Correcting reasonableness: the SCC repairs Dunsmuir

There was a marked dissent in high court’s revisiting of standard of review, writes Ronald Poulton

Ron Poulton

OK. So, hold on to your hats, or your hair, at least. The Supreme Court of Canada has established, once and for all (or until the next time they do it), the final, definitive analysis and explanation of standard of review, in Minister of Citizenship and Immigration v. Alexander Vavilov, 2019 SCC 65.

So definitive and clear was the majority analysis that the minority said: “Huh?” And, “What the hell?” Well, not in so many words, but that’s what they meant. Their actual comments went something like this:

The majority framework “will be a roadblock to its promise of simplicity.”

The majority’s framework rests on a “flawed and incomplete conceptual account of judicial review.”

“The majority’s reasons are an encomium for correctness and a eulogy for deference.”

And, “instead of reforming this generation’s evolutionary approach to administrative law, the majority reverses it, taking it back to the formalistic judge-centred approach this Court has spent decades dismantling.”

Wow; now that’s a dissent! The majority appears to have done something big, very, very, big. Like dismantling all of law! However, in rebuttal (not seen in the Supreme Court since the bad old days of the very divided Lamer court), the majority responded with: you are exaggerating!

So, what’s all the fuss?

The background to the case is intriguing on two levels, and extremely boring on the level of standard of review. The facts are now well known. Two men, the Vavilov brothers, born of Russian agents who came first to Canada to establish backgrounds for themselves and then went to the U.S. for some spy work, were informed that, although born in Canada, they were not citizens of Canada. “We don’t give citizenship to no sons of spies,” they were told (or words to that effect). And told wrongly.

The issue became one of statutory interpretation and whether the long-established principle of jus cogens (or “compelling law”: born here, citizen of here!) applied to the Vavilov brothers. The only accepted exception to the jus cogens principle applied to diplomats, consular officers and others who, in Canada working for a foreign government, were not subject to Canadian laws. If you don’t have to follow the law of a land, your progeny cannot be its citizens, even if born here.

Canada tried to extend this concept to include non-diplomatic employees, such as the Vavilov parents who were in Canada not under diplomatic status, but secret agent status. The courts below bought that argument, but the majority of the Court of Appeal and the entire Supreme Court did not. So, children of spies, spies who had no diplomatic status, were Canadians if born in Canada. That was intriguing level 1.

Intriguing level 2 was the Federal Court of Appeal judge who baited the Supreme Court to take him on. He has to be given his due credit in all this. He had, for years, been expressing dissatisfaction with how Dunsmuir had developed. And he was right. His particular gripe, which all of us administrative-law types shared, was the possibility that two or more possible interpretations of a law could be reasonable and that a party’s success before a tribunal may depend on the luck of which member the party drew.

To overcome this problem and stay within the Dunsmuir framework, the FCA judge decided that reasonableness review had a shifting scale, with a more “exacting” review standard akin to correctness when the interests of the individual were high and the issue was one of statutory interpretation. Nice try, but the Supreme Court had already rejected this idea in Wilson v. Atomic Energy of Canada Ltd. So, he poked at them with it again, and bam, Vavilov was born. So, that’s the second intrigue.

The nitty-gritty of the decision — aside from the fact that the Vavilov brothers were declared Canadian citizens by the Supreme Court, as no other reasonable interpretation of the section was possible — was a re-configuration of Dunsmuir. The SCC now stated that the presumption of reasonableness applied to all tribunal decisions, which could be overcome if the legislature prescribed an appeal to a court where the issue is a question of law of central importance to the legal system as a whole, as these “require uniform and consistent answers,” defined constitutional issues, and jurisdictional boundaries between two or more administrative bodies.

The Court also gave guidelines on the factors to examine in a reasonableness review. It all starts with the reasons of the tribunal. The reasons must be justified and justifiable, meaning the reasoning process must also be coherent and rational. An unreasonable decision is one which suffers from “circular reasoning, false dilemmas, unfounded generalizations or an absurd premise. […] a reviewing court must ultimately be satisfied that the decisionmaker’s reasoning ‘adds up.’”

The Supreme Court applied the Vavilov principles the next day in a case called Canada Post Corp v. Canadian Union of Postal Workers, 2019 SCC 67. In that case the majority exercised due deference and upheld the tribunal decision because the decisionmaker had interpreted the section at hand using “well established principles of statutory interpretation, with due regard to the submissions before him.” In addition, his reasons “amply demonstrate that he considered the text, context and purpose of the provision, and his focus on the practical implications of his interpretation enriched and elevated the interpretative exercise.”

A reasonable decision will depend on how the decisionmaker considers and analyses the submissions made to him or her, how rational and coherent the decision is and whether or not the tribunal applied accepted principles of statutory interpretation, and applied them correctly.

Further, the more at stake in a decision in terms of human rights, the more careful the tribunal must be in its consideration of submissions, evidence and the law. In these situations, when a person has much at stake, the decision must be correct. Oops … I mean reasonable!

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