What Does City of Toronto Mean For Administrative Law?

The Supreme Court released its much-anticipated decision today in Toronto (City) v Ontario (Attorney General), 2021 SCC 34. While others will address the nuances of the case, the majority generally puts unwritten constitutional principles into a tiny, little box. It says that because “[u]nwritten principles are…part of the law of our Constitution…” [50], unwritten principles only have two practical functions: (1) they can be used in the interpretation of constitutional provisions [55]; (2) they can be used to “develop structural doctrines unstated in the written Constitution per se, but necessary to the coherence of, and flowing by implication from, its architecure” [56]. In this category, the Court uses the example of the doctrine of paramountcy, the doctrine of full faith and credit, and the remedy of suspended declarations of invalidity.

I applaud the majority opinion for clarifying the role of unwritten constitutional principles. For my part, I think the functions they have outlined for unwritten principles give those principles a meaningful role in the constitutional structure while giving priority to the text. The majority aptly underscores the worry with unwritten principles–they are so abstract and potentially endless–and negates that worry by ensuring the text as a control on the use of these principles. Even better, the majority closes the door on the rather pernicious attempt to read municipalities into s.3 of the Charter [5].

But that is not my concern for today. What does any of this have to do with administrative law?

Post-Vavilov, there was a good argument that unwritten principles–the Rule of Law specifically–could have independent force in limiting state action in some way on the standard of review–put more bluntly, that the Rule of Law could invalidate certain legislative rules governing standard of review. The Court says, for example, that “where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law” (Vavilov, at para 35). It goes on to outline categories of questions–like constitutional questions–that demand a correctness standard because of “respect for the rule of law” (Vavilov, at para 53). This raised the argument that if a legislature were to prescribe a standard of review of reasonableness on a constitutional question, such a standard would not be given effect to by a court because it transgresseses the “limits imposed by the rule of law.”

On first blush, City of Toronto tends to throw cold water on the argument. Its insistence that unwritten principles cannot invalidate legislation could mean that a court should give effect to a legislated standard of review on constitutional questions. And because there is no express constitutional provision insisting on a correctness standard on certain questions, on a strict reading of the City of Toronto majority opinion, there would be no power to invalidate that law.

This very well may be true, and yet I think there are a few ways to reconcile City of Toronto with Vavilov that leads to the same result that Vavilov seems to suggest–a court not applying (which is strictly, though perhaps not functionally, different from invalidation) a legislated standard of review of reasonableness on constitutional questions. Much of this argument hinges on s.96 of the Constitution Act, 1867.

First, it might be said that the Rule of Law as outlined in Vavilov is a necessary interpretive principle that should be used to understand s.96. That is, we cannot understand s.96–which contemplates federally-appointed superior courts–without understanding the traditional role of these courts to conduct judicial review of administrative action on a certain stringency on certain questions. In City of Toronto, the Court cites s.96-100 as an example of unwritten principles bolstering a constitutional principle, suggesting that “unwritten constitutional principles of judicial independence and the rule have law have aided in the interpretation of [ss.96-100], which have come to safeguard the core jurisdiction of the courts that fall within the scope of those provisions” [55].

I think to call any of the doctrinal innovations that have come to s.96 a result of “interpretation” stretches the term a bit far. On its face, s.96 is just an appointing provision. It may be one thing to interpret what the terms of that appointing provision are, but to construct doctrine on top of the provision–or to make it work in a constitutional structure–seems to be a different judicial function.

Secondly, and I think more persuasively, the Court notes that unwritten principles can develop structural doctrines that flow from constitutional architecture [56]. Again, the Court notes examples of this sort of doctrinal construction: full faith and credit, paramountcy, and even the legal result in the Quebec Secession Reference. As we see, some of these doctrines are quite particular to specific contexts–the Quebec Seccession Reference, for example. Others are more general. The doctrine of full faith and credit in the context of conflict of laws is a major doctrinal innovation that is not found anywhere in a specific constitutional provision. These doctrinal innovations can, in effect, change or invalidate legislation that conflict with them, though they are rooted in the text itself.

Vavilov‘s comments on standard of review best fall into this category. The standard of review framework flows from two unwritten principles themselves: legislative intent (perhaps partially reflected in the principle of “democracy”) and the Rule of Law. The Court conceives of the Rule of Law as generally the rule of courts, in that courts must retain a strong supervisory role over certain questions. It would upset the supervisory role of these courts to outlaw their ability to hold state actors to the strictest constitutional standard. This is but a logical extension of Crevier, which set the stage for an argument about the constitutionally-protected role of the superior courts.

An example and a caveat. First, the majority and dissent clash over MacMillan Bloedel. In that case, the Court arguably invalidated a legislative scheme that granted exclusion jurisdiction to a youth court. The City of Toronto majority says the holding in that case was based on the text of ss.96-101 and 129 of the Constitution Act, 1867 [50]. The dissent, on the other hand, cites para 41 of MacMillan Bloedel to suggest that the basis of the holding was the Rule of Law itself [176]. In my view, MacMillan Bloedel is a bit of both. The Court clearly bases its decision in s.96 (MacMillan Bloedel, at para 47). But it also says that the case is best understood “in a broader constitutional context, considering this jurisprudence along with the preamble to the Constitution Act, 1867, the principle of the rule of law, and the central place of superior courts in our system of governance” (MacMillan Bloedel, at para 2). To the extent these principles and s.96 were abridged, the impugned legislative provision was “read down” as “inoperative to deprive the superior court of its jurisdiction to convict the appellant of contempt in this case” (MacMillan Bloedel, at para 43). In MacMillan Bloedel, we have a constitutional text (s.96)–>supported by the Rule of Law (unwritten principle)–>a result that the core of superior court powers were protected in this case. Vavilov falls into this same category. We can see, then, that in some cases a legislative standard of review may be “read down” as a result of the standard of review doctrine spun out from the unwritten principles of legislative intent and the Rule of Law.

The caveat I wish to raise has to do with the Federal Courts. Section 96 does not speak to statutory courts, and in theory, the Federal Courts’ judicial review jurisdiction could be abolished tomorrow unlike the superior courts. All of this, then, would stop at the Federal Courts. But I do not think this is inevitable. Once a statutory court has been made under s.101 of the Constitution Act, 1867, one might make the argument that so long as such a court exists, its powers should be construed as broadly as the powers of a superior court under s.96. But I do not commit to this argument in full, except to say that it makes practical sense to me and would uphold a consistent judicial standard for administrative action across jurisdictions.

At any rate, I think City of Toronto–despite its strong language on unwritten principles–can be reconciled with Vavilov. And at the end of the day, the result may be the same: legislation that undermines an unwritten principle may not be “given effect” according to a doctrinal innovation, even if the legislation is not “invalidated” in a strict sense. This is the best way to undertstand Vavilov‘s standard of review framework.

Does This Kat(z) Have Nine Lives?

In Katz, the Supreme Court set out the approach to judicial review of regulations. The Katz approach is (or, maybe, was) a carve-out from the general law of judicial review. As Professor Daly notes, it grants a “hyperdeferential” margin of appreciation to those that promulgate regulations. The Katz approach, based on previous cases, simply asked whether regulations are “irrelevant” “extraneous” or “completely unrelated” to the statutory scheme (Katz, at para 28), with the challenger bearing the onus.

Whether Katz has survived Vavilov is an open question. Vavilov purported to be a “comprehensive approach” to the determination of the standard of review (Vavilov, at para 17) for administrative action. On its face, that means that Vavilov‘s formula for determining the standard of review should apply to all instances of judicial review of administrative action—including judicial review of not only adjudicative acts, but “legislative” acts, as well. This would be a change, though: pre-Vavilov, there was (at least in theory) no judicial review for the “reasonableness” of legislative acts, and such decisions could not be set aside for errors other than jurisdictional ones. Specifically, Katz incorporates the old adage that judicial review does not entitle a court to review the merits of the legislative act, its “political, economic, or social…” context, or even whether it actually is rationally connected to its objective (see Katz, at para 28; Thorne’s Hardware, at 112-113).

Enter the recent decision of the Federal Court of Appeal (per Stratas JA) in Portnov. There are many issues in the case, but one concerned the propriety of Katz post-Vavilov. For the Court, Stratas JA suggests an easy answer to this question: “Thus, in conducting reasonableness review, I shall not apply Katz. I shall follow Vavilov” [28]. Stratas JA offers a number of reasons for this conclusion:

  1. The Katz approach (and its predecessors) were organized around the fundamental concept of “jurisdiction,” a “vestige” which Vavilov “eradicated” [22];
  2. Oddly, in the pre-Vavilov era, the Supreme Court sometimes simply reviewed regulations for their reasonableness under cases like Catalyst and Green [24].
  3. Vavilov is “intended to be sweeping and comprehensive” [25], and if there is a question as to whether Vavilov applies to an issue not addressed in that case, courts should ask how Vavilov’s general framework applies [25].
  4. Katz is a rule that “applies across-the-board to all regulations,” that “sits uneasily with Vavilov which adopts a contextual approach to reasonableness review” [27].

I think Portnov is right on the money.

Katz is problematic, in my view, because it (1) undermines the coherence of Vavilov’s simplicity; and (2) undermines the virtue of the contextual approach to reasonableness in Vavilov.

First, Vavilov was an attempt to finally address Binnie J’s comments in Dunsmuir, which encouraged a standard of review framework that “…get[s] the parties away from arguing about the tests and back to arguing about the substantive merits of their case” (Dunsmuir, at para 145). Part of this was the introduction of a presumption of reasonableness for most cases of judicial review. As I have written before, I have issues with this broad-based presumption (I do not buy the assumption that delegation necessarily implies deference) but it has one virtue: it may be wrong, but it is strong—it simplifies matters a great deal. That presumption, and the associated correctness exceptions, are largely principled. They are based on the core constitutional concepts of legislative sovereignty (choice to delegate) and the Rule of Law (guaranteeing judicial review of certain stringency on certain questions). A carve-out for regulations, with an ultra-deferential approach, simply complicates the conduct of judicial review for no principled reason. This is because whether an administrator is exercising adjudicative power or legislative power, it is delegated power all the same. And from the perspective of simplicity (with due regard for countervailing considerations) Vavilov‘s general principles for determining the standard of review should be determinative in all instances of judicial review of administrative action.

This is an issue of doctrine, but Stratas JA also provides good substantive reasons for not applying Katz. The contextual approach to reasonableness introduced by Vavilov, too, has its flaws: context can sometimes lead to uncertainty. But if context is adequately described by markers of unreasonableness (say, the “constraints” offered in Vavilov), the uncertainty is limited. Applying those constraints to the context of legislative instruments is perfectly justifiable. It may be, as in Catalyst or Green, that Vavilovian reasonableness is quite relaxed when dealing with certain legislative instruments. In other cases it may be more stringent. The constraints offered in Vavilov take account of the legislative context in a way that, at least to some extent, tracks the words and language used by the legislature to delegate power. With a fine-tuned approach like this, there is no need for a presumptive rule that puts a thumb on the scales for those that promulgate regulations based on any functional reasons.

Some judges of the Supreme Court have indicated an interest in preserving the coherence of Vavilov based on its general principles. In Wastech, for example, Brown and Rowe JJ filed a concurring opinion that would have applied Vavilov to the context of a commercial arbitration. They would have applied a correctness standard of review based on Vavilov’s holding on rights of appeal. These judges said this in Wastech:

[120]                     Factors that justify deference to the arbitrator, notably respect for the parties’ decision in favour of alternative dispute resolution and selection of an appropriate decision‑maker, are not relevant to this interpretive exercise. What matters are the words chosen by the legislature, and giving effect to the intention incorporated within those words. Thus, where a statute provides for an “appeal” from an arbitration award, the standards in Housen apply. To this extent, Vavilov has displaced the reasoning in Sattva and Teal Cedar.Concluding otherwise would undermine the coherence of Vavilov and the principles expressed therein.

I think this is the right approach. Vavilov’s general principles have much to say about many forms of decision-making. And, luckily for us, the fact that these principles have something to say makes judicial review much simpler for the parties and courts. No need for special rules any longer, and so I hope this Kat(z) is out of lives.

For more on this issue, see the following resources:

Paul Daly

John Mark Keyes

The Supreme Court’s Leaves (Or Lack Thereof)

The Supreme Court has gone yet another week without granting leave to any cases. I am not an empiricist, and this is not something I’ve been tracking, but I gather that the Supreme Court has granted leave to less cases over time in general (not to suggest that this week is particularly representative of anything).  Statistics from the Supreme Court from 2009-2019 suggest a drop-off in leave rates, and I imagine that the rate at which the Court granted leave was higher in the 1980s and 1990s than it is now.

There is good work being done to analyze the Supreme Court’s leave practice, an area that I understand is traditionally understudied. Led by Paul-Erik Veel, Lenczner Slaght’s Data-Driven Decisions project, and its related Leave Project, attempt to understand and predict the Supreme Court’s leave practice. And while I am not an expert on the subject, I gather that there is interest in understanding why the Supreme Court has granted fewer leaves over time, and relatedly, whether it is a good or bad thing.

On first blush, the grant of fewer leaves is inconsistent with the role the Supreme Court has given itself over time. Its granting of a constitutional role for itself in the Nadon Reference suggests a court that sits at the centre of Canada’s system of laws. In Henry, at para 53, the Court said the following:

53 In Canada in the 1970s, the challenge became more acute when this Court’s mandate became oriented less to error correction and more to development of the jurisprudence (or, as it is put in s. 40(1) of the Supreme Court Act, R.S.C. 1985, c. S-26, to deal with questions of “public importance”).  The amendments to the Supreme Court Act had two effects relevant to this question. Firstly, the Court took fewer appeals, thus accepting fewer opportunities to discuss a particular area of the law, and some judges felt that “we should make the most of the opportunity by adopting a more expansive approach to our decision-making role”:  B. Wilson, “Decision-making in the Supreme Court” (1986), 36 U.T.L.J. 227, at p. 234.  Secondly, and more importantly, much of the Court’s work (particularly under the Charter) required the development of a general analytical framework which necessarily went beyond what was essential for the disposition of the particular case.

This passage packs in a number of points. First, the Court sees itself not only as an appellate authority of error correction, but as central to the development of the jurisprudence on issues of public or national importance. In turn, this could plausibly affect the doctrine the Supreme Court applies in certain areas. The Court is not designed simply to point out appellate errors, but in turn develops overarching doctrinal frameworks that sometimes requires the overruling of precedents. A modern example is the Supreme Court’s decision in Vavilov, which reads (sometimes) as an academic essay rather than a traditional judicial decision.

The fact that the Supreme Court grants fewer leaves, then, suggests a Court that is not living up to its role to develop the jurisprudence. If the Court is granting fewer leaves, it is deciding fewer cases that could “settle the law” in areas that require it. For those who see the Supreme Court’s role as, for example, arbitrating between competing national values, a lower leave rate suggests a less relevant Supreme Court than its members sometimes imagine.

On the other hand, the granting of fewer leaves is not necessarily problematic if one takes a pessimistic view of what the Supreme Court does. For most advocates across the country, the bread-and-butter of law does not occur in the august halls of the Supreme Court. Instead, it is more likely that legal issues are decided by lower courts and administrative actors. The prohibitive costs associated with bringing leave applications and appeals to the Supreme Court creates a built-in incentive for these issues to be finally decided at a lower level of decision-making.  

This is just my view, but I do not view this as a bad thing. For one,  Canada’s lower court judges are far from bit players in the development of the law. The Supreme Court gets a lot of attention, but the 9 judges on that Court are special only because of their station; not necessarily because they are more likely to come to better or more stable decisions than a lower court judge. The Supreme Court, as Robert Jackson once said, is only infallible because it is final. Our lower court judges are well-equipped to settle the law without high-stakes litigation at the Supreme Court. Vavilov provides another instructive example of this. Prior to Vavilov, the Federal Court of Appeal, led by Justice David Stratas, had attempted to make sense of the Supreme Court’s administrative law doctrine. Its approach to determining and applying the standard of review was, in many respects, adopted in Vavilov: see particularly the Vavilov Court’s approach to reasonableness. The Federal Court of Appeal itself has recently made note of this: Alexion, at para 7. There is an irony here: the Supreme Court, far from settling the law of judicial review in the 2010s, unnecessarily complicated things for lower courts and litigants. Far from stability, the Court actively made things worse. It took lower court judges doing their best to apply the law to make the Supreme Court clean up its own mess, with help from the Federal Court of Appeal.

I am not suggesting that the leave practice of the Supreme Court in recent years is a wholly good thing, but I do not necessarily see it as a bad thing either. There is nothing special in the Supreme Court’s decision-making process that makes it any better suited to decide legal questions—apart from the fact that it provides a final resolution. The finality question is important, but we should not kid ourselves: the law can and does settle without the help of the Supreme Court.

This suggests that, perhaps, the question is not whether more or fewer leaves are granted. Rather, the question may be whether the Supreme Court is granting leaves to the right cases. Vavilov, for example, was an important case on which to grant leave because the doctrine was so unsettled across the country. I am candidly not sure how many such instances exist in various areas of the law. Unfortunately, this suggestion is a non-starter: we will never know what, beyond bromides, members of the Supreme Court take into account when granting leaves.

At any rate, I don’t have the answers here and as I said earlier, there is probably more in the available data to complicate the picture I have drawn here. Nonetheless, I do think more discussion of the benefits and drawbacks of the Supreme Court’s leave practice is desirable.

Post-Truth, Redux

A faithful application of Vavilov reasonableness review exposes the rot at the core of Canada’s administrative law

Co-blogger Mark Mancini has already posted on the Federal Court of Appeal’s recent decision in Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157. He argues that it is a good illustration of how courts should review administrative decisions on the reasonableness standard, following the Supreme Court’s instructions in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. I agree with Mark’s analysis, so far as it goes: as a rigorous application of Vavilov that rightly emphasizes legal constraints on administrative decision-making, Justice Stratas’ reasons for the Court in Alexion are excellent. (In fact, let me highlight an additional passage that Mark does not mention: Justice Stratas notes, rightly, that administrators must interpret statutes “in a genuine, non-tendentious, non-expedient way … Result-oriented analysis is no part of the exercise”. [37] Amen!)

But, in my view they are also an excellent illustration of the considerable flaws of the Vavilov framework, with its insistence on the centrality of administrative reasons on all issues subject to the reasonableness standard of review, including issues of statutory interpretation. Indeed, Alexion illustrates the fundamental soundness of the approach taken in the case that is the great bogeyman of Canadian administrative law: the House of Lords’ Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. The concurring judges in Vavilov accused the majority of following Anisminic. If only!


As Mark explains in more detail, Alexion reviewed a decision by the Patented Medicine Prices Review Board that the company was selling a product “at a price that, in the Board’s opinion, is excessive” (s 83 of the Patent Act). The Court of Appeal invalidated the Board’s decision, holding that it did not explain its reasoning on key issues, including the interpretation of s 85 of the Patent Act, which sets out the criteria the Board must apply in deciding whether the price of a patented medicine is “excessive”. As Justice Stratas notes,

[a]t best, on this point the Board obfuscated, making it impossible for a reviewing court to know whether the Board has helped itself to a power it does not lawfully have. By obfuscating, the Board has effectively put itself beyond review on this point, asking the Court to sign a blank cheque in its favour. … 

[T]he Board may have helped itself to powers the statute has not given it. The absence of a reasoned explanation on certain points means that we cannot be more definitive than that. [44]-[45]

Justice Stratas notes that the Board appears to have found the pricing of Alexion’s product unreasonable, and expresses his “fundamental concern … that the Board has misunderstood the mandate Parliament has given to it under s 85. At a minimum, a reasoned explanation on this is missing“. [48; emphasis mine] And further:

Section 85 speaks of “excessive” pricing, not  “reasonable” pricing. The two seem much different. If in fact they are not different, in the circumstances of this case the Board had to explain why. Nowhere does the Board do so. [52; emphasis mine]

If I may paraphrase Justice Stratas, he is saying: it looks like the Board is doing something it’s not supposed to be doing under the statute, but hey! maybe it’s not do these things, or maybe it can do these things after all ― and we, the Federal Court of Appeal, can’t know for sure. The suggestion here ― that, absent good quality reasons given by the administrator, a reviewing court cannot say whether the administrator, in Justice Stratas’ eloquent words, “helped itself to a power it does not lawfully have” ― is entirely consistent with Vavilov. There the majority insisted that

the focus of reasonableness review must be on the decision actually made by the decision maker …  The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker … conduct a de novo analysis or seek to determine the “correct” solution to the problem. [83]

On this approach, Justice Stratas and his colleagues are not supposed to come to their own view of the meaning of s 85 and verify the Board’s compliance with it. They are confined to assessing the Board’s explanations as to whether it has complied. Absent an explanation, the exercise fails. Vavilov is an improvement over the earlier cases in that, when such failures occur, it allows the reviewing court to stop there and send the matter back to the administrator for a do-over, instead of making up an explanation and deferring to it. (See Mark’s post for more on this).


But to say that Vavilov improves over what I once described as a post-truth jurisprudence requiring judges to play chess with themselves and contrive to lose is not to say much. In fact, Vavilov does not even leave post-truth jurisprudence behind. For how else should we think of a requirement that judges ― of an appellate court, no less ― insist that they “cannot be definitive” about the interpretation of a statutory provision and about whether an administrator “helped itself to a power it does not lawfully have” ― which is to say, exceeded its jurisdiction (there, I said it) in applying that provision?

The truth is that judges can be definitive on such things. The truth is that Justice Stratas has much to say about the meaning of s 85 and the way in which it has to be applied, as well as the more general principles of statutory interpretation (see, in particular, his important caution that “[t]he authentic meaning of the legislation … is the law, not what some politicians may have said about it at some place, at some time, for whatever reason”). [53] (I recently addressed this point here.) The truth is that, as Justice Stratas notes, “[o]ver and over again, authorities have stressed that the excessive pricing provisions in the Patent Act are directed at controlling patent abuse, not reasonable pricing, price-regulation or consumer protection at large”. [50] A jurisprudence that requires a court to assert that, notwithstanding all of this, an administrative tribunal might somehow explain all that away, and show that when it said “reasonable” it meant “excessive”, and that when it “disregarded most of the … authorities”, [51] it still complied with the law, is the jurisprudence of la-la-land.

In reality, the Board’s decision has all the appearances of a textbook example of what Lord Reid in Anisminic described as an administrative tribunal having “misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it”. When a tribunal does so, even though in a narrow sense “the tribunal had jurisdiction to enter on the inquiry”, it loses jurisdiction in a broad sense, and the resulting decision is a nullity. Canadian courts should be able to say so ― which means that they should be free, contra Vavilov, to “decide the issue themselves”, without waiting, or even affecting to wait, to be instructed by administrators who lack the legitimacy, the independence, and the competence to speak on questions of law with any real authority.

Why is it that we can’t have nice things? An important part of the problem is the fusion, in Canadian administrative law, of what in the United Kingdom (and New Zealand) are known as legality review and reasonableness review into a (supposedly) unified category of merits review. To make things worse, the Supreme Court remains committed to an oversimplified approach to merits review, such that it almost always has to be conducted on the same reasonableness standard. The reasons-first approach may be suitable for review of fact- or policy-based administrative decisions, but applied to issues of statutory interpretation it leads to Alexion-style absurdity.

What makes Alexion even more galling, though, is the nature of the administrative body it concerns. And that’s not only, and perhaps even so much, that, pursuant to s 91 of the Patent Act the Board’s members can legally be the first five strangers the Minister of Health meets on the street one day ― or hacks. (As I wrote this, I thought I’d look up the Board’s actual membership, in the hope of being able to add a disclaimer to the effect they are all, in fact, wise and experienced experts. Only, there doesn’t seem to be any information about them on the Board’s website. Of course that doesn’t prove that they actually are hacks, let alone people the Minister met on the street, but one might have thought some transparency was in order. UPDATE: Mea culpa. The information is there, however counter-intuitive its presentation may seem to me. The members’ bios are here.)

Worse is the fact that the Board acts as both prosecutor and judge in the cases it handles, the separation of powers be damned. This par for the course in the administrative state, to be sure ― but no less pernicious for all that. I note, for the sake of completeness, that it is “Board Staff” that “filed a Statement of Allegations” against Alexion, rather than Board members ― but staff (pursuant to s 93(2)(b) of the Patent Act) are managed by the Board’s Chairperson, i.e. one of its members. The Board’s internal “separation of powers” is more sham than ersatz.

Why exactly should the views of this judge-and-prosecutor, this two-headed abomination against due process of law, about the meaning of the statute it is charged with applying be entitled to any regard by actual judges? In Vavilov, the Supreme Court insists that this is to respect Parliament’s intent. But, as I have been saying since my first comment on Vavilov here, the Court ignores Parliament’s direction, in s 18.1(4)(c) of the Federal Courts Act that the federal courts grant relief when administrative decision-makers err in law, which clearly requires these courts to come to their own view about what statutes mean and whether the administrator in a give case has complied with the law. In this way too, Vavilov perpetuates Canadian administrative law’s disregard for truth.


In case this needs to be clarified, none of the foregoing is a critique of Justice Stratas and the decision in Alexion. As I said above, I think that the decision is about as good as it could have been while being a faithful application of the Vavilov framework. If the Board takes what Justice Stratas seriously, it will make a much better, and most importantly, a lawful decision next time. It is the framework itself that is rotten.

But the rot set in four decades ago, and no judge of the Federal Court of Appeal can solve them ― even one who has made Herculean efforts to, like Justice Stratas. Perhaps even the Supreme Court cannot fully undo the damage it has inflicted on our law when it turned away from the Anisminic path and waded into the dark forest of deference to the administrative state. But if Alexion illustrates the possibilities ― and the limits ― of what the Supreme Court accomplished in Vavilov, and I think it does, then one has to conclude that the Supreme Court hasn’t tried very hard at all.

Alexion: No Blank Cheques Here

In Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157, the Federal Court of Appeal clarified the law of judicial review post-Vavilov (particularly as it applies to reasonableness review) and set out an important reminder: administrators are not a law unto themselves. In order to make sure that this is the case, particularly in situations of legislative interpretation, administrators must explain their decisions. They must do so in a way that engages with the statute under interpretation. In this way, Alexion says something important: when administrators interpret statutes, there is only so much of a margin of appreciation. They must deal with the law.

I first describe the controversy in Alexion and the Court’s holding. Then I outline why this decision is a landmark one for the post-Vavilov world.

**

Alexion is a pharmaceutical company that produces a drug called Soliris. The Patented Medicine Prices Review Board had to decide whether Alexion priced Soliris excessively under the Patent Act. The relevant section is s.85 (1), which lists a number of factors that the Board must consider to make a determination. One of the factors is “the prices at which the medicine and other medicines in the same therapeutic class have been sold in countries other than Canada” (s.85(1)(c)). Only after a consideration of these factors can the Board turn its attention (if necessary) to s.85(2), which asks the Board to also consider “the costs of making and marketing the medicine and any other factors it considers relevant.”

As the Court aptly notes, “Section 85 is the law. The Board’s analysis should start with the law. Whatever the Board does must be consistent with the law” (Alexion, at para 34). The Board, in making its excessive pricing decision, noted that it is charged with determining “the relevance and weight of each factor” in s.85 (Alexion, at para 43). The Board concluded that Soliris was priced excessively, largely because it was priced more than the lowest international price in a list of seven comparator countries (Alexion, at para 3).  Put differently, out of all the seven countries, the Board found Soliris to be priced excessively because it was not the cheapest option. This was despite the fact that the Board’s own guidelines suggested that, normally, “the highest international price” is a key comparator (Alexion, at para 57). In reaching this conclusion, the Board seemingly followed a standard of “reasonableness”: because Soliris is price higher than one of the comparator countries, the Board implicitly concluded that the price of Soliris is unreasonable (see Alexion, at para 51).

For the Court, Stratas JA concluded that the Board failed to properly justify its decision with reference to the statute at hand: Alexion, at para 64, 66. The Court made a number of important comments justifying this decision:

  1. Prior to Vavilov, “…the Supreme Court instructed us to do our best to try to sustain the outcomes reached by administrators” which included “reviewing courts [picking] up an administrator’s pen and [writing] supplemental reasons supporting the administrators’ outcomes” (Alexion, at para 8). This “ghostwriting” was, as is evident, “antithetical to the reviewing courts’ role as an independent reviewer” (Alexion, at para 8).
  2. In this sense, there is a clear relationship between reasons and outcome on judicial review (Alexion, at para 28 et seq). While Vavilov speaks of outcome and reasons as separate, there are many cases where the reasoning on a particular legal question will lead to an illegal outcome; for example, in this case, “certain words the Board used suggest that it went beyond its permissible statutory mandate by regulating the reasonableness of pricing, rather than preventing abusive pricing…” (Alexion, at para 11).  In this case, when the Board spoke of “reasonableness” rather than abusive pricing, “[i]t may be that the Board was trying to reach an outcome that on the facts and the law was not reasonably open to it” (Alexion, at para 32).
  3. The failure of explanation in this case arose on a few different fronts:
  • The Board utterly failed to deal with the most important and central restriction on its authority: s.85 of the Patent Act. We  know that in paras 120-122 of Vavilov the Court notes that “the merits of an administrative decision maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision,” and that the decision-maker must demonstrate that its alive to these “essential elements.” This is because “the governing statutory scheme is likely to be the most salient aspect of the legal context relevant to a particular decision” (Vavilov, at para 108). So when the Board adopted a standard of reasonableness rather than addressing the actual point of the statute—set out in s.85 and the associated case law—it transgressed its authority.
  • The Board’s failure to explain its departure from its own Guidelines was problematic from a reasonableness perspective. While Guidelines adopted by the Board cannot supercede an analysis based on s.85 itself, they can validly guide discretion. Here, the Board did not explain why it did not follow its own Guidelines, which stressed the highest price comparator country.

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There is a lot packed into Alexion, but I think it is worth noting the various things the Court does with Vavilov, especially when it comes to the reasonableness standard.

First, the Court arguably doubles down on the statute as the most important restraint on administrative power. Many of us who read Vavilov for the first time in December 2019 fastened onto paras 108-110 (and also paras 120-122) of that decision as quite important. Those paragraphs hardened a cardinal rule of administrative interpretations of law: it is the statute that the administrator is interpreting (its text, context, and purpose) that cabin the discretion of an interpreting administrator. Now, how this happens is where the rubber meets the road. But the fact that the statement was made by the Supreme Court—and that it is adopted wholeheartedly by the Court of Appeal in this case—is promising.

There are, of course, different ways that a court can ask an administrator to abide by the terms of its statute, and these ways can be more or less interventionist. Alexion is somewhat reminiscent of another case decided post-Vavilov, Richardson. I blogged about that case here. While the comments made by Nadon JA in that case were obiter, they staked out an even more radical understanding of Vavilov’s paragraphs 108-110 and 120-122. In that case, the administrator at hand erroneously applied the “implied exclusion” rule of interpretation, which the Supreme Court has held is insufficient as the sole basis on which to understand the meaning of statutory provisions (see Green, at para 37). Imposing the Supreme Court’s method of interpretation, particularly with regards to particular canons, is one way to force an administrator to abide by a statute. Another, more general and less stringent way, is what Stratas JA did in Alexion. There the Board misapprehended its own statutory purpose and failed to actually deal with the overriding goal of s.85: excessive & abusive pricing. It also ignored many of the factors set out in s.85(1). This is just a different way of getting at paras 108-110 of Vavilov: the Board failed to address its statute under the governing approach to statutory interpretation.

The fact that the Court in Richardson and Alexion did the same thing in different ways is perhaps indicative of a challenge with Vavilov. The decision says a lot, not all of it always internally consistent. Specifically, the challenge going forward with this rather legalistic vision of reasonableness review is how it meshes with the deference that is built-in to the Vavilov framework. Vavilov makes clear at various points that administrators are not asked to engage in a formalistic interpretation exercise (para 119), and that ‘[a]dministrative justice’ will not always look like ‘judicial justice’…” (para 92). Accordingly, as Professor Daly notes, “some portions of Vavilov are liable to become battlegrounds between different factions of judges, those who favour more intrusive review on questions of law in one camp, their more deferential colleagues in the other” (at 15). One could conceive, as Professor Daly does, of Richardson as “betraying a favouritism for an interventionist standard of reasonableness review on issues of statutory interpretation” (at 14).

However, I would say that Alexion and Richardson are of the same ilk, different points on a similar spectrum. Both are directed towards subjecting administrators to legal requirements, but Alexion does so in a more general way, faulting the administrator for failing to address the relevant statutory purpose (among other things). Richardson does the same thing in a more specific way, faulting an administrator for applying a proper tool of interpretation to the exclusion of the statutory purpose. Both, in my view, are plausible views of Vavilov.

Methodologically, there are other important elements of Alexion. One element is the connection that Stratas JA draws between reasons and outcome. Vavilov speaks of reasons and outcome as separate things, but in reality, they are probably intrinsically connected in at least some cases. Alexion provides a good example. In many cases, it was simply impossible for the Court to determine whether the Board had ventured an opinion on the core legal issue at play in the case. Where the Board did offer an opinion, it cast its decision in terms of the wrong legal standards.  This led it astray, and it was led astray because its reasoning failed to glom onto the important part of the entire thing: the statute.

This leads to a final point about Alexion. Thank goodness we no longer need to worry about courts coopering up deficient decisions under the Nfld Nurses line of cases. As the Court in Alexion mentions, this decision could have gone a very different way under pre-Vavilov case law. The Court would have asked itself to supplement reasons for decision instead of supplanting them.  But as the Court notes, “[m]any of us recoiled at this” (Alexion, at para 9). Why? Because it offends the principle of legality, fundamental to the administrative law system, for a court to uphold a decision that is legally flawed. Of course, deference sometimes asks us to abridge the principle of legality in a strict sense; but there are extremes, and a court making a decision for an administrator is to my mind (and, apparently the mind of the Supreme Court) a bridge too far. As the Court in Alexion says, there are no blank cheques in the law of judicial review (Alexion, at para 44).

All told, Alexion is an important recap of developments post-Vavilov. Particularly on the application of the reasonableness standard, the Court moves the needle in important ways.

For What It’s Worth

University of Toronto professor Richard Stacey recently released an article in the University of Toronto Law Journal (paywalled, which is truly unfortunate), arguing that (among other things) the Supreme Court of Canada’s decision in  Vavilov “affirm[s]” the Supreme Court’s controversial decision in Doré  (340; see also 351). To be specific, Stacey says (340-341):

Read together, and building on a rich body of Canadian case law that came before,  Vavilov and Doré  definitively mark a culture shift way from an outcomes-oriented conception of judicial review toward one that engenders a culture of justification…

…in a culture of justification built on a robust conception of reasonableness, constitutional law and administrative law come together in a unified system of public law.

Stacey also makes a number of other arguments, including: (1) the culture of justification apparently endorsed in the same way in  Vavilov and Doré necessarily and logically excludes correctness review (see pg 349) and (2) so-called “Charter values” act as “justificatory resources” that together bind a unified system of public law, bringing  Vavilov and Doré  together (357 et seq). That is the core of Stacey’s argument: the so-called “unity of public law” thesis draws together a requirement that administrative decisions be justified.

Stacey’s argument is interesting, but ultimately unpersuasive. For one, it treads well-worn territory of “administrative constitutionalism” and “the unity of public law,” theories that—as I will argue—are actually undermined by  Vavilov’s formalism. While  Vavilov does put a focus on justification, Stacey’s article does not deal with the parts of  Vavilov that clearly work against his thesis: the dispatch of expertise as a factor governing the standard of review; and the retention of correctness review based on Rule of Law considerations, among other things. Secondly, Stacey’s article does not engage with key scholarship on this issue post- Vavilov that could both strengthen and undermine his case. Finally, Stacey attaches too much determinacy to Charter values, ethereal things that even their most ardent supporters must agree are relatively indeterminate: perhaps not of this world.

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Stacey sets out his argument on the first issue (the marriage between Doré  and  Vavilov) boldly: “The foundation of both cases is the same, and both judgments ultimately embrace the same conception of reasonableness” [351]. Stacey cites the Alsaloussi case out of the Federal Court, where the Court relied on  Vavilov in a Doré -type case to give guidance “on what a reasonable decision looks like” [351]. To Stacey, this case—and the theory—reinforces “how the two judgments help to draw administrative and constitutional law together in a single, unified system of law” [352].

As I have outlined previously, I do not see how this is the case, even on the terms of the reasonableness standard. Doré  was positively unclear about what administrators should do when faced with a Charter claim, beyond saying that an administrative decision-maker “balances the Charter values with the statutory objectives” (Doré , at para 55 et seq). The only question for a judicial review court is whether “in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play” (Doré , at para 57). But, unlike the Oakes test, and unlike  Vavilov’s list of constraints, the Doré -line of cases do not provide any guidance on how courts should conduct the proportionality analysis.  Vavilov provides a far more robust and detailed schema of reasonableness than Doré  does, and so to equate these cases on this front is ultimately unpersuasive. The similarity on the reasonableness front—if it exists—is cosmetic at best.

Stacey also does not address why  Vavilov’s comments on constitutional issues do not demand a correctness standard in the Doré  context. As a reminder, the Court in  Vavilov—while expressly excepting Doré  from the scope of the comments for now (see para 55)—said that “[t]he constitutional authority to act must have determinate, defined and consistent limits, which necessitates the application of the correctness standard” ( Vavilov, at para 56).  As I have said before, this should logically include Charter issues. But Stacey does not address this point, nor does he address important literature attacking administrative constitutionalism as a general theory (see Leonid Sirota’s paper here).

Moreover, Stacey does not address other post- Vavilov commentary that could actually strengthen his point. For example, Paul Daly argues that all issues going to the merits in  Vavilov are, on its own terms, subject to the reasonableness standard. I have my issues with this argument, but I think it is far more persuasive in support of Stacey’s argument than the evidence Stacey actually offers–in part because it takes Vavilov on it’s own terms.

Relatedly, Stacey argues that a joint-reading of  Vavilov and Doré  renders the correctness standard irrelevant (349). Yet this is not convincing to me. As I have argued, and as Professor Daly argues to a similar extent,  Vavilov is not just one thing, easily explained with reference to a catchphrase like “culture of justification.” There are various currents of administrative law thought coursing through the decision.  Vavilov’s comments on the Rule of Law, for example, are relatively formalistic, focusing on the role of the courts as the guardian of the Constitution. On the other hand, other parts of  Vavilov clearly draw from the justificatory school of administrative law thought, championed by scholars like David Dyzenhaus. As I have argued in previous work, these schools of thought can be complementary, but  Vavilov is clearly a product of pragmatic agreement, even if guided by principle to some extent. Professor Stacey does not address this reality when he excludes correctness from the standard of review equation, without as much as addressing the counter-arguments clearly presented in Vavilov. Indeed, if one follows  Vavilov’s formalistic side, correctness review still has a valuable—and formally required—role in Canadian administrative law.

Finally, I should draw attention to Stacey’s argument on Charter values. Much has been written on Charter values, and I need not reprise that literature to make my objection: Stacey’s focus on Charter values as justificatory resources is only useful if the set of justificatory resources is relatively bounded and determinate. While we cannot expect perfect or near-perfect determinacy in law, and moral reasoning with regards to rights-claims is inevitable, this does not logically entail an embrace of Charter values. The problem is that Charter values are endlessly indeterminate—they are not necessarily bounded by the text of the guarantees they are supposed to represent, and some Charter values could conceivably not be found in the text. Enterprising courts and litigants could pitch a value at high level of generality, leading to needlessly subjective moralizing about rights in a way untethered to the doctrine of various constitutional guarantees. Since there is no clear agreement on (1) how to determine what Charter values are relevant; (2) how Charter values are different than Charter rights; and (3) on how administrators are supposed to understand Charter values as distinct from Charter rights, this set of justificatory resources is not at all helpful to courts or litigants.

Tying together Stacey’s article is a common claim: “…I see no distinction between administrative and constitutional law in the first place” (357). Of course, this is a common (one might say orthodox) position. And yet it ignores an important function of constitutional law in relation to the administrative state—the Constitution (written and unwritten) is a limitation or constraint on government action (see  Vavilov, at 56). The hierarchy of laws exists for a reason, and under that hierarchy administrative discretion is parasitic on a statutory grant, which itself is subject to Charter scrutiny. There is no real, formal equality between administrative law and constitutional law: the Constitution is supreme, and it shapes and constrains government power. It does not liberate administrative discretion.

All told, Professor Stacey’s article contributes to the growing post- Vavilov literature. Unfortunately, I do not find it convincing.  Nonetheless, the Supreme Court will eventually deal with Doré  post- Vavilov. And until then, my opinion is worth as much as the page it’s written on, for what it’s worth.

The Continued Relevance of “Jurisdiction”

This post is co-written with Leonid Sirota

One of the innovations of Vavilov was its dispatch of so-called “jurisdictional questions” from the standard of review analysis. A long-time feature of Canadian administrative law, jurisdictional questions were said to arise “where the tribunal must explicitly determine whether its statutory grant of power gives it authority to decide a particular matter” (see Vavilov, at para 65; Dunsmuir, at para 59). These questions would attract correctness review. But as the Vavilov majority acknowledged, “…majorities of this Court have questioned the necessity of this category, struggled to articulate its scope and ‘expressed serious reservations about whether such questions can be distinguished as a separate category of questions of law” (Vavilov, at para 65; Alberta Teachers, at para 34).   As a result, the Court decided that it would “cease to recognize jurisdictional questions as a distinct category attracting correctness review” (Vavilov, at para 65), satisfied in the knowledge that the robust reasonableness review it articulated would solve a potential problem of decision-makers arrogating power to themselves they were never intended to have (Vavilov, at para 68; para 109).

We question whether matters are so simple. While the Court purported to rid Canadian administrative law of “jurisdictional questions,” clearly the concept of jurisdiction remains. In this post, we outline the four ways in which it remains relevant in Canadian administrative law, despite its absence from the standard of review analysis. This happens (1) in the course of statutory interpretation under Vavilov itself; (2) in the presence of certain statutory rights of appeal; (3) when drawing the boundaries between the remits of two or more tribunals; and (4) when determining whether a tribunal is empowered to consider Charter questions.

A note before beginning: between us, we view questions of jurisdiction differently. One of us (Mancini) has previously argued that jurisdictional questions should simply attract reasonableness review, since jurisdictional questions are merely a subset of a larger category of questions of law; in his view, there is no meaningful difference between jurisdictional questions and other questions of law, for the purposes of the standard of review (see the reasons of Stratas JA in Access Copyright (2018) at para 75). The other (Sirota) disagrees with this position, and instead believes that questions of jurisdiction must attract a correctness standard of review, and that if this means that most or all questions of law, being jurisdictional in some sense, require correctness review, so much the better. This difference is not material for the purposes of this post. We only mean to argue that the Vavilov judgment should not be read as dispensing with the existence of all questions of jurisdiction, let alone with the concept of jurisdiction writ large. Indeed, jurisdiction still remains an important and relevant concept in distinct areas of Canadian administrative law, an idea recognized in some respects by Vavilov itself.

Statutory interpretation under Vavilov

As noted above, Vavilov ceases to recognize jurisdictional questions as a distinct category attracting correctness review (Vavilov, at para 65). This is not a surprise, as majorities of the Court had previously thrown doubt on both the concept of jurisdiction (see CHRC, at para 38) and the means used to identify jurisdictional questions (McLean, at para 25).

And yet: chassez le naturel, et il revient au galop. When the Court goes on to describe the statutory context within which a particular decision-maker operates as an “obvious and necessary constraint” on administrative power (Vavilov, at para 109),  the Court’s explanation harkens back to the language of jurisdiction. The Court says that

Reasonableness review does not allow administrative decision-makers to arrogate powers to themselves that they were never intended to have, and an administrative body cannot exercise authority which was not delegated to it (Vavilov, at para 109, our emphasis).

What is this if not an invocation of the concept of jurisdiction, albeit in plain English? Whether we frame the issue as one of statutory authority or jurisdiction, the point is the same: administrative decision-makers only have the power that is explicitly or impliedly delegated to them by legislation (or that they hold under the royal prerogative). If they go beyond the scope of the delegation, the decision-makers lose their authority to act. Far from doing away with the concept of jurisdiction, then, the Court embraces it in its articulation of the legal limits of reasonableness review.

Moreover, the Court explains that “[i]f a legislature wishes to precisely circumscribe an administrative decision maker’s power in some respect, it can do so by using precise and narrow language and delineating the power in detail, thereby tightly constraining the decision maker’s ability to interpret the provision” (Vavilov, at para 110). In such cases, “questions relating to the scope of a decision maker’s authority … may support only one” permissible interpretation (Vavilov, at para 110), by contrast with others where the statutory language is more open-ended. While the Court resists the analogy, it is difficult to distinguish single-answer “questions relating to the scope of a decision maker’s authority” from pre-Vavilov questions of jurisdiction. What is new, perhaps, is the implicit recognition that even open-ended grants of authority must have their limits.

This is not something to be worried about―even though, as the Vavilov majority noted, every question regarding an administrative decision-maker’s statutory limits can be conceived as a question of jurisdiction (see Vavilov, at para 66), and is so conceived elsewhere (see Peters v Davison (NZCA) explaining that UK case law, followed in New Zealand, has served to “render redundant any distinction between jurisdictional and non-jurisdictional error of law”). Indeed, the Court is correct in saying that jurisdiction (or statutory authority) is a natural limit on administrative discretion. Although it does not serve as the lynchpin for a distinct category of legal questions for the purposes of standard of review analysis, the concept remains in the articulation of the limits on administrative decisions.

Statutory Rights of Appeal and Privative Clauses

Under Vavilov, different standards of review apply on statutory appeals and on judicial review. On appeal, when a case involves a question of law, the standard will be correctness; when a case involves a question of fact or mixed fact and law, the standard will be palpable and overriding error. On judicial review, by contrast, most questions of law, as well as questions of fact and policy, attract reasonableness review.

Hence the scope of statutory rights of appeal, and thus whether a given issue can be appealed or must be judicially reviewed, may be decisive for the outcome of a case. This scope can be circumscribed; one common way in which this is done is by limiting the right of appeal to “questions of law and jurisdiction” as, for example, in the Broadcasting Act provision at issue in Vavilov’s companion case, Bell/NFL.

How are such provisions to be interpreted? Vavilov could be read in one of two ways on this score. First, one could read Vavilov to suggest that when a legislature provides an appeal on a question of law or jurisdiction, jurisdiction means the same thing as “law.” This appears to be what the Court did in Bell, when it did not mention the difference in legislative language between questions of law or jurisdiction. Secondly, one could read Vavilov as retaining the concept of jurisdiction, but simply concluding that for standard of review purposes, the distinction between law and jurisdiction does not matter. This retains the concept of jurisdictional questions.

But what if the appeal right only extends to questions of jurisdiction, not to non-jurisdictional questions of law?  (See, for a version of this in Quebec, Mancini’s article on the subject). If this happens, there are three options. If Vavilov is read as saying that the concept of jurisdiction has no distinct meaning, courts can safely ignore the privative clause and simply consider the right of appeal as either extending to questions of law, or perhaps as covering a null set of cases. We find either of these solutions to be undesirable. If a legislature uses the term “jurisdiction” in a right of appeal, in contrast to the term “law” in a privative clause, the legislature’s use of that term must be given effect: this is simply an application of the presumption against tautology, endorsed in Vavilov itself (see para 45). If the legislature uses the term jurisdiction in a statutory right of appeal, it must mean something over and above a question of law, however much courts and scholars might disagree with its implicit determination that there exist non-jurisdictional questions of law.

This means that courts, in determining whether a particular matter falls within such a right of appeal, must come to its own determination about whether the subject matter is “jurisdictional.” Jurisdiction, then, continues to rear its head in these scenarios.

Jurisdictional Boundaries Between Two or More Administrative Bodies

The Vavilov majority retained, as a category of question attracting correctness review, the determination of “jurisdictional boundaries between two or more administrative bodies” (Vavilov, at para 53).  This happens when it is unclear which body must resolve a given issue, and one body attempts to address a matter that may be considered to fall within a comprehensive legislative regime administered by another.

The Court says that “[a]dministrative decisions are rarely contested on this basis” (Vavilov, at para 64). This observation is true, but the category is not without controversy. In fact, the Court will hear a case, Horrocks, which considers the demarcation of the respective spheres of authority of human rights tribunals and labour arbitrators, and the governing test for determining which actor should assume jurisdiction in a particular case (see Weber, Figliola). In these cases, the Court uses “jurisdiction” in its standard sense: as the power to hear and decide certain matters. If a tribunal proceeds erroneously on this score, it would incorrectly assume jurisdiction.

It might seem puzzling that Vavilov retained this category of review while purporting to rid Canadian administrative law of other “jurisdictional questions.” And yet, what choice did the Court have? As it pointed out, litigants (and indeed tribunals themselves) need to know which administrative body is tasked with resolving a given question.

Jurisdiction to Consider Charter Questions

The question of whether a decision-maker can consider the Charter is also a question of jurisdiction in the classic sense. It is noteworthy that the term “jurisdiction” appears 89 times in the Supreme Court’s reasons in Martin, which set out to re-appraise the rules governing whether a decision-maker has the authority to consider Charter issues. This is a preliminary question that must be asked before dealing with the merits of a particular constitutional challenge. The Court in Martin concluded that where there is jurisdiction to decide questions of law, there is also jurisdiction to consider the Charter (see Martin, at para 36). For the Martin Court, jurisdiction is defined as “the power to decide” (Martin, at para 36). It will be a “jurisdictional question,” therefore, whether a decision-maker has power to determine how the Charter applies to a matter on which it is required to rule. When a court reviews a decision-maker’s conclusion on this front, the court will owe the decision-maker no deference (see Martin, at para 31).  In this manner, the concept of jurisdiction will continue to inform whether a decision-maker has power to decide a Charter matter, and such questions will function much the same way as they did pre-Vavilov.

This isn’t to say that this category of review is justified from a perspective of first principles or precedent. The Constitution is always a limitation on government action, whether that action is legislative or administrative. That is, legislatures should not be able to “delegate out” of the Constitution by empowering an administrative actor. While it is true that administrative decision-makers are creatures of statute, constitutional constraints circumscribe statutory grants of authority whether they are mentioned or not. Indeed, the better view is that a legislature cannot preclude a decision-maker from considering the Constitution even by saying so. And from the perspective of precedent, Martin is difficult to reconcile with Doré, which held that “…administrative decisions are always required to consider fundamental values” (Doré, at para 35). While we both consider Doré to be unjustified in every other respect, this aspect of Doré―at least if for the extra-constitutional “values” we substitute the more appropriate “law”―is supported by the fundamental idea that the Constitution is supreme in the hierarchy of laws: s.52 of the Constitution Act, 1982 (see also Canada (Citizenship and Immigration) v Tennant, 2018 FCA 132).

Normative Implications

In our view, the holding in Vavilov on jurisdictional questions must be considered quite limited. The Court must not be taken as saying that “jurisdictional questions” do not exist as a conceptual matter. Nor is the Court saying that, in other contexts, courts must defer on questions that can be identified as jurisdictional.

Rather, the situation is much more nuanced. Jurisdiction remains a relevant principle in Canadian administrative law, in at least four areas where courts will be called upon to delineate the scope of the authority of particular decision-makers, whether in the ordinary process of statutory interpretation, in demarcating jurisdictional lines, construing statutory rights of appeal, and in relation to Charter questions. Courts will need to return to a stable definition of jurisdiction. It will do no good to suggest that “jurisdictional questions” have been banned from the world of Canadian administrative law. Horrocks is an example: there, the Court will need to decide whether its test for determining which particular body has jurisdiction is adequate.

In our view, this narrow reading of Vavilov is normatively desirable. Jurisdiction is not the will-o’-the-wisp some make it out to be. Scholars obsessed with the “bad old days” of pre-CUPE administrative law always speak of jurisdiction as if it is some major impediment to administrative decision-making. But that is only so if administrators must, contrary to basic constitutional principles requiring all public power to be constrained by law, be allowed to roam free of legal fetters. Such claims by the defenders of the administrative state are an admission against interest, and quite an unnecessary one. Administrative decision-makers function just fine in jurisdictions where their jurisdiction and, indeed, the correctness of their legal interpretations are fully policed by the courts.

It is true that judges of a particular era were pre-disposed to view administrative power with skepticism. But they had good reason: the rise of administrative power was not an inevitability or a phenomenon that was totally consistent with fundamental constitutional principles. Jurisdiction—the idea that a law (typically statute but sometimes the common law) that exists outside the administrator’s subjective preferences and is subject to judicial interpretation determines whether the administrator can hear or decide a matter—is merely a constitutionally required limit on administrative power (see Vavilov, at para 109). No amount of tinkering with standards of review can change this. Courts trying to flee from constitutional principles will find that they cannot outrun them. They must reckon with this reality and devote their energy to working out how these principles are to be applied, rather than to futile escapades.

 

 

Doré Revisited: A Response to Professor Daly

Over on Administrative Law Matters, Professor Paul Daly argues that Doré  actually “emerges strengthened” from Vavilov. Professor Daly’s post responds to my own paper (The Conceptual Gap Between Doré and Vavilov) and post, where I argue the opposite. In this post, I would like to respond critically to Professor Daly’s interesting and provocative arguments. I first recap my position on the matter. Then, I review Professor Daly’s arguments, and respond in turn. In whole, I remain convinced that Doré is inconsistent with Vavilov. Specifically, I disagree with Professor Daly that the presumption of reasonableness applies to Charter issues arising in the scope of administrative jurisdiction. Moreover, I disagree that Vavilov’s articulation of reasonableness review is functionally similar to Doré’s. As it turns out, these disagreements matter for the continued propriety of Doré post-Vavilov.

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As I wrote in both my paper and post on the matter, there are key tensions between Vavilov and Doré  that deserve some attention.

These tensions arise with respect to both selecting and applying the standard of review. On the selection front, Doré  reasonableness is based on a functionalist idea, where the expertise of decision-makers in deciding constitutional matters is presumed (see Doré , at para 46). This justified the selection of a reasonableness standard of review when an administrative decision is challenged as unconstitutional—even though a correctness standard applies when a statute under which an administrator may operate is challenged (see Vavilov, at para 57).   However, Vavilov resiled from this presumptive stance on ordinary questions of law, instead rooting the presumption of reasonableness review on the fact of delegation, not expertise (see Vavilov, at para 30). This, to my mind, illustrates an inconsistency: why would a court presume expertise on constitutional matters, but not on ordinary legal interpretation (the stuff of Vavilov)?

On the application front, I argued that Vavilov probably introduced stricter reasonableness review than the sort of reasonableness review envisioned in Doré and later represented in its progeny (for example, TWU). This is because there are aspects of Vavilov that are more formalist: for example, the focus on the statute as the “most salient aspect” of the legal context relevant to judicial review (Vavilov, at para 108). Transposed into the Doré  context, this might mean that decision-makers should focus on the existing constitutional text instead of abstract values. I also admitted in my paper that Vavilov isn’t just one thing—there is a focus on developing a “culture of justification” in administrative decision-making (see Vavilov, at para 2; The Conceptual Gap, at 13-14). But even this is inconsistent with Doré , which said very little about the sorts of reasons required in a constitutional context; in fact, no guidance was given in Doré  at all, except to say that decision-makers should balance “the Charter values with the statutory objectives” (Doré , at para 55). Contrast this with Vavilov’s detailed approach to reasons-giving, and we see not only an inconsistency, but a schism.

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Not so fast, says Professor Daly. For him, when it comes to both selecting and applying the standard of review, there are no great tensions between Vavilov and Doré.  Indeed, for Professor Daly, “…Doré  emerges strengthened from Vavilov, not weakened.” This is because “…the excision of expertise from the process of selecting the standard of review means that the presumption of reasonableness review certainly applies to Charter issues.” Vavilov indeed does draw a distinction between “merits” review, under which reasonableness presumptively applies, and issues of procedural fairness (see Vavilov, at para 23). If this is the case, expertise no longer matters one way or another to determining the standard of review. Professor Daly further argues that the exercise of discretion implicating constitutional matters is different than pure challenges to statutes under the Charter. In the latter case, uniformity is required, on Vavilov’s own terms. But in the former case: “…answers can legitimately vary as between different regulatory regimes: for example, what is a proportionate restraint on freedom of expression in the workplace may not be proportionate in a municipal election campaign…”

When it comes to applying the standard of review, Professor Daly notes that “[t]here is nothing formalist about the detailed articulation of reasonableness in Part III of Vavilov” (though he goes on to concede that “[s]ome components of Vavilovian reasonableness review can fairly be described as formalist or Diceyan”). He concludes that “[a]dministrative decision-makers can continue to contribute to our collective understanding of the Charter in its application to particular regulatory settings.”

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While I will note areas of agreement, I must strenuously disagree with much of what Professor Daly says about Doré in light of Vavilov, when it comes to selecting the standard of review. The core disagreement between our positions lies in how far each of us would extend the presumption of reasonableness. For Professor Daly, the presumption applies to Doré -type issues. But for me, the presumption of reasonableness outlined in Vavilov must necessarily exclude Doré -type issues. This is for two reasons. First, the presumption, rooted in legislative intent, cannot apply to Charter issues—the legislature cannot intend anything with respect to the depth of scrutiny used by a reviewing court on constitutional matters. Second, the standard of review applied to Charter issues should not depend on the context in which these issues are raised: either way, the Constitution is a fundamental constraint on government actors, requiring uniform interpretation by the courts.

Let’s begin with the first argument by reviewing the conceptual basis for the presumption of reasonableness. As the Court notes in Vavilov, the presumption of reasonableness review is based on the “very fact that the legislature has chosen to delegate authority…” (Vavilov, at para 30). In other words, “[t]he presumption of reasonableness review…is intended to give effect to the legislature’s choice to leave certain matters with administrative decision makers rather than the courts” (Vavilov, at para 33). Legislative intent guides the presumption of reasonableness review, at least on ordinary questions of law. The fiction being deployed here is that the legislature intended deference when it delegated authority to an administrative decision-maker.

While it might be defensible to suggest that a legislature intends deference when it delegates (though such a suggestion itself requires a leap of logic that some might find implausible), it is another thing altogether to impute to the legislature an intent to defer on constitutional matters. This is because  legislatures cannot meaningfully alter the depth of constitutional scrutiny afforded its own enactments by courts. Such alteration would strike at the core of powers exercised by judicial review court. Specifically, the Supreme Court has held that legislatures do not have the ability to “limit judicial review of constitutionality” (see Amax Potash Ltd Etc v The Government of Saskatchewan, [1977] 2 SCR 576, which was rendered in the context of a division of powers case, but with comments equally applicable to Charter issues). Vavilov alludes to this limitation more specifically. It says that legislatures can only specify the standard of review “within the limits imposed by the rule of law” (Vavilov, at para 35). The Rule of Law includes “constitutional questions” which include challenges to statutes on division of powers and Charter grounds. On these questions, correctness rules the day, and the legislature’s intent is of no moment.

Is the same true for exercises of administrative discretion implicating the Charter? It should be, because the legislature cannot do indirectly what it cannot do directly. The legislature should not be able to escape the full scrutiny of the courts under the Constitution simply by delegating. An adjunct to this principle was set out in Eldridge, at para 42, in the context of Charter applicability. There, La Forest J, relying on his decision in McKinney, noted that legislatures should not be able to evade Charter responsibility by simply delegating power. While this decision was rendered in terms of Charter applicability, the same principle applies to questions of standard of review. The level of scrutiny applied by the Court should not differ depending on whether the legislature decides to delegate. Put differently, courts should not impute to the legislature an intent to alter the status quo ante of correctness review simply through the act of delegation.

Put this way, if we cannot speak of a legislative intent to defer on constitutional matters regarding statutes, the same is true on matters arising in administrative jurisdiction. Applying the Vavilov presumption to these questions would mean that we can implicitly conclude that the legislature intended deference on these constitutional matters. But for the reasons above, if we apply the same rules to administrative discretion implicating the Charter, then we cannot speak of a legislative intent on these matters either. Put simply: the legislature is constitutionally incapable of possessing an intent when it comes to the standard of review courts apply on constitutional questions, no matter the context in which the questions arise.

This leaves an important question: if the Vavilov presumption does not apply to Dore-type issues, where do these issues fit in the Vavilov framework? In my view, Doré -type questions involve the Rule of Law, warranting correctness review, as described in Vavilov. While Professor Daly notes that challenges to administrative discretion may admit of more than one answer, one must remember that we are speaking of the Constitution’s protections, not of the ability of administrators to have more lee-way in the context of their regulatory regimes. These issues are still constitutional questions that require a uniform interpretation by the courts, even if the issues arise in challenges to administrative discretion. In fact, the power of judicial review exercised in constitutional and administrative contexts derives from the same source. As Justice Beetz noted in Syndicat des employes de production du Quebec:

              Furthermore, I do not see why different rules would be applied in this regard depending on whether it concerns judicial review of an administrative or quasi-judicial jurisdiction, or judicial review of legislative authority over constitutional matters. When the courts of law have to rule on the validity of a statute, so far as I know they do not ask whether Parliament or the legislature has expressly or by implication given ss. 91  and 92  of the Constitution Act, 1867  an interpretation which is not patently unreasonable. Why would they act differently in the case of judicial review of the jurisdiction of administrative tribunals? The power of review of the courts of law has the same historic basis in both cases, and in both cases it relates to the same principles, the supremacy of the Constitution or of the law, of which the courts are the guardians (at 443-444).

Putting aside the old administrative law language of “jurisdiction” and the fact that we currently accept reasonableness review on the merits, there is an overall point here the bears repeating: even if a constitutional issue arises in administrative proceedings, it is the same power of judicial review that is exercised by a court when it reviews statutes for their constitutionality. The role of the courts should be the same in each context: as guardians of the Constitution, courts must render uniform interpretations of the Charter, even in cases of administrative discretion.

Relatedly, there is also an important perspective to consider here: that of the holder of the right. How does one explain to her that her right means something different because an administrator made the decision? How does a Court conclude that the Constitution’s meaning could potentially be different—not for reasons of text, precedent, or structure—but because the procedural trappings of a case happen, fortuitously, to be different? Administrative exigency is no excuse—or at least, not a good one—to limit one’s Charter rights.  (see, for more on the arbitrariness of Doré, Evan Fox-Decent and Alexander Pless, “The Charter and Administrative Law: Cross-Fertilization or Inconstancy?” in Lorne Sossin & Colleen Flood, eds, Administrative Law in Context (Toronto: Emond Montgomery, 2012) at 431).

Professor Daly might respond that the Constitution could mean different things in regulatory contexts.  But this point seems to view the matter from the wrong perspective. The question is not what makes the most sense for administrators given the different contexts that they render decisions. The question, instead, is whether there is some principled reason, besides administrative exigency, for a lower standard of scrutiny to be deployed when reviewing administrative decisions under the Charter. As I’ve written before, doctrine should not “require the weakening of constitutional norms to suit the prerogative of administrative decision-making.”

***

With my remaining space, I’d like to turn to the issue of applying the reasonableness standard. Here, I agree with much of what Professor Daly says. As he notes, and as I argue in my paper, there are tensions in Vavilov’s articulation of reasonableness review (see the Conceptual Gap, at 15). I acknowledge, specifically, that aspects of Vavilov reasonableness may have a Diceyan quality to them, while other parts of Vavilov are more designed to encourage space for decision-makers to justify their decisions to the public (Vavilov, at para 14). Other aspects of Vavilov are not formalist at all—for example, the recognition that administrative justice need not look like judicial justice (Vavilov, at para 92). On this, I think there is agreement.

But this does not change the fact that there are aspects of Vavilovian review that are decidedly formalist, and which conflict with Doré on its own terms. Recall that the governing statutory scheme will be the most salient aspect of the legal context relevant to judicial review (Vavilov, at para 108), with the principles of statutory interpretation acting as necessary constraints on decision-makers. As noted above, if we transposed this requirement into the constitutional context, we would expect the Constitution—specifically, its text—to be even more fundamental than statutes, to the extent that decision-makers must always consider the Charter within their scope of discretion (Doré , at para 35; Slaight Communications, at 1077-1078). As I note in my paper:

Recall that Vavilov, in the context of legislative interpretation by administrators, asked decision-makers to focus on a number of “constraints” that would determine whether a particular decision is reasonable or not. Some of these constraints are particularly relevant to the constitutional context. For example, in the context of assessing the reasonableness of a decisionmaker’s constitutional conclusions, Vavilov’s focus on the “governing statutory scheme” could easily simply be rebranded as the governing constitutional text; precedent, in both contexts, would be relevant; and the principles of statutory interpretation emphasized in Vavilov could become the principles of constitutional interpretation in the Doré context. Additionally, the Court could impose explicit reasoning requirements on all of these constraints; where they are in play, decision-makers should reason in relation to them, just as the Court asked decision-makers to reason respecting the Vavilov constraints (The Conceptual Gap, at 26).

And more specifically, the exercise of discretion under the Charter still requires justification. This was not alluded to in Doré, and yet Vavilov centres the entire edifice of reasonableness review on this principle. Justification, for example, requires the consideration of “…the perspective of the individual or party over whom authority is being exercised” (Vavilov, at para 133). Where rights and interests are stake, one must assume that the standard must be something more than being “alive” to the Charter issues at stake, as the majority concluded in TWU. While I acknowledge that TWU was a law society case, where reasons take on a different character, I must note the dissent’s point of view in TWU. Arguably, the dissent’s comment is more in line with what Vavilov requires:

While the Benchers may not have had a duty to provide formal reasons…the rationale for deference under Doré —expertise in applying the Charter to a specific set of facts…–requires more engagement and consideration from an administrative decision-maker than simply being “alive to the issues,” whatever that may mean… (TWU, at para 294).

In sum, I continue to believe, despite Professor Daly’s strong arguments, that Doré  is vulnerable to attack after Vavilov. While I would be prepared to make arguments that attack Doré  head-on, there is value in comparing Vavilov to Doré. Far from emerging strengthened, I continue to hold the view that Doré requires assimilation to the Vavilov framework. But I part ways with Professor Daly on precisely how this is done.

New Paper on Doré and Vavilov

Frequent readers of this blog will know that I have written here on the subject of the propriety of Doré post-Vavilov. As many of you know, I do not believe that Doré can stand in light of Vavilov. I have now outlined more extensively why that is is, in a paper that will appear in the Dalhousie Law Journal later this year. Here is the abstract:

This paper argues that, without substantial doctrinal amendment, there is a fundamental conceptual gap between the cases of Doré and Vavilov. This is because both cases are motivated by different conceptions of administrative law. In Vavilov, the paper suggests that the Court melded together two theories of judicial review: first, a Diceyan theory based on a harmonious understanding of the principles of legislative sovereignty and the Rule of Law; and second, the imposition of a “culture of justification” for administrative decision-makers, in which decision-makers are asked to justify their decisions to receive deference. On the other hand, Doré is motivated by a pure functionalist understanding of administrative law, in which the expertise of the decision-maker in deciding constitutional matters is emphasized. While not total opposites, the theories are also not entirely complementary, such that they lead to different doctrinal prescriptions. The paper explores the doctrinal gap, and suggests two ways in which it might be bridged. First, Doré might be recalibrated to bifurcate the standard of review analysis, so that decisions implicating the scope of Charter rights is reviewed on a correctness standard, while the proportionality/application stage is reviewed on a reasonableness standard. Second, Vavilov’s justificatory standards might be imported into the Doré context to bridge the gap.

The paper can be accessed here. 

 

The Life and Times of Patent Unreasonableness

Post-Vavilov, can a legislature freely specify the standard of review? The answer seems obvious. Legislation overrides the common law, so as the Vavilov majority states, “…where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law” (Vavilov, at para 35).

In most cases, this clear language of the Court will be dispositive. Clearly, where the legislature specifies a standard of review (as opposed to a ground of review—see Khosa), it must be given effect. However, there are niche issues to consider. For example, what about standards of review that have defined statutory or common law meanings? Such a term, for example, is the patent unreasonableness standard, a standard of review that typified the “pragmatic and functional” era in administrative law, and that was put to bed in Dunsmuir. Patent unreasonableness still has some play in the BC Administrative Tribunals Act and in the Ontario Human Rights Code (s.45.8) in relation to decisions by the Ontario Human Rights Tribunal. How affected is the patent unreasonableness standard by Vavilov?

In this post, I want to explore the status of patent unreasonableness post-Vavilov. First, I want to suggest that patent unreasonableness, as a statutory standard of review, is a distinct standard that should be respected post-Vavilov as an instantiation of legislative intent, absent constitutional constraints. I then turn to ask whether such constraints are present, either because of Vavilov or otherwise. As I will note, there are constitutional issues with patent unreasonableness on questions of law that can be framed in various ways. I conclude by noting that patent unreasonableness may be an unconstitutional standard of review.

***

Patent unreasonableness, as a standard of review, originally had a common law meaning, as set out in CUPE v New Brunswick (see Dunsmuir, at para 35). In addition to the standards of review of reasonableness simpliciter and correctness, patent unreasonableness was the most deferential standard of review. Patent unreasonableness refers to the “immediacy” or “obviousness” of the defect in a decision-maker’s decision (see Southam, at para 57; Dunsmuir, at para 37). In order for a decision to be found patently unreasonable, the decision must be immediate and obvious (this reminds me of the old ground of an “error on the face of the record). This is the distinguishing factor between the previous distinction between “reasonableness simpliciter” and “patent unreasonableness.”

In Dunsmuir, of course, the Court did away with this distinction, deciding that patent unreasonableness was no longer an available standard of review. The Court reasoned (1) that the distinction between patent unreasonableness and reasonableness was largely illusory (Dunsmuir, at para 41) and (2) that patent unreasonableness might require a a court to accept a decision that is irrational, simply because the error isn’t clear enough—this presents Rule of Law issues (see Dunsmuir, at para 42).

That said, patent unreasonableness as a statutory standard of review remains in some contexts. The BC Administrative Tribunals Act, for example, prescribes a standard of patent unreasonableness where the statute contains a privative clause (section 58(1)). In Ontario, the Human Rights Code, as noted above, prescribes a standard of patent unreasonableness—though the Ontario courts have interpreted this provision as only requiring reasonableness review, in light of Dunsmuir (see Shaw v Phipps ONCA, at para 10). The Supreme Court has held that the standard of patent unreasonableness in this context has a distinct meaning, “but the content of the expression, and the precise degree of deference it commands in the diverse circumstances of a large provincial administration, will necessarily continue to be calibrated according to general principles of administrative law” (Khosa, at para 19).

***

The first issue with patent unreasonableness raises the question of how far the common law analysis set out in Vavilov can go to alter the standard of patent unreasonableness, given the comments in Khosa. BC courts have split on the issue. As I have blogged about before, 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).

Generally, I am of the view that patent unreasonableness as a standard, if prescribed by the relevant legislature, must remain as distinct as possible. This is because the selection of patent unreasonableness—either as defined by the legislature explicitly or by the common law, as incorporated by legislation—is a distinct choice by the legislature that should be respect. The legislature clearly could not have intended that patent unreasonableness would be modified by Vavilov. So, as much as possible—in order to respect legislative choice—patent unreasonableness should be considered a distinct legislative standard.

Of course, this does not rule out the influence of the common law. In the BC ATA, patent unreasonableness is largely defined by grounds that resemble abuse of discretion—here, the common law cannot play much of a role, because patent unreasonableness has been defined clearly by the legislature. But in the Ontario Human Rights Code, patent unreasonableness is not defined. Here, the common law definition of patent unreasonableness—as it existed at the time of enactment—can supplement the legislative term. In such cases, the benchmark for patent unreasonableness may draw limited inspiration from Vavilov. But to say that Vavilov turns patent unreasonableness into a wholly different standard is a different matter altogether; one that, to my mind, disrespects the legislative choice to enact a more deferential standard of review. To my mind, College of New Caledonia gets this basically correct.

***

If patent unreasonableness is a distinctive standard, then the question becomes: is it a constitutional standard of review on questions of law? To be sure, issues regarding the constitutionality of various standards of review are not often explored in Canadian administrative law. In Quebec, however, the constitutionality of the Court of Quebec applying deferential standards of review is an issue that will be heard by the Supreme Court of Canada soon. This indicates that the constitutionality of particular standards—especially those prescribed in legislation—might be an important issue going forward. In my view, there are two such potential constitutional issues with the patent unreasonableness standard. First, the Rule of Law—as conceived in Vavilov—could be a fetter on the legislature’s choice to prescribe a patent unreasonableness standard of review. Second, s.96 could itself found a challenge to the patent unreasonableness standard. In whole, I find this latter challenge more convincing.

First, Vavilov’s comments on the Rule of Law present a challenge to the imposition of a patent unreasonableness standard on questions of law. Recall that, in Dunsmuir, the Court (in a throwaway line, mind you) reasoned that patent unreasonableness presents rule of law issues, because it could shelter otherwise illegal decisions from review. Indeed, as noted above, the Ontario courts have taken these concerns to heart. They have read the “patent unreasonableness” standard in the Human Rights Code as merely demanding “reasonableness” review (see Intercounty Tennis Association, at para 45). In Intercounty Tennis Association, the Court relied on Vavilov’s Rule of Law comments (at para 43, saying that the legislature’s standard of review choice must be respected “within the limits imposed by the rule of law”) to reach this conclusion:

[44] As set out above, returning to an era where “patent unreasonableness” is given a meaning beyond “reasonableness” does raise rule of law concerns – namely, the fact that an irrational decision is allowed to stand because its irrationality is not “clear” or “obvious” enough.

I am sympathetic to these Rule of Law concerns. But there is a preliminary question that must first be answered: does the Rule of Law have substantive force, such that it can bind the choice of legislatures within its limits?

Of course, the Court has previously held that the Rule of Law cannot be used to attack the content of legislation (Imperial Tobacco, at para 59). But as Leonid Sirota notes, there might be valid reasons to distinguish Imperial Tobacco. And at the very least, Vavilov’s comments on the Rule of Law, particularly the comment that legislatures can specify the standard of review within the limits imposed by the Rule of Law, seem to suggest that the Rule of Law, as a principle, will set the boundaries for the standards the legislation can choose.

The other way to view the issue is that Vavilov merely spoke to the common law standard of review analysis. That is, the Rule of Law, within the common law analysis, can impact the court’s choice of a standard of review. But once the legislature legislates, the common law analysis—including the comments on the Rule of Law—cease to apply.

I must admit that, at first, I was drawn by this common law angle. But how does one square the Court’s comments, then, about the limits imposed by the Rule of Law? I can’t seem to reconcile these comments, to be frank. They seem to suggest that the Rule of Law will impose limits on the legislature’s selection of the relevant standard of review. Given that this is likely the case, it would seem to suggest that the Rule of Law does have substantive content, contrary to Imperial Tobacco.

I think a preferable interpretation, rather than relying on a potentially limitless unwritten constitutional principle, is one rooted in s.96 of the Constitution Act, 1867. That is, s.96 has developed such that the role of the superior courts in policing the boundaries of administrative action is constitutionally guaranteed, especially on questions of law: see Crevier. Patent unreasonableness, as a statutory standard, is one that impacts this supervisory function of the superior courts—it requires a court, having identified an error, to measure whether it is “obvious” enough to warrant intervention. This means that certain errors—even material ones—will be allowed to stand . In Quebec, this issue is currently being litigated with respect to the Court of Quebec and the potential requirement of “double deference’”—which has the effect of sheltering illegal decisions from review. This clearly impacts the reviewing function of the Court. In this respect, patent unreasonableness could be unconstitutional because it requires courts to simply ignore errors that otherwise arise.

In light of this conclusion, the question then arises: what do courts do with this when faced with a ptent unreasonableness standard? One could imagine two scenarios. First, one can take the Ontario court’s position, which is to say, a position rooted in constitutional avoidance: read patent unreasonableness to simply mean something else. Another option is to simply strike the legislation prescribing patent unreasonableness, either pursuant to the Rule of Law or under s.96. I think constitutional avoidance in this context is not a sound idea, because as I said earlier, patent unreasonableness can have a distinct meaning if set out in statute (like the BC ATA) and otherwise draws inspiration from the common law definition of patent unreasonableness. This takes “avoidance” too far—avoidance is typically only feasible when a term is ambiguous and there are two plausible meanings one could take of the view. But here, patent unreasonableness is, to my mind, not necessarily ambiguous—though its contours may be hazy.

In my view, we must deal with any constitutional problem faced by patent unreasonableness head on. In my view–and holding my tongue as much as possible in light of the Quebec case on deference–the patent unreasonableness standard has the potential to shelter material errors of administrative actors from judicial scrutiny. This, on an understanding of s.96, is unconstitutional.

Put differently, I think the best way to approach the patent unreasonableness standard, post-Vavilov, is to simply conclude that it is unconstitutional because it minimizes and restricts the reviewing role of the courts. I do not expect anyone to actually pick up this argument—but I think it is a fair point to make in light of that standard. Overall, though, the question of patent unreasonableness will continue to grip courts in jurisdictions where the standard is relevant. This post is designed to provide a toolbox of arguments as litigants and courts deal with this question.