A Few Observations about Life Post-Vavilov

I’ve been reading and listening closely (or, at least, as closely as time will allow) to the post-Vavilov output of Canadian courts and commentators. I have been struck by a number of things.

First, some people are very confident that they are absolutely sure what the effects of Vavilov will be. For my part, although I have set out a comprehensive analysis of the Supreme Court’s decision, I erred on the side of caution in doing so: Vavilov is a lengthy decision, with many nooks and crannies to explore. Forthright statements that “Vavilov changes nothing” or “Vavilov changes everything” prejudge the results of future explorations by courts and counsel of the Vavilovian archipelago.

Second, it is remarkable how Vavilov seems to align with people’s priors about administrative law. Those who insist on administrative fidelity to principles of statutory interpretation, for instance, have proclaimed victory. Equally, those who generally believe that judicial review should be conducted in a restrained manner, seem to see Vavilov as a vindication. Obviously, both cannot be correct. More seriously, Vavilov is evidently a compromise decision, reached by a coalition of judges with divergent priors about administrative law. It would, therefore, be very surprising if Vavilov were to match up perfectly with one’s priors. In my case, parts of it certainly do (as on administrative consistency) and parts of it mostly do not (on administrative interpretations of law). There is little doubt that Vavilovian reasonableness review is inherently deferential, but it is perfectly possible that Vavilovian reasonableness review will result in applicants for judicial review winning more often than they did under the ancien régime.

Third, there is a tendency (admittedly, not novel) to use Vavilov as a reverse-engineering device. Those unhappy with a given regulatory or adjudicative regime tend to see Vavilov as portending a new era of intrusive judicial review. But their counterparts in other domains see Vavilov as a florid assertion that the status quo is mostly to be maintained. The point here is that regulatory or adjudicative regimes which are — or are perceived as being — defective, can be reverse-engineered by using Vavilov: where political means have fallen short, Vavilov can be deployed to make up the remaining distance.

When reading judicial, practitioner or academic commentary, beware over-confident claims, assertions that Vavilov perfectly comports with the author’s worldview and attempts to reverse-engineer Vavilov to achieve substantive policy goals. Telltale signs are rhetorical confidence and selective citations from Vavilov: ask yourself, as a reader, whether the author has referred to all of the relevant parts of Vavilov and whether their rhetoric really matches up to reality. And always remember that Vavilov is, essentially, a pragmatic compromise which will likely quickly come undone if it is not treated as such by courts and commentators.

Obviously, the first commentator who succeeds in hoisting me on my own petard should win a prize…

This content has been updated on February 21, 2020 at 20:07.