Vavilov for Administrative Tribunals

Since the Supreme Court of Canada’s decision in Vavilov, I have given a number of presentations to administrative tribunal members on the implications of the revised understanding of reasonableness review. Here is the heart of the presentation, focusing on four key post-Vavilov issues

In Vavilov, the majority identifies “two types of fundamental flaws…that may show a decision to be unreasonable”.[1] First, the absence of “reasoning that is both rational and logical”,[2] such as reasons which “fail to reveal a rational chain of analysis”, ones which “read in conjunction with the record do not make it possible to understand the decision maker’s reasoning on a critical point”,[3] or ones which “exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise”.[4] I do not propose to say anything about this other than to urge administrative tribunal members to be rational and logical. Good luck!

Second, a decision must be “justified in relation to the constellation of law and facts that are relevant to the decision”.[5] The majority emphasizes that it is impossible to “catalogue” all the considerations which will be relevant to the constellation of particular individual cases but sets out a set which will “generally be relevant”:

…the governing statutory scheme; other relevant statutory or common law ; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies.[6]

Some of these do have an incidence on the production of administrative decisions.

First, jurisdiction. Even though ‘true’ questions of jurisdiction no longer attract correctness review, the majority makes clear that “[a]lthough a decision maker’s interpretation of its statutory grant of authority is generally entitled to deference, the decision maker must nonetheless properly justify that interpretation”.[7] When interpreting provisions which are arguably jurisdictional:

What matters is whether, in the eyes of the reviewing court, the decision maker has properly justified its interpretation of the statute in light of the surrounding context. It will, of course, be impossible for an administrative decision maker to justify a decision that strays beyond the limits set by the statutory language it is interpreting.[8]

I do not think you need to worry too much, however, about whether a given provision is jurisdictional or not. The majority reasons are driving at the point that where authority is granted in broad terms, the interpreter has a significant margin of appreciation, but where authority is more tightly constrained, so too is the interpreter. The closer you seem to be to technical language in a statute (and the further away you are from a broad discretionary power, say, to do something “in the national interests”), the more careful you must be about interpreting the words in question and the more detail you must give in your reasons.

My advice: (1) invite parties to submit argument on issues which might be described as ‘jurisdictional’ or where you seem to be constrained by the statute and (2) state in your reasons whether the provisions you are interpreting are broad (giving you a significant margin) or narrow (giving you less of a margin).  

Second, statutory interpretation. On the one hand, the reader of Vavilov is told: “Administrative decision makers are not required to engage in a formalistic statutory interpretation exercise in every case”.[9] On the other hand, a few paragraphs later, the administrative decision-maker’s task is said to be to “interpret the contested provision in a manner consistent with the text, context and purpose, applying its particular insight into the statutory scheme at issue”.[10] A cynic might see that as a “formalistic statutory interpretation exercise”! I would make two observations. To begin with, the majority recognizes that sometimes an administrative decision-maker need “touch upon only the most salient aspects of the text, context or purpose”.[11] Moreover, the majority emphasizes the importance of the arguments actually made by the parties to the matter before the administrative decision-maker. If a tribunal has not been presented with arguments based on purpose and context, the principle of responsiveness suggests that the tribunal need not deal with them.

My advice: (1) refer to text, context and purpose as much as possible, (2) emphasize the elements of text, context and purpose which best further the objectives of the tribunal and (3) where the parties have not referred to text, context and purpose, make sure to point this out in your reasons.

Third, responsiveness. A decision-maker’s reasons must respond to “the central issues and concerns raised by the parties”.[12] This amounts to an obligation not merely to hear the parties but to demonstrate that they have been listened to: “reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties”.[13] Moreover, in situations where a decision will have “particularly harsh consequences for an affected individual”,[14] a decision-maker comes under a “heightened responsibility…to ensure that their reasons demonstrate that they have considered the consequences of a decision and that those consequences are justified in light of the facts and law”.[15] This places the individual at the centre of the reason-giving process, making the “perspective of the individual or party over whom authority is being exercised” centrally important.[16]

My advice: (1) briefly set out the key arguments made by the parties in your reasons, (2) make sure to explain your reasons for refusing to accept arguments made by the parties. (Whether you write chronologically or (as is generally preferable) in issue-first mode, make sure to integrate the parties’ arguments.) (3) bear in mind that the losing party probably needs more responsiveness than the victor.

Fourth, consistency. According to the majority reasons, citizens “are entitled to expect that like cases will generally be treated alike and that outcomes will not depend merely on the identity of the individual decision maker”.[17] Accordingly, “[w]here a decision maker does depart from longstanding practices or established internal authority, it bears the justificatory burden of explaining that departure in its reasons”.[18] Citizens, indeed, have “legitimate expectations” for  administrative consistency.[19] This imposes micro- and macro-level constraints on administrative tribunals. At the micro-level, tribunal members have to justify departures from past practice or refusals to follow a previous decision. At the macro-level, the tribunal as a whole will have to focus greater attention on the provision of tribunal-level guidance so that members are aware of previous decisions. Certainly in areas of mass adjudication, counsel on the applicant side and on the government side will be wielding past decisions as weapons with which to force administrative tribunals members to make decisions favourable to their clients.

My advice: (1) maintain a tribunal-level database of past decisions, accompanied by a regularly updated operational manual dealing thematically with tribunal jurisprudence on recurring issues, and ensure regular contact between tribunal members; (2) identify past practice or relevant previous decisions in your reasons and either (a) demonstrate that these do not require consistent treatment (because they do not, in fact, bear on the decision you are writing) or (b) justify your refusal to follow them; (3) where the parties have not provided past practice or previous decisions, note in your reasons that they have not done so (leaving the door open to you, in the event that there is a successful judicial review application, to deal with them once the matter is remitted).    

I would also suggest providing counsel to the tribunal with information about what the tribunal does to achieve consistency at the macro-level. This information can be put in affidavit form and submitted to a reviewing court. This is not supplementation of your reasons (which is forbidden by Vavilov) but rather the sort of contextual, background information which may be made available in affidavits.[20] Obviously there may be practical constraints on whether an affidavit can be filed, in which cases tribunal leaders have to think of more creative ways to ensure that reviewing courts are aware of relevant contextual factors.

[1] Vavilov, at para. 101.

[2] Vavilov, at para. 102.

[3] Vavilov, at para. 103.

[4] Vavilov, at para. 104.

[5] Vavilov, at para. 105.

[6] Vavilov, at para. 106.

[7] Vavilov, at para. 109, emphasis added.

[8] Vavilov, at para. 110, emphasis added.

[9] Vavilov, at para. 119.

[10] Vavilov, at para. 121.

[11] Vavilov, at para. 122.

[12] Vavilov, at para. 127.

[13] Vavilov, at para. 127. Emphasis original.

[14] Vavilov, at para. 133.

[15] Vavilov, at para. 135.

[16] Vavilov, at para. 133.

[17] Vavilov, at para. 129.

[18] Vavilov, at para. 131, emphasis original.

[19] Vavilov, at para. 131.

[20] Bernard v. Canada (Revenue Agency), 2015 FCA 263, at paras. 20-23.

This content has been updated on July 16, 2020 at 03:50.