Canada (Minister Of Citizenship And Immigration) v. Vavilov: Supreme Court Of Canada Revisits The Standard Of Review

Introduction

The Supreme Court of Canada has kept the baby but thrown out the bathwater in its recent trilogy of decisions on administrative standards of review.

In 2018, the Supreme Court of Canada granted leave to appeal for three separate cases: Minister of Citizenship and Immigration v. Alexander Vavilov, Bell Canada, et al. v. Attorney General of Canada and National Football League, et al. v. Attorney General of Canada. The Supreme Court of Canada often does not provide reasons when it makes a decision on leave to appeal. In this instance, however, the Court made clear that it viewed these appeals as an opportunity to consider the law applicable to the judicial review of administrative decisions, which had been drastically changed in 2008 with Dunsmuir v. New Brunswick - the leading decision on administrative standards of review.

In the Vavilov decision, the Court charts a new course forward for determining the standard of review that applies when a court reviews the merits of an administrative decision. The Court in Vavilov also provides additional guidance for reviewing courts when conducting a reasonableness review.

How a court will determine the applicable standard of review

The Vavilov decision has clarified that there will be a presumption that reasonableness is the applicable standard whenever a court reviews an administrative decision. This presumption is rebutted, however, in two situations. First, where the legislature explicitly prescribes the applicable standard of review as something other than reasonableness, or where there is a statutory right of appeal. Where the legislature has provided for a statutory right of appeal from an administrative decision, a court hearing such an appeal is to apply the same standards as would an appellate court reviewing a lower court decision.

The Court in Vavilov confirmed that where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review in accordance with the principles in Housen v. Nikolaisen. Accordingly, where a court is considering questions of law on a statutory appeal, the standard of correctness will apply (See Housen, para 8). Where the statutory appeal includes questions of fact, or certain questions of mixed fact and law, the standard of review is that of "palpable and overriding error" (See Housen, para 10).

Second, the presumption of reasonableness is rebutted where the...