In my first post on Vavilov, I celebrated the Court for finally bringing some sense to the Canadian law of judicial review. Particularly, I focused on three issues relevant to determining the standard of review: the banishment of jurisdictional questions, the introduction of statutory rights of appeal as a category of correctness review, and the sidelining of expertise from the task of determining the standard of review. I did not address what I consider the real meat of Vavilov: the application of the new, robust [13], reasonableness standard.
As I will set out here, this is the strength of Vavilov because it creates a real legal standard for deference that does not permit decision-makers to “drift” beyond statutory boundaries. It forces reasoning that is explicitly tied to the enabling statute, rather than extraneous “policy” factors. This is a form of legal “hard-look” review that will not enable decision-makers much room to justify outcomes that are inconsistent with the enabling statute or otherwise do not engage with core interpretive elements. Indeed, the enabling statute is “likely to be the most salient aspect of the legal context relevant to a particular decision” [108]. This overarching theory is employed in what the Court mandates for decision-makers, creating a framework, at least on questions of law, that looks something like this:
- Decision-makers must render a decision that is consistent with the text, context, and purpose of the statute [120] (a focus on outcome)
- Decision-makers must engage with the most pertinent aspects of text, context, and purpose, with only limited room for omissions where those omissions are “minor” [122], while writing reasons that justify these interpretive choices [84], showing that a decision-maker was “alive to these essential elements” [120].
- Courts will no longer cooper up defective interpretations of law by ginning up their own reasons for decision [96].
Overall, these three restraints on administrative excess ensure that the statute—as interpreted by the decision-maker, through reasons—is the starting point for all administrative review. This does not abdicate a court’s function; fundamentally, the court will determine whether the reasons evince an engagement with the statutory context in a way that is justifiable and justified [86].
Take first the requirement that a decision-maker render a decision consistent with the text, context, and purpose of the statute. The focus here has two dimensions that make it ideal for the conduct of judicial review as a matter of appreciating statutory boundaries. First, the “reasons first” [84] methodology of the Court protects against what I call the real legacy of Dunsmuir: disguised correctness review. The evil of disguised correctness review was not that it unduly impacted administrative prerogative; it is that it potentially limited the scope of delegated power set by Parliament. The potential for disguised correctness review is now, at the very least, curtailed. Courts have to start with the reasoning of the decision-maker to determine whether it falls within the scope of the legislation [116]. That scope will sometimes be wide, sometimes be narrow, [110] but the administrative reasons, as they interpret the scope of the legislation, are the starting point.
What is to be avoided on this line of thinking is what Justices Abella and Martin did in the Canada Post decision. There, they largely reasoned from their own view of the statute at play, and used that reasoning to judge the decision-maker’s interpretation of the law. This seems odd, considering Justice Abella’s cries about deference in Vavilov itself. Nonetheless, this approach is not–and should not be–a majority approach.
But this is not the end of the inquiry. Ultimately, a court must review, and it will be the reviewing court’s decision as to whether the administrative decision-maker has made a decision that transgresses the scope of the statute. After all, “[i]t 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,” which justification is assessed “in the eyes of the reviewing court” [110]. Here, the court takes a meaningful role in determining whether the decision strayed beyond the scope of the legislation the decision maker is interpreting; the merits of a decision must be consistent with the text, context, and purpose of the provision [120]. Under this framework, then, courts have a meaningful role to play in implicitly determining the boundaries of statutory limits, in order to then determine whether the administrator’s interpretation can be justified by the legal constraints bearing on it. In other words, under Vavilov, the application of legal constraints is still a preserve of the courts.
Now, consider the requirement that a decision-maker must engage with the essential elements of statutory interpretation: the text, context, and purpose. Here, another balance is struck. On one hand, a decision-maker is not required to engage the formalistic tools of interpretation, at least in “every case” [119]. I take this to mean that decision-makers will not be required to apply ejusdem generis or noscitur a sociis, or other lawyerly lingo. But, it will be necessary for decision-makers to ensure that they do not miss the most salient aspects of text, context, and purpose—at least in some cases—lest their decisions be unreasonable [122]. Their reasons must evince that they weighed the interpretive tools of text, context, and purpose, determining in a given case which is dominant [120].
Ultimately, this is a good development. Administrative decision-makers do not have to dress up their reasons in legal garb, but if they are to be true participants in the legal system—and if they are truly joint partners in upholding the Rule of Law—their reasons must be cognizable to the rest of the legal system. Reasons that are written exclusively in the vernacular of a particular industry or policy area do no good to others seeking to determine whether the decision is consistent with particular statutory limitations. In this sense, while we cannot expect decision-makers to know semantic canons of interpretation, they must justify their decisions so that they are rendered in the language of the most basic tools of interpretation: text, context, and purpose. This is the language of law, and decision-makers, if they are to truly be partners in the enterprise, must speak it to some degree.
In particular, reasons serve a transmitting function on this account. They are a means to and end: the end of judicial review. Their purpose is ensure that courts can adequately assess whether decision-makers have justified their decisions in relation to statutory limits. In this way, the reasons requirement instantiated in Vavilov is ultimately tied back to the enabling statute, the fundamental basis of all administrative law.
Finally, and connected to the above, the importance of reasons means that courts cannot gin up reasons for decision when they are absent on a particular essential element [96]. Indeed:
Where, even if reasons given by an administrative decision maker for a decision are read with sensitivity to the institutional setting and in light of the record, they contain a fundamental gap or reveal that the decision is based on an unreasonable chain of analysis, it is not ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision.
Why shouldn’t this be permissible? As Justice Stratas noted pre-Vavilov in Bonnybrook (at para 93):
But faced with a silence whose meaning cannot be understood through legitimate interpretation, who am I to grab the Minister’s pen and “supplement” her reasons? Why should I, as a neutral judge, be conscripted into the service of the Minister and discharge her responsibility to write reasons? Even if I am forced to serve the Minister in that way, who am I to guess what the Minister’s reasoning was, fantasize about what might have entered the Minister’s head or, worse, make my thoughts the Minister’s thoughts? And why should I be forced to cooper up the Minister’s position, one that, for all I know, might have been prompted by inadequate, faulty or non-existent information and analysis?
Bonnybrook’s understanding is basically now the law in Vavilov. When administrative decision-makers are delegated power, they are delegated that power with the understanding that they will make decisions at first instance, not courts. If these administrative decision-makers fail to live up to that delegated mandate, that is no fault of the courts, and so it is not the job of the courts to make the decision for the decision-maker. It is, however, the job of the courts to render the decision unreasonable. This is particularly the case where there is a missing part of the decision on a core interpretive element, under which the result of the decision would be different (Vavilov, at para 122).
All together, what Vavilov has created is a new reasonableness standard that is tightly focused statutory limits, using statutory interpretation as a tool for discerning those limits. Of course, there are other “constraints” on decision-making that matter (see Vavilov, para 106) —but where we are talking about legal interpretation, legal constraints will be the most salient element of the decision-maker’s reasoning. Ultimately, this is a positive step forward, since all administrative law is a function of statutory interpretation and analysis.
Double Aspect 