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If the Groundhog Sees Its Shadow… Will There Be Six More Years of Discussion of Standard of Review?

I have never cared for American football and have never watched a Super Bowl. My only interest is in the commercials produced for the American broadcast, which for the last many years I simply watch on line the day after the game. So for me, the matter that gave rise to the decision in dispute in Bell Canada v. Canada (Attorney General), 2019 SCC 66 (“Bell”) is not really important to me.

One of the best commercials that aired during Super Bowl LIV involved Bill Murray reprising his role as weatherman Phil Connors from the film Groundhog Day,[1] who repeatedly relives the same day over and over again until he gets it right. To me, the premise of this film perfectly sums up the history of Canadian jurisprudence on standard of review, which was the subject of a “trilogy” of cases that included Bell and Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”).[2] Vavilov is lead case of the trilogy.

In short, it seems that over the last forty years, the court has been repeatedly reliving how it determines the standard of review and seemed destined to keep doing so until it got it right. As it stated at para. 7 of Vavilov, it had become clear that the simplicity and predictability promised by Dunsmuir v. New Brunswick, 2008 SCC 9 (“Dunsmuir”) had not been fully realized. That seems like an understatement. The question now is whether the SCC got it “right” in the trilogy.

My first reaction the day the trilogy came out – even before reading the case – was that this might not be the end of the time loop. This is because Vavilov was not a single unified decision; rather, there was what the decision described as a “joint concurring decision” by Abella and Karakatsanis JJ, because both decisions resulted in dismissing the Minister’s appeal. However, the minority could not have disagreed more strongly with the majority on the key issue of determining the standard of review.

Let us start with the new promise set forth by Vavilov, for there is a lot to like. First and foremost, the most significant aspect of Vavilov is that it purports to put an end to the contextual approach to determining the standard of review that had developed over the last forty years. From now on, the presumption is that, “more than ever”,[3] the standard of review is reasonableness administrative decisions. On this the entire court agreed, which is promising. In fact, the majority emphasized this at para. 143, where it expressly stated that the starting point from now on would be the Vavilov analysis, with the presumption of reasonableness, before considering any other prior case law.

The majority stated that correctness will only apply in two cases: when indicated by the legislature, or as required by the rule of law. Of course, as is typical in the law, each of these includes a subset of circumstances. For statutory appeals, appellate standards apply, determined with reference to the nature of the question and to the jurisprudence on appellate standards of review.

The other positive aspect of Vavilov is that the court provided clear guidance on how the courts are to determine the reasonableness of a decision. This was another important matter on which the entire court agreed. According to Vavilov, a review on a reasonableness standard is meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality, and fairness of the administrative process. The courts stated that the key principle was judicial restraint and in demonstrating respect for the distinct role of administrative decision makers.

Where the promise of Vavilov might dim is what is essentially a dissent, in which Abella and Karakatsanis JJ fervently contend, in strong terms, that the majority decision will actually result in a decrease in deference, arguing that it will actually reverse the progress of the law rather than reforming it. The minority also set out strong objections regarding the majority’s position on the standard of review for statutory appeals. There is also dissent on other matters, such as the way the majority disposed of relative expertise as a criterion for determining the standard of review. Read paras. 199 to 201 and paras. 245 to 252 to get a sense of how strongly Abella & Karakatsanis JJ. disagree. They sum it up at para. 201 where they write, “The majority’s reasons are an encomium for correctness and a eulogy for deference.” At para. 252 they state, “Ironically, the majority’s approach will be a roadblock to its promise of simplicity.”

Will the minority’s analysis sow the seeds of the undoing of the promise of Vavilov? To some extent, part of the failure of the promise of Dunsmuir was the court’s own doing, as the struggle continued between those who were of a more deferential bent and those who were more interventionist.

Only time will tell, but early indications are that the deferential approach advocated by the entire court may be taking root. As of the time of writing, Vavilov has been cited more than 250 times, to varying degrees, from mere mentions to substantive analysis, including a number of appellate level cases. However, of those cases I have looked at, it appears that the message the courts have received is that reasonableness is to be the starting point. Here’s to the hope that less time can be spent at administrative law conferences talking about standard of review…over and over again.

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[1] If you have not seen it, you really must. It is better than any case you could be reading.

[2] I say “trilogy” even though I have cited only two cases. Bell involved two separate statutory appeals from the same decision of the Canadian Radio-television and Telecommunications Commission brought by Bell Canada and the National Football League.

[3] Bank of Montreal v. Li, 2020 FCA 22.

Comments

  1. When reasonable people can reasonably disagree, and so strongly in dissent, no one can disagree that it’s all so meta!

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