In Vavilov v Canada (Minister of Citizenship and Immigration), 2019 SCC 65, the Supreme Court of Canada (SCC) reset the framework governing how courts should review decisions made by administrative decision-makers, including ministers, their agents, tribunals, boards, commissions and other agencies. Vavilov confirmed that reasonableness is the presumptive review standard, but did it materially shift this standard toward that of correctness, such that courts are more aggressive in their interventions with administrative decisions? Five post-Vavilov decisions across Canada provide some insight on the presence of this trend.
Recap: The essential lessons from Vavilov
Further to our earlier analysis of this decision,Vavilov contained four notable pronouncements by the SCC:
- The inclusion of a statutory appeal mechanism now requires courts to apply an appellate standard of review, as set out in Housen v Nikolaisen, 2002 SCC 33. Questions of law and jurisdiction, including statutory interpretation and scope of decision-maker’s authority, will now be decided on the correctness standard. Questions of fact, mixed fact and law will be reviewable for palpable and overriding error.
- Reasonableness is the presumptive review standard. Where the matter implicates the rule of law (constitutional questions, questions of central importance to the legal system, jurisdictional boundaries) the correctness standard of review will apply.
- The SCC provided guidance on how courts are to conduct a reasonableness review. The SCC referenced judicial restraint, saying that “courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process.” Conversely, reviewing courts must ensure that administrative decisions are “transparent, intelligible and justified”.
- When a court finds an administrative decision to be unreasonable, a court should remit the matter to the decision-maker, unless (i) remitting the matter would “stymie the timely and effective resolution of matters in a manner that no legislature could have intended” or (ii) there is an inevitable outcome, such that there is no utility in remitting the decision.
How have courts applied reasonableness review?
Alberta: In Alexis v Alberta (Environment and Parks), 2020 ABCA 188 (Alexis), Mr. Alexis sought judicial review of an Environmental Protection and Enhancement Act Director’s(Director)decision not to require an Environmental Impact Assessment (EIA) for a silica sand extraction project. The majority of the Alberta Court of Appeal conducted a de novo analysis of the statutory interpretation question at issue, found that its answer was different from that of the Director, and substituted their view for that of the Director’s. The Alberta Court of Appeal therefore ordered an EIA to be conducted. The dissenting judge agreed that the dearth of reasons, lack of information on the record, and contradictory conclusions render the Director’s decision unreasonable, but would have remitted the decision to the Director for reconsideration.
The majority of the Alberta Court of Appeal in Alexis may have taken Vavilov as allowing judges to conduct their own analysis and compare their results with the answer determined by the administrative decision-maker, and then to substitute their result as the correct one. While Vavilov does contain wording that suggests courts should be thorough in their review, both the majority and dissent in Vavilov specifically caution judges against conducting their own de novo analysis and comparing results. Instead, courts are to look for a rational chain of logic in the decision-maker’s reasoning. Where there is no reasonable chain of logic, remitting the matter back to the administrative decision maker acknowledges, as a basis for reasonableness review, a respect for the distinct role of the administrative decision-maker.
Federal: The Vavilov decision was released after arguments had been made in Coldwater First Nation v Canada (AG), 2020 FCA 34 (Coldwater), but the Federal Court of Appeal asked for and responded to supplemental arguments regarding the Vavilov decision. In Coldwater, several First Nations sought judicial review of the adequacy of Crown consultation on the Trans Mountain Pipeline Expansion. The Federal Court of Appeal, responding to the supplemental submissions on Vavilov, highlighted that “it is critical that we refrain from forming our own view about the adequacy of consultation as a basis for upholding or overturning [the approval]”. The consultation was deemed adequate, and the application was dismissed. Leave to appeal to the Supreme Court of Canada was refused on July 2, 2020.
With respect to the Coldwater decision, the Federal Court of Appeal emphasized that a reasonableness review is not an invitation for courts to substitute what they consider to be the “correct” answer. The Federal Court of Appeal reiterated that the focus must be on the reasonableness of the decision, including the outcome reached and the justification for it.
Manitoba: In Sagkeeng v Government of Manitoba et al., 2020 MBQB 83 (Sagkeeng), the Manitoba Court of Queens’ Bench held that a decision without written reasons was reasonable. A First Nation sought judicial review, on the basis of inadequate consultation, of the Minister of Sustainable Development’s (Minister) decision to issue a licence allowing Manitoba Hydro to build a major transmission project. There were no written reasons for the Minister’s decision, so the court, following the guidance in Vavilov, reviewed the full evidentiary record, including governing statute, actions done in support of consultation and all written records. The court commented that a reasonableness standard judicial review is not looking for the “right” answer, stating that the judge’s “role is not to substitute my view for that of the Minister’s… [but rather consider whether] based on the record, the Province acted unreasonably”. The court highlighted that the question is whether the Minister’s decision is “justifiable and justified”. The court concluded that the Minister’s decision was reasonable, and dismissed the application for judicial review.
This Manitoba decision addresses the tricky issue of courts conducting a reasonableness review of a decision without the benefit of official reasons. In Vavilov, the SCC specifically addressed these types of reviews, instructing reviewing courts to look at the entire record in these instances. It is reassuring for administrative decision-makers to see that courts are adhering to this aspect of Vavilov, rather than concluding that a lack of reasons automatically predisposes a decision to be unreasonable.
Ontario: In Nation Rise Wind Farm Limited Partnership v Minister of the Environment, Conservation and Parks, 2020 ONSC 2984 (Nation Rise Wind Farm) a wind farm proponent sought judicial review of the Minister of the Environment, Conservation and Parks’ (MECP Minister) decision to cancel a windfarm permit. Under the previous Ontario government, a Renewable Energy Approval (REA) was issued to the proponent, which a citizen’s group then appealed to the Environmental Review Tribunal (ERT). The ERT upheld the REA. The citizen’s group then appealed this decision to the MECP Minister, now from a new government, who asked all parties for submissions on the question of bat mortalities. After receiving these submissions, the MECP Minister overturned the ERT decision and cancelled the REA. The proponent sought judicial review of this cancellation, as the issues raised by the MECP Minister, namely the effect on bat maternity colonies, had not been considered in the ERT hearing. The Ontario Divisional Court agreed that the MECP Minister did not have the authority to raise new issues. The Ontario Divisional Court reinstated the ERT’s decision, holding that the MECP Minister’s decision did not meet the Vavilov requirements of “transparency, justification and intelligibility” and thus was unreasonable.
Like a number of the other courts surveyed in this post, the Divisional Court in Nation Rise Wind Farm substituted its decision for the unreasonable one. However, before reinstating the ERT’s decision, the Divisional Court highlighted that this was rare case where there would be no utility to sending the matter back to the MECP Minister in view of both the urgency in deciding the issue, and the fact that the Minister did not have the authority to consider new issues not before the ERT. Interestingly, it held that it would have come to this conclusion on remedy even if the MECP Minister had the authority to raise the new issue as, on the record related to bat mortality, a reasonable decision-maker could not conclude serious and irreversible harm to bats.
British Columbia: In 1120732 B.C. Ltd. v Whistler (Resort Municipality), 2020 BCCA 101, the Resort Municipality of Whistler enacted bylaws relating to occupancy of properties, and the applicants claimed this exceeded the Municipality’s statutory authority. This British Colombia Court of Appeal decision applies many of the nuances set out by the SCC in Vavilov, such as noting Vavilov’s guidance when a decision-maker’s reasons have not been given. In these instances, the record as a whole may serve as the decision-maker’s reasons, with Vavilov specifically noting municipal bylaws as an example of when courts will likely need to rely on this “entire record” approach to reviewing the decision-maker’s “reasons”. The court also cautioned that a reviewing court should refrain from conducting its own de novo analysis and not accept any other outcome. The court acknowledged this range of interpretation outcomes when it said that there were “at least three ways in which the Municipality’s council could have reasonably concluded that s. 479 gave it the power to adopt the Zoning Amendment Bylaw”. It held that council’s decision to enact the Bylaw was reasonable, and declined to disturb this decision on judicial review.
This decision, much like the Sagkeeng decision from Manitoba that is discussed above, provides reassurance that courts conducting a judicial review on the standard of reasonableness will treat a lack of official reasons as requiring them to review a decision in the context of its full record, rather than concluding that a lack of reasons makes an administrative decision inherently unreasonable. In this case, the British Colombia Court of Appeal probed the entire record to find a chain of logic in the decision-maker’s reasoning, following the guidance from Vavilov and respecting the distinct role of a municipal council in making administrative decisions.
Putting it all together
When the Vavilov decision was released, many feared that courts conducting judicial review on a reasonableness standard would take the SCC’s guidance as allowing them to show less deference to administrative decision makers, relying on the Vavilov edict that decisions must be “transparent, intelligible and justified”. However, with the exception of Alberta’s Alexis, it appears that courts are continuing to conduct reasonableness reviews by following the decision-maker’s logic and, based on this logic, determining if the decision falls within the range of reasonable outcomes.
While it will be important to continue to monitor the evolution of the reasonableness standard as the Vavilov decision is applied in more cases, this trend of continuing to show deference is consistent with the stability and continuity of administrative law in Canada. So far, the courts on a whole have displayed a level of restraint which assuages fears that courts would treat Vavilov as an invitation to totally move the reasonableness standard towards that of correctness.