Vavilov Hits the Road (Updated Feb 27)
Courts around Canada are beginning to apply the Vavilov framework. Obviously, it is too early to draw any conclusions. Nonetheless, even at this early stage in the life of Vavilovian judicial review there have been some interesting decisions. I have been coming back to this post periodically to update it with significant new decisions. If you think a decision warrants attention, please do get in touch, in the comments or via email. The post is now getting a bit long, so I have added some headings.
An issue which emerged early in 2020 is whether cases argued before Vavilov was handed down should be reargued before being disposed of. Sometimes, it will be quite obvious that the Vavilov framework changes nothing (see Centre intégré de santé et de services sociaux des Laurentides c. Roy, 2020 QCCS 230, at para. 45; Syndicat de l’enseignement de Champlain c. Commission scolaire Marie-Victorin, 2020 QCCA 135, at para. 31; Beals v. Nova Scotia (Attorney General), 2020 NSSC 60, at paras. 18-19) or changes something so clearly that further argument would be pointless (see Canadian National Railway Company v. Richardson International Limited, 2020 FCA 20, at paras. 41-44). If there is doubt, prudence argues in favour of allowing the parties to make submissions on the consequences of Vavilov. And courts have mostly been prudent.
Consider, however, the decision of the Ontario Divisional Court in Zhou v. Cherishome Living, 2020 ONSC 500. This was an appeal from the Landlord and Tenant Board under s. 210 of the provincial Residential Tenancies Act. Appeals are available on questions of law only. The panel concluded that it was “not appropriate” (at para. 32) to request additional submissions on the consequences of Vavilov. Yet the effect of the panel’s application of Vavilov was that one of the issues raised by the tenants — who were self represented — was one of mixed fact and law and thus “not appealable” (at para. 68). But it was made clear in Vavilov that appeal clauses which do not cover all of the issues in dispute do not preclude unhappy appellants from bringing judicial review proceedings in respect of the other issues (Vavilov at para. 52). Post-Vavilov, the appellants could have commenced judicial review proceedings in parallel to their appeal (indeed, unless and until there is further clarification of this point, I think wise counsel will generally advise clients to do so). That is not to say that a court would ultimately have allowed a judicial review application to proceed (not least because the litigation between the parties has been ongoing for many years), just that it would have been more prudent at least to ask the appellants if they had something to say.
There have been a couple of divergent opinions on the scope of the correctness categories. The first post-Vavilov decision, Peter v. Public Health Appeal Board of Alberta, 2019 ABQB 989, did embrace correctness review on constitutional issues. By contrast, in Syndicat des employé(e)s de l’école Vanguard ltée (CSN) c. Mercier, 2020 QCCS 95, at paras. 17-19, St-Pierre J applied the reasonableness standard even in the face of an argument based on the quasi-constitutional Quebec Charter. This is, obviously, an area to watch, though I think St-Pierre J’s position is more persuasive given the narrow conceptual basis provided for the correctness categories in Vavilov. The same judge applied correctness in Régie de l’assurance maladie du Québec c. Morin, 2020 QCCS 294, but this was an uncontroversial example of overlapping jurisdiction (at paras. 9-11). In Bureau de la sécurité privée c. Tribunal administratif du Québec, 2020 QCCS 571, St-Pierre J was asked to identify a new correctness category but demurred, on the basis that this was a task for the Court of Appeal or Supreme Court (at para. 14); I tend to think, however, that it would be perfectly appropriate for a first-instance judge to do this, albeit that here it seems the argument for the applicant was not particularly strong.
The category most apt to be expanded after Vavilov is surely the ‘questions of central importance to the legal system’ category. But the narrow rule of law basis for the correctness categories does not provide a solid foundation for such arguments. In Bank of Montreal v. Li, 2020 FCA 22, for example, the issue was whether an employee who had signed a release on conclusion of her employment could nonetheless make an unjust dismissal claim. An adjudicator held she could and, on judicial review, the company sought to persuade the courts to apply correctness review on the basis that the issue of whether an individual can waive a statutory entitlement is a general one requiring definitive judicial resolution. De Montigny JA was not persuaded, concluding that the waiver issue would not have systemic or constitutional implications and noting that “framing an issue in a general or abstract sense is not sufficient to make it a question of central importance to the legal system as a whole” (at para. 28).
One question left unresolved by Vavilov was the standard of review applicable to regulations. On the one hand, the question of whether a particular regulation is intra vires its parent statute might be said to require a final, definitive answer from the courts, engaging Vavilov’s rule-of-law justification for correctness review. On the other hand, as Loparco J observed in Morris v Law Society of Alberta (Trust Safety Committee), 2020 ABQB 137, at para. 40, the Supreme Court spoke explicitly to the issue of jurisdiction or vires in Vavilov:
[T]he Supreme Court concluded that the question of whether or not a delegated decision-maker should “be free to determine the scope of its own authority [can] be addressed adequately by applying the framework for conducting reasonableness review.” The Court specifically endorsed the use of reasonableness review standard in cases “where the legislature has delegated broad authority to an administrative decision maker that allows the latter to make regulations in pursuit of the objects of its enabling statute”: Ibid at para 66, citing Green v Law Society of Manitoba, 2017 SCC 20,  1 SCR 360; West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22,  1 SCR 635.See similarly Portnov v. Canada (Attorney General), 2019 FC 1648, at para. 23.
Notably, Loparco J applied the reasonableness standard even though the rule at issue touched upon matters relating to solicitor-client privilege (which are subject to correctness review), reasoning that the relevant issue was whether the Law Society had the authority to enact the rule (at para. 45). However, she arguably muddied the waters (at para. 57) by reviewing the reasonableness of the Trust Safety Committee’s determination of the reasonableness of the rule (rather than directly assessing the reasonableness of the rule), creating a double deference problem and not engaging in the robust reasonableness review Vavilov envisages when compliance with a decision-maker’s governing statutory scheme is in issue.
There has been disagreement on the niche issue of whether arbitration decisions are subject to the appellate review framework post Vavilov or, as was the case previously, subject to the judical review framework (per Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53,  2 SCR 633). In Buffalo Point First Nation et al. v. Cottage Owners Association, 2020 MBQB 20, at para. 56 and Allstate Insurance Company v. Her Majesty the Queen, 2020 ONSC 830, at para. 19 the courts took the view that Sattva has been superseded by Vavilov. But in Cove Contracting Ltd v Condominium Corporation No 012 5598 (Ravine Park), 2020 ABQB 106, at para. 13, it was held that Sattva continues to bind. Subject, obviously, to the details of the statutory provision in a given jurisdiction, I think the better view must be that the use of the word “appeal” in relation to arbitration decisions now carries with it the appellate review framework (correctness on extricable questions of law, palpable and overriding error for the rest).
In terms of correctness review on statutory appeals (under the Housen v. Nikolaisen framework), the following comment from Swinton J is notable:
While the Court will ultimately review the interpretation of the Act on a standard of correctness, respect for the specialized function of the Board still remains important. One of the important messages in Vavilov is the need for the courts to respect the institutional design chosen by the Legislature when it has established an administrative tribunal (at para. 36). In the present case, the Court would be greatly assisted with its interpretive task if it had the assistance of the Board’s interpretation respecting the words of the Act, the general scheme of the Act and the policy objectives behind the provision.Planet Energy (Ontario) Corp. v. Ontario Energy Board, 2020 ONSC 598, at para. 31. See also Edmonton (City of) v Ten 201 Jasper Avenue Ltd, 2020 ABCA 60.
As I suggested in my paper on the Vavilov framework, if judges continue to consider and give weight to administrative interpretations of law on statutory appeals, deference might not be dead just yet. That said, in Municipal Property Assessment Corporation v. Zarichansky, 2020 ONSC 1124, Favreau J did not consider in detail the Ontario Assessment Board’s rationale for taking a pro-ratepayer view in situations where MPAC (which assesses properties in Ontario for the purposes of calculating municipal property taxes) has failed to discharge its burden of proof. Rather, Favreau J insisted (on correctness review) that the Board was bound by the terms of its governing statute: my cursory review of the Board’s jurisprudence suggests, however, that it had provided a reasoned basis for its approach; there is little consideration by Favreau J of whether his approach will create difficulties for the Board, MPAC and ratepayers in future cases.
There have been some robust applications of reasonableness review, justified by reference to the emphasis in Vavilov on responsiveness. For example, in Langlais c. Collège des médecins du Québec, 2020 QCCA 134, at paras. 39-44, it was unreasonable for the Collège to fail to address the regulatory provision which a doctor invoked to support his application for recognition as a specialist in internal medicine (necessary because, in 2012, the Collège had introduced more stringent standards in this regard). Similarly, in Patel v. Canada (Citizenship and Immigration), 2020 FC 77, at para. 17, Diner J noted that Vavilov requires “basic responsiveness” to the evidence presented (and found it lacking here), in Samra v. Canada (Citizenship and Immigration), 2020 FC 157, at para. 22, Favel J found a decision unreasonable because it “lacked analysis”: “the officer’s decision is merely a recitation of the evidence before him followed by a conclusion” and in Li v. Canada (Citizenship and Immigration), 2020 FC 279, at para. 13, Fuhrer J struck down a sparsely reasoned study permit decision issued by a line officer who failed to “engage” with the applicant’s evidence. Note also Phelan J’s comments in Ennis v. Canada (Attorney General), 2020 FC 43, where he quashed a decision of the Canadian Human Rights Commission not to refer Ennis’s complaint for a tribunal hearing in the face of an investigator’s report recommending a hearing:
The Supreme Court’s analytical framework for reasonableness review reflects much of the work of this Court in this area. Therefore, this Court’s decisions relevant to the issues here are relevant and binding authority and have not been altered by Vavilov except to emphasise that reasonableness review is to be a vigorous review (at para. 20. See also Begum v. Canada (Citizenship and Immigration), 2020 FC 162 (ministerial refusal to approve a provincially nominated visa application)).
Of course, Vavilov also teaches that judicial review should be neither a line-by-line treasure hunt for error (see Radzevicius v. Workplace Safety and Insurance Appeals Tribunal, 2020 ONSC 319, at paras. 35-39; Mudjatik Thyssen Mining Joint Venture v. Billette, 2020 FC 255, at paras. 59-77) nor an effort in redoing the work of the administrative decision-maker (see Bombardier Aéronautique inc. c. Commission des normes de l’équité, de la santé et de la sécurité au travail, 2020 QCCA 315, at paras. 30-46; Yassin v. Canada (Attorney General), 2020 FC 237, at paras. 42-43; Mohammed v. Canada (Citizenship and Immigration), 2020 FC 234, passim; Huang v. Canada (Citizenship and Immigration), 2020 FC 241, at para. 27). And the Quebec Court of Appeal has signalled, in excellent reasons by Moore JA, that it is on the look-out for unfaithful applications of reasonableness review, so-called disguised correctness review: see Syndicat de l’enseignement de Champlain c. Commission scolaire Marie-Victorin, 2020 QCCA 135, at paras. 41, 65. Moreover, judicial re-writing of defective decisions has been definitively ruled out: see Hasani v. Canada (Citizenship and Immigration), 2020 FC 125, at paras. 67-68.
My view is that the methodology of Vavilovian reasonableness review is inherently deferential. But it is certainly arguable that Vavilov has, in respect of supplementation, responsiveness and justification, set a slightly higher bar for decision-makers than the pre-Vavilov regime. This was certainly Gauthier JA’s conclusion in the important decision in Farrier c. Canada (Procureur général), 2020 CAF 25. Quashing as unreasonable a one-page decision from the Parole Board which failed to engage with the applicant’s arguments, she commented:
Avant l’arrêt Vavilov, j’aurais probablement conclu, comme la Cour fédérale l’a fait, que compte tenu de la présomption que le décideur a considéré tous les arguments et la jurisprudence devant lui et à la lecture du dossier, que la décision était raisonnable. L’absence de motifs traitant des deux premières questions devant la Section d’appel n’était pas à l’époque suffisante pour casser la décision. En effet, il était implicite que la Section d’appel n’avait pas accepté que l’interprétation de la Loi par la Commission était erronée, particulièrement compte tenu du paragraphe 143(1) de la Loi. Dans les circonstances, le décideur administratif était présumé avoir rejeté les arguments de M. Farrier quant à un quelconque préjudice causé par l’absence d’enregistrement que la Loi prévoit ou non un tel enregistrement ou qu’il s’agisse simplement d’une violation du Manuel. Une telle conclusion était l’une des issues possibles compte tenu de la décision de la Cour suprême dans CUPE, même si cet arrêt n’est pas cité par la Section d’appel (at para. 12. See similarly Walker v. Canada (Attorney General), 2020 FCA 44, at para. 10).
In the absence of any internal policies, previous Parole Board jurisprudence or other explanations for not addressing the applicant’s arguments (Vavilov at para. 94; Haddad Pour v. The National Dental Examining Board of Canada, 2020 ONSC 555, at paras. 37-40), the conclusion that the decision was unreasonable was irresistible. Courts post Vavilov might not be able or willing to “infer” that an argument or evidence was considered in the absence of reasons dealing with the argument or evidence (Mattar v. The National Dental Examining Board of Canada, 2020 ONSC 403, at paras. 51-52; Walker v. Canada (Attorney General), 2020 FCA 44, at para. 10). Testing the limits of “coherence and justification” is not a wise strategy, as Rennie JA put it in Langevin v. Air Canada, 2020 FCA 48, at para. 18, where the Canada Industrial Relations Board had reveretd to a “conclusory, boiler-plate statement” in respect of a point in dispute: but there, luckily for the Board, a response to the point would have been “of little assistance” (at para. 19) and so the decision was upheld.
Moreover, as Diner J sagely noted in Ortiz v. Canada (Citizenship and Immigration), 2020 FC 188, at para. 22, whereas under Dunsmuir reviewing courts began with the outcome and then looked back at the reasons, Vavilov instructs them “to start with the reasons, and assess whether they justify the outcome”. And in light of the decisions emphasizing the importance of responsiveness, I think it is too early to say categorically that “Vavilov does not constitute a significant change in the law of judicial review with respect to the review of the reasons of administrative tribunals” (Radzevicius, at para. 57, per Swinton J).
There have also been a number of Federal Court cases in which decisions were struck down for unreasonableness because the decision-maker failed to grapple with relevant factors as established by prior judicial jurisprudence: Demirtas v. Canada (Citizenship and Immigration), 2020 FC 302, at para. 30; Chikadze v. Canada (Citizenship and Immigration), 2020 FC 306, at para. 22; and Lopez Bidart v. Canada (Citizenship and Immigration), 2020 FC 307, at para. 30. Note that the unreasonableness here resulted from failures to consider the factors at all: it might, in principle, be permissible for decision-makers to deviate from judicial decisions but obviously they bear a justificatory burden when they do so.
On the general issue of whether Vavilovian reasonableness review is more or less robust than the palpable and overriding error standard applicable to mixed questions of fact and law in statutory appeals, see Al-Ghamdi v College of Physicians and Surgeons of Alberta, 2020 ABCA 71. The Court explained, at the outset, the wide scope of the issues subject to the palpable and overriding error standard:
In professional disciplinary appeals, interpretation of the governing statute is reviewed for correctness. Important questions of mixed fact and law calling for deference by a reviewing court will often include i) the standard of practice the profession expects in any particular case, and ii) whether, on the facts, the professional subjected to discipline has met that standard.(at para. 11).
Although the College had “improperly relied” on some evidence and overemphasized the importance of a human rights complaint made by the appellant, “those errors were not sufficient to undermine the overall finding of professional misconduct” (at para. 51). Query whether these would have been considered to be problematic on reasonableness review (and, if so, whether the appellant would find it odd that a statutory appeal mechanism would be less favourable to him than an application for judicial review).
I emphasized in my commentary on Vavilov that there were important tensions in the majority reasons, for instance, in respect of statutory interpretation. Consider Canadian National Railway Company v. Richardson International Limited, 2020 FCA 20. The standard of review here was correctness, as the matter came before the Federal Court of Appeal as a statutory appeal from a decision of the Canadian Transportation Agency relating to railways. But Nadon JA also commented, in obiter, that he would have struck the decision down for unreasonableness in any event, “because it failed to consider both context and the legislative scheme as a whole” (at para. 46). Citing paragraph 118 of Vavilov — but not the more equivocal language of paragraphs 119 and 122 — Nadon JA commented that Agency’s failure to “observe the fundamental principles of statutory interpretation” (at para. 48) was “fatal to its decision” (at para. 49). This might be thought to betray a favouritism for an interventionist standard of reasonableness review on issues of statutory interpretation (although, to be fair, Nadon JA remitted the matter to the Agency and took pains not to “rule out the possibility that the Agency might come to an interpretation that differs from the one it arrived at in the present matter” (at para. 54)).
Nadon JA’s obiter comments certainly underscore how some portions of Vavilov are liable to become battlegrounds between different factions of judges, those who favour more intrusive review on questions of law in one camp, their more deferential colleagues in the other (for a similar approach, almost demanding panoptic qualities on the part of an administrative decision-maker, see Beals v. Nova Scotia (Attorney General), 2020 NSSC 60, at para. 32: “the legislature and applicants…are entitled to presume that the person making a decision about an application under [legislation] knows the occasion and necessity for the enactment, the circumstances existing at the time it was passed, the mischief to be remedied, and the object to be attained, without that information necessarily appearing in the record”).
Judges do not seem to have jumped on the suggestion that they might refuse to remit a matter consequent on a finding of unlawfulness where it is “evident” that a “particular outcome is inevitable” (Vavilov at para. 142). In Canadian Broadcasting Corporation v. Ferrier, 2019 ONCA 1025, for example, Sharpe JA remitted to the decision-maker the question of the applicability of the open court principle to police board hearings (here, a preliminary hearing on whether the time period for reporting alleged police misconduct should be extended). Sharpe JA remitted the question even though much of his analysis was conducted on a standard of correctness (at para. 37), he had little doubt that a recent Ontario Court of Appeal decision (Langenfeld) on the application of the open court principle to police board hearings was dispositive (at para. 58), and the judicial review proceedings had already slowed down a process which was moving quite slowly (at para. 79). On balance, Sharpe JA concluded, the decision-maker “should be permitted to take another look at the matter with the benefit” of the recent decision in Langenfeld (at para. 80). I think Sharpe JA was quite right to remit the matter, especially because the issues in Ferrier and Langenfeld arose in different contexts (see also Edmonton Police Service v Alberta (Information and Privacy Commissioner), 2020 ABQB 10, at para. 661; Alberta Union of Provincial Employees v Alberta Health Services, 2020 ABCA 4 , at para. 59; Langlais c. Collège des médecins du Québec, 2020 QCCA 134, at paras. 64-65; Mbula-Kolela v. Canada (Citizenship and Immigration), 2020 FC 260, at paras. 18-20).
This content has been updated on February 27, 2020 at 19:14.