small, so as to immunize themselves from meaningful review” [83, see also Tsleil-Waututh Nation v Canada (Attorney General), 2017 FCA 128 at para 70 et seq).

So far as this goes, this is fine: so long as courts remember the important reasons governing a general prohibition against bootstrapping: see Tsleil-Waututh, at paras 85, 87. The prohibition is designed to reinforce the legislative burden granted to administrative decision-makers to themselves make decisions on the merits. Routine and regular admission of “interpretive aids” could dilute the role of courts to themselves determine whether the decision is reasonable. It is important to remember that this is an exception to the general prohibition, and documents admitted under this exception should otherwise meet the tests for admissibility [88; see also Assoc of Universities and Colleges of Canada v Access Copyright, 2012 FCA 22).

Merck Canada Inc v Canada (Health), 2021 FCA 224 (November 22, 2021)

Context: This is an appeal from a decision of the Federal Court dismissing Merck’s application for judicial review. The Minister of Health refused to list a patent on the patent register after statutory deadlines had passed.

Issue: Is the decision reasonable?

Holding: The Court upheld the Federal Court’s decision dismissing Merck’s application.

Analysis: There are a number of interesting issues in this decision, some of which nuance the conclusions that can be drawn from English, above.

  1. On the standard of review, an important reminder post-Northern Regional Health Authority v Horrocks, 2021 SCC 42: in the Federal Courts, while the FCA will essentially re-do the Federal Court’s judicial review work, an applicant has a “strong tactical burden” to show why the FC’s reasons are flawed [2]. So Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 survives, but in a different form.

  2. The problem in this case was the Minister’s interpretation of regulations that governed time-limits, despite Merck’s patent agent’s mistake in failing to notify Merck of the patent issuance [7]. Merck relied on the fact that COVID intervened. The Court, however, rejected this justification: “One should always be cautious when presented with so-called ‘exceptional circumstances’ to interpret legislative provisions in a manner that would apply in all of the circumstances where the provisions apply” [10]. This, of course, dovetails with admonitions to avoid “reverse-engineering” outcomes (see Vavilov, at para 121).

  3. Merck challenged the reasoning of the Minister, arguing that “the decision is nothing more than a series of statements,” without any analysis [13]. The Court does not accept this argument. While Vavilovian reasonableness review on legal questions will be rigorous, this does not translate to a requirement that a decision-maker “is not required to embark on an analysis that would cover any possible line of reasoning” [22]. Long, involved reasons do not necessarily bulletproof a decision. What is important is whether the reasons demonstrate engagement and analysis with the relevant submissions and other constraints [24]. And of course, as the next case will show, the decision-making context in which a decision is made (bylaws, visa decisions, licences, etc) will tell a story about how Vavilov’s reasonableness standard should apply.

Iriekpen v Canada (Citizenship and Immigration), 2021 FC 1276 (November 22, 2021)

Context/Facts: Ms. Iriekpen (the applicant) is a citizen of Nigeria who was accepted into Sheridan College’s Social Service Worker Program in August 2018. Her application for a study permit was denied on the basis that she had not complied with her obligations under s 16 of the Immigration and Refugee Protection Act to produce “all relevant evidence and documents that the officer reasonably requires” and therefore had not been truthful in her application. Specifically, the initial officer reviewing her application had concerns regarding the legitimacy of bank statements provided as part of the application. The officer issued a procedural fairness letter asking the applicant to provide MyBank statements at the exclusion of all other documents. In response to this letter, the applicant provided further copies of bank statements and affidavits regarding their legitimacy. A second officer who made the final determination stated that because MyBank statements were not provided, the application must be denied, despite the fact that they saw no issue of credibility and did not understand why the initial request for the MyBank statements was made. The applicant has now filed for judicial review of this decision.

Issue: Was this decision by the visa officer to deny the applicant a study permit unreasonable?

Holding: The application for judicial review is allowed, and the Ms. Iriekpen’s application for a study permit must be returned for redetermination by a different officer.

Analysis: This decision is a good example of how Vavilov is working in so-called “high volume,” front-line decision-making [7]. In this realm, I sense a trend: despite the general tendency to give such decision-makers a margin of appreciation, Vavilov has given applicants in these settings new tools.

The Court here makes this clear. It recognizes that, in these visa situations, “…the requirements of fairness, and the need to give reasons, are typically minimal” [7]. Reasons can be brief [8]. But as noted in Merck, above, the reasons must actually explain why the application was rejected [8]. Officers can use tools like templates or check boxes, but they generally cannot rely on these exclusively to the exclusion of reasoned decision-making [8].

The flaw here was the officer’s failure to provide an assessment “either of the documents that were provided or the need for a MyBank statement” [28-30]. No matter the margin of appreciation afforded to visa applications, one of Vavilov’s central constraints was the evidence before the decision-maker. A failure to address this evidence, if material, will be fatal (see also Issue #19).

Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own.

Quote of the Week: “We must cultivate our garden”—Voltaire, Candide

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