The Vavilov Framework IV: Remedial Discretion

Despite occasional suggestions to the contrary, remedial discretion is a key feature of contemporary administrative law. In Vavilov, the majority discussed the issue at surprising length — surprising because although remedial discretion is by now a well-developed phenomenon, it is rarely the subject of detailed discussion. 

The majority set out a variety of factors which are influential in the exercise of remedial discretion:

Elements like concern for delay, fairness to the parties, urgency of providing a resolution to the dispute, the nature of the particular regulatory regime, whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question, costs to the parties, and the efficient use of public resources…(at para. 142).

The particular aspect discussed in Vavilov is the discretion of reviewing court which has quashed an administrative decision to “remit the matter to the decision maker for reconsideration with the benefit of the court’s reasons” (at para. 139). 

Remitting the matter will “most often” (at para. 140) be the appropriate course of action, as “the legislature has entrusted the matter to the administrative decision maker, and not to the court, to decide” (at para. 140). Considerations of efficient and effective administration will also be relevant (at para. 140) and although these will typically also militate in favour of remitting a matter for fresh consideration by a specialized, expert decision-maker, there are “limited scenarios in which remitting the matter would stymie the timely and effective resolution of matters” (at para. 142). It may, for instance, not be appropriate to remit where “it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose” (at para. 142).

There is nothing particularly objectionable about any of this. Indeed, it is salutary to have remedial discretion out in the open, as a subject of discussion, rather than exercised (as is often the case) in a conclusory fashion without much analysis.  

That said, the discussion in Vavilov falls short in two respects. The first — which I will come back to in my fifth and final post — is that the framework for exercising remedial discretion does not really follow from any set of guiding principles. The majority says “the choice of remedy must be guided by the rationale for applying that standard to begin with” (at para. 140). But given that the selection of the standard of review is now based on a context- and nuance-free assessment of whether the legislature created a right of appeal or not, it is difficult to identify a “rationale” which can offer much assistance to a judge struggling to decide whether to remit a matter or not. There is a much richer, principle- and value-laden analysis in D’Errico v. Canada (Attorney General)2014 FCA 95, a case to which the majority cites, and which emphasizes the important additional factor — glossed over by the majority — of the rights of the individual who has been deprived of a benefit s/he is entitled to. Perhaps in future D’Errico will get more attention.

The second is the failure to appreciate that exercises of judicial discretion can have systemic consequences. If judicial willingness to quash decisions for unreasonableness is combined with judicial unwillingness to remit matters to the administrative decision-makers whose responsibility it is to address them, the result will be to transfer decisional authority from administrative decision-makers to the courts. Over time there is even a risk that administrative decision-makers will come to take their responsibilities less seriously, in the knowledge that if any problems arise the courts will sort them out in due course. By contrast, if matters are routinely remitted, the effect will very quickly to make clear to administrative decision-makers that they really have to get it right first time. Otherwise, the matters will keep returning to their desks, embossed with a judicial stamp to the effect of “not good enough”. Where the discussion in Vavilov is lacking is in its failure to appreciate the systemic consequences of judicial discretion.

The discussion of the remedy in Vavilov itself is somewhat curious. Recall that Vavilov’s citizenship certificate was revoked. In the Federal Court of Appeal, the Registrar of Citizenship’s decision was quashed. The effect was to restore the status quo ante, with Vavilov’s citizenship certificate unrevoked. There was therefore no need at all for the Supreme Court to consider whether to remit the matter. There was simply nothing left to remit. Indeed, the Supreme Court’s disposition of the appeal left the Federal Court of Appeal’s order intact. Any talk of remitting a decision was entirely unnecessary. Of course, Vavilov might run into the Registrar of Citizenship again at some point, and the Registrar will have to carefully read the decision in Vavilov. But there was nothing to “remit”. 

This may seem like a technical point but it is in fact fundamental. Moreover, it underscores the absence of guiding principles in the majority’s discussion of remedial discretion. Two principles or values are at play: Vavilov’s autonomy and the Registrar’s freedom to manage the area of regulation assigned to her by Parliament. A “remit” compromises Vavilov’s autonomy. For ordinarily it is up to him to decide whether to make any request of the Registrar or any other official. Equally, a “remit” infringes upon the Registrar’s use of her resources, adding another task to her in-tray.

This concludes my analysis of the Vavilov framework. I might have bits and pieces to add to the earlier posts: I have not yet mentioned consistent decision-making and the place of the nominate grounds of review. I will add these in due course. I will also post some concluding thoughts on Vavilov, though they may not appear on the blog before the New Year.

This content has been updated on December 24, 2019 at 13:22.