The Supreme Court of Canada Clarifies the Standard of Review for Administrative Law

Administrative law governs the exercise of public power by government delegates. Those empowered by the Parliament of Canada and the Legislature of Alberta to make decisions that affect the day-to-day life of Canadians must do so in accordance with the rule of law. This means that they must exercise their powers in accordance with the law and cannot exercise their power arbitrarily.

The decisions of government delegates are subject to judicial review in the Court of Queen’s Bench of Alberta, or in some cases, where the governing legislation so provides, to appeal directly to the Court of Appeal. On judicial review or appeal, the courts apply what is called a “standard of review”.  The standard of review governs the amount of deference which the courts will grant the administrative decision maker and the threshold for a reviewable error.

In 2008, the Supreme Court of Canada (SCC) clarified the law pertaining to standard of review in Dunsmuir v New Brunswick, 2008 SCC 9 holding that there are two standards of review: reasonableness and correctness. When applying the reasonableness standard the court grants deference to the administrative decision maker and concerns itself with whether the decision is justified, intelligible and transparent in terms of the decision making process and falls within a range of acceptable outcomes. When applying the correctness standard the court does not grant deference to the administrative decision maker and conducts its own analysis of the issue to determine whether it agrees with the decision. If the court does not agree, it may substitute its own decision. In Dunsmuir the Court outlined a two-step contextual process for determining whether the reasonableness or correctness standard applies in any given case.

The decision in Dunsmuir was intended to simplify the standard of review analysis and allow the courts to determine standard of review in a predictable manner. Post-Dunsmuir this intention was not fully realized. Over a decade later, the SCC recognized a need for further direction and on December 19, 2019 released two decisions further clarifying the standard of review pertaining to judicial review of administrative decisions: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 and its companion appeal Bell Canada v Canada (Attorney General), 2019 SCC 66. These decisions constitute a change in some respects from earlier SCC decisions, something which occurs very rarely. The Court recognized that this is unusual but indicated that there were compelling circumstances to reconsider the law because aspects of the current framework were unclear and unduly complex leading to a lack of clarity and undermining access to justice.

The majority of the SCC set out a revised framework to be used by the courts in determining the applicable standard of review which starts with the presumption that reasonableness is the applicable standard. The Court held that the very fact that the legislature has chosen to delegate decision making power to that body justifies a presumption that deference must be granted to that decision maker. This presumption is rebuttable in two sets of circumstances.

The first circumstance in which the presumption of reasonableness is rebuttable is when the legislature has expressly provided that a different standard of review is applicable. This will be the case where the applicable legislation outlines that a correctness standard of review applies or where the applicable legislation provides a statutory appeal mechanism. Where the legislation provides a statutory appeal mechanism this signals an intention by the legislature that the ordinary appellate standards of review be used: correctness for questions of law and palpable and overriding error for questions of fact.

The second circumstance in which the presumption of reasonableness is rebuttable is where the rule of law requires that the correctness standard be applied: questions relating to jurisdictional boundaries between two or more administrative decision makers, constitutional questions, or general questions of law of central importance to the judicial system as a whole. This recognizes that constitutional questions and questions of central importance to the entire legal system require a final and determinate answer from the courts. 

The majority went on in its reasons to provide guidance on how a reasonableness review ought to be conducted holding that reasonableness review is focused both on the decision making process and its outcome. The court is to consider whether the rational for the decision and its outcome are unreasonable. A principled approach to reasonableness review puts the written reasons, where available, first, and seeks to understand the process utilized by the decision maker to arrive at the outcome. This then enables the reviewing court to assess whether the decision as a whole is reasonable – ie a decision that is internally consistent, based on a rational chain of analysis, and is justified in relation to the facts and law. Where written reasons are required, it is not enough for the outcome to be reasonable, the outcome must also be reached on a proper basis.

Hopefully these two recent decisions of the SCC will achieve the goal of providing greater predictability and simplicity for judicial review by eliminating the contextual analysis for judicial review. The majority of the SCC held that the five circumstances outlined in its reasons for departing from the reasonableness standard of review address all of the circumstances in which the correctness standard of review is applicable at this time. That is, courts should only depart from the reasonableness standard in five situations:

1. Where the legislature defines the applicable standard of review;
2. Where the legislature provides a right of appeal;
3. On questionings relating to the jurisdictional boundaries between two or more administrative decision makers;
4. On constitutional questions; and
5. On questions of central importance to the legal system as a whole

However, while the SCC made it clear that the recognition of any new category requiring a correctness standard of review would be exceptional, they did not close the door entirely on litigants’ ability to argue that the correctness standard of review is applicable in other circumstances. It remains to be seen how the new framework will be applied by the courts over the coming decade.