Standard of Review Clarified – Vavilov and the Supreme Court’s Decision

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The long-awaited decision of Canada v. Vavilov, 2019 SCC 65 was recently released. The decision dealt with a case of a young man, born in Toronto, who had his citizenship put into question because he had Russian spies as parents. While it is an interesting case and certainly deserves a read, of more importance (depending on who you ask) is the Supreme Court’s commentary on the changes to the standard of review applicable to administrative tribunals and arbitrators.

The Supreme Court decided that there will be a presumption that the reasonableness standard should be applied to all administrative tribunal decisions except in limited circumstances. With this decision, the Supreme Court has signalled an even higher level of deference will be afforded to specialized tribunals in most cases. The Supreme Court has rejected the contextual approach to the reasonableness standard and has ruled that only the following limited circumstances would attract a standard of correctness:

  • Where there is clear statutory language that prescribes the applicable standard of review, or provides for statutory appeal;
  • Where constitutional questions need to be decided, including the division of powers between Parliament and the provinces, the relationship between the legislature and the other branches of the state, the scope of Aboriginal and treaty rights under the Constitution Act, 1982;
  • Where there are general questions of law of central importance to the legal system as a whole;
  • Where there are questions regarding the jurisdictional boundaries between two or more administrative bodies; and
  • A future category should the circumstances arise, where it is exceptional in nature and consistent with the framework and the overarching principles set out in the decision.

In adopting these limited criteria where the correctness standard will apply, the Supreme Court has also determined that “true questions of jurisdiction” will no longer attract a standard of correctness. The Court indicated that while there had been arguments for maintaining the category, specifically the concern that a delegated decision-maker should not be free to determine the scope of its own authority, that such an issue could be addressed by applying the framework for conducting a reasonableness review. In other words, it remains open to a party to challenge a decision-maker on the grounds that it acted beyond its jurisdiction if the decision is unreasonable.

With respect to the reasonableness standard of review, the Supreme Court clarified the standard slightly and provided some in-depth guidance.  The reasonableness standard is meant to limit judicial interference unless it is absolutely necessary to do so to safeguard the legality, rationality and fairness of the administrative process. A reasonable decision and in particular the underlying rationale for a decision must be transparent, intelligible and justifiable. A failure to provide logical and rational reasoning may provide a basis for judicial intervention and require that a decision be set aside. Employers should be aware that a decision from an administrative tribunal is, from a practical perspective, often the final decision-maker and that in the absence of clear and obvious errors by the administrative tribunal, the Court will not intervene.