Eight months and a pandemic ago, the Supreme Court of Canada released the Vavilov trilogy (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65). While Vavilov may have introduced a significant change in how the standard of revie is determined, it confirmed that there remain only two standards: correctness and reasonableness. However, in British Columbia, the third standard of reasonableness simpliciter remains fossilized through the provisions of the Administrative Tribunals Act, SBC 2004, c. 45 (“ATA”). What interests me at this point is how the BC courts have applied Vavilov, given the statutory scheme that applies for determining the standard of review of decisions from those administrative bodies that are subject to the ATA.
At present, there have been about a dozen cases in the BC superior courts that have considered the ATA in conjunction with Vavilov, albeit some only in passing. While the court in Vavilov expressly noted that where the standard of review is determined by statute (as it is under the ATA), the statutory scheme prevails. However, as is evident from the analysis in many of the cases in BC that followed, Vavilov still provides guidance for determining many other questions of administrative law.
In some cases, the court noted that the SCC had issued Vavilov in the time since the judicial review before it had commenced and gave the parties the opportunity to make further submissions. However, in one, Patton v British Columbia Farm Industry Review Board, 2020 BCSC 554 (“Patton”), the court simply noted that Vavilov had not affected any of the matters at issue in that case. Patton involved the review of a decision by the BC Farm Industry Review Board, which is subject to the ATA. The question to determine was the standard of review of an alleged breach of procedural fairness. As noted by other cases that came out since Vavilov, the decision had not altered the statutory scheme for determining the standard.
One of the first post-Vavilov cases, Team Transport Services Ltd. v Unifor, 2020 BCSC 91 (“Team Transport”), confirmed that Vavilov upheld the principle that, for constitutional reasons, the court’s jurisdiction to review and, on occasion, quash decisions of a tribunal protected by a privative clause cannot be wholly excluded. The court also noted that Vavilov confirmed that where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law. In other words, the legislatures are entitled to enact legislation that determines the applicable standard of review and what those standards should be.
Where Team Transport found Vavilov helpful was in determining the approach to take I interpreting the statute governing the administrative body that issued the decision under review. In that regard, the court described the approach in Vavilov as a “reasons first” approach, requiring it to start with how the administrative body arrived at its interpretation of the statute and then determine whether that interpretation fits within the constraints imposed by law. In Team Transport, the court said that this meant it was not to determine whether the tribunal’s decision was correct; rather, it concluded that under the standard of patent unreasonableness it was bound to accept the tribunal’s reasoning and interpretation unless it bordered on the absurd or was obviously untenable.
Shortly afterward, the BCSC issued Beach Place Ventures Ltd. v British Columbia (Employment Standards Tribunal), 2020 BCSC 327 (“Beach Place”). Like Team Transport, the court in Beach Place noted that Vavilov had not displaced the legislature’s ability to prescribe a standard of review. The court also noted that the presumption of reasonableness mandated in Vavilov can be rebutted where the standard of review will be correctness for questions of law that are of central importance to the legal system as a whole.
It was the latter principle that was of importance in Beach Place, which involved a decision of the Employment Standards Tribunal. Under section 58(2)(a), the standard of review for all questions of fact and law within a tribunal’s jurisdiction is the patently unreasonable standard. Section 58(2)(b) of the ATA provides that “questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to whether, in all the circumstances, the tribunal acted fairly”.
The court noted that prior to Vavilov, general questions of law of central importance to the legal system were subject to a correctness standard of review only if they were outside the decision-maker’s expertise. Post- Vavilov, there is no such requirement. The applicants in Beach Place argued the question of what constitutes “employment” is a question of general law of central importance to the legal system and is therefore subject to a standard of correctness.
The court agreed that what constitutes “employment” is an important societal question. However, the court did not accept that this turns the question of who is an employee into a question of general law of central importance to the legal system. Following Vavilov, the court stated that the mere fact that a dispute is “of wider public concern” is not sufficient for a question to fall into this category. Rather, the question of whether someone is an employee for the purposes of the Employment Standards Act must be decided in the context of the statutory regime. The court stated that it could not disregard the legislative intention and hold what constitutes employment is a matter of general law of central importance to the legal system.
Another aspect of Beach Place concerned the question as to the approach to be taken in an application for an interlocutory stay of an administrative action by a tribunal protected by a strong privative clause. The test is set out in RJR — MacDonald Inc. v. Canada (Attorney General),  1 S.C.R. 311. Part of that test involves determining whether there is a serious question to be tried. However, the respondents relied on case law setting a higher standard in cases involving tribunals with a strong privative clause, arguing that the threshold test is whether there is a strong prima facie case. The applicants argued that under Vavilov, privative clauses no longer served any independent or additional function in making this determination.
While the court acknowledged that under Vavilov the specialized nature of a tribunal is no longer a contextual factor relevant to determining the standard of review, the tribunal that was the subject of judicial review in this case remained subject to the statutorily mandated standard set by the ATA. However, while the tribunal was subject to the statutory standard, its director was not. Despite this, the court concluded that the administrative scheme should not affect its reasoning as to whether or not to grant the stay. As the privative clause did not apply to decisions of the director, the higher threshold would not apply to considering a stay of the director’s decision. The court chose to apply the “serious question to be tried” test.
Despite this, the court said that it did not make much difference which threshold applied. The court noted that recent case law held that the standard of patent unreasonableness commands the highest level of deference from the court. Given this deferential standard, the court said the applicants face a high burden to establish either a “strong prima facie case” or that there is “a serious question to be tried”. While not citing Vavilov on this specific point, the court’s conclusion is consistent with the premium the SCC has put on deference.
In College of New Caledonia v Faculty Association of the College of New Caledonia, 2020 BCSC 384 (“College of New Caledonia”), the petitioner argued that while Vavilov did not directly impact the statutory standard of review in this case, based upon the principles set forth in Vavilov the court should generally apply a robust standard of review on both the reasonableness and the patent unreasonableness standard.
The court disagreed, stating that Vavilov has not changed the law with respect to the meaning of patent unreasonableness under s. 58 of the ATA. The court emphatically stated that there is simply nothing in Vavilov that would support a conclusion that it modifies the patent unreasonableness standard in any way. As a result, the court relied upon the description of the patently unreasonable standard as set out in the case law prior to Vavilov and relied upon the test set out in Red Chris Development Company Ltd. v. United Steel Workers, 2019 BCSC 2216.
In contrast, it was the view of the court in Guevara v Louie, 2020 BCSC 380 (“Guevara”), that the SCC’s comments in Vavilov regarding the reasonableness standard also apply to a review of reasons on the standard of patent unreasonableness. The court in College of New Caledonia relied upon the statement of the majority in Vavilov that tribunals must demonstrate an understanding of the proper approach to statutory interpretation. Citing Vavilov, the court stated that the failure to apply the proper approach to statutory interpretation is not a stand-alone ground of review where such a failure is only in respect of a minor aspect of the interpretive context and does not undermine the decision as a whole.
On the other hand, if it is clear that an administrative decision maker would have rendered a different decision had it given proper consideration to a key element of a statutory provision’s text, context, or purpose, the failure to apply the proper approach would be indefensible and therefore patently unreasonable.
The court noted that the usual remedy in such a case would be to refer the matter back to the tribunal for reconsideration. However, again referring to Vavilov, the court noted the majority’s suggestion that reviewing courts should consider whether the interests of timely and effective resolution of the dispute would be better served by the court resolving the matter. One example given in Vavilov was when the reviewing court concludes that a particular outcome is inevitable. The court in College of New Caledonia decided that this described the case before it, so it decided the dispute between the parties on the merits, without referring the matter back to the tribunal.
Like the court in Guevara, the court in Metro Vancouver (Regional District) v Belcarra South Preservation Society, 2020 BCSC 662, also accepted that while Vavilov had limited application to tribunals governed by the ATA, it confirmed that even in cases where the standard of review was patent unreasonableness, Vavilov confirmed that the focus of the reviewing court must be on the administrative body’s reasons.
S.G. v. G.M., 2020 BCSC 975, is interesting in that it is a judicial review of interim orders issued by the B.C. Provincial Court decision under the Family Law Act, SBC 2011, c. 25 (“FLA”). Section 233 of the FLA does not allow for appeals of such decision, thus the need for judicial review; however, the ATA does not apply. What was interesting was the petitioner’s argument urging the court to rely on pre-Vavilov authorities regarding the standard of review and defining the reasonableness standard. The court did not accept this argument, stating that in Vavilov, the SCC “recalibrated and made a holistic revision of the standard of review analysis” and “departed from decades of jurisprudence and has instructed courts to now start with the reasons in Vavilov and its companion case[s] in identifying and applying relevant standard of review principles.”
So far, only two BC Court of Appeal decisions have considered Vavilov. The first, Bonavista Energy Corporation v. Fell, 2020 BCCA 144, refers to it largely in passing and offers no real insights. The second, Casavant v. British Columbia (Labour Relations Board), 2020 BCCA 159, (“Casavant”) takes a more substantive look at Vavilov.
Casavant involved a conservation officer whose position was terminated because he refused an order to euthanize two bear cubs. The matter lead to a grievance under the collective agreement with the employer and a Labour Relations Board (“LRB”) proceeding. After discovering new evidence, Casavant applied to the LRB to reopen the matter, arguing that the initial process was flawed. The LRB dismissed this application and Casavant applied for judicial review. At that time, Casavant raised a jurisdictional challenge to the LRB’s authority to decide the matter in dispute. The chambers judge declined to address the jurisdictional question, finding that it had not been raised before the LRB and should not be addressed for the first time on judicial review. The BCCA allowed Casavant’s appeal, finding that the chambers judge had not given adequate weight to evidence indicating that the appellant had raised the issue with the LRB or the nature of a jurisdictional matter that was governed by the Police Act.
On the jurisdictional issue, the BCCA acknowledged that the chambers judge recognized that the task before a reviewing court is to ensure that an administrative decision maker acted within its jurisdiction, she did not give any weight to the prospect that the entire proceeding before the LRB was a nullity. Fenlon JA, writing for the court, said that the nature of the jurisdictional question went to what the SCC in Dunsmuir v. New Brunswick, 2008 SCC 9, described as a “true question of jurisdiction or vires”, which arise where a tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a matter.
Fenlon JA went on to consider this in light of Vavilov, in which the majority stated that it would cease to recognize jurisdictional questions as a distinct category attracting correctness review. Despite this, Fenlon JA noted that the SCC recognized that there was importance to drawing jurisdictional boundaries between two or more administrative bodies, providing an example that Fenlon JA considered to be analogous to the case before the BCCA: the absence of jurisdiction of a labour arbitrator to consider matters of police discipline and dismissal that are otherwise subject to a comprehensive legislative scheme. Fenlon JA cited Vavilov for the proposition that the rule of law requires courts to intervene where one administrative body has interpreted the scope of its authority in a manner that is incompatible with the jurisdiction of another.
Fenlon JA said that this brought the court squarely to the question of whether the jurisdictional issue should be remitted to the LRB. While the general rule is to refer the matter back, Fenlon JA, much like the court in College of New Caledonia, relied on the guidance set out in Vavilov and decided that it would be inappropriate to do so in this case, because the outcome would be inevitable such that remitting the case would therefore serve no useful purpose. As a result, Fenlon JA declared that the LRB had no jurisdiction over Casavant’s dismissal and the proceedings before it were a nullity.
While these cases have largely been constrained by the parameters of the ATA, overall they indicate that, like Dunsmuir before it, Vavilov can and will provide significant guidance in cases where the ATA applies. For the most part, these cases show that the BC courts have taken to the primary principle of Vavilov, and giving as much deference as might be allowed within the statutory scheme and by making the decision maker’s reasons the starting point of analysis.