For today’s Vavilov at 5 entry, I am happy to present a post from Alex Bogach, an Associate at Tory’s LLP. Alex’s excellent contribution focuses on the Supreme Court’s “publicly premeditated model of Supreme Court decision making” in Vavilov. It has given me much food for thought.
Vavilov as a New Model of Supreme Court Decision-Making
In granting leave to Vavilov on May 10, 2018, the Supreme Court of Canada took the unusual step of issuing reasons to accompany the decision. The reasons telegraphed that the Court was open to reshaping its existing administrative law doctrine. It was a “bat signal” for the Canadian administrative law community:
The Court is of the view that these appeals provide an opportunity to consider the nature and scope of judicial review of administrative action, as addressed in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, and subsequent cases. To that end, the appellant and respondent are invited to devote a substantial part of their written and oral submissions on the appeal to the question of standard of review, and shall be allowed to file and serve a factum on appeal of at most 45 pages.
The message was heard. Twenty-seven interveners applied to make submissions, including four attorneys general. The Court also hired amici to offer an independent perspective. For three full days in December 2018, the Court conducted an inquest into Canadian administrative law.
By issuing this unusual “bat signal”, the Court broke entirely from the traditional common law approach of resolving discrete legal issues as they organically rose to its docket. Instead, the Court committed to using Vavilov (and a companion appeal) as a vehicle to undertake a more holistic renovation of an entire domain of doctrine. And while the Court has used cases to significantly re-shape its jurisprudence, it does not announce in advance that it intends to do so.
With five years of Vavilov behind us, we have an opportunity to reflect on this publicly premediated model of Supreme Court decision making. Should the Court deploy this model more often to deal with problematic or fraught areas of law?
My view is that our experience with Vavilov so far reveals two main beneficial features to this model:
1. By committed to a holistic review of the entire area of law, the Court could calibrate the various components of administrative law so that they work in unison. This has led to a more durable, better calibrated doctrine.
2. By providing notice of its intention to fix administrative law, the Court gave affected parties an opportunity to be heard, which, at best, enriched the Court’s new framework, and, at the very least, affirmed the legitimacy and procedural fairness of the decision.
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1. Calibrating the Doctrine
Undertaking an all-encompassing renovation enabled the Court to consider how the various doctrinal rules and principles interact with each other—and then calibrate those rules and principles to work together. Rather than fix the doctrine brick-by-brick, with each issue resolved in splendid isolation from the other, Vavilov enabled the judges to take a more holistic treatment.
The post-Dunsmuir era featured lots of brick-by-brick approaches, with each case seeking to tackle a discrete, unresolved administrative law issue. This spawned sharp divisions. Judges skeptical of executive power usually voted one way on those issues. Judges who embraced administrative actors usually voted the other way.
Vavilov breaks this trend, allowing the Court to calibrate the various administrative law mechanisms so that they work in harmony and balance the competing aims of judicial review—guarding the rule of law and showingrespect for the legislative institutional design choices.
Two examples of this holistic approach from Vavilov stand out: its approach to “true questions of jurisdiction” and “persistent administrative discord”.
True Questions of Jurisdiction
The Vavilov Court finally summoned the courage to take “true questions of jurisdiction” off life support.
Prior to Vavilov, judges were deeply divided on this issue. Consider Alberta Teachers and CHRC 2018, where in both cases the Court was unanimous in disposition but produced concurring reasons—in CHRC 2018, two sets of them—fixating on the existence of “true questions of jurisdiction”.
These cases offered a binary option to the judges: should true questions of jurisdiction exist or not? While resolving discrete, unresolved legal questions is the dominant approach at the Supreme Court of Canada, the binary question produced predictably polarized results. Judges worried about the rule of law consequences refused to let go of jurisdictional questions. Those who were more trusting and respectful of the administrative state saw true questions of jurisdiction as needless and distracting.
The holistic approach taken by Vavilov offered an escape from this binary choice.
Yes, the Court decided to abolish true questions of jurisdiction as a correctness category. But Vavilov does not simply answer that binary question. Vavilov’s holistic approach allowed it to consider and calibrate other parts of the framework to compensate for the departure of true questions of jurisdiction.
So, while “true questions of jurisdiction” no longer exist, Vavilov trumpets the importance of statutory language as a critical constraint on decision-makers under reasonableness review. The section addressing the governing statutory scheme concludes that it will, “of course”, be “impossible” for decision-makers to justify decisions that fall outside the limits set by the statutory language.
As a result, the Vavilov method of decision-making prevents driving wedges between competing concepts, like the rule of law and the democratic principle. It invites and encourages a more precise calibration between those two principles across the entire machine of judicial review.
Persistent Administrative Discord
As another example, consider the Court’s willingness to apply the correctness standard of review for instances of persistent discord and disagreement amongst administrative decision-makers. Previous case law—which posed a binary question—created a polarized response from the Court in Wilson v. Atomic Energy. Judges who promoted the democratic principle and trust in the executive branch were against it. Those who more forcefully defended the rule of law were in favour of it.
While Vavilov answers the binary question by declining to recognize a correctness category for persistent discord, it does not stop there. It reflects the concerns about persistent administrative discord by emphasizing the importance of consistency when reviewing for reasonableness, inviting decision-makers to use certain tools to resolve conflicting lines of authorities and empowering courts to reward consistency and penalize inconsistency.
2. Putting the Public on Notice
Of course, Dunsmuir itself was a holistic reconsideration of Canadian administrative law doctrine. This did not save it from the administrative law graveyard.
However, the one difference between Dunsmuir and Vavilov is that Vavilov put the public—the bar, academy, regulators, and other affected parties—on notice. In contrast to the twenty-seven interveners in Vavilov, nobody intervened in Dunsmuir. And the parties did not invest significantly in the issue: counsel for Mr. Dunsmuir has since stated that, for strategic reasons, they did not intend to focus on the standard of review in oral submissions. As a result, the Court was deprived of the considered perspective of the parties and prospective interveners.
Having steeped themselves in the hundreds of pages of submissions, and a three-day hearing focused on the key doctrinal questions, the Vavilov Court was surely more educated and informed about the potential impacts and ramifications of its decision. The wide range of parties, interveners and the amici came prepared to address the administrative law question that puzzled the Court for the Dunsmuir decade.
Even assuming that these extensive and focused submissions made no difference to the Court’s consideration of the issues, the mere fact of giving an venue for the parties to express their positions affirms the legitimacy and fairness of Vavilov.
Contrast Vavilov with how the Court handled R. v. Jordan, which also re-shaped an entire area of law—there, unreasonable delay under s. 11(b) of the Charter.
Jordan is, in some ways, a jurisprudential cousin of Vavilov. Like Vavilov, Jordan arose out of a contextually framework that was plagued with both practical and theoretical challenges. Like Vavilov, Jordan replaced that contextual approach with more rule-based and prescriptive framework. And, like Vavilov, the changes in Jordan were so significant and landscaping-shifting that the Court recognized the need for transitional rules or guidance for cases already in the system.
Yet, like Dunsmuir, there was no advanced warning that Jordan would embark on a fundamental reimagination of the Court’s s. 11(b) jurisprudence. Only three interveners obtained status in Jordan and, of those, only one provincial attorney general. The four-member dissent noted the lack of evidence and submissions underpinning the new Jordan framework.
Nine months after Jordan’s release, the Court heard R v. Cody. Seven parties intervened in Cody, including five attorneys general. Those attorneys general asked the Court to re-visit Jordan framework but were rebuffed on stare decisis grounds.
This was likely cold comfort for those attorneys general. Had they been put on notice that Jordan was considering such a radical change in the law, they surely would have intervened. Given Jordan was a sharply divided 5-4 decision, those interventions could have made a difference. At the very least, their submissions could have sharpened Court’s new framework.
And even accepting that these additional submissions would have made no difference at all to Jordan’s result or reasoning, the mere opportunity to offer their views would improve Jordan’s legitimacy. Those attorneys general could at least walk away knowing they had been heard. They would never have come back in Cody asking the Court to unwind what it had done just nine months later.
Vavilov has its detractors. But there is no call to revisit or unwind it. Its legitimacy and permeance is fueled, in part, by the broad participation it welcomed.
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One may fairly question whether the Supreme Court ought to be undertaking entire revisions of areas of law in one or two cases. Critics may worry that this model of decision-making represents quasi-legislative decision-making emanating from a body without the institutional capacity of a legislature. Incrementalism, these critics say, ought to be preferred.
These critics may have a point. The unrestrained renovation of entire areas of law is not perfect, as evidenced by the steady stream of post-Vavilov cases reckoning with unaddressed (and perhaps unforeseen) consequences of its decision, like scope of the Rogers exception for concurrent jurisdiction (SOCAN v. ESA), the standard of review for commercial arbitrations (Wastech), and the standard of review for subordinate legislation (Auer). (Vavilov is not alone—the post-Jordan jurisprudence has similarly had to grapple with the scope and application of its doctrine to the youth criminal justice system (R. v. KJM), re-trials (R v. JF) and to the import of delays in judicial deliberation (R. v. KGK)).
However, the toothpaste may be out the tube. We live in a world where the Court does (and maybe should), from time to time, embrace this law-making, quasi-legislative role. Accepting this reality, it surely makes sense to equip it with a legislature-lite process. Indeed, the Vavilov hearing—a three-day seminar on administrative law—looked more like a standing committee meeting than a court case. If the modern Supreme Court continues to drift further towards a law-making function, it should consider whether the decision-making model embodied by Vavilov ought to be more common.