Special Bulletin: Standard of Review: The New Normal and What it Means for Administrative Tribunals

By Julie Gagnon and Heidi Besuijen

In December 2019, the Supreme Court of Canada (SCC) issued companion decisions in which it revisits the issue of standard of review for administrative decision-makers (Canada v Vavilov, 2019 SCC 65, Bell Canada v Canada (Attorney General) and National Football League v Canada (Attorney General), 2019 SCC 66). This article looks at some of the key points from the decisions.

1. Understanding why the SCC has revisited standard of review
In Vavilov, the SCC considers the development of the law since the seminal case in Dunsmuir v New Brunswick, 2008 SCC 9 (which had a significant impact on standard of review). The SCC describes a level of uncertainty in the law about how to determine the standard of review and apply the reasonableness standard. It states its goal of bringing “greater coherence and predictability” to administrative law and providing guidance on how to apply the reasonableness standard.

2. Reasonableness is the starting point (the contextual approach is gone)
In Dunsmuir, the SCC confirmed there were two standards of review in administrative law: reasonableness and correctness. The reasonableness standard gives deference to the decision made by the administrative tribunal. A decision will not be disturbed on appeal or review, so long as it is reasonable. Under the correctness standard, no deference is given to the decision-maker below. The reviewing court can replace the decision made by the administrative tribunal.

Following Dunsmuir, the courts applied the “contextual approach” to determining the appropriate standard of review (involving an analysis of four factors, including the expertise of the tribunal). In Vavilov, the SCC eliminates the contextual approach (although the SCC preserves the notion of the tribunal’s expertise as part of the reasonableness review). Reasonableness is now the starting point in all cases where a court reviews the merits of an administrative decision (unless an exception applies). Review on the basis of a breach of the duty of procedural fairness is not subject to the standard of review analysis (this remains unchanged).

3. There are exceptions to reasonableness as the starting point
While reasonableness is the starting point, there are circumstances where the correctness standard will be applied:

A. Exception for Legislative Intent: the SCC states that the legislature intended a lower level of deference to be given where:

i. the statute prescribes a correctness standard of review;
ii. the statute provides for a right of appeal to the court (if so the court, on appeal, will apply appellate standards of review, that is correctness on a question of law and palpable and overriding error on a question of fact, or certain questions of mixed law and fact).

The exception to reasonableness where there is a statutory right of appeal is a significant shift from how the courts have reviewed administrative tribunal decisions on appeal since Dunsmuir. Many statutes (for example, for most professional regulatory organizations) provide a right of appeal to the courts. We expect this to have a substantial impact on the area of administrative law.

B. Rule of Law Exceptions: correctness will apply to:

i. constitutional questions;
ii. general questions of central importance to the legal system as a whole;
iii. questions on the jurisdictional boundaries between administrative tribunals.

While the SCC leaves the door open for other “rule of law” exceptions, it states that new exceptions will not be added lightly.

4. Further guidance on “reasonableness”
The SCC adopts a principled approach to reasonableness in which reasons must communicate the rationale for a decision. A reasonable decision is internally coherent and will bear the hallmarks of reasonableness previously articulated by the SCC – justification, transparency and intelligibility. A decision-maker’s reasons must demonstrate a rational chain of analysis and the conclusions must follow from the analysis undertaken.

The SCC states that reasons should be read in light of the record and the administrative setting in which they were given and in light of the history and context of the proceedings. Courts must consider the specialized knowledge, expertise and experience of a decision-maker in reviewing the reasons.

However, the context and the record cannot save a decision with a fundamental flaw or an unreasonable chain of analysis. The court’s review cannot focus on the outcome of a decision to the exclusion of any rationale.

5. Factors in looking at reasonableness
Reasonableness is a single standard that is adapted to the context. A reasonable decision is justified in relation to relevant factual and legal constraints, including:

a. the governing statutory scheme;
b. other relevant statutory or common law;
c. the principles of statutory interpretation;
d. the evidence before the decision-maker and facts of which the decision-maker may take notice;
e. the submissions of the parties to the decision-maker;
f. the past practices and decisions of the administrative body; and
g. the potential impact of the decision on the individual to whom it applies.

6. On appeal or judicial review – the burden is on the applicant
The burden of establishing unreasonableness is on the applicant (the party seeking the review). The party challenging the decision must establish that the alleged shortcomings in the decision are sufficiently central or significant so as to render the decision unreasonable.

7. Judicial discretion to remedy the decision
Where the reasonableness standard is applied and a decision is overturned, the matter will generally be sent back to the administrative tribunal for reconsideration (with the benefit of the court’s analysis). However, the SCC notes that there are certain limited circumstances where factors will justify the court quashing a decision without sending it back for reconsideration (such as delay, fairness to the parties, urgency, or where it is evident to the court a particular outcome is inevitable).

8. Caution in using prior court decisions
The SCC notes that, in many respects, past precedents will continue to provide helpful guidance. However, the SCC cautions about the use of prior jurisprudence involving certain issues such as the contextual analysis or the effect of statutory appeal clauses. In addition, prior cases on how to conduct a reasonableness review should also be used carefully.

Vavilov will have a significant impact on future decisions of administrative tribunals and how decisions are reviewed. Time will tell whether the SCC has achieved the goal of bringing greater coherence and predictability to administrative law.

This bulletin is a highlight of the Supreme Court’s recent decisions on the standard of review. It is for information only. The contents of this bulletin do not constitute legal advice. For legal advice about specific issues or concerns please contact the authors or a member of our Professional Regulatory Team.

For a more detailed analysis of these decisions, see our in-depth blog post from December 23, 2019.

This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.