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VAVILOV - JR - SOR - Expertise. Canada (Minister of Citizenship and Immigration) v. Vavilov
In Canada (Minister of Citizenship and Immigration) v. Vavilov (SCC, 2024) the Supreme Court of Canada revises the law of 'standard of review' ('SOR') for judicial reviews (JR). 'Standards of review' indicate the degree of deference that applies to the decisions of the lower court/tribunal/body - either on a JR or an appeal, when the reviewing court is performing their review task. This may surprise some non-lawyers. When a court performs a review (either JR or appeal), they don't ask whether the lower body was correct in all respects (broken down into: facts, law, and mixed questions of fact and law) - they don't repeat the lower body's task in it's entirety - rather they follow the applicable standard of review, or of 'deference'. The Vavilov (SCC) case revises and explains this JR 'standard of review' law as of 2019.
The interaction of a tribunal 'expertise' wrt it's particular topical subject matter and the case-applicable SOR (ie. deference) has been a contested issue for years. Here the courts holds that the political-privative compromise between the courts and the legislatures is the sole relevant consideration for SOR selection [para 30], but that expertise is still relevant for the application of the SOR. This preserved relevance [set out in para 119] is IMHO weak - perhaps even solely symbolic - and amounts to a limited role in administrative statutory interpretation, when the tribunal members may 'know better':[26] Before turning to an explanation of how the presumption of reasonableness review may be rebutted, we believe it is desirable to clarify one aspect of the conceptual basis for this presumption. Since Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227 (“C.U.P.E.”), the central rationale for applying a deferential standard of review in administrative law has been a respect for the legislature’s institutional design choice to delegate certain matters to non-judicial decision makers through statute: C.U.P.E., at pp. 235-36. However, this Court has subsequently identified a number of other justifications for applying the reasonableness standard, some of which have taken on influential roles in the standard of review analysis at various times.
[27] In particular, the Court has described one rationale for applying the reasonableness standard as being the relative expertise of administrative decision makers with respect to the questions before them: see, e.g., C.U.P.E., at p. 236; Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] 1 S.C.R. 982, at paras. 32-35; Pezim v. British Columbia (Superintendent of Brokers), 1994 CanLII 103 (SCC), [1994] 2 S.C.R. 557, at pp. 591-92; Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, at paras. 50-53; Dunsmuir, at para. 49, quoting D. J. Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 C.J.A.L.P. 59, at p. 93; see also Dunsmuir, at para. 68. However, this Court’s jurisprudence has sometimes been deeply divided on the question of what expertise entails in the administrative context, how it should be assessed and how it should inform the standard of review analysis: see, e.g., Khosa, at paras. 23-25, per Binnie J. for the majority, compared to paras. 93-96, per Rothstein J., concurring in the result; Edmonton East, at para. 33, per Karakatsanis J. for the majority, compared to paras. 81-86, per Côté and Brown JJ., dissenting. In the era of what was known as the “pragmatic and functional” approach, which was first set out in Bibeault, a decision maker’s expertise relative to that of the reviewing court was one of the key contextual factors said to indicate legislative intent with respect to the standard of review, but the decision maker was not presumed to have relative expertise. Instead, whether a decision maker had greater expertise than the reviewing court was assessed in relation to the specific question at issue and on the basis of a contextual analysis that could incorporate factors such as the qualification of an administrative body’s members, their experience in a particular area and their involvement in policy making: see, e.g., Pezim, at pp. 591-92; Southam, at paras. 50-53; Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, at paras. 28-29; Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., 2001 SCC 36, [2001] 2 S.C.R. 100, at paras. 28-32; Moreau‑Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, at para. 50.
[28] Unfortunately, this contextual analysis proved to be unwieldy and offered limited practical guidance for courts attempting to assess an administrative decision maker’s relative expertise. More recently, the dominant approach in this Court has been to accept that expertise simply inheres in an administrative body by virtue of the specialized function designated for it by the legislature: Edmonton East, at para. 33. However, if administrative decision makers are understood to possess specialized expertise on all questions that come before them, the concept of expertise ceases to assist a reviewing court in attempting to distinguish questions for which applying the reasonableness standard is appropriate from those for which it is not.
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[30] While specialized expertise and these other rationales may all be reasons for a legislature to delegate decision-making authority, a reviewing court need not evaluate which of these rationales apply in the case of a particular decision maker in order to determine the standard of review. Instead, in our view, it is the very fact that the legislature has chosen to delegate authority which justifies a default position of reasonableness review. The Court has in fact recognized this basis for applying the reasonableness standard to administrative decisions in the past. In Khosa, for example, the majority understood Dunsmuir to stand for the proposition that “with or without a privative clause, a measure of deference has come to be accepted as appropriate where a particular decision had been allocated to an administrative decision-maker rather than to the courts”: para. 25. More recently, in Edmonton East, Karakatsanis J. explained that a presumption of reasonableness review “respects the principle of legislative supremacy and the choice made to delegate decision making to a tribunal, rather than the courts”: para. 22. And in CHRC, Gascon J. explained that “the fact that the legislature has allocated authority to a decision maker other than the courts is itself an indication that the legislature intended deferential review”: para. 50. In other words, respect for this institutional design choice and the democratic principle, as well as the need for courts to avoid “undue interference” with the administrative decision maker’s discharge of its functions, is what justifies the presumptive application of the reasonableness standard: Dunsmuir, at para. 27.
[31] We wish to emphasize that because these reasons adopt a presumption of reasonableness as the starting point, expertise is no longer relevant to a determination of the standard of review as it was in the contextual analysis. However, we are not doing away with the role of expertise in administrative decision making. This consideration is simply folded into the new starting point and, as explained below, expertise remains a relevant consideration in conducting reasonableness review.
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[58] In Dunsmuir, a majority of the Court held that, in addition to constitutional questions, general questions of law which are “both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” will require the application of the correctness standard: para. 60, citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 62, per LeBel J., concurring. We remain of the view that the rule of law requires courts to have the final word with regard to general questions of law that are “of central importance to the legal system as a whole”. However, a return to first principles reveals that it is not necessary to evaluate the decision maker’s specialized expertise in order to determine whether the correctness standard must be applied in cases involving such questions. As indicated above (at para. 31) of the reasons, the consideration of expertise is folded into the new starting point adopted in these reasons, namely the presumption of reasonableness review.
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[119] Administrative decision makers are not required to engage in a formalistic statutory interpretation exercise in every case. As discussed above, formal reasons for a decision will not always be necessary and may, where required, take different forms. And even where the interpretive exercise conducted by the administrative decision maker is set out in written reasons, it may look quite different from that of a court. The specialized expertise and experience of administrative decision makers may sometimes lead them to rely, in interpreting a provision, on considerations that a court would not have thought to employ but that actually enrich and elevate the interpretive exercise.
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