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Judicial Review - SOR - The 'Reasonableness' TestThese cases are useful 'nutshell' summaries for the judicial review standard of review of 'reasonableness'. Reading one of these extracts alone will take you far on understanding this issue. The Speck case lists several Vavilov-anticipated 'reasonableness' exceptions, where the SOR is 'correctness' due to the importance of the issue involved.
. Mason v. Canada (Citizenship and Immigration)
In Mason v. Canada (Citizenship and Immigration) (SCC, 2023) the Supreme Court of Canada considered (and allowed) a (second) appeal of an first-allowed JR of a decision of the Immigration and Refugee Board of Canada (Immigration Appeal Division). The Federal Court of Appeal (Stratas JA writing, but later reversed) interpreted s.34(1)(e) of the Immigration and Refugee Protection Act ['engaging in acts of violence that would or might endanger the lives or safety of persons in Canada'] to not require a 'national security' nexus when applying it's immigration inadmissibility provision.
In these quotes the court reaffirms the primary Vavilov theme of the standard of review for JRs to be 'reasonableness', despite the respondents' argument that a 'correctness' exception was warranted in this case:[7] In Vavilov, this Court revised the framework for determining the standard of review. The Court established a presumption that the standard of review of the merits of an administrative decision is reasonableness, subject to limited exceptions based on legislative intent or when required by the rule of law (paras. 10 and 17). The revised framework seeks to maintain the rule of law, while respecting a legislature’s intent to entrust certain decisions to administrative decision makers rather than courts (paras. 2 and 14). It also aims to bring simplicity, coherence, and predictability to the law on the standard of review and to eliminate the unwieldy exercise of determining the standard of review based on contextual factors, as had been required by this Court’s jurisprudence following Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Vavilov, at paras. 7 and 10).
[8] Vavilov also explained how a court should conduct reasonableness review. This Court stressed that reasonableness review and correctness review are methodologically distinct (para. 12). Reasonableness review starts from a posture of judicial restraint and focusses on “the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place” (paras. 15 and 24). When an administrative decision maker is required to provide reasons for its decision, reasonableness review requires a “sensitive and respectful, but robust” evaluation of the reasons provided (para. 12). A reviewing court must take a “reasons first” approach that evaluates the administrative decision maker’s justification for its decision (para. 84). An administrative decision will be reasonable if it “is based on an internally coherent and rational chain of analysis and . . . is justified in relation to the facts and law that constrain the decision maker” (para. 85). This Court also affirmed “the need to develop and strengthen a culture of justification in administrative decision making” (para. 2).
[9] Applying the Vavilov framework to these appeals, I conclude that the standard of review of the administrative decisions at issue is reasonableness. No established exception to the presumption of reasonableness review applies, nor should any new exception be created on the basis that the appeals involved a serious question of general importance certified for appeal to the Federal Court of Appeal under s. 74(d) of the IRPA. The certified question regime is a statutory mechanism for the Federal Court to provide for an appeal from a judicial review decision in certain circumstances.
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[39] In Vavilov, this Court established a presumption that when a court reviews the merits of an administrative decision, the standard of review is reasonableness (para. 16; Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 S.C.R. 900, at para. 27). This presumption is rebutted in two types of situations, which together provide six categories of correctness review (Vavilov, at paras. 17 and 69; Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30, at para. 40). The first type of situation is where the legislature has indicated that it intends a different standard or set of standards to apply, and the second type of situation is where the rule of law requires that the standard of correctness be applied (Vavilov, at para. 17). Vavilov thus sets out a “general rule” of reasonableness review, “subject to limited exceptions” (D. Mullan, “Reasonableness Review Post-Vavilov: An ‘Encomium for Correctness’ or Deference As Usual?” (2021), 23 C.L.E.L.J. 189, at p. 200).
[40] The first situation, based on legislative intent, provides for two categories of correctness review: when the legislature explicitly prescribes the standard of review, and when it provides for an appeal from an administrative decision to a court, thus signalling that appellate standards of review apply (Vavilov, at para. 17; Canada Post, at para. 27).
[41] As for the second situation, Vavilov set out three categories of questions that the rule of law requires to be reviewed on a standard of correctness: constitutional questions, general questions of law of central importance to the legal system as a whole, and questions related to the jurisdictional boundaries between two or more administrative bodies (para. 17; Canada Post, at para. 27).
[42] At the time it was rendered, Vavilov thus recognized five categories of correctness review: (1) legislated standards of review; (2) statutory appeal mechanisms; (3) constitutional questions; (4) general questions of law of central importance to the legal system as a whole; and (5) questions related to the jurisdictional boundaries between two or more administrative bodies (paras. 17 and 69).
[43] At the same time, Vavilov did not definitively foreclose the possibility of recognizing new categories of correctness “[i]n rare and exceptional circumstances . . . when applying reasonableness would undermine legislative intent or the rule of law in a manner analogous to the five correctness categories” already identified (Society of Composers, at para. 27; Vavilov, at para. 70). This Court recently recognized a sixth category of correctness review in Society of Composers, a case involving copyright royalties for works accessed online: (6) “when courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a statute” (para. 28). The Court noted that both the Copyright Board and the courts have concurrent first instance jurisdiction regarding the interpretation of the Copyright Act, R.S.C. 1985, c. C-42, which signals “a legislative intent for judicial involvement” (para. 31) and highlights the need for consistent and definitive interpretation of the Copyright Act to maintain the rule of law (paras. 33‑35).
[44] The presumption of reasonableness review and the limited circumstances in which it is rebutted provide a comprehensive framework for determining the standard of review. This framework brings simplicity, coherence, and predictability to the law on the standard of review, since reviewing courts need no longer conduct an unwieldy “contextual” inquiry to identify the appropriate standard of review, as had been the case in the period before Vavilov (Vavilov, at paras. 7 and 17).
(2) No Established Exception to the Presumption Applies
[45] None of the established exceptions to the presumption of reasonableness review applies in these cases.
[46] First, the legislature has not explicitly prescribed the standard of review or provided a statutory appeal mechanism from an administrative decision to a court. The present cases proceeded to the Federal Court on applications for judicial review under s. 72(1) of the IRPA, which does not prescribe the standard of review.
[47] Second, the standard of correctness is not required based on the rule of law. The proper interpretation of s. 34(1)(e) of the IRPA is not a “general question of law of central importance to the legal system as a whole” under Vavilov (paras. 58‑62). Such “general questions of law” require uniform and consistent answers because of their impact on the administration of justice as a whole or for other institutions of government (para. 59). Examples of general questions of law include questions with legal implications for many other statutes or for the proper functioning of the justice system as a whole (paras. 59‑61). It is not enough for the question to “touc[h] on an important issue” or to raise an issue of “wider public concern” (para. 61). Although the proper interpretation of s. 34(1)(e) is important for the affected persons and the proper administration of the IRPA, it does not affect the legal system or the administration of justice as a whole, have legal implications for many other statutes, or affect other institutions of government. Rather, the issues raised are particular to the interpretation of the conditions for inadmissibility under s. 34(1)(e). Moreover, the proper interpretation of s. 34(1)(e) is not a constitutional question or a question related to the jurisdictional boundaries between two or more administrative bodies, nor does it engage the correctness category recognized in Society of Composers. Thus, the rule of law does not require the Federal Court to review an administrative interpretation of s. 34(1)(e) for correctness. . Pereira v. Hamilton Police Services Board
In Pereira v. Hamilton Police Services Board (Div Court, 2022) the Divisional Court considers a judicial review from an HRTO order dismissing an application. The application was deferred for four years [under Rules of Procedure 14] pending the completion of non-HRC proceedings, and the applicant was 40 days late (under HRTO Rules) in applying to re-activate it - so the issue was an extension. The JR was granted on the basis that the HRTO had misapplied the extension standard under s.34(2), as opposed to the proper Rule 1.7 standard.
Other than these HRC details, the case is interesting for it's posing of a detailed Vavilov test for the 'reasonableness' JR standard of review by a respected administrative law judge, Sachs J:The Content of the Reasonableness Standard
[25] There are several principles articulated by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, that are important to consider in analyzing the reasonableness of the decisions under review. In particular:(a) Reasonableness review requires the court to show restraint. It should not ask itself what it would have done; its focus should instead be on “whether the applicant has demonstrated that the decision is unreasonable” (para. 75).
(b) The focus of a reasonableness review must be on the decision actually made by the decision maker – both its outcome and its reasoning process (para. 83).
(c) “Developing an understanding of the reasoning that led to the administrative decision enables a reviewing court to assess whether the decision as a whole is reasonable ... a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (para. 85).
(d) Reasonableness review is not solely focused on the outcome of the administrative decision under review. A court conducting a reasonableness review must also consider the reasoning process that led to that outcome. An outcome that is based on an unreasonable chain of analysis may be set aside even if it is not unreasonable in the circumstances. “This approach is consistent with the direction in Dunsmuir that judicial review is concerned with both outcome and process. To accept otherwise would undermine, rather than demonstrate respect toward, the institutional role of the administrative decision maker” (paras. 86-87, emphasis in original).
(e) To determine whether a decision is reasonable a reviewing court must ask itself whether the decision as a whole “bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (para. 99). The burden is on the party challenging the decision to demonstrate that it is unreasonable, and this requires demonstrating a flaw or shortcoming that is more than merely superficial or peripheral (para. 100).
(f) The most relevant factual and legal considerations that constrain an administrative decision maker such as the Tribunal include the following:1. The governing statutory scheme. Decision makers are not permitted to rewrite the law under which they operate. Even where a decision maker has considerable discretion, the decision “must ultimately comply ‘with the rationale and purview of the statutory scheme under which it is adopted’.” “[A] decision must comport with any more specific constraints imposed by the governing legislative scheme, such as the statutory definitions, principles or formulas that prescribe the exercise of a discretion ... The statutory scheme also informs the acceptable approaches to decision making: for example, where a decision maker is given wide discretion, it would be unreasonable for it to fetter that discretion” (para. 108; citations omitted, emphasis added).
2. Other statutory or common law. “[W]here the governing statute specifies a standard that is well known in law and in the jurisprudence, a reasonable decision will generally be one that is consistent with the established understanding of that standard” (para. 111). “Any precedents on the issue before the administrative decision maker or on a similar issue will act as a constraint on what the decision maker can reasonably decide.” However, there may be circumstances in which it would be unreasonable for a tribunal to interpret a statutory provision in accordance with a binding precedent, such as when the precedent adopts an interpretation that is inconsistent with how Canadian courts have interpreted the same issue. A tribunal decision may also be unreasonable if it fails to explain a departure from a binding precedent in which the same provision has been interpreted (para. 112). Administrative tribunals are not necessarily required to apply common law or equitable doctrines in the same manner as the courts – those doctrines may be adapted to the relevant administrative context (para. 113).
3. Principles of statutory interpretation. Whatever form the administrative decision maker’s statutory interpretative exercise takes, “the merits of an administrative decision maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision” (para. 120). “The administrative decision maker’s task is to interpret the contested provision in a manner consistent with the text, context and purpose, applying its particular insight into the statutory scheme at issue. It cannot adopt an interpretation it knows to be inferior — albeit plausible — merely because the interpretation in question appears to be available and is expedient. The decision maker’s responsibility is to discern meaning and legislative intent, not to ‘reverse-engineer’ a desired outcome” (para. 121).
4. Evidence before the decision-maker. “[A]bsent exceptional circumstances, a reviewing court will not interfere with [an administrative decision maker’s] factual findings” (para. 125).
5. Submissions of the parties. Decision makers do not have to respond to every issue raised by the parties but failing to meaningfully grapple with the key or central issues raised by the parties “may call into question whether the decision maker was actually alert and sensitive to the matter before it” (para. 128).
6. Past practices and past decisions. Administrative decision makers are not bound by stare decisis. “‘[A] lack of unanimity is the price to pay for the decision-making freedom and independence’ given to administrative decision makers, and the mere fact that some conflict exists among an administrative body’s decisions does not threaten the rule of law. Nevertheless, administrative decision makers and reviewing courts alike must be concerned with the general consistency of administrative decisions. Those affected by administrative decisions are entitled to expect that like cases will generally be treated alike and that outcomes will not depend merely on the identity of the individual decision maker — expectations that do not evaporate simply because the parties are not before a judge” (para. 129; citations omitted). “As discussed above, it has been argued that correctness review would be required where there is ‘persistent discord’ on questions on law in an administrative body’s decisions. While we are not of the view that such a correctness category is required, we would note that reviewing courts have a role to play in managing the risk of persistently discordant or contradictory legal interpretations within an administrative body’s decisions. When evidence of internal disagreement on legal issues has been put before a reviewing court, the court may find it appropriate to telegraph the existence of an issue in its reasons and encourage the use of internal administrative structures to resolve the disagreement. And if internal disagreement continues, it may become increasingly difficult for the administrative body to justify decisions that serve only to preserve the discord” (para. 132).
7. Impact of the decision on the affected individual. Where the impact of a decision on an affected individual is severe “the reasons provided to that individual must reflect the stakes. The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention” (para. 133). . Speck v. OLRB
In Speck v. OLRB (Div Ct, 2021) the Divisional Court nicely sets out the post-Vavilov standard of review for judicial review, including exceptions from reasonableness:STANDARD OF REVIEW
[23] The parties agree that the standard of review in respect of both the Board’s interim and its final decision dismissing the applicant’s s. 96 application for delay is the presumptive standard of reasonableness as discussed in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 23.
[24] The reasonableness standard assesses whether there is justification, transparency and intelligibility within the decision-making process and whether the decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law: Vavilov, paras. 99-100.
[25] The reasonableness standard can be rebutted where a different standard has been explicitly prescribed by statute, or where the Legislature has provided for a statutory appeal mechanism and where the judicial review falls into one of three categories: constitutional questions, general questions of law of central importance to the legal system as a whole, and questions regarding the jurisdictional boundaries between two or more administrative bodies: Vavilov, at paras. 17, 53 and 69.
[26] The applicant submits that the Board’s decision concerning his Charter argument involves a constitutional issue requiring the standard of correctness. The responding parties disagree and submit that the issue before the Board was not a constitutional one and accordingly the presumptive standard of reasonableness is not rebutted.
[27] Where the issue being determined is whether a statutory provision contravenes the Charter, the standard of review is correctness. Where, however, the Charter is invoked as an aid to interpretation, the standard of review is reasonableness: Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, at paras. 42, 57-58; Vavilov, at para. 57.
[28] There is no standard of review with respect to procedural fairness. Rather, the reviewing court must conduct an assessment of the particular situation having regard to the factors set out by the Supreme Court of Canada in Baker v. Canada, 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817. . Williams Lake Indian Band v. Canada (Indian Affairs and Northern Development)
In Williams Lake Indian Band v. Canada (Indian Affairs and Northern Development) (Fed CA, 2021) the Federal Court of Appeal summarizes the new 'reasonableness' standard from the recent Vavilov case on judicial review:[34] In its recent decision in Vavilov, the Supreme Court of Canada provided extensive guidance on how courts are to conduct a reasonableness assessment. Where the decision-maker provides reasons, the starting point is the decision of the administrative decision-maker; the requisite inquiry involves determining whether the reasoning process and result reached are reasonable as opposed to whether they are the ones the reviewing court would have adopted (at paras. 15, 81, 82-87, 99, 116). Moreover, reasonableness review requires that courts intervene only where necessary to safeguard the legality, rationality and fairness of the administrative decision-making process. The focus of the inquiry is thus on ensuring that the decision as a whole, when viewed in context, is transparent, intelligible and justified (at paras. 15, 85, 99, 116, 137).
[35] The Supreme Court further indicated that there are two types of flaws that may render a decision unreasonable: either a flaw of rationality in the reasoning process or instances where the decision is untenable in light of the factual and legal constraints that bear upon it (at para. 101). Most challenges, including the present one, centre on the second of these potential flaws.
[36] The Supreme Court provided a non-exhaustive list in Vavilov of factual and legal constraints against which administrative decisions may be measured to ascertain if they are tenable. These constraints include:. the decision-maker’s governing legislation, which may set boundaries on the decision-maker’s powers (at para. 108), require or allow the decision-maker to draw on its unique expertise, which may be different from that of a court (at paras. 31, 93), contain definitions, principles or formulas that prescribe the exercise of discretion (at paras. 108-109) or be drafted in narrow or open-ended language (at para. 110);
. other statutory or common law, which may constrain the decision-maker, depending on context (at paras. 111-114);
. principles of statutory interpretation, which mean that the administrative decision-maker’s interpretation "“must be consistent with the text, context and purpose of the provision”" (at para. 120);
. the evidence before the decision-maker, but it is not for the reviewing court to re-weigh the evidence. Rather, it may intervene only where "“the decision maker has fundamentally misapprehended or failed to account for the evidence before it”" (at para. 126);
. the parties’ submissions to the administrative decision-maker, which require the decision-maker to address key arguments made (at paras. 127-128);
. the decision-maker’s past practices and decisions, which the administrative decision-maker cannot depart from without adequate explanation (at paras. 129, 131); and
. the impact of the decision on the affected individual(s) (at paras. 133-135). . Ontario (Health) v. Association of Ontario Midwives
In Ontario (Health) v. Association of Ontario Midwives (Ont CA, 2022) the Court of Appeal makes the useful point that the 'reasonableness' standard of review for judicial reviews applies to fact, law and remedy issues:[47] For the reasons that follow, I conclude that Vavilov does not undermine the reasoning in Shaw v. Phipps, which adopted a reasonableness standard of review for determinations of fact, the interpretation and application of human rights law, and remedial decisions. ... . Pereira v. Hamilton Police Services Board
In Pereira v. Hamilton Police Services Board (Div Court, 2022) the Divisional Court considers a judicial review from an HRTO order dismissing an application. The application was deferred for four years [under Rules of Procedure 14] pending the completion of non-HRC proceedings, and the applicant was 40 days late (under HRTO Rules) in applying to re-activate it - so the issue was an extension. The JR was granted on the basis that the HRTO had misapplied the extension standard under s.34(2), as opposed to the proper Rule 1.7 standard.
Other than these HRC details, the case is interesting for citing of doctrine that 'reasonableness' applied to all of the issues of fact, law and remedy - something that needs to be said:[23] The Applicant and the Board accept that the standard of review is reasonableness, while the Tribunal argues that it is patent unreasonableness. After the hearing of this application the Court of Appeal released its decision in Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458. The Court found at para. 47, that “Vavilov does not undermine the reasoning in Shaw v. Phipps, which adopted a reasonableness standard of review for determinations of fact, the interpretation and application of human rights law, and remedial decisions.”
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