vavilov.html.pm

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◊define-meta[page-title]{◊@{Early impressions from ◊em{Canada v Vavilov}}}
◊define-meta[short-title]{◊@{◊em{Canada v Vavilov}}}
◊define-meta[original-date]{2019-12-19}
◊define-meta[edited-date]{2022-11-10}
◊define-meta[featured-image-url]{assets/vavilov-flowchart.png}
◊define-meta[snippet]{Some early impressions of the Vavilov framework}

◊declare-work[#:id "Vavilov" #:type "legal-case" #:title "Canada
(Minister of Citizenship and Immigration) v. Vavilov" #:citation "2019
SCC 65" #:short-form "*Vavilov*" #:url
"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/18078/index.do"]

◊declare-work[#:id "Housen" #:type "legal-case" #:title "Housen v
Nikolaisen" #:citation "2002 SCC 33" #:short-form "*Housen*" #:url
"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1972/index.do"]

◊declare-work[#:id "Dunsmuir" #:type "legal-case" #:title "Dunsmuir v
New Brunswick" #:citation "2008 SCC 9" #:short-form "*Dunsmuir*"]

◊declare-work[#:id "Pushpanathan" #:type "legal-case" #:title
"Pushpanathan v Canada (Minister of Citizenship and Immigration)"
#:citation "[1998] 1 SCR 982" #:parallel-citation "160 DLR (4th) 193"
#:short-form "*Pushpanathan*"]

◊declare-work[#:id "Society of Composers" #:type "legal-case" #:title
"Society of Composers, Authors and Music Publishers of Canada
v. Entertainment Software Association" #:citation "2022 SCC 30" #:url
"https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19441/index.do"
#:short-form "*Society of Composers*"]

◊fig[#:src "assets/vavilov-flowchart.png"]{The ◊em{Vavilov} framework
for determining the standard of review. In 2022, the Supreme Court of
Canada recognized a sixth category of correctness review (when courts
and administrative bodies have concurrent first-instance
jurisdiction), not reflected in this diagram.◊note-see["Society of Composers"]}

Here are some early thoughts◊note[#:expanded "yes"]{I've been helped by various Twitter
threads I've encountered throughout the day: [Mary
Liston](https://twitter.com/mary1liston/status/1207735201515704320),
[Caroline
Mandell](https://twitter.com/cjmandell/status/1207770850944061440),
[Adil
Abdulla](https://twitter.com/Adil_Abdulla/status/1207722233059323906).}
on ◊em{Canada v Vavilov}◊note-cite["Vavilov"].  In this decision, the
Supreme Court of Canada presented a revised approach for how courts
should determine the standard of review in judicial review.

There are two main takeaways: 1) the new framework for selecting the
standard of review, and 2) an in-depth explanation of what
reasonableness review means, especially its relationship to reasons.

But above all of this is a clear expression of how the Court sees the
relationship between the administrative state and the judiciary. The
Court sees this as a trade---of justification by administrative
decision makers in exchange for respect from the
courts.◊note-see["Vavilov" #:pinpoint "para 14"]

◊q{ On the one hand, courts must recognize the legitimacy and
authority of administrative decision makers within their proper
spheres and adopt an appropriate posture of respect. On the other
hand, administrative decision makers must adopt a culture of
justification and demonstrate that their exercise of delegated public
power can be “justified to citizens in terms of rationality and
fairness” }

◊sub-heading{The ◊em{Vavilov} framework}

The starting point is a presumption of reasonableness that can be
rebutted by either explicit legislative direction or by one of three
rule-of-law concerns.◊note-see["Vavilov" #:pinpoint "paras 16--17"]

Legislative direction can come in two forms:

◊itemize{

the statute can explicitly prescribe the standard of review to be used, or

the statute can contain a statutory right of appeal.

}

If there is a statutory right of appeal, the court will apply the
appellate standards of review from ◊em{Housen}.◊note-cite["Housen"]

The three categories of questions that rebut the presumption of
reasonableness because of rule-of-law concerns are:

◊itemize{

"constitutional questions,"

"general questions of law of central importance to the legal system as
a whole,"◊note{Note, the Court has shed the requirement that these
questions also be outside the specialized expertise of the tribunal.}
and

"questions related to the jurisdictional boundaries between two or more
administrative bodies."

}

That's it. A presumption of reasonableness review with five paths to
rebuttal. The Court has completely discarded the "contextual inquiry"
from ◊em{Dunsmuir}◊note-cite["Dunsmuir"] (and previously,
◊em{Pushpanathan}◊note-cite["Pushpanathan"]). An assessment of
expertise is "no longer relevant to a determination of the standard of
review."◊note-cite["Vavilov" #:pinpoint "para 31"] Privative clauses
"serve no independent or additional function in identifying the
standard of review."◊note-cite["Vavilov" #:pinpoint "para 49"] The
Court has eliminated true questions of jurisdiction as a category that
would attract correctness review.◊note-see["Vavilov" #:pinpoint "paras
65--68"] And, the Court affirmed that inconsistency, discord, or
disagreement within a tribunal does not warrant correctness
review.◊note{◊see["Vavilov" #:pinpoint "paras 71--72"]
◊see-also["Vavilov" #:pinpoint "para 132"]}

In 2022, the Court added a sixth category warranting correctness
review: when courts and an administrative body share concurrent
first-instance jurisdiction over a question of law.◊note-cite["Society
of Composers"]

◊sub-heading{Robust reasonableness}

The Court presents a quite robust reasonableness review and a
heightened emphasis on reason-giving.◊note{See Mary Liston, "VERY
ROBUST reasonableness review as the new norm..." (19 Dec 2019 at
11:50), online: ◊em{Twitter}
[https://twitter.com/mary1liston/status/1207749969903419393](https://twitter.com/mary1liston/status/1207749969903419393)}

Here, you've just got to read the decision, I think. It describes a
relationship, a feeling, an attitude---what reasonableness review
should feel like. But I'll pull out some quotes that highlight this
feeling for me.

Paragraph 80, on what reason-giving does for the reason-giver
(citations removed):

◊q{ The process of drafting reasons also necessarily encourages
administrative decision makers to more carefully examine their own
thinking and to better articulate their analysis in the process. This
is what Justice Sharpe describes — albeit in the judicial context — as
the discipline of reasons. }

Paragraph 81, on the primacy of reasons within the reasonableness review:

◊q{ The starting point for our analysis is therefore that where
reasons are required, they are the primary mechanism by which
administrative decision makers show that their decisions are
reasonable — both to the affected parties and to the reviewing
courts. It follows that the provision of reasons for an administrative
decision may have implications for its legitimacy, including in terms
both of whether it is procedurally fair and of whether it is
substantively reasonable. }

Paragraphs 83--84, on the attitude or posture that the reviewing court
should adopt when doing reasonableness review and the trade of
justification for respect that I mentioned above (citations removed):

◊q{ It follows that the focus of reasonableness review must be on the
decision actually made by the decision maker, including both the
decision maker’s reasoning process and the outcome. 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, attempt to ascertain the “range” of
possible conclusions that would have been open to the decision maker,
conduct a de novo analysis or seek to determine the “correct” solution
to the problem. ...

As explained above, where the administrative decision maker has
provided written reasons, those reasons are the means by which the
decision maker communicates the rationale for its decision. A
principled approach to reasonableness review is one which puts those
reasons first. A reviewing court must begin its inquiry into the
reasonableness of a decision by examining the reasons provided with
“respectful attention” and seeking to understand the reasoning process
followed by the decision maker to arrive at its conclusion. }

Paragraph 86, emphasizing that a reasonable outcome is not good
enough:

◊q{ an otherwise reasonable outcome also cannot stand if it was
reached on an improper basis }

Paragraph 93, on reasons as an avenue for expertise, as part of
the dialogue between the administrative state and the courts:

◊q{ In conducting reasonableness review, judges should be attentive to
the application by decision makers of specialized knowledge, as
demonstrated by their reasons. Respectful attention to a decision
maker’s demonstrated expertise may reveal to a reviewing court that an
outcome that might be puzzling or counterintuitive on its face
nevertheless accords with the purposes and practical realities of the
relevant administrative regime and represents a reasonable approach
given the consequences and the operational impact of the decision.}

Paragraph 96, emphasizing that courts cannot save what would otherwise
be a reasonable decision if it is based in flawed reasoning (citations removed):

◊q{ Even if the outcome of the decision could be reasonable under
different circumstances, it is not open to a reviewing court to
disregard the flawed basis for a decision and substitute its own
justification for the outcome. To allow a reviewing court to do so
would be to allow an administrative decision maker to abdicate its
responsibility to justify to the affected party, in a manner that is
transparent and intelligible, the basis on which it arrived at a
particular conclusion. This would also amount to adopting an approach
to reasonableness review focused solely on the outcome of a decision,
to the exclusion of the rationale for that decision. }

◊sub-heading{Dialogue}

I've already situated administrative reason-giving above in the
context of a dialogue between the administrative state and the
judiciary. This decision also presents the importance of communication
from the courts to the administrative state in that dialogue. The
decision presents courts as "managers", even within a reasonableness
review.

Paragraph 132 especially highlights this, in the context of resolving
persistent discord within a tribunal:

◊q{ While we are not of the view that such a correctness category is
required, we would note that reviewing courts have a role to play in
managing the risk of persistently discordant or contradictory legal
interpretations within an administrative body’s decisions. When
evidence of internal disagreement on legal issues has been put before
a reviewing court, the court may find it appropriate to telegraph the
existence of an issue in its reasons and encourage the use of internal
administrative structures to resolve the disagreement. And if internal
disagreement continues, it may become increasingly difficult for the
administrative body to justify decisions that serve only to preserve
the discord. }

◊sub-heading{Degrees of deference}

The Court continues to describe reasonableness review as a single
standard: "elements of a decision’s context do not modulate the
standard or the degree of scrutiny by the reviewing
court."◊note-cite["Vavilov" #:pinpoint "para 89"] However, I am still
not convinced that this is descriptively accurate. Even aspects of
this decision seem to reveal varying degrees of scrutiny. Paragraph
132, just quoted directly above, contemplates that internal
disagreement "may become increasingly difficult" to justify. The Court
also says, "Where the impact of a decision on an individual’s rights
and interests is severe, the reasons provided to that individual must
reflect the stakes."◊note-cite["Vavilov" #:pinpoint "para 133"]

The most confusing section of this decision for me was at paragraphs
115--124, discussing how reasonableness review should be applied to
questions of statutory interpretation. A court is not to do a ◊em{de
novo} analysis, but the court also is not to allow the administrative
decision maker to "adopt an interpretation it knows to be inferior —
albeit plausible — merely because the interpretation in question
appears to be available and is expedient." And sometimes, the
"correct" interpretation will just happen to "become clear" to the
reviewing court (although not doing a ◊em{de novo} analysis). I'd love
some help understanding this.