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.