For the 100th edition of this newsletter, I wanted to feature a guest post. We have come a long way since Vavilov was decided in 2019, so who better to reflect on the developments since than Justice David Stratas of the Federal Court of Appeal? Justice Stratas generously agreed to write a short piece on the aftermath of Vavilov for the purposes of public education. The following is what he sent me. The regular newsletter follows below Justice Stratas’ post.
In the future, I hope to feature more guest posts. If you are interested in writing, please send me an email at mark.p.mancini@gmail.com.
Guest Post: Justice David Stratas, Federal Court of Appeal
Already there have been a hundred issues of the Sunday Evening Administrative Review? Really? Where has the time gone?
What a lot of work it has been! I salute Mr. Mark Mancini and his hard work on the newsletter. Without fail, just about every Sunday around 6:00 pm ET we receive from him, for free, a summary of some of the most significant administrative law cases released during the previous week, along with some brief commentary. The quality is consistently top-notch. What a great public service!
As a sitting judge, I cannot comment on any of Mr. Mancini’s commentaries. I will say, though, that his analysis is always rich, arguable and fair, and it is always doctrinally based. It is never based on his own worldview or ideology.
In the area of substantive review of administrative decision-making, Mr. Mancini uses the seminal case of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 as his yardstick, along with the underlying concepts resident in the case and the doctrine developing since. His evident aim is to ensure the doctrine remains consistent, pointing out areas where further jurisprudential development is required. The focus is on the doctrine. The aim is consistency and coherency.
In doing this, Mr. Mancini is doing the area of administrative law and judicial review a great service. Together with Professor Daly’s excellent blog on administrative law, in this area we are truly well served right now!
Today, Mr. Mancini’s newsletter shows that the Supreme Court is performing well in the area of the substantive review of administrative decision-making. We see consistency and coherency. It was not always that way.
There was a time in the Supreme Court when looser approaches in administrative law prevailed, particularly in the area of substantive review of administrative decision-making: for an enumeration of these, see D. Stratas, The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and ConsistencyEditSignEditSign (2016) 42:1 Queen’s LJ 27. Interestingly, this coincided with a period of time where looser approaches prevailed in public law generally: Canada v. Boloh 1(a), 2023 FCA 120.
For example, consider Vavilov’s precursor, Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. Many of the rules were decreed by the Supreme Court with little grounding in a coherent, acceptable view of administrative law based on Parliamentary supremacy.
Far worse, however, were later developments, with even less grounding. Often Supreme Court cases in this area seemed to be vehicles by which individual judges could pursue their personal views about the administrative state and its accountability, rather than grounding decisions in deeper doctrine, such as the primacy of legislation.
So for example, reviewing courts were told to cooper-up outcomes reached by administrators by fashioning reasons for them—despite statutes that placed the obligation to decide and explain on the administrators, not the courts: Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708. On some occasions, reviewing courts might be sustaining outcomes that the administrators, had they thought further about the issue, might not have reached themselves. Indeed, taken to its extreme, this jurisprudence would relieve administrators of the obligation to grapple with or think about the problem before them—which was their job under statute—because reviewing courts would be there to do their job for them. Madness!
Reviewing courts even got into the business of deciding issues that administrators had not decided, even though it was the administrators’ exclusive job under Parliament’s statutes to decide: Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293; P. Daly, Which Way Forward for Canadian Administrative Law?; and for a general critique, see the dissent in Bonnybrook Park Industrial Development Co. Ltd. v. Canada (National Revenue), 2018 FCA 136, 425 D.L.R. (4th) 746.
A one-size-fits-all approach to the law was adopted despite the huge variety of administrative decision-makers, their types of functions and decisions, and their legislative regimes. Contextual approaches were firmly rejected. See Edmonton East (Capilano), above.
And too often, we were treated to high-sounding bromides about how the reasonableness standard was a deferential one, only to see correctness review conducted under the guise of reasonableness review. At one point, this led a pair of Supreme Court judges, one of whom is the current Chief Justice, to suggest, with laudable candour, that the Court might fairly be accused of a “do as we say, not what we do” approach to administrative law: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909 at para. 112.
And worse, the Supreme Court would grant leave and decide twenty or more administrative law cases every year—with inconsistency among the twenty and others the result.
The critics got louder and louder. Those trying to apply the law got more and more frustrated.
To its eminent credit, the Supreme Court, under a new Chief Justice, saw that change was needed. It granted leave in Vavilov and openly requested submissions on the standard of review.
This prompted a huge, positive and constructive response from judges, the legal profession and the academy. Foremost were nearly forty, high-quality articles posted in the Administrative Law Matters and Double Aspect blogs, the latter co-hosted by Mr. Mancini—yet another valuable contribution to this area of law.
The result? Vavilov stands as one of the Supreme Court’s finest cases, setting out doctrine based on coherent underlying theory. It meets five key metrics:
● Legislation matters. The law on the books must be obeyed. Respect for legislative intent is the “polar star” of judicial review (Vavilov at para. 33)
● The justification for judicial interference is the rule of law. The vision of the rule of law articulated in Vavilov is sound.
● There is a constitutional separation of powers. The more that executive action concerns matters outside of the ken of the courts, the more it should be left alone.
● Given the variety of decision-makers and decisions, a contextual approach to review must be adopted.
● The law must be as simple and workable as possible.
For these reasons, in the years since, Vavilov has survived and thrived, despite a significant change in the composition of the Supreme Court since Vavilov. This is no small accomplishment.
Mr. Mancini’s newsletter shows that, for the most part, courts are applying Vavilov consistently and predictably. Counsel and judges alike find it easy to apply and responsive to the values and circumstances in their cases. On occasion, though, he notes disagreement among jurisdictions on key points, serving up obvious targets for Supreme Court attention. This is a valuable service.
Happily, post-Vavilov, the Supreme Court has granted leave in very few cases. For the most part, the cases have tried to resolve issues left undecided in Vavilov: see, e.g., Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30, 471 D.L.R. (4th) 391. As best as I can see, only one case currently under reserve has the prospect of amending Vavilov in a key respect, the review of administrators’ legislative interpretations: Mason v. Canada (Minister of Citizenship and Immigration) (SCC No. 39855), on appeal from 2021 FCA 156, [2022] 1 F.C.R. 3. This was a good choice for leave, as the Federal Court of Appeal’s reasons show that Vavilov set the threshold for interference with administrators’ legislative interpretations somewhat vague or fairly low. This deserves confirmation, correction or clarification, hopefully on a sound theoretical and doctrinal basis, not the personal preferences of individual judges.
Overall, Vavilov and the Supreme Court’s restrictive policy on leave have given this area of law a new-found stability. This enhances freedom and the rule of law:
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, above at para. 24.)
The collective chorus of judges, guided by higher authority that in turn is guided by sound doctrine, not personal diktat, is what matters. Mr. Mancini, through his newsletter, is there to describe the chorus and comment upon it—a role as central and as valuable as can be.
Many of the judicial reviews Mr. Mancini has examined have at their core issues of legislative interpretation. Fortunately, how courts should go about interpreting legislation has been a major area of focus in Mr. Mancini’s academic work. In this vital area, Mr. Mancini’s academic work has been prolific and critical: see, for example, among many, his article “The Purpose Error in the Modern Approach to Statutory Interpretation” (2022) 59:4 Alta L Rev 919, which, in my view, is a modern-day classic. We see Mr. Mancini continually drawing upon his particular expertise in his weekly newsletter and sharing it for our consideration.
The legal system works best when the Supreme Court, intermediate appellate courts, first-instance courts, members of the legal academy and scholarly members of the Bar all try, from their particular perspectives, to identify the doctrine, chart the jurisprudential developments, and draw attention to the strengths and failings in the doctrine. Right now, in the area of judicial review, we may be in that zone. For this, in this area of law, Mr. Mancini and his excellent newsletter deserve a hearty slice of credit!
Well done and thanks!
British Columbia (Lieutenant Governor in Council) v Canada Mink Breeders Association, 2023 BCCA 310 (July 31, 2023)
Category: Preliminary objections (record on judicial review)
Context: From the Court’s summary:
This is an appeal of a production order made in proceedings relating to a judicial review of provincial Cabinet’s decision to phase out mink farming operations in British Columbia. The order under appeal requires the appellants, the Lieutenant Governor in Council and the Attorney General, to identify those documents directly and indirectly considered by Cabinet in making the decision and to identify the basis for the appellants’ assertion of public interest immunity in each claim. The appellants submit the chambers judge erred in finding the respondents, a collection of mink farmers and industry associations, are entitled to the documents they seek without first having established some basis to believe the documents relate to a permissible ground of review. The appellants also submit the chambers judge erred in granting an order pursuant to s. 17 of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, which is not available to a judicial review of a non‑adjudicative decision. Finally, they submit the judge erred in directing the appellants to list documents “indirectly” considered by Cabinet in making the decision, as such a requirement goes beyond the record and is impermissibly vague.
Issue: Must the respondents identify a permissible ground of review for production of the documents?
Holding: The record is the set of documents or evidence that was in fact directly before the decision maker. The record is not reduced by what are permissible grounds of review.
Analysis: In my view, the Court is undoubtedly on the right ground when it concludes that “..the starting point is that the producible record is that material before the decision maker” [34]. This means that there is likely no authority “that endorses the proposition that a judge should, at the disclosure stage, subtract from the material before the decision maker, on the ground that it is not relevant to an available ground of judicial review” [41]. Not much more to say about this—this is common sense, but an important reminder.
This is especially so because of the confusion over how to specify review of regulations. In British Columbia (Attorney General) v Le, 2023 BCCA 200 (Issue #91), the BCCA adopted a somewhat-modified reasonableness standard for the review of regulations. Given that, typically, executive legislation has been reviewed under the ground of ultra vires, one might think that the record should be limited to that ground of review. But since the SCC arguably merged the ultra vires ground with general review for reasonableness in cases of municipal bylaws and the like, there is an important question about how the record might be formed in cases where legislative-type instruments are challenged. These are all tricky questions, but I think the Court gets it right—an administrative act is an administrative act, and the record is the record. One hopes that if the SCC settles on reasonableness as the presumptive standard of review for all administrative acts, including subordinate legislation, it will also specify that the record is therefore defined by the sort of documents in front of the decision-maker at the time of the decision.
Elliott v Canada (Public Safety), 2023 FC 1053 (August 1, 2023)
Category: Application of the reasonableness standard
Context: This is a judicial review of a decision of the Minister of Public Safety. The Minister refused Elliott’s request to have his sentence in the United States transferred to Canada because he “did not meet the statutory requirements to be transferred under the International Transfer of Offenders Act”; specifically, the definition of “Canadian offender.” According to the Minister, he was not a Canadian offender because he had not yet surrendered himself into the physical custody of the US Bureau of Prisons.
Issue: Is the decision unreasonable?
Holding: Yes—the decision failed to grapple with Elliott’s liberty interests and his central arguments [62].
Analysis: In determining whether the refusal was reasonable, the Court essentially bifurcated the analysis, first determining whether Elliott fell under the term “Canadian offender” as a matter of statutory interpretation, and then asking whether that interpretation was properly justified. While it may be possible to bifurcate the reasonableness analysis this way, I wonder whether it could lend itself to disguised correctness review. Under this approach, there is a temptation to decide de novo whether the decision is correct without looking at the administrative reasoning supporting the decision. A better approach, in my view, is to simply apply Vavilov’s constraints to a decision, given their relevance in a particular case. In this case, for example, the Court could have phrased the liberty interests at stake as connected to the administrator’s statutory interpretation. Vavilov tells us that a decision maker must explain why an interpretation with particularly harsh consequences “best reflects the legislature’s intention” [133]. This is a bit like a substantive canon of construction. So, the Court could have said, all in the reasonableness analysis, that the Minister simply failed to explain why its interpretation of “Canadian offender,” even in its plain text, failed to account for these stakes.
In many cases—perhaps here—the bifurcation of this analysis won’t matter. But in other cases it may because of the sticky tendency to engage in disguised correctness review. Deference can be hard to do!
Ewert v Canada, 2023 FC 1054 (August 1, 2023)
Category: Doré
Context: Ewert, an Indigenous imprisoned person, was subject to a search by Correctional Services Canada [CSC] of his “medicine bundle,” related to his traditional belief system. As part of the medicine bundle, Ewert also wears headbands that have significance to him. CSC asked or required Ewert to remove the headbands.
Issue: Is Ewert entitled to damages for the search/demands related to his headbands and medicine bundle?
Holding: While Ewert did not demonstrate that the requests and demands made regarding his headbands breached his Charter rights, his detention and search of the medicine bundle by CSC violated ss 2(a) and 8 of the Charter. He is entitled to $7500 in Charter damages.
Analysis: The Court focused the majority of the analysis on s.2(a) of the Charter [45], concluding that the search and detention infringed s.2(a). This raises the prospect of s.1 justification. But then comes the perennial question: what s.1 framework should the Court apply? In challenges to laws for their constitutionality, courts apply the Oakes test to assess s.1 demonstrate justification; when an administrative decision is challenged on these grounds, courts apply the framework from Doré.
The Crown argued that Doré should apply “since the search of Mr. Ewert’s medicine bundle was the result of an administrative decision” [57]. But I think the Court is right to question “whether this framework, expressly developed in the administrative law context of judicial review of administrative action, is readily transferable to an action for Charter damages” [57]. The Court enunciates good reasons in principle for this: not only are damages unavailable on judicial review, but judicial review is not a prerequisite to an action in damages [57].
But the Court offers an even more compelling rationale for not following Doré especially in this context: “I also question whether, at least in these circumstances, deference can be given to the very administrative actor who is alleged to have infringed an inmate’s Charter rights and freedoms without inherently undermining those rights and freedoms” [58]. I agree, but query how far this proposition sweeps. Taken literally, it impugns deference on constitutional matters across administrative contexts, not just in cases of prison searches. I agree that deference on constitutional matters is questionable for these, and other, reasons.
I think, also for good reason, the Court finds that no Charter balancing took place here. There were evidently no contemporaneous notes or reasons offered for the search, and reliance on CSC’s standing “sacred object search policy.” I think the Court is right to note that standing policies may not be able to provide “automatic justification of any ten-day delay in returning a religious item where doing so contravenes religious freedoms” [89]. That makes good sense. Balancing of constitutional rights should be done, in the administrative context, at least somewhat contemporaneously. A standing policy can legitimately guide administrative conduct, but whether it conducts a contemporaneous constitutional balancing is another matter altogether.
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 own thoughts on the cases. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues, in my view, in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own, and any views expressed are my own.