Unresolved Issues after Vavilov I: Internal Appeals

This week, I am going to post three pieces on matters left unresolved by the Supreme Court of Canada in its seminal administrative law decision, Canada (Citizenship and Immigration) v. Vavilov, 2019 SCC 65. First, internal appeals, second, administrative decisions allegedly infringing Charter rights and, third, procedural fairness.

There are three observations to make about internal appeals post-Vavilov, that is, appeals from a first-instance administrative decision-maker to an appellate administrative tribunal. The issue was not addressed at all by the Court in Vavilov. This is not surprising as the Court was not asked to address it (save by the Attorney General for Quebec, as mentioned below). Nonetheless, it is an issue of perennial importance as appellate administrative tribunals around the country try to define their functions.

First, I have long argued that borrowing from the law of judicial review is a category error.[1] There will be a temptation to argue after Vavilov that appeals from a first-instance administrative decision-maker to an appellate administrative tribunal should attract the Housen v Nikolaisen framework. This temptation should be resisted, in my view. Vavilov, just like Dunsmuir before it, addresses a problem in the area of judicial review – that is, the relationship between administrative decision-makers and reviewing courts. Vavilov is not concerned with the relationship between different parts of the administrative decision-making structure. Vavilov is a judicial review case and thus in a different category to an internal administrative appeal. That similar words or phrases are used should not blind us to this categorical difference.[2]

Second, the scope of an internal “appeal” is unique to each administrative appellate regime. In each case, it is important to interpret the particular statutory provisions at issue to identify the role of the appellate tribunal.[3] There are three general types of statutory appeal: an appeal de novo, an appeal from one specialist tribunal to another specialist tribunal and an appeal from a specialist tribunal to a generalist tribunal. Of course there are particularities in any internal appellate regime – which makes for their uniqueness – but they will invariably revolve around these types. In all events, the nature of an internal appeal “is to be determined from the language of the enabling legislation”.[4]

Third, deference on questions of fact or mixed questions of fact and law may be appropriate in some appellate tribunals. Typically, this will arise where the appellate tribunal is a generalist and/or simply reviews the record produced by the first-instance decision-maker. Here, a palpable and overriding error standard may be the best way to capture legislative intent as expressed in the relevant statutory provisions.[5]  Alternatively, in situations where both the first-instance administrative decision-maker and the appellate tribunal are similarly specialist, some conclusions of fact, such as those based on credibility, may be owed deference on the basis that the first-instance administrative decision-maker had first-hand exposure to the testimony given.[6]

This last observation should help to resolve any lingering controversy about the role of the Court of Quebec, due to be considered later this year by the Supreme Court on an appeal from a reference decision of the Quebec Court of Appeal. One of the issues raised in the reference related to the Court of Quebec’s appellate jurisdiction over a variety of administrative tribunals. Since 2008, the Court of Quebec has been performing judicial reviews of these tribunals. But the Court of Quebec’s judicial reviews are subject to judicial review in the Superior Court (or, depending on the statutory scheme, to appeal to the Court of Appeal). This was problematic.[7] The Attorney General of Quebec made submissions on this point in Vavilov.

Vavilov has, however, helped to resolve these problems. The Court of Quebec, being a court, now applies the Housen v. Nikolaisen framework in statutory appeals and its conclusions can be judicially reviewed in the Superior Court. It is true that the Superior Court’s role will be limited in situations where the Court of Quebec applies the palpable and overriding error standard. But, as per the framework I laid out above, the Court of Quebec is a generalist appellate body and, as such, should defer to expert administrative tribunals.

Does the fact that the Superior Court will review applications of the palpable and overriding error standard for reasonableness create constitutional difficulties? I am inclined to think not. The Superior Court should be capable on judicial review of correcting any misapplication of the palpable and overriding error standard. It is difficult to see how a misapplication would not contain the sorts of fundamental flaw or disregard of factual and legal constraints identified in Vavilov. For instance, a misapplication of the palpable and overriding error standard would mean “the conclusion reached cannot follow from the analysis undertaken”;[8] and the Court of Quebec applying the palpable and overriding error standard is as likely to unreasonably fundamentally misapprehend the evidence as the first-instance decision-maker.[9] In other words, it will be unreasonable for the Court of Quebec to fail to correct a palpable and overriding error. There is, therefore, little or no fear that defective administrative decisions will be sheltered from judicial oversight by virtue of Quebec’s unique administrative appeals structure.

[1] Paul Daly, “Les appels administratifs au Canada” (2015) 93 Can Bar Rev 71.

[2] See Yee v. Chartered Professional Accountants of Alberta, 2020 ABCA 98, at para. 32; Szawlowski v Edmonton (Police Service), 2020 ABLERB 6, at para. 12.

[3] Larochelle c Comité de déontologie policière, 2015 QCCA 2105; Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Yee v. Chartered Professional Accountants of Alberta, 2020 ABCA 98.

[4] Ottawa Police Services v Diafwila, 2016 ONCA 627, at para. 59.

[5] City Centre Equities Inc. v Regina (City), 2018 SKCA 43, at paras. 98-101.

[6] See e.g. Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, at para. 70.

[7] Paul Daly, “Is Deference Constitutional in Canada?” Administrative Law Matters, 12 October 2017; “Les appels administratifs au Canada” (2015) 93 Can Bar Rev 71, at Part III-C; “Section 96: Striking a Balance between Legal Centralism and Legal Pluralism” in Richard Albert, Paul Daly and Vanessa MacDonnell eds., The Canadian Constitution in Transition (University of Toronto Press, Toronto, 2019), p. 84, at pp. 99-100 (discussing reconsideration but the same principles apply).

[8] Vavilov, at para. 103.

[9] Vavilov, at para. 126.

Second, the scope of an internal “appeal” is unique to each administrative appellate regime. In each case, it is important to interpret the particular statutory provisions at issue to identify the role of the appellate tribunal.[3] There are three general types of statutory appeal: an appeal de novo, an appeal from one specialist tribunal to another specialist tribunal and an appeal from a specialist tribunal to a generalist tribunal. Of course there are particularities in any internal appellate regime – which makes for their uniqueness – but they will invariably revolve around these types. In all events, the nature of an internal appeal “is to be determined from the language of the enabling legislation”.[4]

Third, deference on questions of fact or mixed questions of fact and law may be appropriate in some appellate tribunals. Typically, this will arise where the appellate tribunal is a generalist and/or simply reviews the record produced by the first-instance decision-maker. Here, a palpable and overriding error standard may be the best way to capture legislative intent as expressed in the relevant statutory provisions.[5]  Alternatively, in situations where both the first-instance administrative decision-maker and the appellate tribunal are similarly specialist, some conclusions of fact, such as those based on credibility, may be owed deference on the basis that the first-instance administrative decision-maker had first-hand exposure to the testimony given.[6]

This last observation should help to resolve any lingering controversy about the role of the Court of Quebec, due to be considered later this year by the Supreme Court on an appeal from a reference decision of the Quebec Court of Appeal. One of the issues raised in the reference related to the Court of Quebec’s appellate jurisdiction over a variety of administrative tribunals. Since 2008, the Court of Quebec has been performing judicial reviews of these tribunals. But the Court of Quebec’s judicial reviews are subject to judicial review in the Superior Court (or, depending on the statutory scheme, to appeal to the Court of Appeal). This was problematic.

Vavilov has, however, helped to resolve these problems. The Court of Quebec, being a court, now applies the Housen v. Nikolaisen framework in statutory appeals and its conclusions can be judicially reviewed in the Superior Court. It is true that the Superior Court’s role will be limited in situations where the Court of Quebec applies the palpable and overriding error standard. But, as per the framework I laid out above, the Court of Quebec is a generalist appellate body and, as such, should defer to expert administrative tribunals.

Does the fact that the Superior Court will review applications of the palpable and overriding error standard for reasonableness create constitutional difficulties? I am inclined to think not. The Superior Court should be capable on judicial review of correcting any misapplication of the palpable and overriding error standard. It is difficult to see how a misapplication would not contain the sorts of fundamental flaw or disregard of factual and legal constraints identified in Vavilov. For instance, a misapplication of the palpable and overriding error standard would mean “the conclusion reached cannot follow from the analysis undertaken” (Vavilov, at para. 103); and the Court of Quebec applying the palpable and overriding error standard is as likely to unreasonably misapprehend the evidence as the first-instance decision-maker (Vavilov, at para. 126). There is, therefore, little or no fear that defective administrative decisions will be sheltered from judicial oversight by virtue of Quebec’s unique administrative appeals structure.

[1] Paul Daly, “Les appels administratifs au Canada” (2015) 93 Can Bar Rev 71.

[2] See Yee v. Chartered Professional Accountants of Alberta, 2020 ABCA 98, at para. 32; Szawlowski v Edmonton (Police Service), 2020 ABLERB 6, at para. 12.

[3] Larochelle c Comité de déontologie policière, 2015 QCCA 2105; Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Yee v. Chartered Professional Accountants of Alberta, 2020 ABCA 98.

[4] Ottawa Police Services v Diafwila, 2016 ONCA 627, at para. 59.

[5] City Centre Equities Inc. v Regina (City), 2018 SKCA 43, at paras. 98-101.

[6] See e.g. Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, at para. 70.

This content has been updated on May 4, 2020 at 14:30.