This post is co-written with Leonid Sirota.
As we previously noted in a joint post on Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, that decision leaves open the question whether reasonableness review, as explained in the majority reasons, tends toward deference or vigilance, and so whether it will be more rigorous than pre-Vavilov reasonableness. After all, Vavilov begins by saying that its application of the reasonableness standard is based on a principle of judicial restraint, one which “demonstrates a respect for the distinct role of administrative decision-makers” (Vavilov, at para 13). Yet in the same breath the majority insists that reasonableness “remains a robust form of review” (Vavilov, at para 13). It then adds that the reasonableness standard is strong enough to guard against threats to the Rule of Law—yet not so strong as to revert to a form of jurisdictional review (Vavilov, at para 67).
Because of these statements, it is not surprising that some suggest that Vavilov is more robust than restrained, while others view it as “inherently deferential”. At first blush, these different takes on Vavilov could be argued to reflect confusion at the heart of the decision. And Vavilov’s rhetoric is indeed confusing. But an optimistic interpretation of the majority’s reasons might be that they speak to the great variety of cases to which they apply. In some, review will be more constrained; in others, it will be more rigorous. It will be the task of lower courts to parse the Vavilov judgment to determine which circumstances call for which application. But it is not clear that Vavilov prescribes an approach to judicial review that is uniformly more or less restrained.
While it is too early to draw any trend lines, the lower courts have had a chance to weigh in on this question, and they too are divided. But taking the cases together, they might support the conclusion that Vavilov is more contextual than categorical. On one hand, some cases have put forward more interventionist readings of Vavilov. One of us wrote here about Canadian National Railway Company v Richardson International Limited, 2020 FCA 20. There Nadon JA applied the appellate correctness standard, but he added that had he applied reasonableness review, he would have found the decision unreasonable. Nadon JA faulted the Canadian Transportation Agency for failing to take account of statutory context by focusing too much on the text of the relevant statutory provision—and said this would have been just as much of a problem on reasonableness review. Similarly, in Farrier c Canada (Procureur général), 2020 CAF 25, Gauthier JA explained that while she might have found a decision of the Appeal Division of the Parole Board of Canada reasonable under Dunsmuir and its progeny, under Vavilov, the story was different (Farrier, at paras 12, 19). The failure of the administrative decision-maker to provide reasons on some key legal elements of the decision was fatal.
By their own admission, these cases take a harder look at the administrative decisions under review than one would have expected prior to Vavilov, especially in how they scrutinize the administrative decision-makers’ reasons. This seems fully consistent with Vavilov’s “reasons first” approach to judicial review (Vavilov, at para 84) and its clear rejection of the practice of judicial supplementation of reasons (Vavilov, at paras 96-97). Coupled with these changes, Vavilov introduces what one might call a “legal hard look review”. There is now an expectation that administrators will reason with reference to their enabling statutes and take account these statutes’ text, context, and purpose (Vavilov, at para 120). Their omissions in this regard can only be tolerated if they are minor (Vavilov, at para 122). But, as Richardson holds, a failure to justify a decision in relation to the statute at all will be fatal.
By contrast, some decisions in Ontario’s Divisional Court fail to see a meaningful difference between Vavilov and the previous judicial review regime. In Radzevicius v Workplace Safety and Insurance Appeals Tribunal, 2020 ONSC 319 , for example, Swinton J asserts that “Vavilov does not constitute a significant change in the law of judicial review with respect to the review of the reasons of administrative tribunals” (Radzevicius at para 57). She holds that, because there was no “fundamental flaw or gap in the Tribunal’s analysis”, the decision was reasonable (Radzevicius, at para 59). And in Correa v Ontario Civilian Police Commission, 2020 ONSC 133, Swinton J (writing for a differently composed panel) was similarly disposed, insisting that Vavilov did not impose a “more robust reasonableness review” (Correa, at para 54).
These cases divide on a basic question: is Vavilov reasonableness review more robust than what preceded it? The temptation is to fall on one or another side of this question, but the truth might be a bit more nuanced. The decisions we have just discussed suggest that, while Vavilov may impose more robust review in some circumstances, it is also possible that, in other cases, Vavilov will, indeed, not change the degree of deference.
In Richardson and Farrier, at issue were questions of legal interpretation: questions that required the decision-maker to engage with the enabling statute to determine the meaning, in context, of relevant provisions. A failure to engage with key elements of the statute, insofar as such a lack of consideration may change the result, is not reasonable, according to Vavilov (Vavilov, at para 122). It is probably fair to say that, at least when it comes to pure questions of statutory interpretation, reasonableness review may now take on a more interventionist flavour, particularly where decision-makers are not simply applying a statutory provision to facts but are actually attempting to determine the meaning of particular provisions. When decision-makers are interpreting a statute, Vavilov demands more of them than the cases it supersedes.
Radzevicius and Correa, by contrast, presented issues of mixed fact and law. Decision-makers having applied legal standards to particular facts and evidence; they did not fail to take account of relevant legal provisions or fundamentally misunderstand them. Vavilov says that while the evidence acts as a constraint on the decision-maker, courts must refrain from reweighing evidence or holding decision-makers to a high evidentiary standard (Vavilov, at para 125). This injunction is consistent with Vavilov’s judicial restraint theme. When evidence is more central to the disposition of the case, we might expect review to be more deferential. Whatever else it did, Vavilov did not—for better or for worse—bring back the concept of jurisdictional fact.
This division finds some theoretical support in the literature, specifically Jeffrey Pojanowski’s recent paper advocating for a “neoclassical” approach to administrative law (which one of us reviewed here). Under the neoclassical approach, courts take a harder look at agency legal interpretations while respecting agency space to maneuver on policy or evidentiary matters (883). Neoclassicism pays attention to what both a particular decision-maker’s enabling statute and general legislation, such as the American Administrative Procedure Act indicate about the intensity of the review to which the decision-maker is subject. This approach is to be contrasted with, among others, “administrative supremacy”, which advocates across-the-board deference on all questions of law, reducing the rule of law to a “thin residue” around the margins of delegated power (869).
Vavilov, on the understanding expounded in this post, lends itself to a neoclassical interpretation. On one hand, it asks decision-makers to specifically reason in relation to the limitations on their power, most notably their enabling statute (Vavilov, at paras 108-110, 120). It introduces new requirements to engage with the text, context, and purpose of the statute (Vavilov at para 118 et seq). All of these requirements are rooted in the centrality of the enabling statute, and the role of courts to interpret that statute to decide on the intensity of review. But on the other hand, Vavilov largely incorporates existing law in asking courts to stay their hand when it comes to the evidence before a decision-maker, and the way it might have been assessed (see Khosa, at para 61). In part, this can be justified as a dutiful reflection by the courts that the decision-maker was (1) the initial merits decider and (2) Parliament’s chosen delegate, established to be the merits decider. This division is therefore rooted in a plausible understanding of the respective roles of courts and delegated decision-makers.
Some caveats are in order. First, the distinction between questions of law and questions of evidence will not necessarily be perfectly neat. Indeed, it is true that sometimes, on legal questions, a decision-maker will have a wide margin in which to operate because of the words of a statutory grant of authority (Vavilov, at para 110). As a result, the distinction we draw here might not be helpful in every case. Our point is simply that it may help explain how courts have thus far treated Vavilov. And second, we do not know whether this distinction is really what drove the courts’ reasoning in these cases. Or was their reasoning, instead, primarily a function of individual or institutional views on judicial review, which are bound to influence judges as they work to make sense of equivocal guidance from the Supreme Court? It will be interesting to see, for example, how the Federal Court of Appeal treats more fact-bound cases and, conversely, how the Divisional Court will approach those where statutory interpretation is at the forefront.
That said, if there is one thing that is clear about Vavilov, it is that the various constraints that operate to limit the space within which a decision-maker can maneuver are supposed to be sensitive to context. As the relevant facts and applicable law vary, so different constraints come to the fore. The constraints that apply in a given case lead to more or less interventionist review. One of us suggested, in a contribution to the symposium on the tenth anniversary of Dunsmuir, that the administrative law framework that should replace the one that built on Dunsmuir (or on its ruins) ought to “abandon the pursuit, or the pretense, of across-the-board deference” in favour of greater sensitivity “to the circumstances of particular cases … As these circumstances vary, so must the applicable rules.” Ostensibly, Vavilov instead doubles down a one-size-fits-most reasonableness standard of review. But it may be that, in practice, it makes sufficient room for a more nuanced approach.
In the short term, this might lead to more confusion. In the long run, however, it may prove a more fruitful way of developing the Canadian law of judicial review. For now, it is for the lower courts to work out the precise circumstances in which more or less deference is due to administrative decision-makers. As a result, confident broad judgments about Vavilov’s true import are probably premature.