|
VAVILOV - JR - Privative. Canada (Minister of Citizenship and Immigration) v. Vavilov ['reasonableness'/political compromise]
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.
Here the court sets out 'reasonableness' as the presumptive JR SOR, identifies the political 'privative/justiciability' compromise (with Parliament and the provincial legislatures) as the sole justification for this [see particularly para 30], and ends privative clauses as an indicator of further deference:A. Presumption That Reasonableness Is the Applicable Standard
[23] Where a court reviews the merits of an administrative decision (i.e., judicial review of an administrative decision other than a review related to a breach of natural justice and/or the duty of procedural fairness), the standard of review it applies must reflect the legislature’s intent with respect to the role of the reviewing court, except where giving effect to that intent is precluded by the rule of law. The starting point for the analysis is a presumption that the legislature intended the standard of review to be reasonableness.
[24] Parliament and the provincial legislatures are constitutionally empowered to create administrative bodies and to endow them with broad statutory powers: Dunsmuir, at para. 27. Where a legislature has created an administrative decision maker for the specific purpose of administering a statutory scheme, it must be presumed that the legislature also intended that decision maker to be able to fulfill its mandate and interpret the law as applicable to all issues that come before it. Where a legislature has not explicitly prescribed that a court is to have a role in reviewing the decisions of that decision maker, it can safely be assumed that the legislature intended the administrative decision maker to function with a minimum of judicial interference. However, because judicial review is protected by s. 96 of the Constitution Act, 1867, legislatures cannot shield administrative decision making from curial scrutiny entirely: Dunsmuir, at para. 31; Crevier v. Attorney General of Quebec, 1981 CanLII 30 (SCC), [1981] 2 S.C.R. 220, at pp. 236-37; U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] 2 S.C.R. 1048, at p. 1090. Nevertheless, respect for these institutional design choices made by the legislature requires a reviewing court to adopt a posture of restraint on review.
[25] For years, this Court’s jurisprudence has moved toward a recognition that the reasonableness standard should be the starting point for a court’s review of an administrative decision. Indeed, a presumption of reasonableness review is already a well-established feature of the standard of review analysis in cases in which administrative decision makers interpret their home statutes: see Alberta Teachers, at para. 30; Saguenay, at para. 46; Edmonton East, at para. 22. In our view, it is now appropriate to hold that whenever a court reviews an administrative decision, it should start with the presumption that the applicable standard of review for all aspects of that decision will be reasonableness. While this presumption applies to the administrative decision maker’s interpretation of its enabling statute, the presumption also applies more broadly to other aspects of its decision.
....
[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.
....
[49] In our view, with the starting position of this presumption of reasonableness review, and in the absence of a searching contextual analysis, legislative intent can only be given effect in this framework if statutory appeal mechanisms, as clear signals of legislative intent with respect to the applicable standard of review, are given effect through the application of appellate standards by reviewing courts. Conversely, in such a framework that is based on a presumption of reasonableness review, contextual factors that courts once looked to as signalling deferential review, such as privative clauses, serve no independent or additional function in identifying the standard of review.
|
