Vavilov: A Note on Remedy


With all of the discussion of Vavilov’s revised standard of review analysis, one aspect of the decision has gone somewhat unnoticed: the renewed focus on the remedy in judicial review proceedings. I write today to discuss this “development” in the Canadian law of judicial review. While the Court certainly applied existing principles in declining to remit in Vavilov, it also seemed to focus on the weakness of the Registrar of Citizenship’s legal justification as a reason not to remit, relative to the more reasonable interpretation adopted by the Court. In other words, the gap between the Registrar’s interpretation’s and the Court’s was so great that remittal would serve no purpose. This assessment of relative arguments is in addition to the typical remedial analysis,  bolstered by other “public law values” and efficiency principles that might govern the analysis. Here, the principles underlying quashing and remittal as a unified remedy are counter-balanced by the need to ensure that erroneous administrative decisions that may have no chance of rectification on remit are not permitted to stand. This is not a drastic change in principle, but it is, perhaps, a change in emphasis, consistent with Vavilov’s overall focus on legal justification.

Generally in the Canadian law of judicial review, the appropriate remedy is to remit to the decision-maker: see  Delta, at para 31; Vavilov, at para 141. This is perfectly in line with the principles animating the reasonableness standard. Judicial review is not about de novo determinations of law, but about courts policing the boundaries of administrative decision-making to ensure  legality. In this sense, the substantive merits of a decision are made by the decision-maker, as delegated by the legislature: Vavilov, at para 142.

As Vavilov notes, though, this is not always the case.  Mobil Oil (at least in the context of procedural cases), and MiningWatch, (in the context of substantive cases) demonstrate that courts can decline to remit in reference to a “multi-factoral, contextual approach…” animated by principles of deference (see Cristie Ford, Remedies in Canadian Administrative Law: A Roadmap to a Parallel Legal Universe). One such contextual consideration—an important one in legal interpretation—holds that remittal can be declined where a “particular outcome is inevitable and that remitting the case would serve no useful purpose” (Vavilov, at para 142). This is particularly so, for example, where there is only one reasonable outcome to a decision (Vavilov, at para 125; see also LeBon, at para 14 re mandamus; ). Other efficiency elements play a role:

Elements like concern for delay, fairness to the parties, urgency of providing a resolution to the dispute, the nature of the particular regulatory regime, whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question, costs to the parties, and the efficient use of public resources may also influence the exercise of a court’s discretion to remit a matter, just as they may influence the exercise of its discretion to quash a decision that is flawed.

Generally, however, it is “exceptional” to decline a remedy in this way : see David Stratas, “Some Doctrine and Cases” at page 118. Now, however, I am less convinced that will be as exceptional as it once was. This is because in cases of very weak legal interpretation by an administrative decision-maker—even cases where the court decides that the interpretation of the provision as a whole  does not just admit of only one reasonable interpretation—a court is more likely to decline to exercise discretion to remit.

The facts of Vavilov provide support for this. In Vavilov, the Court unanimously concluded that the Registrar of Citizenship’s interpretation of s.3(2)(a) of the Citizenship Act was unreasonable. The majority noted that this was primarily a failure of justification:

As noted above, we would exercise our discretion not to remit the matter to the Registrar for redetermination. Crucial to our decision is the fact that Mr. Vavilov explicitly raised all of these issues before the Registrar and that the Registrar had an opportunity to consider them but failed to do so.  She offered no justification for the interpretation she adopted except for a superficial reading of the provision in question and a comment on part of its legislative history (my emphasis). On the other hand, there is overwhelming support — including in the parliamentary debate, established principles of international law, an established line of jurisprudence and the text of the provision itself — for the conclusion that Parliament did not intend s. 3(2) (a) of the Citizenship Act  to apply to children of individuals who have not been granted diplomatic privileges and immunities.

In an ordinary case, it might be argued that the Registrar should have another kick at the can. After all, the Registrar was delegated power to make decisions under the statute, and could offer a stronger justification for the decision she rendered, or make the decision that is consistent with the text, context, and purpose of the statute. Indeed, the Court noted in Vavilov that it was not pronouncing definitively on the meaning of s.3(2)(a), at least as applied to other facts:

That being said, we would stress that it is not our intention to offer a definitive interpretation of s. 3(2) (a) in all respects, nor to foreclose the possibility that multiple reasonable interpretations of other aspects might be available to administrative decision makers. In short, we do not suggest that there is necessarily “one reasonable interpretation” of the provision as a whole. But we agree with the majority of the Court of Appeal that it was not reasonable for the Registrar to interpret s. 3(2) (a) as applying to children of individuals who have not been granted diplomatic privileges and immunities at the time of the children’s birth.

However, the fact that the Registrar failed to justify her decision in such a drastic way undermines the purposes of remittal. The Court concluded that, in reference to the particular facts at play, there was (a) only one reasonable outcome to the decision as applied to the particular facts and (b) that the Registrar failed to consider the reasoning building blocks to meet that particular decision. In such cases, we are talking primarily about a failure of justification leading to an erroneous decision, and there was no evidence that justification could be offered one way or another on remit. The weakness of the justification, here, was a primary driving factor against remittal.

Other factors in the remedial analysis also seemed to play a role here. It would be inefficient, for example, to remit where the Court itself had determined that on these particular facts, there was only one reasonable interpretation on outcome. But the Court’s focus on justification is also evident: “[c]rucial to our decision is the fact that Mr. Vavilov explicitly raised all of these issues before the Registrar and that the Registrar had an opportunity to consider them but failed to do so” [195]. There would be no point in remitting where the Registrar had not grappled with the key interpretive issues the first time around, especially where the other interpretive factors pointed in the other direction. The gap here was too great to justify a remittal, in light of the other public law values governing remedy.

An interesting counterfactual is whether the Registrar could have offered reasons for her interpretation that engaged with the text, context, and purpose of the statute—in other words, could she have offered proper justification for its decision on the facts? This is an open question, as the Court declined to opine on “all aspects” of s.3(2)(a). But it is at least plausible, in other cases, that there could be two reasonable outcomes of a particular decision, but the decision-maker completely failed to justify one interpretation, such that it is now unavailable as a matter of justification on remit.

Again, this is not a change in remedial principle, but it is a welcome focus on legal justification as an ingredient in the remedial analysis. After all, that is Vavilov’s promise.

Author: Mark Mancini

I am a PhD student at Allard Law (University of British Columbia). I am a graduate of the University of New Brunswick Faculty of Law (JD) and the University of Chicago Law School (LLM). I also clerked at the Federal Court for Justice Ann Marie McDonald. I have interests in: the law of judicial review, the law governing prisons, and statutory interpretation.

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