Unresolved Issues after Vavilov III: Procedural Fairness
Several years ago, there was lively debate about the standard of review of questions of procedural fairness. For one thing, the Dunsmuir framework was general in nature, presumptively covering the whole field of judicial review of administrative action. In a large number of cases, procedural fairness issues would have fallen into Dunsmuir’s reasonableness categories, as some astute appellate judges noted (see here, here and here). For another thing, the Supreme Court of Canada’s enigmatic pronouncements on procedural fairness suggested not only that procedural fairness had to be addressed as part of the “standard of review” framework but that a measure of “deference” would be appropriate in addressing such questions.
Yet the debate largely petered out. By the time of Vavilov, most courts had accepted that issues of procedural fairness are free-standing, to be addressed using the factors set out in Baker v. Canada (Citizenship and Immigration),  2 SCR 817; this was sometimes dressed up as “correctness” review, sometimes as an “overall assessment of fairness”. There was, nonetheless, some disagreement. As Stratas JA noted in Vavilov v. Canada (Citizenship and Immigration), 2017 FCA 132, at para. 11, the proper approach to procedural fairness was “in dispute” in the Federal Court of Appeal, with a “number of different approaches” competing for primacy. And in Quebec, many first-instances judges continued to defer on procedural issues relating to matters within an administrative decision-maker’s specialized domain.
In Vavilov, the majority attempted to summarily put the debate and disagreement to rest. First, the Vavilov framework applies “[w]here a court reviews the merits of an administrative decision” but not to “a review related to a breach of natural justice and/or the duty of procedural fairness” (at para. 23, emphasis added). Second, where procedure but not merits are in issue, “the specific procedural requirements that the duty [of procedural fairness] imposes are determined with reference to all of the circumstances” consistent with the factors set out in Baker (at para. 77). Some deference is built into this framework but, presumably, we are not to mistake respect for a decision-maker’s procedural choices (the fifth Baker factor) with reasonableness review.
That would seem to be that. Of course, difficult questions of classification will arise. The line between merits and procedure is “blurry”: “A decision based on a deficient investigation can be characterized as one that is not substantively acceptable or defensible because it is based on incomplete information, thereby triggering the standard of review for substantive defects” (Bergeron v. Canada (Attorney General), 2015 FCA 160, at para. 70, per Stratas JA. See also here and here).
In Hildebrand v Penticton (City), 2020 BCSC 353, at paras. 29-30, Weatherhill J applied the Vavilov framework to a decision not to grant an adjournment. It is debatable whether this was a matter going to the “merits” of the underlying decision, to which Vavilov clearly applies, or related to procedure, in which case Vavilov would not apply.
Although there is no easy answer to this question of classification, one analytical short-cut is provided by the presence or absence of reasons. This distinction is functional, not metaphysical; it does not explain what is “merits” and what is “procedure” (and the history of judicial review suggests that any such explanation will prove elusive).
Where reasons have been given for a particular difficult-to-classify decision, Vavilovian reasonableness review can be employed: reviewing courts can examine the rationality and logic of the reasons in light of the relevant factual and legal constraints. Moreover, if a decision-maker has provided reasons on a particular point, this fact suggests that the point was important and therefore relates to the merits of the matter before the decision-maker.
Where no reasons have been given for a particular difficult-to-classify decision, the reviewing exercise will invariably focus on the outcome (Vavilov, at paras. 136-138). Here, the Baker factors can be applied. Indeed, it is difficult to see how else a reviewing court could determine whether the procedures in issue were fair. Without reasons to review, the Baker factors will have to be applied. In applying the Baker factors some deference will be due to the decision-maker’s choice of procedures but the reviewing court will retain the final word on the overall fairness of the process.
Put simply, my suggestion is that the “merits”/”procedure” distinction should track the availability of reasons: where reasons have been provided in attempt to justify a particular difficult-to-classify decision, the reasons can be reviewed for reasonableness; where no reasons have ben provided, the Baker factors would govern. To my mind, this is an attractive solution to what might otherwise be an intractable problem.
This content has been updated on May 7, 2020 at 02:34.