Vavilov – Supreme Court of Canada reformulates the tests that will be applied in judicial review of administrative decisions, e.g., of CRA
In Vavilov, and the companion case of Bell Canada, the Supreme Court has revised the standards to be applied in the judicial review of administrative decisions. Generally, administrative decisions are to be reversed if they are unreasonable. There no longer should be an inquiry as to the relative expertise of the decision maker in determining the standard of review to be applied to the decision.
The presumption that a reasonableness review should be applied can be rebutted where there is a statutory appeal mechanism in place (thereby entailing application of a standard of correctness to questions of law) – however, the Court made it clear that this did not include provisions, such as ss. 18 to 18.2, 18.4 and 28 of the Federal Courts Act – so that this aspect does not appear to apply to reviews of CRA decisions (other than assessments). Furthermore, the rule of law requires that the standard of correctness be applied to legal questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole (e.g., questions of res judicata and abuse of process, or of solicitor-client privilege) and questions related to the jurisdictional boundaries between two or more administrative bodies.
The Court also made numerous comments on application of the reasonableness standard. To pick one at random:
[T]he reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived” … . Reasons that “simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion” will rarely assist a reviewing court in understanding the rationale underlying a decision and “are no substitute for statements of fact, analysis, inference and judgment” … .
Although the concurring reasons of Abella and Karakatsanis JJ agreed in the result (which was to reverse an unreasonable decision of the Registrar of Citizenship), they disagreed with the revised standard of review adopted by the majority, stating:
Presented with an opportunity to steady the ship, the majority instead dramatically reverses course — away from this generation’s deferential approach and back towards a prior generation’s more intrusive one. Rather than confirming a meaningful presumption of deference for administrative decision-makers … the majority’s reasons strip away deference from hundreds of administrative actors subject to statutory rights of appeal; rather than following the consistent path of this Court’s jurisprudence in understanding legislative intent as being the intention to leave legal questions within their mandate to specialized decision-makers with expertise, the majority removes expertise from the equation entirely and reformulates legislative intent as an overriding intention to provide — or not provide — appeal routes; and rather than clarifying the role of reasons and how to review them, the majority revives the kind of search for errors that dominated the pre-C.U.P.E. era. In other words, 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.
Neal Armstrong. Summary of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 under Federal Courts Act, s. 18.1(1).