The Vavilov Framework III: Precedent
The Vavilov framework is intended to be a clear break with the past: “A court seeking to determine what standard is appropriate in a case before it should look to these reasons first in order to determine how this general framework applies to that case” (at para. 143). Given the reformulations effected in Vavilov, some precedents will now carry less force: decisions on jurisdictional questions or statutory appeal mechanisms, for instance, will be henceforth of little relevance (at para. 143). Prior decisions on overlapping jurisdiction, by contrast, will continue to be relevant (at para. 143). The majority suggests, or perhaps expresses the hope, that the Court’s jurisprudence on questions of central importance to the legal system will “continue to apply essentially without modification” (at para. 143). We will see about that.
More ominously, the majority acknowledges that retrofitting precedents to the Vavilov framework “may” require reviewing courts to “resolve subsidiary questions” about the compatibility of prior decisions with the new framework (at para. 143). There is, again, a suggestion/expression of hope that the Court’s precedents will “continue to provide helpful guidance” (at para. 143). But the majority — to its credit — appreciates that matters will not always be so simple: “Where a reviewing court is not certain how these reasons relate to the case before it, it may find it prudent to request submissions from the parties on both the appropriate standard and the application of that standard” (at para. 144).
I am available for consultations — and my prices are reasonable. More seriously, I can already think of several Supreme Court of Canada precedents whose status will soon have to be clarified (as well as the immigration decisions under the certified question regime, as I mentioned previously).
First, the Court insisted in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12,  1 SCR 339 that even though the Federal Courts Act sets out detailed grounds of review of review of federal administrative decision-makers, these grounds must be read in light of the common law standards of review. So, where the Federal Courts Act states in 18.1(4)(c) that a remedy can be granted where an administrative decision-maker “erred in law in making a decision or an order”, it states a ground of review, but the standard of review is the common law standard of reasonableness. The reasoning in Khosa was compelling (as I argued in a 2014 article) and remains so. Indeed, the majority in Vavilov cites to Khosa (at para. 34) and implicitly relies on the grounds/standard distinction in setting out its test for legislative displacement of the common law: “where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law” (at para. 35, emphasis added). Although I am sure that the status quo ought to prevail, I am also sure that the compatibility of Khosa with the Vavilov framework will soon be called into question.
Second, as several callers to last Thursday’s teleconference were eager to point out, in Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35,  2 SCR 283, the Court recognized an exception to the presumption of reasonableness review in respect of judicial review of the Copyright Board. Because copyright questions may equally be raised in judicial review proceedings (where reasonableness would presumptively be the standard) or at first-instance (where questions of law would be answered de novo by the trial judge), Rothstein J reasoned that decisions of the Board on issues of copyright law must be subject to correctness review in all circumstances to ensure coherence.
Under the Vavilov framework the standard of review of decisions of the Board would presumptively be reasonableness, as there is no right of appeal from decisions of the Board. Copyright questions would perhaps now fall within the category of questions of central importance to the legal system, being ones “which require a single determinate answer” (at para. 62). But this was not the basis on which Rothstein J proceeded in Rogers, underscoring that the reformulated central questions category is broader than the previous one. It might also be possible to invoke the rule of law to justify the creation of a new categorical exception to the presumption of reasonableness review, though it is doubtful that the Canadian legal system would be rent asunder by the mere possibility of conflict between a judicial review of the Board and a first-instance decision on an issue of copyright law. There is no doubt, however, that this point will be litigated, probably sooner rather than later.
Third, in Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3,  1 SCR 161, Rothstein J. struck again, holding that the standard of review was correctness because of a provision in the Competition Tribunal Act stating that a decision of the Tribunal is appealable as if “it were a judgment of the Federal Court”.
Under the Vavilov framework, the holding in Tervita would be the same, because there is an appeal from the Tribunal to the Federal Court of Appeal, which would owe the Tribunal no deference on questions of law. Where the status of Tervita is likely to be litigated is in cases which provide platforms for the argument that similar clauses provide for “appeals”. As the majority acknowledges, “[s]ome provisions simply recognize that all administrative decisions are subject to judicial review and address procedural or other similar aspects of judicial review in a particular context” (at para. 51). Arguably, the clause in Tervita was just that sort of clause. Nonetheless, it was enough to justify correctness review. Tervita thus will be a platform for inventive arguments that procedural legislative provisions create “appeals” for the purposes of the Vavilov framework. That said, the clause in the Competition Tribunal Act has no equivalent elsewhere on the statute book and perhaps Tervita will meet the same fate as Alberta Teachers, confined forever to its special facts.
Fourth, there are Supreme Court precedents which license the “segmentation” of administrative decisions, parsing them into discrete pieces and applying different standards of review. In Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57,  3 SCR 615, Rothstein J. (again!) identified five distinct questions calling for five distinct standards of review. Segmentation also occurred, albeit unacknowledged, in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16,  2 SCR 3. These precedents will support arguments that, on statutory appeals, questions of law can and should be extricated from the morass of factual issues, mixed questions of law and fact and discretionary and policy choices which ought to attract the palpable and overriding error standard. As Abella and Karakatsanis JJ rightly comment, “the application of appellate law principles will inevitably create confusion by encouraging segmentation in judicial review” (at para. 252). Given that SODRAC and Saguenay were judicial review cases, the argument will — a fortiori — that their tolerance of segmentation should be applied in the appellate context.
Fifth and finally, there are many Supreme Court of Canada decisions, stretching back over the years, which recognize that privative clauses are relevant indicators of legislative intent. In the Vavilov framework, privative clauses seem to count for nothing. A presumption of reasonableness review will apply whether or not there is a privative clause in an administrative decision-maker’s home statute. Only a right of appeal matters for the purposes of the Vavilov framework. But what if a limited right of appeal is combined with a clause having privative effect?
In s. 31 of the Broadcasting Act, for example, briefly considered in Bell Canada v. Canada (Attorney General), 2019 SCC 66 (on which I will post separately), there is an appeal (with leave) from the CRTC to the Federal Court of Appeal on a question of law or jurisdiction. But there is also a clause stating that decisions of the CRTC are “final and conclusive” (s. 31(1)). Final and conclusive clauses were treated, in earlier eras, as indications that the legislature intended courts to engage in deferential judicial review. Do they mean anything now?
In the majority’s view, “the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal” (at para. 52). This seems to mean the final and conclusive clause in the Broadcasting Act excludes appeals on questions of fact but not judicial review on questions of fact. But this also seems to mean that that factual issues would be considered under the “robust” reasonableness standard, not the “palpable and overriding error” standard: by trying to confine the scope of judicial oversight, the legislature — perversely — has ended up expanding it. The majority is unrepentant: “any such application for judicial review is distinct from an appeal, and the presumption of reasonableness review that applies on judicial review cannot then be rebutted by reference to the statutory appeal mechanism” (at para. 52). But I do wonder if this view will hold given the anomalies it seems to create.
In my final post, I will address some of the other unusual consequences which might arise under the Vavilov framework. Before then, I will offer some thoughts (in my next post) on remedies.
This content has been updated on December 23, 2019 at 19:50.