2022 was a very busy year for administrative law in Canada. The big issues include the debate over the standard of review for procedural fairness, how courts review regulatory action, and the role of statutory restrictions on judicial review. Here I outline some cases in 2022 that shed light on these debates. I do not mean to review these issues exhaustively—they are largely unsettled.
The newsletter will resume on January 8, 2022. In that edition, I will recap any important cases released during the holiday hiatus.
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Law Society of Saskatchewan v Abrametz, 2022 SCC 29.
I reviewed Abrametz in Issue #48. The substantive issue in this case was the test for determining whether administrative delay leads to an abuse of process. As a policy matter, the issue of delay is topical. People who are facing administrative power across the country are experiencing significant delays in even having resolution of their cases. It is not a small problem, and this case outlines the different legal views on the matter. In general, the difference between majority and dissent fell to an interpretation of Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44, which originally established the test for delay.
The more technical issue involved the standard of review, which will potentially have a far-ranging impact on future debates over the standard of review for procedural fairness. This case came via a right of appeal, and so the question was whether the issue of delay—falling under the right of appeal—was subject to resolution according to Vavilov’s holding on rights of appeal. On the other hand, the orthodox position is that the standard of review for procedural fairness issues is correctness. The difference is that, on the former account, deference would apply to mixed law and fact findings related to a procedural fairness issue.
Rowe J for the majority held that because Vavilov was “categorical” on the point that issues falling under statutory rights of appeal attract the appellate standards of review, questions of procedural fairness falling under a right of appeal are similarly reviewed on the appellate standards [27]. Côté J’s dissent disagreed with the application of the appellate standards to procedural fairness issues, reasoning that because procedural fairness exists “independently of statutorily confined administrative regimes” [165], it cannot and does not fall within the scope of Vavilov [164-167].
The question matters because there is a percolating debate, as we shall see, on the issue of whether we should start with Vavilov’s principles when evaluating issues outside of the express contemplation of that case. As a matter of positive law, Abrametz is strong reinforcement for the proposition that, in evaluating issues outside of the scope of Vavilov, we still start with the principles of Vavilov. If this is so, then Abrametz is also strong reinforcement for the idea that procedural fairness issues that fall outside of the right of appeal should also be evaluated according to Vavilov’s principles—which would likely mean that these issues, rather than being evaluated on a correctness standard, would be subject to the presumption of reasonableness.
There are, of course, strong counter-arguments to this position. And yet as I wrote in Issue #48, I view the takeaway from Abrametz as a positive development. Fundamentally, statutes do define the scope of fairness in a given context; decision-makers often have an opportunity to weigh in on fairness issues at first instance; and I do not think that the application of Vavilov’s more robust reasonableness standard would lead, at all, to a disempowering of the law of procedural fairness. Nonetheless, as a matter of positive law, we are not here yet. For now, though, Abrametz should be seen as a point in favour of the “start with Vavilov” approach.
Society of Composers, Authors and Music Publishers of Canada v Entertainment Software Association, 2022 SCC 30.
I reviewed ESA in Issue #49. In this case, the Supreme Court majority (per Rowe J, Karakatsanis J in dissent) recognized a sixth category of correctness review: statutory schemes in which courts and administrators have concurrent first instance jurisdiction. This issue was live because, pre-Vavilov, the Court had decided that issues falling under such statutory schemes were resolved on a correctness standard (Rogers Communications v SOCAN, 2012 SCC 35) (what I’ll call the “Rogers Exception.”) Despite the fact that the Rogers Exception was not mentioned in Vavilov, the majority felt that its recognition was well within the scope of Vavilov’s principles: recognizing concurrent jurisdiction schemes gives effect to the legislative intention to “subtract” from the delegation of power to the decision-maker. Further, if different standards of review were applied to the same issue depending only on whether the issue arises in a court or the Board, then inconsistency arises based only on the forum where a claim is raised.
Again, we are faced with the “start with Vavilov” problem. As I mentioned, Vavilov did not mention the Rogers Exception—for some inexplicable reason. It’s as if that case was simply forgotten. Karakatsanis J, in her dissent, says that Vavilov “obviously” considered the Rogers Exception [117]. Whether it did or did not, this is again a matter of methodological debate. The majority seems to hold—and I agree—that Vavilov need not mention things explicitly for them to fall under the scope of its principles. The only question is whether the Rogers Exception is justifiable by Vavilov’s principles. Reasonable people can disagree on this, but I think the majority is on solid ground.
The principles applied in ESA will likely get another run in Mason, where one of the issues before the Supreme Court is whether the certified questions regime for immigration & refugee matters in the Federal Courts system rebuts the presumption of reasonableness.
The Standard of Review for Regulations (Portnov v Canada (Attorney General), 2021 FCA 171; Auer v Auer, 2022 ABCA 375; Innovative Medicines Canada v Canada (Attorney General), 2022 FCA 210)
I addressed this debate in a number of issues: Issue #7 (Portnov); Issue #68 (Auer); Issue #70 (Innovative Medicines), and it began in 2021 and will continue into 2023. I recommend reading these issues if you want a full analysis of the back-and-forth—it is one of the “hot topics” in Canadian administrative law today. This issue has split courts across the country, and it comes down to this: when courts evaluate “legislative” instruments promulgated under delegated power, do they apply Vavilov’s reasonableness standard, or do they instead apply the more deferential test set out in Katz Group Canada Inc v Ontario (Health and Long-Term Care), 2013 SCC 64. This is another version of the “start with Vavilov” issue.
The Federal Court of Appeal, among other courts, has endorsed the “start with Vavilov” position on this: see Pacific Wild Alliance v British Columbia (Forests, Lands, Natural Resource Operations and Rural Development), 2022 BCSC 904 at paras 68-75; Whistler (Resort Municipality), 2020 BCCA 101; Service de calèches et traîneaux Lucky Luc c. Ville de Montréal, 2022 QCCA 1610. Like issues of procedural fairness, the general idea is that there is no reason why certain legislative instruments like regulations cannot be evaluated under the Vavilov template. In response, the Alberta Court of Appeal and others say that there are special constitutional reasons why instruments like Cabinet regulations must be reviewed more deferentially: on this account, reasonableness review would violate the separation of powers because it would invade the policy-making function of elected representatives like members of the Cabinet (though not all members of the Cabinet need be elected). These arguments also say that reasonableness review cannot really be undertaken in these circumstances, since the record is usually quite sparse.
This issue will continue to percolate. But as readers know, I side with the FCA and the courts that have endorsed the “start with Vavilov” position. I am alive to the separation of powers concern, but believe it is misguided. Action taken under delegated power, whether “legislative” or not, is just that: action that must fall within the grant of authority. The ABCA proceeds on an inapposite analogy to the primary legislative process, in which courts cannot intervene (Mikisew Cree First Nation v Canada, 2018 SCC 40). Executive legislation is not the same as legislation produced in the primary legislative process.
As a matter of simplicity and clarity in the law, the ABCA’s position on this is a practical nightmare, created contrary to Supreme Court precedent (see Innovative Medicines, at para 35). Other bodies besides Cabinet can promulgate “legislative” rules and instruments. Municipalities, bylaws produced by law societies, and other “legislative” rules would seemingly fall under the ABCA’s template, and yet some of these types of instruments have been reviewed by the Supreme Court in past cases on a reasonableness standard (see Innovative Medicines, at para 33). The ABCA awkwardly attempts to get around this, but the result is actually a confusing trifurcation of the standard of review. On the ABCA account, Cabinet regulations are subject to Katz; administrative decisions are subject to Vavilov, and other “legislative-type” rules passed, say, by municipal councils are subject to a “limited review for reasonableness” (Auer, para 82). This is quite confusing, and the confusion arises because of a fundamental misstep on what the separation of powers requires.
The ABCA also proceeds on a misconstrual of what administrative law reasonableness requires. Reasonableness does not involve a second-guessing of the merits/policy choices embedded in a decision or legislative instrument. Courts do not re-weigh the evidence; they only loosely consider whether an action taken under delegated power fits within the scope of Vavilov’s constraints, which do not involve the merits of a particular policy choice.
This is just my view. As a matter of positive law, this issue is unsettled, and I expect it will have to receive resolution by the Supreme Court.
Partial Restrictions on Review (Democracy Watch v Canada (Attorney General), 2022 FCA 208; Canada (Attorney General) v Best Buy, 2021 FCA 161; Yatar v TD Insurance Meloche Monnex,2022 ONCA 446; Canadian Council for Refugees, 2021 FCA 72).
I addressed this issue in several past editions of the newsletter: see e.g. Issue #4 (Best Buy); Issue #45 (Yatar). These cases concern an issue of considerable vintage in Canadian administrative law: to what extent can legislatures, through privative clauses/rights of appeal or some combination thereof, oust judicial review? As Stratas JA recently noted in Democracy Watch, “…a cloud of uncertainty and complexity presently hovers over all statutory provisions that limit the review of administrative decisions” [56], and it is an issue that has divided the Supreme Court of the United Kingdom, as well: R (Privacy International) v Investigatory Powers Tribunal, [2019] UKSC 22.
As I wrote in Issue #45:
….Vavilov held that the existence of a right of appeal does not preclude a judicial review application on issues that are not covered by the right of appeal (Vavilov, at para 45). This is coupled with the basic point that legislatures can limit the scope of judicial review within constitutional limits (those limits are outlined in Crevier v AG Quebec et al, [1981] 2 SCR 220). Those limits have been understood, in at least one sense, as preventing immunization on the basis of fundamental legality (see Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72 at para 102). Put differently, judicial review is always available on fundamental legality. Additionally, statutes can extend or limit rights of judicial review with this fundamental constitutional limit in mind (see below the ON Judicial Review Procedure Act).
But the question is what, specifically, these constitutional limits entail, and here the ONCA seems to part ways with what is going on in the Federal Court of Appeal: see Canada (Attorney General) v Best Buy Canada, 2021 FCA 161, Issue #4). In that case, Gleason JA seemed to suggest that Vavilovian reasonableness, on a broader range of factual and mixed-fact-law questions (as opposed to just fundamental legality), may be constitutionally protected (see Best Buy, at paras 71, 100 et seq, and 118). Near JA took a narrower view, concluding that, in the context of the scheme at hand, the appeal right clearly ousted the ability of the court to review factual issues and mixed-fact-law issues (Best Buy, at para 46).
So far, we have seen the following splits on this issue:
(1) Best Buy Majority: “…a complete bar on the availability of judicial review for any type of issue would offend the rule of law” (Best Buy, at para 31). As I noted in Issue #4, this would mean that certain fact and mixed fact and law issues could not be ousted by the legislation at issue in Best Buy, essentially making Vavilovian reasonableness constitutionally-enshrined and calling into question partial restrictions on review.
(2) Best Buy Minority/Canadian Council of Refugees (FCA): The Best Buy minority and Canadian Council of Refugees read Crevier as only restricting total legislative efforts to oust judicial review. “In other words, total bars on any review of administrative decisions by courts are not enforced” (Democracy Watch, at para 42). Problems arise, specifically, if judicial review is ousted (through rights of appeal, privative clauses, etc) on questions of fundamental legality—though the metes and bounds of what constitutes fundamental legality is an open question. This is so, in part, because Crevier noted that restrictions on review for jurisdictional matters should not be entertained. As we know, the language of “jurisdiction”—and how it translates to contemporary legal issues—is a question requiring examination.
(3) Yatar: The ONCA strikes a middle position, albeit one that is closer to the Best Buy minority. It suggests that partial restrictions on review (say, only allowing appeal on certain issues) must be respected except where the appeal is not an adequate recourse.
This is an issue that, while technical, is actually really important. Vavilov suggests that legislation framing the authority of administrative decision-makers should be respected. But it also suggests that the rule of law—as a constitutional principle—can affect the extent to which legislation will be read to oust judicial review (see for example Vavilov, at para 35). People do disagree on where the line should be drawn between these principles on the availability and scope of judicial review, in the face of legislative ousting. In my view, the rule of law particularly kicks in in two circumstances: (1) where there is total ousting of judicial review, as mentioned in the Best Buy minority and Canadian Council for Refugees; (2) where the legislature purports to specify the standard of review on constitutional questions.
The latter scenario is not an issue in Best Buy/Yatar (though it is live: see my co-authored piece in the National Post with Maxime St-Hilaire and Leonid Sirota on the Alberta Sovereignty Act, which specifies a patent unreasonableness standard on constitutional matters arising under that statute). But the former scenario raises important questions about when legislation ousting judicial review should be respected. Consonant with the Best Buy minority, I believe that the rule of law principle only “kicks in” when there is a total barring of judicial review, including over fundamental legal issues. The problem is what these issues actually are. Nonetheless, before we get to this problem, we first need to determine what occurs when there is only a partial restriction on review on fact/mixed fact and law issues. For my part, I see no constitutional impediment to preventing a litigant from seeking judicial review over factual or mixed fact/law matters covered by a right of appeal. In my view, this flows directly from the hierarchy of laws—there is no all-encompassing right to judicial review (Yatar, at para 45).
Nonetheless, as Stratas JA said in Democracy Watch, “[i]t is to be hoped that one day soon the Supreme Court of Canada will settle this important, fundamental issue once and for all” [56]. As a matter of positive law—and putting my view aside—it remains unsettled, and there is conflicting case authority. I too hope this issue is, one day, settled.
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.