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!