Reason for optimism?
After the Supreme Court’s recent decisions in Abrametz and ESA (both of which are summarized and analyzed in my newsletter here and here, respectively), there is much to say. But I just want to quickly identify one emerging trend: the centrifugal force of the principles in Vavilov in areas of administrative law not immediately in its contemplation. For reasons I hope to outline in future work, I think this trend is positive, because the sweeping and comprehensive approach in Vavilov provides a set of plausibly, administrable rules that reduces the amount of time spent on finding the standard of review, among other things. This is a good thing because the law of judicial review shouldn’t be overly complex. It is designed to be quick, on the record, and facilitative for individuals challenging government action. Labyrinthine doctrine stifles that purpose.
For now, though, I only write to highlight a few examples of this trend I identify:
- In Abrametz, the question of the standard of review for procedural fairness issues arising in a statutory right of appeal was at issue. For a majority of eight, Rowe J applied Vavilov’s holding on rights of appeal (the appellate, not judicial, standards apply) to the issue of delay (Abrametz, at para 27). This was despite the majority’s acknowledgement that this “proposition was stated in the context of substantive review.” This was also despite the fact that the orthodox view is that correctness applies to issues of procedural fairness (set out in cases like Khela). As I outlined in my newsletter, I think this move is justifiable, and it may raise questions about assimilating all issues of procedural fairness to Vavilov’s rules and standards. This is not an argument I can explore here, but it has been mooted in the courts (e.g. Maritime Broadcasting, at para 50). That said, one will likely find a resolute voice in favour of hard-line correctness review on all issues of procedural fairness: see Côté J’s dissent in Abrametz. And the move made in Abrametz regarding rights of appeal is a much easier hill to climb than a full-on application of Vavilov to issues of procedural fairness.
- In ESA, the question was whether the laws like the Copyright Act that confer jurisdiction over the same questions to courts and the Copyright Board invite the correctness standard. In Rogers, a previous Supreme Court case, the Court recognized this as an appropriate circumstance to deviate from a reasonableness standard. For a seven judge majority, Rowe J again approached the problem by asking how Vavilov altered the Rogers standard (ESA, at paras 24-25). This was because—as I argue—Vavilov “simplified the law” (ESA, at para 24) and “overtook the prior jurisprudence” (Vavilov, at para 14). Analyzing the problem from the perspective of Vavilov’s principles of legislative/institutional design and the rule of law, Rowe J recognized the Rogers exception as an additional category that would attract correctness review. It is “analogous” to a statutory right of appeal (ESA, at para 32) and inconsistencies could arise between judicial and administrative interpretation, undermining the consistency and systemic clarity required by Vavilov’s idea of the rule of law (and, I argue, the Supreme Court’s other precedents). Karakatsanis J and Martin J said the majority’s conclusion “undermines Vavilov’s promise of certainty and predictability” (ESA, at para 117) because despite the fact that Vavilov “obviously considered” cases like Rogers, it did not choose to recognize it as an example of a case requiring correctness review (ESA, at paras 117, 124). In fact, if anything, it implicitly (but not “inadvertently”) overruled it (ESA, at para 125). While I do not agree with the concurrence’s worry about the majority’s decision, I note that the concurrence, too, sees Vavilov as a simplifying, cohering mechanism—it just reads Vavilov differently (in my view, much too narrowly—see Vavilov at para 70, which focuses on the application of its principles in future cases).
These Supreme Court examples only serve to buttress trends in the lower courts. In Portnov, for example, Stratas JA in the Federal Court of Appeal held that the bespoke standard of review analysis for regulations set out in Katz should be foreclosed and assimilated to Vavilov’s reasonableness standard (Portnov, at paras 24-28). And even beyond the grounds of substantive or procedural review, Boivin JA in Ermineskin Cree Nation merged considerations of judicial discretion and cost-expediency in the question of whether a case was moot; in so doing, it tied an important consideration underlying Vavilov’s discussion of remedies on judicial review to the preliminary issue of mootness (see Ermineskin Cree Nation, at para 41; Air Canada, at para 14). What’s more, there is debate in the lower courts, and even at the Supreme Court, about the standard of review on arbitral appeals: whether the standard is reasonableness or the appellate standards, as prescribed by Vavilov (see here).
In all of these examples, we see Vavilov potentially doing a lot of conceptual work. Not only are its principles affecting substantive review (ESA), but also preliminary objections to judicial review (mootness), and further, even in domains not necessarily within the Vavilov Court’s express contemplation (Abrametz). Nonetheless, it appears as if a number of judges on the Court are viewing Vavilov not only as a good encapsulation of accepted administrative law values (primarily, institutional design and the rule of law, but also discretion and cost-effectiveness), but a plausible set of operational rules deduced from those values.
For my own reasons, I think the overall effort in Vavilov was sound. In theory, there are some imperfections in Vavilov. I’d much prefer, for my part, a Chevron-like approach to judicial review of administrative action, which doesn’t start from a presumption of deference, but which asks courts to interpret whether the statutory language can support “more than one answer” in the first place. Nonetheless, I can live with Vavilov because it is a clear rule with clear exceptions, and we get something like Chevron on questions of law when we apply the reasonableness standard (though this does not solve the fundamental issue: see Leonid Sirota here). The presumption of reasonableness is rooted in a plausible, though imperfect, conception of legislative delegation (again, I have my own fundamental objections to it—delegation does not necessarily equal deference). But the “wrongness” of the presumption, in my view, is mitigated by sound exceptions to its application in cases where there is a clear contrary signal “subtracting” from the specific delegation (rights of appeal, concurrent jurisdiction); where the question at issue transcends the legislative delegation (constitutional questions, for example); or perhaps even when it is unclear the delegation extends to the decision-maker at all (see here). And as I say, even on questions where reasonableness applies, we get an approach that takes into account administrative legal errors, statutory language, and which forces more extensive justification to facilitate judicial review on the reasonableness standard.
We live in an imperfect world, and in my view, this old trope extends with even more force to the law of judicial review. So at the end of the day, imperfections in the theory and doctrine do not undermine the workability that Vavilov has achieved. Because selecting the standard of review is categorical, theoretical imperfections aside, the process is much simpler. As I say above, certainty and predictability in the law of judicial review should be built-in, so that citizens can understand how to challenge government action. What I think Vavilov has done is settle the fundamentals, allowing development around the edges, while providing a sound starting point for that development. For this reason, I agree with the overall trend: courts should look to Vavilov’s principles to infuse, to a greater or lesser degree, the doctrine of judicial review where relevant.