Vavilov at 5: Justice Malcolm Rowe

Entry #2

Nov 22, 2024

For the 2nd entry in the Vavilov at 5 symposium, I am delighted to present short reflections from Justice Malcolm Rowe of the Supreme Court of Canada. I particularly recommend the articles that he wrote on administrative law, which he cites below. Justice Rowe has been quite active in administrative law in the post-Vavilov world, writing leading cases including York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22 (Issue #141) and Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30 (Issue #49).

I thank Justice Rowe for offering these thoughts.

Justice Malcolm Rowe (Supreme Court of Canada)

Preface

Why do we have administrative law? It is to provide redress through the courts for the misuse of governmental decision-making authority. I have addressed this in two articles:

-"The History of Administrative Law" with Michael Collins, Canadian Journal of Administrative Law & Practice, March 2021, Vol.34, pp. 87-132

-""Why We Have Administrative Law" Canadian Journal of Administrative Law & Practice, June 2024, Vol. 37, pp. 89-97

The exercise of a statutory power of decision can be reviewed from three perspectives:

(1) Was the decision taken within the scope of the authority and for the purposes for which the authority was conferred?

(2) Were legal rules of general application adhered to in taking the decision?

(3) Was there procedural fairness in taking the decision?

While that is not how judicial review is usually described, that is what is being dealt with.

Vavilov 2019 SCC 65 provided a renewed framework to deal with (1) and (2). It did not deal with (3); procedural fairness continues to be governed by Baker v Minister of Citizenship & Immigration [1999] 2 SCR 817 per L’Heureux-Dubé J.

Prelude to Vavilov

In CUPE v New Brunswick Liquor Corporation [1979] 2 SCR 227 per Dickson J, Canadian jurisprudence broke away from that of England and the characterization of almost all administrative law questions as matters of jurisdiction. Two standards of review were available correctness and patent unreasonableness. Unreasonableness simpliciter was added in Director of Investigation & Research v Southam [1997] 1 SCR 748 per Iacobucci J.

In Pushpanathan v Minister of Citizenship & Immigration [1998] 1 SCR 982 per Bastarache J the SCC set out the “pragmatic and functional” approach to deciding which of the three standards of review would apply: correctness, reasonableness or patent unreasonableness. This led to interminable disputes as to which standard of review would apply.

In Dunsmuir v New Brunswick 2008 SCC 9 per Bastarache & Lebel JJ, uncertainty as to the standard of review was addressed by eliminating “patent unreasonableness” and by reformulating the “pragmatic and functional” approach to the choice of standard of review. A major aim was to shift the focus from standard of review to the “substance” of the review.

In the following decade, numerous controversies arose relating, first, to standards of review e.g. which standard would apply to statutory appeals and, second, how reasonableness review should be conducted e.g. whether the reasons of the decision-maker could be supplemented by reasons supplied by the reviewing court. All sides claimed to give faithful effect to Dunsmuir.

By 2018, the SCC was concerned that the jurisprudence on judicial review had become uncertain and saw the need for a "reset" of the framework. In light of this, the court gave notice (which was unusual) that we would revisit Dunsmuir; we also engaged amicus, Daniel Jutras and Audrey Boctor (also unusual). The hearing focused on legal doctrine; it involved many interveners.

Vavilov Decision

In my view, three major changes were made in Vavilov:

(1) Reasonableness became the standard of review, except for specified categories of issues where correctness would apply, e.g. constitutional questions; this greatly simplified which standard of review will apply

(2) Extensive guidance was provided as to how to conduct a reasonableness analysis; the key consideration is the justification provided by the decision-maker for their decision; the submissions of amicus were important as to the central role of justification.

(3) Statutory appeals (as opposed to judicial review) apply appellate standards of review, as set out in Housen v Nikolaisen 2002 SCC 33 for questions of law, fact and mixed fact & law and in relevant authorities for the exercise of discretion (which is not dealt with in Housen)

One way of understanding Vavilov is as a “reset” to greatly narrow the use of the correctness standard of review while providing extensive guidance as to how to conduct a reasonableness analysis. The latter addressed concerns that had been expressed in the lead up to Vavilov that reasonableness review was excessively deferential, opaque and somewhat ad hoc.

The Vavilov framework has proven useful to focus judicial review on the proper exercise of a statutory power of decision and away from disputes as to the relevant standard of review.

Thus far, the Vavilov framework has “held together” and not been “chipped away at”, as was Dunsmuir. This is an on-going effort by the SCC and by other courts.

Issue #159: November 17, 2024

Aftermath of Auer, Dore

Mark Mancini

Nov 17, 2024

Category: Reasonableness review.

Context: The PEI Potato Board challenged an Order issued by the Minister of Agriculture and Agri-Food, which declared the entire province of PEI as “a place infested with potato wart” under the Plant Protection Act. The Order also prohibited the movement of PEI seed potatoes from PEI without written authorization from an inspector. The Federal Court dismissed the Board’s application for judicial review.

Issue: Is the Order reasonable?

Holding: Yes (per Heckman JA).

Analysis: Though this case was rendered before the Supreme Court’s landmark decision last week in Auer v Auer, 2024 SCC 36 (Issue #158), it neatly demonstrates how ministerial orders and regulations should be reviewed post-Auer.

This is a typical case where much of the dispute turns on statutory interpretation, especially here, where “the Ministerial Order does not itself contain an analysis of the question whether the requirements of [the Act] are satisfied” [59]. Instead, the question is whether the Minister had the power under the relevant enabling provision to declare the whole of PEI as an infested place [61]—under Vavilov and Auer, “the reviewing court must still examine the decision in light of the relevant constraints on the decision-maker to determine whether the decision is reasonable” [58]. Here, the main constraint is a specific statutory provision:

15 (3) The Minister may, by order,

(a) declare any place to be infested that is not already the subject of a declaration under section 11 or 12

The appellant, challenging the ministerial declaration, argued that “to justify a declaration that the entire province of PEI is infested with PW, the legislative and regulatory framework requires evidence that each and every unregulated field in PEI either contains PW or is so exposed to PW that one can reasonably suspect that PW is in that field” [68]. There was something to this: the fields in which PW was detected represent approximately 0.4% of the approximately 350,000 acres of potato fields in PEI [11].

But Heckman JA, properly I think, concludes that the term “place” can refer to an entire province. Since the matter is one of interpretation, we have to consider the text, context, and purpose of the provision. Heckman JA notes that the statutory provision does not require a field-by-field analysis; and, in reality, the term “place"
“can be interpreted as extending to physical environments of various dimensions” [69]. The statutory context supported this broad reading (see s.16, at para 69). And because the term “place” is broad, it lines up with the purpose of the provision, which Heckman JA also sees as broad, defined in a written statement of purpose: “Section 2 of the Act states that it aims “to protect…the agricultural and forestry sectors of the Canadian economy by preventing…the exportation and spread of pests…” [80]. Though statements of purpose should be approached with caution, they are useful where they confirm an interpretation disclosed by the text of the provision. This purpose confirms the broad reading given by Heckman JA to the word “place,” and provides a counter-argument that the term must be read more narrowly. This is a sound approach to interpretation.

Reasonableness review contains a second component: whether, in addition to the legal standards, the order is justified on the evidence. The statute incorporates the standard of “reasonable suspicion,” a standard well-known in law (particularly criminal law) [50]. Reasonable suspicion only requires a supposition based on objectively discernible facts that a particular pest may be present in certain areas. Even on the appellant’s narrow formulation of the word “place,” the Minister was entitled to issue the order based on this standard [94].

Morabito v British Columbia (Securities Commission), 2024 BCCA 377 (November 15, 2024)

Category: Procedural fairness.

Context: Morabito transferred shares of the Company to his spouse and, as an insider, he made timely disclosure of the trade by reporting it just a few days later. Following the transfer, the Commission’s chair issued an investigation order pursuant to section 142 of the Securities Act, alleging that insider trading rules had been violated.

Morabito and the Company then filed an application to stay the proceedings, alleging an abuse of proceeding. The Commission dismissed the application. It was the Appellant’s position that the Panel endorsed an unfair process when it dismissed their abuse of process application via a “blended hearing.” They pointed to an inability to prove their claims due to limits placed on opportunity to cross examine investigators

Issue: Did the Panel err by instituting a procedurally unfair process?

Holding: Yes.

Analysis: Winteringham JA finds a procedural fairness violation in the “blended hearing.” In this context, a blended hearing is a hearing that combines both the liability aspect of the case with the appellants’ abuse of process allegation. As Winteringham JA says: “At the case management conference, the executive director took the position that prejudice was a key factor for the Panel to assess and that the Panel could only perform this task with the benefit of the liability evidence. As such, the executive director, over the objection of the appellants, advocated for a procedure that permitted the executive director to call their case in conjunction with the abuse of process application” [60]. This, for Winteringham JA, was a “fundamentally flawed” procedural choice [60]. The blended hearing confused matters, denying the appellants a fair hearing. As but one example, when the appellants “attempted to inquire into issues relevant to their abuse of process applications, the executive director objected, citing relevance” [31]. This meaningfully impacted the ability of the appellants to have their arguments heard. It is generally true that administrators—especially in this context—have a wide latitude under the Baker test to make procedural choices. The general rule is that decision-makers are masters of their own procedure. But this case shows how this is not always true. Here, the procedural choice—a blended hearing—prejudicially affected the conduct of the appellants’ abuse of process allegation.

Trozzi v College of Physicians and Surgeons of Ontario, 2024 ONSC 6096 (November 1, 2024)

Category: Doré.

Context: Trozzi was disciplined by the Ontario Physicians and Surgeons Discipline Tribunal, and issued a penalty of the revocation of his lience. There is no dispute that Trozzi “lost his licence due, in part at least, to things he wrote” [9]. Specifically, Trozzi wrote several comments about the “criminal COVID enterprise,” the “murderous criminals running the scam, including Bill Gates who has profited more than 200 billion dollars,” and the like (see para 14). He also called for the “lawful” killing of several public personalities, including Gates and TV anchor Don Lemon [15]. Additionally, Trozzi “provided medical exemption letters from vaccines to 27 patients based on his and their views rather than any examination of the patient’s personal health circumstances” [17].

Issue: The main issue I will address is whether the Tribunal’s decision was reasonable under the Doré v. Barreau du Québec, 2012 SCC 12 test.

Holding: The decision is reasonable.

Analysis: Myers J concludes that “the tribunal’s Doré’s analysis was impeccable and stands as a guide for future tribunals confronted with serious constitutional considerations” [71]. It is worth pointing out what the tribunal did.

As Myers J recounts, the tribunal clearly identified Trozzi had the right to express his own views on COVID-19. It recognized that a finding of misconduct could have a chilling effect on other members, and that these severe impacts on free expression should figure in the balance [53]. Unlike some cases where the Doré analysis does not clearly identify the rights at stake, this decision does so quite explicitly. As Myers J notes, “[t]his is not a case where a tribunal fails to grapple with Doré directly and the court is called upon to assess whether the tribunal considered the correct factors nevertheless” [46]. Here, unlike Peterson v College of Psychologists of Ontario, 2023 ONSC 4685, the Court did not have to dig through a record to discern a cogent analysis. It appeared in the reasons, with those reasons engaging (1) the statutory objective; (2) the impact on the rights; and (3) proportionality.

Dealing with the statutory objective, the tribunal also noted that the speech in this case was not “high-value” speech [60]. The tribunal identified the relevant statutory objectives that counter-balanced the speech: “[t]he tribunal considered it vital in a pandemic in particular to protect the public from the spread of disinformation by its regulated professionals and to maintain the integrity of the profession by rejecting unprofessional and uncivil discourse” [52].

Taking this balance into account, the tribunal then explicitly considered whether the penalty of revocation was justified in light of the invasion of Trozzi’s free expression rights—in other words, “…whether a penalty other than revocation would give effect to the registrant’s Charter rights while still achieving public protection objectives” [66]. This is important. Revocation is an extreme penalty, and given the connection to the appellant’s speech, it must be adequately justified in a manner akin to the Oakes test—is there a less rights-impairing option available? Given Trozzi’s recalcitrance, the tribunal found “no other reasonable possibilities that would give effec tto Charter protections more fully, while fulfilling statutory objectives” [66].

There are rightful concerns about regulatory overreach to off-duty conduct. In such cases, a weak and loose Doré analysis has the potential to underpower the exercise of protected rights in factual contexts largely disconnected from the reach of the regulator’s statutory authority. This is not that sort of situation—here, the comments were directly related to medical practice, and in some cases, affected Trozzi’s actual practice. In any case, this decision does not furnish an example of a regulator engaging in a loose analysis that can “elide key steps” of the constitutional framework (see Lauzon v Ontario (Justices of the Peace Review Council), 2023 ONCA 425 (Issue #93). Indeed, the regualtor’s analysis in this case resembles what Lauwers JA envisioned in Lauzon as a proper constitutional analysis—ensuring that the decision-maker does not limit the right more than necessary (Lauzon, at para 150). Under this approach, Oakes and Doré are closer in nature. But I repeat an often stated position—if they are so close, what is the point of the Doré analysis?

For other cases of this sort this week, see:

Christian Heritage Party of Canada v City of Hamilton, 2024 ONSC 6181

LaGrange v Red Deer Catholic Separate School Division, 2024 ABKB 665

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

Vavilov at 5: Justice David Stratas

Entry #1

Mark Mancini

Nov 15, 2024

I am honoured to feature the first entry in SEAR’s “Vavilov at 5” Symposium. This entry was graciously prepared by Justice David Stratas of the Federal Court of Appeal. I am grateful to Justice Stratas for preparing such thought-provoking insights into Vavilov and its impact. For what it’s worth, I share his optimism about Vavilov; what it has done, and how—for the most part—its been maintained.

A reminder that “Vavilov at 5” Symposium posts will be sent every Friday. I am happy to have a great lineup of lawyers, judges, and academics who have contributed entries. I hope this will act as a good repository for what people were thinking about Canadian administrative law at this point in history.

Justice David Stratas (Federal Court of Appeal)

I am pleased to contribute to Professor Mancini’s online symposium commemorating the fifth anniversary of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

In 2016, I wrote that “[Canadian] administrative law is a never-ending construction site where one crew builds structures and then a later crew tears them down to build anew, seemingly without an overall plan”: “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency” (2016) 42:1 Queen’s L.J. 27 at 29. The latest tearing down and building anew took place in Vavilov.

After five years of Vavilov, do we hear the “beep beep beep” of construction trucks backing into the site? Are workers gathering to tear down the Vavilov structure? Have architects begun suggesting plans for a new structure?

No.

Why is this so?

Vavilov is an unqualified success.

First, it accords with our fundamental understandings and it is practical:

●          Legislation matters. The law on the books must be obeyed. Respect for legislative intent is the “polar star” of judicial review (Vavilov, para. 33). Under many legislative regimes, the administrative decision-maker decides the merits of the case and courts review only what the administrator has done. Interference is warranted when, among other things, the administrative decision-maker goes beyond legislative constraints.
●          Ideologically neutral. Vavilov is ideologically neutral and neither favours nor restrains the administrative state. If a government wants plenty of powerful administrative tribunals doing important things and legislates to that effect, Vavilov will enforce that legislative will. Similarly, if a government wants to carve back the administrative state and legislates to that effect, Vavilov will enforce that legislative will too. If a government wants to adjust the standard of review, Vavilov will not stand in the way.
●          Sound underpinnings. The justification for judicial interference with administrative decision-making is the rule of law. The vision of the rule of law articulated in Vavilov is sound.
●          Respect for the separation of powers. The more that executive action concerns matters outside of the ken of the courts, the more it should be left alone. The language and analysis of “constraints” in Vavilov furthers this principle.
●          Sensitive and appropriate contextualism. Given the variety of decision-makers and decisions, a contextual approach to review is entirely appropriate. Gone is Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, which outlawed any resort to context and imposed one inflexible standard of reasonableness for all administrative decisions and administrative decision-makers.
●          Transparency and accountability. Administrative decision-makers, given a decision-making task under statute, must actually grapple with the merits of the case before them and give reasoned explanations on key issues: Vavilov at paras. 120-121.
●          Proper delineation of roles. Administrative decision-makers decide the merits of their cases and provide their reasoning. Reviewing courts independently review what has been done. Each stays in its proper place. No longer can reviewing courts draft reasons for administrative decision-makers to cooper up their decisions, as was permitted under Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62: see the strong language in Bonnybrook Park Industrial Development Co. Ltd. v. Canada (National Revenue), 2018 FCA 136 (dissent).
●          Simplicity, workability and stability. I’ve taught Vavilov at approximately 40 conferences for judges, lawyers, students or a combination of these. Just about everyone says that it is relatively straight-forward, minimizes debates over arcane things like the standard of review, and allows the courtroom to focus on the meat of the matter: whether the administrative decision should survive.
●          Access to justice. Courts can explain Vavilov in plain language to non-legally trained, self-represented litigants. For example, a Federal Court of Appeal pilot project has developed language to guide self-represented litigants on what Vavilov means and says. Some of these litigants do a very good job in applying Vavilov to their cases.

Vavilov is not just surviving, it is thriving. It is even expanding its reach.

No longer does Vavilov apply just to administrative disputes between parties leading to a decision on the merits. It now applies to the procedural fairness decisions of administrative decision-makers: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 (Vavilov methodology used to determine the standard of review of an administrator’s procedural decision). It also now applies to the making of administrative rules, orders-in-council and regulations: Auer v. Auer, 2024 SCC 36.

The general philosophy is that an administrative decision is an administrative decision is an administrative decision, and all should be reviewed the same way, regardless of irrelevant differences in form. To do otherwise leads us to “[c]omplexity, confusion and incoherence”, not “simplicity, clarity and coherence”: Innovative Medicines Canada v. Canada (Attorney General), 2022 FCA 210 at para. 36.

Arguably Vavilov’s placement of legislation and its interpretation at the centre of judicial review has been strengthened by Supreme Court initiatives to increase the legitimacy of legislative interpretation and greater rigor in that area: see TELUS Communications Inc. v. Wellman, 2019 SCC 19, R. v. Rafilovich, 2019 SCC 51 and Michel v. Graydon, 2020 SCC 24; and see Vavilov itself at paras. 115-124; see also Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252; Canada v. Cheema, 2018 FCA 45 at paras. 79-80; Hillier v. Canada (Attorney General), 2019 FCA 44. Gone are the days when unelected judges got away with injecting their own policies into the meaning of legislation through the device of “divining the purpose of legislation”. For important academic commentary on this, see Mancini, “The Purpose Error in the Modern Approach to Statutory Interpretation” (2022), 59 Alta. L.R. 919; Mancini, “Two Uses of Purpose in Statutory Interpretation” (2024) 45:2 Statute L.R. 1.

Of all the successes Vavilov has achieved, perhaps the greatest is the unprecedented stability it has brought us in this area of law. Although there are exceptions (discussed below), the Supreme Court has followed the Vavilov framework without introducing wrinkles and quirks. This matters. Doctrinal instability and unprincipled judicial invention can tear against the rule of law and the reputation of the justice system: Canada v. Boloh 1(a), 2023 FCA 120 at para. 20; Schmidt v. Canada (Attorney General), 2018 FCA 55 at paras. 91-95.

On the other hand, stability benefits us all, in so many different ways:

Stability furthers the separation of powers between the judiciary and other branches of government: it keeps the judiciary in a predictable, appropriate lane. Stability brings us certainty, predictability, and freedom: it gives us consistent jurisprudence about what governments can and cannot do and about what they can be required to do. Stability bolsters the rule of law and increases confidence in the legal system. The people we serve deserve to be governed by lasting legal doctrine carefully shaped and sculpted over the years by many—not by the personal diktat of whoever happens to sit in a particular judicial chair at a particular moment of time.

(Boloh at para. 24.)

Alas, in applying Vavilov, the Supreme Court sometimes flirts with instability, departing from it in small but worrisome ways:

●          The Supreme Court sometimes rules on contentious issues and new arguments that are alone the preserve of the administrative decision-maker, as merits-decider, to decide: see, e.g., Mason v. Canada (Citizenship and Immigration), 2023 SCC 21; Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31; Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4. This runs against Vavilov’s recognition that contentious issues and new arguments are for the administrative decision-maker as the merits-decider, not the reviewing court: see discussion in Terra Reproductions Inc. v. Canada (Attorney General), 2023 FCA 214, citing, among others, Vavilov at para. 142 and Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326 at 361; see also Klos v. Canada (Attorney General), 2023 FCA 205 at para. 8.
●          Vavilov properly condemned “disguised correctness review”, correctness review under the guise of reasonableness review. But the Supreme Court is still not above doing disguised correctness review itself: see, e.g., Ontario (Information and Privacy Commissioner), above (majority reasons). This harkens back to pre-Vavilov days where “do as we say, not what we do”—one could also say “one rule for me and another for thee”—characterized the Supreme Court’s approach to administrative law, even according to some members of the Court at the time: see Moldaver and Wagner JJ. in Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 at para. 112 and Abella J. in Canadian Broadcasting Corp v. SODRAC 2003 Inc., 2015 SCC 57 at paras. 185, 190. See also Daly, “The Signal and the Noise in Administrative Law” (2017) 68 U.N.B.L.J. 68.
●          Vavilov prescribes one methodology for all cases: a focus on the acceptability and defensibility of the reasons and outcome reached by the administrative decision-maker, shaped by the constraints to which it was subject, wide or narrow depending on certain contextual factors. This methodology does not contemplate resort to a notion of intensity of review, i.e., a strict (robust) or less strict (deferential) approach. On this, Vavilov was balanced, suggesting (at para. 12) that “reasonableness review must entail a sensitive and respectful, but robust, evaluation of administrative decisions”. But these days the Supreme Court frequently emphasizes, without elaboration and explanation, that review must be “robust”: see, in particular, Mason, Commission scolaire and Auer. In this context, what does “robust” mean? Strict review approaching correctness review under the guise of reasonableness review? Throwing around the word “robust” injects incoherence, uncertainty and imbalance into an otherwise coherent, concrete and neutral methodology.
●          Recently, the Supreme Court has added a special judge-made rule, a presumption of validity, for one form of administrative decision, the making of regulations: Auer. The Supreme Court offered no conceptual basis or sound doctrinal justification for this, and there is none. Special judge-made rules to address differences of form, not substance, lead to needless “[c]omplexity, confusion and incoherence”, contrary to Vavilov: see Innovative Medicines Canada at para. 36; see also compelling criticisms of the presumption of validity by Mancini and Daly. Here, lessons can be drawn from south of the border. Introducing many additional judge-made steps into the standard of review analysis helped to undermine and ultimately destroy Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) in Loper Bright Enterprises et al. v. Raimondo, 603 U.S.__ (2024).
●          The academic community and judges have raised serious questions about the Supreme Court’s invention of “Charter values” and their use in administrative law: see Doré v. Barreau du Québec, 2012 SCC 12. Many query whether this body of law is coherent, intellectually rigorous and respectful of our written constitutional text and constitutional understandings, like Vavilov is: see, e.g., Sullivan v. Canada (Attorney General), 2024 FCA 7; Brar v. Canada (Public Safety and Emergency Preparedness), 2024 FCA 114 at paras. 65-68, and reams of academic criticism that the Supreme Court has not answered so far.

So why is Vavilov such a success story? Are there any lessons in Vavilov about good judicial decision-making?

Indeed there are.

The Supreme Court considered and decided Vavilov in an unusual but very positive way. Vavilov was an exercise in humility.

Humility is one of the hallmarks of great judicial decision-making: Hon. John Morden, “The ‘Good’ Judge” (2005), 23 Advocate’s Soc. J. 13. U.S. Supreme Court Justice Robert Jackson, speaking about his own court, perhaps put it best of all: “We are not final because we are infallible, but we are infallible only because we are final.”

Alas, humility has not always been prevalent in the Supreme Court’s offerings in administrative law. For example, during the last couple of decades, the Supreme Court, unlike other comparable apex courts, has tended to cite only itself, as if it has a monopoly on truth and as if all other courts, often more experienced in the area, have nothing useful to say. Sometimes the Supreme Court refers to the thinking of lower courts just to score points off of it, not to explicitly adopt the best of it, to the benefit of the legal system as a whole.

But Vavilov was different: from the beginning, humility governed the Supreme Court’s approach.

In its decision granting leave to appeal, the Supreme Court announced that it was going to rethink the law of substantive review of administrative decision-making. It asked for help.

The administrative law community and its experts responded in many ways. One was an online symposium hosted by the blogs, Administrative Law Matters (by Professor Paul Daly) and Double Aspect (by Professors Leonid Sirota and Mark Mancini). Together they offered nearly forty articles, all of strong quality. In the end, the majority of the Court considered the doctrinal approaches in many of these articles, rather than voicing their own personal points of view about the administrative state or “what’s best for Canadians”. A comparison of the articles with the majority reasons in Vavilov shows their profound influence.

Vavilov also drew upon much jurisprudence of many other courts, particularly the Federal Court of Appeal, the appellate court that, by a large margin, decides the most judicial reviews in Canada, and often the most complex ones too. By being humble, the Supreme Court considered and adopted the best contributions and insights of many judges, over many years—not just the insights of their own nine, some of whom in their pre-judicial or judicial careers were not specialists in judicial review.

Humility is also seen in the fact that seven individual justices jointly authored the majority reasons in Vavilov, not just one justice with six others concurring. This sort of co-authorship is rare, at least in the Supreme Court. Each of the seven judges had standing to contribute more to the final product. And looking at that final product, it seems that seven heads, working closely, cooperatively and constructively, were better than one.

So in terms of Supreme Court jurisprudence, where does Vavilov rank?

True, Vavilov is no grand literary achievement. There are no memorable turns of phrase, soundbites or quotable quotes. In places, it is repetitive. But after many decades of attempts and failures in this area, Vavilov achieved what once seemed impossible: it works really well. In the Supreme Court’s 150-year history, Vavilov occupies a bright place.

Heartiest congratulations, Supreme Court, for building what you did—a lasting structure. Keep it! Defend it! And please, oh please, don’t fiddle around with it!

And I have a special message for the construction workers who, once a decade, visit this site—Canadian administrative law—to raze whatever is there and rebuild.

You are no longer needed! You are no longer welcome here! Go away and stay away!

Issue #158: November 10, 2024

Katz is out of lives and clarity on subordinate legislation

Mark Mancini

Nov 10, 2024

Some months ago, I mentioned that I will be running a symposium on the newsletter in celebration of Vavilov’s 5th year. The “Vavilov at 5” symposium entries will be sent to newsletter subscribers on Fridays. The regular newsletter will continue on Sundays.

I am excited to say that the symposium will begin this upcoming Friday, with an entry from Justice David Stratas of the Federal Court of Appeal. We have a great lineup of entries planned for the coming weeks. If you want to get a bird’s eye view of Vavilov at 5, I hope the symposium will interest you.

**dicta recording to follow**

Auer v Auer, 2024 SCC 36; TransAlta Generation Partnership v Alberta, 2024 SCC 37 (November 8, 2024)

Category: Standard of review for subordinate legislative instruments.

Context and Summary: As I explored in Issue #68, these significant appeals jointly considered the question of the standard of review for subordinate legislation. Here is what you need to know from these decisions (the products of a unanimous court, per Côté J):

Generally speaking, Vavilov and not Katz Group Canada Inc v Ontario, (Health and Long-Term Care), 2013 SCC 64, is the “comprehensive” starting point for the review of subordinate legislation (Auer, at para 21). Put differently, Vavilov was a “significant sea change” (Auer, at para 32). No longer will courts need to ask whether a subordinate instrument is “completely unrelated” to the purpose of an enabling statute, as Katz instructs. Rather, the application of reasonableness review is conditioned by the principles of statutory interpretation and the legal constraints on the regulator.
In applying reasonableness review, some of Katz’s uncontroversial elements remain—and so Auer and TransAlta together constitute a “narrow departure from Katz Group” (Auer, at para 32). For example, regulations continue to benefit from a “presumption of validity,” putting the onus on the challenger; and contra the ABCA, reasonableness review does not entitle the court to assess the consequences or wisdom of the regulatory policy writ large (Auer, at paras 29 and 58).
Practically speaking, and in applying reasonableness review to regulations, it is “fundamentally an exercise of statutory interpretation to ensure that the delegate has acted within the scope of their lawful authority under the enabling statute” (Auer, at para 59). The most relevant constraints will be the “governing statutory scheme, other applicable statutory or common law and the principles of statutory interpretation…” (Auer, at para 60).
Much was made in the ABCA about whether and how reasonableness review can be conducted in absence of formal reasons. It is true that “[m]ost of the time formal reasons are not provided for the enactment of subordinate legislation” (Auer, at para 52). However, as Vavilov affirms, even in the absence of formal reasons, “[t]he reasoning process can often be deduced from various sources (see Auer, at paras 52-54). This does not entitle a court to wade through regulatory materials with the aim of determining whether there is a “rational basis,” as a matter of policy, for the regulation. Since reasonableness review in this context is really a species of statutory interpretation, “[a] court must be mindful of its proper role when reviewing the vires of subordinate legislation, especially when it relies on the record, other sources or the context to ascertain the delegate’s reasoning process” (Auer, at para 57). Indeed, “[t]he potential or actual consequences of the subordinate legislation are relevant only insofar as a reviewing court must determine whether the statutory delegate was reasonably authorized to enact subordinate legislation that would have such consequences” (Auer, at para 58).

The Court upheld the validity of the Federal Child Support Guidelines in Auer, and the regulation at issue in TransAlta. TransAlta also contained an interesting issue of administrative discrimination.

Analysis: As readers will know, the doctrinal method deployed in Auer/TransAlta is the one I prefer. In general, Côté J’s reasons are excellent. Because they preserve Vavilov, and places a laser-focus on statutory intepretation, I think Auer/TransAlta are welcome cases in the administrative law pantheon. I highlight four substantive points from the decisions, and what they may portend for administrative law going forward:

The method for determining the appropriate standard of review in these circumstances is principled and simple—start with Vavilov. This is so not only for Cabinet regulations (the regulations at issue in Auer), but all types of subordinate legislation, as Côté J does not draw distinctions between types of subordinate legislation and the legal reasoning would capture all types. This method, of course, was championed by Stratas JA in a series of cases in the Federal Court of Appeal (Portnov v Canada (Attorney General), 2021 FCA 171; Innovative Medicines Canada v Canada (Attorney General), 2022 FCA 210) and these cases undoubtedly animated the Court’s decisions in Auer/TransAlta (an important signal about how central lower courts are to the development of our law—these decisions did not come from nowhere). I take these decisions to affirm a now-central truth about our administrative law. Vavilov is not only a set of operational rules about how to review administrative instruments of all types, but it is a simple and comprehensive set of principles, keyed to those operational rules, that can be deployed across the law of judicial review. For this reason, it is good news that Côté J rejects the ABCA’s approach, which would have trifurcated the standard of review based on the identity of the promulgator: (1) “true” Cabinet regulations; (2) rules and regulations adopted by municipalities or tribunals, reviewed on a modified standard of reasonableness; (3) adjudicative decisions, reviewed on Vavilov’s standards. This trifurcation would have unravelled the simplicity and comprehensiveness of Vavilov.

As these cases demonstrate, the Court appears committed to ensuring this does not happen. This is reassuring, especially after some rocky cases in which aspects of Vavilov appeared, at least from some perspectives, as open to exception (Mason v Canada (Citizenship and Immigration), 2023 SCC 21 (Issue #108); Ontario (Attorney General) v Ontario (Information and Privacy Commissioner), 2024 SCC 4 (Issue #123). Whether the stability and predictability of Vavilov remains depends on cases like Auer preserving it.
The application of Vavilov in this context is significant, because Côté J affirms that the principles of statutory interpretation tell almost the whole story. In the ABCA decision, the Court seemed to suggest that Vavilov reasonableness could not properly consider questions of vires; that every application of reasonableness review would descend into the policy merits, and that some of Vavilov’s constraints would simply not make sense in the context of subordinate legislation. But as I mentioned in Issue #68 in response to the ABCA decision, “Not all of the constraints have to apply in a given case for Vavilov to be relevant.” Litigants and their counsel should become even more familiar with the principles and rules of statutory interpretation, because those principles and rules will take on centre stage—as they should—in the review of subordinate legal instruments, which is fundamentally a question of legality.

On that note, the dispatch of Katz meaningfully changes how the principles of interpretation apply in this context. Recall that Katz’s standard of deference was predicated on a litigant showing that a regulation was “completely unrelated” to the purpose of the enabling statute. That standard was problematic. It permitted courts to gloss over the enabling statutory text, inviting a value-laden analysis of the connection of the subordinate legislation to an overarching purpose. To the extent Auer/TransAlta cut back on this tendency by reinforcing the normal principles of interpretation, it is a welcome adjustment. Now, the purpose of the enabling provision is still relevant. But Auer reinforces that it is not the centerpiece of the analysis. Instead, a regulation must fit with both the specific enabling provisions—the text—read in light of the enabling statute’s purpose (see Auer, at para 33).

This is not a small change, in either practice or principle. Accordingly, many will be tempted to ask whether this decision makes it “easier” or “harder” to challenge government action. In an absolute sense, the narrow overruling of Katz means that the artificial deference it implemented no longer exists. The problem with that deference was its lack of correspondence to the statutory grant of authority—it compelled wide deference (the regulation must be “completely unrelated” to the enabling statute, a high bar) even if the enabling statute was circumscribed and prescriptive (see Innovative Medicines, at para 40). In this sense, this artificial burden—unprincipled, disconnected from the scope of statutory authority—is no more.

But I generally think that it is the wrong question to ask whether Auer/TransAlta will lead to “stronger” review. Rather, the only question is much more straightforward: what is the breadth of the statutory grant of authority enabling the regulation-making power? If it is broad under the text and purpose of the legislation, then the deference afforded to the regulator will be broader. If it is narrower, and the text tells the regulator to consider specific factors, then we should expect less room to move. In other words, deference is a function of the statutory text, no more or less. So it was in Auer itself: the Child Support Guidelines were intra vires because the enabling legislation grants the Governor-in-Council “extremely broad authority to establish guidelines respecting child support” (Auer, at para 5). The authority is not limitless (Auer, at para 77). Even so, the Child Support Guidelines respected the one mandatory, relevant legal constraint—that “the guidelines be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute” (Auer, at para 5).
There are still some unanswered questions going forward. As Paul Daly writes, one of these refers to the scope of the “presumption of validity.” As he does, I take this presumption to simply mean that the onus is on the challenger to show that a regulation is unreasonable because it does not “fit” with the enabling statute. It is true that Côté J notes that this presumption also includes that proposition that “where possible, subordinate legislation should be construed in a manner that renders it intra vires” (Auer, at para 39, Côté J’s emphasis). This could mean that there is a substantive presumption of interpretation that a regulation that better conforms with the enabling statute should be preferred. The Federal Court of Appeal, rightly in my view, did not assign substantive value to the presumption—beyond the statement of fact that the challenger bears the onus (see Portnov, at paras 20-21). And, reading between the lines, I do not think Côté J does so either. All the presumption of validity means is that “[i]f the reasonableness standard applies, to overcome the presumption of validity, challengers must demonstrate that the subordinate legislation does not fall within a reasonable interpretation of the delegate’s statutory authority” (Auer, at para 39). As Côté J says, “[t]his aspect does not heighten the burden that challengers would otherwise face pursuant to Vavilov” (Auer, at para 39). It may be tempting for government counsel and some courts to read these statements on the presumption of validity to erect a higher barrier when the object of the challenge is a regulation. For my part, I think this would be a mistake.
There will be more work to do in determining how reasonableness review works in the context of subordinate legislation, though Auer and TransAlta go some distance to clarifying any confusion. I suspect more ink to be spilled about the concept of “consequences.” This much is clear: the ABCA was mistaken in concluding that reasonableness review amounts to an inevitable reweighing of the policy merits/consequences of the regulatory action. In normal times—the application of reasonableness review to an adjudicative decision—this is not so. Nor is it so in this context.

However, consequences are relevant to the extent they link to the enabling statute. Again, the entire business is a question of statutory interpretation. For that reason, the consequences of the regulation are only relevant if there is an argument that the legislation does not authorize those consequences; “[w]hether those consequences are in themselves necessary, desirable or wise is not the appropriate inquiry” (Auer, at para 58). This is a fine line, but the line exists. The arguments made about consequences must be rooted in textual evidence that the statute authorizes those consequences. It is appropriate to look to consequences of a proposed interpretation not to question whether they are sound from a moral or political perspective. Instead, one looks to consequences to measure them up against evidence derived from the statutory scheme itself (the same is true when we are evaluating whether certain consequences are more or less consistent with the purpose of a provision: see Williams v Canada (Public Safety and Emergency Preparedness), 2017 FCA 252 at para 52).

Pelletier v Canada (Attorney General), 2024 FC 1669 (October 24, 2024)
**Thank you to a SEAR reader for sending this case**
Category: Remedy.
Context: The applicant, a veteran, applied for a critical injury benefit under the Veterans Well-Being Act. After an initial decision, a first appeal panel of the Veterans Review Appeal Board [VRAB] denied his appeal. On judicial review, the Court found the decision unreasonable. A second appeal panel denied the benefit for different reasons—on a ground on which the first panel had previously accepted the applicant’s argument. Pelletier now seeks judicial review of this decision. In this case, the Court (per Ngo J) again finds the decision unreasonable. For our purposes, the question is the appropriate remedy.
Analysis: Ngo J declines to remit, bucking the usual rule in Vavilov, because “the circumstances of this case meet the threshold of exceptionality” [51]. This is a classic case of the endless merry-go-round that Vavilov warns against. As Ngo J says, at para:
The Court’s concerns about the undue delay and additional delay would also not be addressed with a further redetermination. The matter has already reached eight years, from the date of the Injury and initial application for the benefit in 2016. A further delay of two more years if the matter is remitted to a third appeal panel and if any party seeks judicial review of that decision would total ten years. Furthermore, the parties described the Critical Injury Benefit to the Court as a “one time payment” to a veteran who has been injured. I also do not believe that Parliament could have intended for the final disposition of a Critical Benefit Injury application for a “one time payment” to take so long (D'Errico at para. 19). This is a significant delay that threatens to bring the administration of justice into disrepute.
Note two things about this case. First, it is a rare outcome. Ngo J declines to remit and directs that Veterans Affairs grant the benefit. Second, note how Ngo J couches the discussion of remedy—in terms of the legislative intention.
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

Issue #157: November 3, 2024

JR practice and procedure, nuance in reasonableness review

Mark Mancini

Nov 03, 2024

Category: Practice and procedure in the Federal Courts.

Context and Analysis: This appeal involves the scope of Rules 317 and 318 in the Federal Courts Rules. In particular, Rule 317 provides that “[a] party may request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application and not in the possession of the party…” The issue, as recited by de Montigny CJ, is as follows: can “Rule 317 be used to compel the production of materials from an entity when the very jurisdiction of the Court over that entity and the decision being challenged is at the core of the debate” [2] ?

de Montigny CJ concludes that Rule 317 cannot be used in this manner— “[i]t cannot be relied upon if the jurisdiction of the Court is in doubt” [26]. Permitting this would allow “fishing expeditions” where parties access material from bodies that are not properly subject to judicial review in the Federal Courts, but which are merely named as respondents [26].

Importantly, de Montigny CJ reiterates the various methods available to litigants to ensure a complete record [32-33']. I encourage anyone practicing in the Federal Courts to keep in mind the following paragraphs:

[32] To avoid the use of Rule 317 as an indirect summary judgment tool, a party can avail itself of various alternative recourses. The most obvious way to obtain additional evidence derives from Rule 308, whereby a party may cross-examine on affidavits submitted by the opposing side and compel the production of documents by subpoena pursuant to Rule 41. Another potential avenue may be to bring a motion on notice to all affected parties requesting the production of evidence necessary to allow an application to be meaningfully heard and determined, when a party is of the view that there are serious deficiencies in the evidentiary record before the Court: see, by way of analogy, Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 128, as cited in Canada (Health) v. Preventous Collaborative Health, 2022 FCA 153 [Preventous].

[33] The Court itself, of its own initiative or at the request of a party, can order that other material be filed if it considers that the application records of the parties are incomplete: see Rule 313. Apart from the authority granted by that rule, the Court could make use of its general supervisory power in administrative matters (Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626, 157 D.L.R. (4th) 385) and its plenary jurisdiction to make orders necessary for the conduct of proceedings (Dugré v. Canada (Attorney General), 2021 FCA 8 ) to assist the parties, as recognized in Preventous (at para. 18). Finally, the Court could also rely on Rule 4, commonly referred to as the “gap rule”, to compel the production of evidence that is considered essential for the efficient resolution of an issue. Needless to say, a party could also invite the Court to draw an adverse inference from missing evidence.

de Montigny CJ closes by reaffirming what the FCA has now made clear multiple times: “At the end of the day, no decision of the executive branch should be immunized from careful and meaningful review by the courts, either as a result of an incomplete record or for any other illegitimate reason” [34]. For more on these issues, see the helpful order of Stratas JA in Canadian National Railway Company v Canada (Transportation Agency), 2023 FCA 245.

Canada Nuclear Laboratories Ltd v Adams, 2024 FC 1697 (October 24, 2024)

Category: Selection/application of the standard of review.

Context: The applicant filed a human rights complaint with the Canadian Human Rights Commission against her former employer, Canadian Nuclear Laboratories [CNL]. A preliminary investigation, conducted by an officer with the Commission, and referred the complaint to the Canadian Human Rights Tribunal. CNL sought judicial review of the Commission’s decision to refer the complaint.

The underlying issue involved reasonable notice and an intervening disability. CNL gave the applicant eight weeks’ written notice of the termination of her employment. In the intervening period, Adams took medical leave and sought disability benefits, but CNL’s third party disability management administrator concluded that the applicant was not eligible for medical leave benefits. The essence of the Complaint was to the effect that CNL ought to have suspended the period of notice during a time when she was too sick to work.

Issues: (1) What is the standard of review? (2) Does the decision meet the relevant standard?

Holding and Analysis: On the first issue of the standard of review, CNL argued that the Supreme Court’s decision in SOCAN v ESA, 2022 SCC 30 (Issue #49). In that decision, a majority of the Court (per Rowe J) held that where a tribunal and a court have concurrent jurisdiction, the rule of law and legislative intent suggest that the standard of review should be correctness. Specifically, the concurrent jurisdiction rule operates where a statute provides concurrent jurisdiction between a court and a tribunal; this is a legislative indication that the delegation to the administrative decision-maker is not “complete,” warranting a rebuttal of the presumption of reasonableness. As you will read in Issue #49, I thought this was an excellent decision, one rooted in Vavilov’s central commitments.

Here, CNL sought to deploy SOCAN to argue that the correctness standard should apply. The argument ran as follows: though the Commission has exclusive jurisdiction to deal with discrimination complaints, the question of reasonable notice and intervening disability is a matter over which s.96 common law courts have jurisdiction. Though the concurrency does not flow from a statute, there is still concurrency over a common law issue. At issue is whether concurrency over common law matters engages the same concerns supporting the SOCAN rule.

The Court (per Fothergill J) rejects the argument, concluding that while the common law employment “figured prominently” in the underlying Commission report, the decision “concerned human rights law, not employment law” [39]. Unfortunately, Fothergill J does not address the interesting and creative part of CNL’s argument: that concurrency could arise in these circumstances involving the common law.

On the merits, and applying reasonableness review, Fothergill J nonetheless finds the referral unreasonable. The problem was the human rights officer’s “misapprehension of the common law of dismissal” [56]. Courts in the post-Vavilov era, at least by my lights, are applying common law constraints on administrative decision-makers quite stringently, even under the reasonableness standard (see Issue #69 and cases therein).

A small piece of this case worth highlighting. The applicant argued that CNL’s application for judicial review was not timely. However, Fothergill J rejected this argument. This was because the Commission had ordered conciliation in the case, failing which the referral would take place. As a result, “[i]t was appropriate for CNL to refrain from seeking judicial review until the Commission formally referred the Complaint to the Tribunal…” [35]. In other words, the 30-day clock to seek judicial review in the Federal Court was paused by the conciliation.

Christie v Canada (Attorney General), 2024 FC 1722 (October 29, 2024)

Category: Application of the reasonableness standard.

Context: This is a judicial review of a reconsideration decision by the Veterans Review and Appeal Board [VRAB]. The Reconsideration Panel upheld an Appeal Panel’s conclusion that the applicant’s injury “did not arise out of or was not directly connected to the Applicant’s RCMP service” [25]. The core factual problem involved an incident in which the applicant was injured by a group of young males while off-duty [4-6]. This, for the VRAB appeal panel, meant that the applicant was not acting in an “official capacity” [8].

Issue: Is the decision unreasonable?

Holding and Analysis: The Court (per Ngo J) finds that the decision falls on Vavilov’s evidence and fact-based constraints. Specifically, there was a contemporaneous report by an RCMP sergeant about the matter, connecting the applicant’s duties to the incident. For Ngo J, “the Report would have been one of the best available pieces of evidence relating to the Assault” [30]. The Reconsideration Panel, however, cited the wrong date for the report, and discounted it because it was (apparently) prepared after the assault. This was an error—the report was contemporaneous.

One might say this error is immaterial, the sort of thing that Vavilov tells us will not undermine confidence in the ultimate decision. But Ngo J—for good reason—sees things differently. The report “formed an important part of the panel’s justification” [32] and would have acted as objective, contemporaneous evidence of the claim that the applicant was “off-duty” but nonetheless acting in an official capacity. Word to the wise—in some cases, small evidentiary errors can end up being quite significant, depending on the facts.

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

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