|
VAVILOV - JR - SOR - Reasonableness Review - The Nature of Reasonable Review. 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) of administrative tribunal decisions and procedures. '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, by the reviewing body. The below extracts deal with 'reasonableness', the SOR for JRs - which are primarily addressed at errors by administrative tribunals - thus the term 'reasonableness review'.
Here the courts sets out the importance of reasons in the adjudicative process:[74] .... The approach we set out is one that focuses on justification, offers methodological consistency and reinforces the principle “that reasoned decision-making is the lynchpin of institutional legitimacy”: factum of the amici curiae, at para. 12. . 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) of administrative tribunal decisions and procedures. '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, by the reviewing body. The below extracts deal with 'reasonableness', the SOR for JRs - which are primarily addressed at errors by administrative tribunals - thus the term 'reasonableness review'.
Here the court discusses the nature of JR, and identifies it's goals as making sure that decisions are made in accordance it's 'reasonableness review' rules, not 'correctness' - that is, "to refrain from deciding the issue themselves". With respect to the court - and despite this plain 'non-correctness' conclusion - it's obvious that it cannot divorce itself from correctness. At para 87 it re-embraces an earlier Dunsmuir-adage that "that judicial review is concerned with both outcome and process" - which I can only read as holding that the 'outcome' is one piece of evidence (amongst many others) by which the 'reasonableness' conclusion is reached [see also para 97 for the same theme]:B. Reasonableness Review Is Concerned With the Decision-making Process and Its Outcomes
[82] Reasonableness review aims to give effect to the legislature’s intent to leave certain decisions with an administrative body while fulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law: see Dunsmuir, at paras. 27-28 and 48; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 10; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3, at para. 10.
[83] It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome. The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem. The Federal Court of Appeal noted in Delios v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171, that, “as reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did”: para. 28; see also Ryan, at paras. 50-51. Instead, the reviewing court must consider only whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led — was unreasonable.
[84] As explained above, where the administrative decision maker has provided written reasons, those reasons are the means by which the decision maker communicates the rationale for its decision. A principled approach to reasonableness review is one which puts those reasons first. A reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with “respectful attention” and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion: see Dunsmuir, at para. 48, quoting D. Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286.
[85] 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. As we will explain in greater detail below, 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. The reasonableness standard requires that a reviewing court defer to such a decision.
[86] Attention to the decision maker’s reasons is part of how courts demonstrate respect for the decision-making process: see Dunsmuir, at paras. 47-49. In Dunsmuir, this Court explicitly stated that the court conducting a reasonableness review is concerned with “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes”: para. 47. Reasonableness, according to Dunsmuir, “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process”, as well as “with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: ibid. In short, it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies. While some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reached on an improper basis.
[87] This Court’s jurisprudence since Dunsmuir should not be understood as having shifted the focus of reasonableness review away from a concern with the reasoning process and toward a nearly exclusive focus on the outcome of the administrative decision under review. Indeed, that a court conducting a reasonableness review properly considers both the outcome of the decision and the reasoning process that led to that outcome was recently reaffirmed in Delta Air Lines Inc. v. Lukács, 2018 SCC 2, [2018] 1 S.C.R. 6, at para. 12. In that case, although the outcome of the decision at issue may not have been unreasonable in the circumstances, the decision was set aside because the outcome had been arrived at on the basis of an unreasonable chain of analysis. 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.
|
