Lest I be accused of fiddling while Rome burns, I wish to note that I approach a pandemic as a time in which we must, subject to social distancing and isolation, proceed as normal as much as possible. Indeed, it is this sense of normalcy that should characterize what we do as much as possible. Because eventually, we will return to a sense of normal; and once we do so, we need to be equipped to handle the new world in which we will experience. Surely, life will be different. But we must be ready to tackle those challenges, and so we can’t close the door on the world. Life must, to the extent possible, go on.
In that spirit, I write today’s post, tackling two niche issues in the law of judicial review, post-Vavilov: the scope of the correctness categories, particularly the “general questions” category, and the effect of Vavilov on the BC Administrative Tribunals Act.
Let’s start first with the general questions category. As a reminder, Vavilov amended this category, a hold-over from Dunsmuir, to exclude considerations of expertise (Vavilov, at para 61). Now, the category reads as “general questions of law of central importance to the legal system as a whole.” If a question falls in this category, it will be subject to correctness review by the reviewing court. The logic behind this category is that certain questions transcend particular administrative regimes and require consistent answers from the reviewing court (Vavilov, at para 59). But the Court, in Vavilov, cautioned against an expansion of this category: questions that merely address issues of wider public concern do not fall in this category, and the simple fact that a question might be “important” in an abstract sense does not satisfy the category. In short, this category is not a “broad catch-all category for correctness review” (Vavilov, at para 61). Indeed, of all the questions so far recognized by the Supreme Court as falling into this category, all have had constitutional dimensions transcending the boundaries of a particular statutory scheme (see Justice David Stratas’ work, here, at pg 37).
Post-Vavilov, courts have largely heeded the call to interpret this category narrowly. For example, in Bank of Montreal v Li, the Federal Court of Appeal held that the issue of waiver of statutory entitlements was not an issue of general importance. The Court held that there was “no constitutional dimension to the question of whether an employee can contract out of a specific provision of a statute” and that the answer to the question posed “will not have legal implications for a wide variety of other statutes” (Li, at para 28). The Court again cautioned that this category is narrowly construed.
Similarly, in Beach Place Ventures, the BCSC also rejected the invitation to label a question as a general question of central importance. The controversy in that case involved whether certain complainants were “employees” under the Employment Standards Act [ESA]. The Court rejected the invitation to characterize this question as one of general importance. While the Court agreed that “what constitutes ‘employment’ is an important societal question,” the employee determination is one cabined by “statutory provisions rather than left to general principles of law” (Beach Ventures, at para 33). Put differently, the employee determination is one that is particular to the ESA, and the fact that the legislature chose to vest this question in the ESA was determinative for the Court.
But there has been at least one case where general questions were recognized. Take College of Physicians and Surgeons v SJO, where the issue was the production of documents in the context of a professional conduct investigation. The subject of the complaint raised an issue of privilege. The Court held that correctness should apply to this question, because “the way the disclosure and production issue has been raised here impacts in a broad way on the operation of the professional regulatory system” (SJO, at para 10).
Overall, I would say that the ground has largely stayed the same post-Vavilov on this ground of questions. Of the three cases cited above, two have recognized that this category is not a broad way to invite the application of the correctness standard. The only case that has recognized such a question, SJO, largely does so on solid ground: indeed, the Supreme Court has already noted that solicitor client privilege is a general question of central importance (see University of Calgary, at para 20). While SJO did not involve solicitor client privilege, it is only a hop, skip, and a jump from solicitor client privilege to other forms of privilege, even those not currently recognized at law. Indeed, the form of privilege asserted by the subject of the investigation in SJO was not recognized at law, but could impact other claims of privilege across the professional regulatory system. This, as I see it, is at least facially supported by existing Supreme Court precedent.
Overall, though, there has been little movement on this ground. And I think this is for the best. The central questions category is one that preserves the Rule of Law, but if it is used liberally, it could eat away at duly-delegated authority over certain questions. In this sense, I see the warning in Beach Place Ventures as apposite: a liberal application of the central questions category arrogates greater power to the courts to overturn decisions that, at least facially, have been delegated to administrative decision-makers. In the ordinary course, the scope of power delegated to a decision-maker, discernible through the ordinary rules of interpretation, should dictate the space available to a decision-maker—the level of deference (see Vavilov, at para 90 for a similar approach in which statutes, among other things, constrain a decision-maker). The ready imposition of an artificial correctness category risks upsetting this ordinary task. While this category should obviously exist, it must be left for questions with truly transcendental impact.
The second issue: the impact of Vavilov on the BC ATA. So far, there are duelling cases out of the BCSC that deal with this issue. In College of New Caledonia, the Court concluded that “Vavilov has not changed the law with respect to the meaning of patent unreasonableness under [the BC ATA]” (College of New Caledonia, at para 33). Meanwhile, in Guevara v Louie, the BCSC concluded that Vavilov’s comments on the reasonableness standard “also apply to a review of reasons on the standard of patent unreasonableness” because common law jurisprudence may impact what constitutes a patently unreasonable decision (Guevara v Louie, at para 48).
Of course, this is a classic problem: what role does the common law play in elucidating statutory guarantees? The Guevara Court cited to Khosa, at para 19, where the Court did say that patent unreasonableness in BC will be interpreted in light of general common law principles of administrative law. But this passage, in my view, should not be taken so far. While patent unreasonableness may receive limited inspiration from common law principles, it is also a distinct standard of review that differs from reasonableness as defined by the Supreme Court. Its distinctiveness comes from the fact that it is a statutory standard of review. As recently confirmed in Vavilov, legislated standards of review such as the patent unreasonableness standard should be given effect (Vavilov, at paras 35-36). This is simply a function of the hierarchy of laws; statutes (explicitly or by necessary implication) trump the common law. The common law cannot override the statutory standard, and I fear that is what happened in Guevara, and what a liberal application of Khosa would entail (just another reason to disfavour Khosa).
Overall, these two niche issues in judicial review will continue to be fleshed out in lower courts. For now, sit back, quarantine, and stay strong.