Unresolved Issues after Vavilov IV: The Constitutional Foundations of Judicial Review

This week, I am giving the Hugh Ketcheson Memorial Lecture in Saskatchewan (remotely) on the topic of “Unresolved Issues After Vavilov” (see my earlier collection of posts). The last part is on the constitutional foundations of Vavilov. Here is a draft:

In Dunsmuir v New Brunswick, Bastarache and LeBel JJ framed their rearticulation of the standard of review analysis by reference to the constitutional foundations of judicial review. In their view, the law of judicial review seeks “to address an underlying tension between the rule of law and the foundational democratic principle.”[1] On the one hand, the rule of law imposes on courts a “constitutional duty to ensure that public authorities do not overreach their lawful powers.”[2] On the other hand, judicial review has “an important constitutional function in maintaining legislative supremacy”[3] and in fashioning the law of judicial review the courts must avoid “undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures.”[4] But undue interference could never mean abstinence, as “judicial review is constitutionally guaranteed in Canada, particularly with regard to the definition and enforcement of jurisdictional limits.”[5]

By contrast, Vavilov is pitched at the level of practice, not constitutional theory. The Supreme Court was most concerned by criticism from the judiciary, the academy, litigants and civil society organizations, critiques going “to the core of the coherence of our administrative law jurisprudence and to the practical implications of this lack of coherence.”[6] The majority’s efforts were designed to respond to these critiques, providing clarity to the selection of the standard of review and detailed guidance on the application of the reasonableness standard. The constitutional foundations of judicial review did not warrant a mention; the Constitution barely figured. The constitutional basis of Vavilov is obscure.

This opacity is problematic. At least since Crevier v Attorney General of Quebec,[7] the constitutional basis of judicial review in Canadian administrative law has been taken to be the judicature provisions of the Constitution Act, 1867, in particular s. 96. A great oak has sprouted from this acorn: s. 96 simply provides that the federal government shall appoint superior court judges but judicial exegesis, first by the Privy Council and subsequently by the Supreme Court, means its branches cast an imposing shade over encroachments on the supervisory powers of the superior courts. Most importantly, as Laskin CJ explained in Crevier, “[i]t cannot be left to a provincial statutory tribunal, in the face of s. 96, to determine the limits of its own jurisdiction without appeal or review.”[8] Ensuring that administrative decision-makers stay within their jurisdiction is, then, a core task of the superior courts; judicial review is how they discharge that task. As Cromwell J observed in his dissenting reasons in Alberta Teachers, “this constitutional guarantee does not merely assure judicial review for reasonableness; it guarantees jurisdictional review on the correctness standard.”[9]

The difficulty presented by Vavilov is that in the course of the majority’s simplification exercise, it whittled the remaining correctness categories down to almost nothing and eliminated jurisdictional error as a distinct correctness category altogether. The narrow rule-of-law basis for correctness review means that the starting point of reasonableness review will typically also be the end point as far as selecting the standard of review is concerned. There is no category of “jurisdictional” error which allows a reviewing court to police, on a correctness basis, what Laskin CJ described as the “limits” of an administrative decision-maker’s jurisdiction.[10]

The difficulty thereby presented can be appreciated by reference to Gleason JA’s analysis in Canada (Attorney General) v Public Service Alliance of Canada.[11] At issue here was s. 34(1) of the Federal Public Sector Labour Relations and Employment Board Act.[12] Pursuant to this provision, the grounds of review of the Board are limited to jurisdictional error, breach of natural justice and bad faith. The legislation specifically excludes the grounds of review of legal error, factual error or acting contrary to law. Gleason JA refused to accept that the exclusion was effective. Giving effect to the exclusion “runs afoul of the rule of law concerns that provide the constitutional underpinning for judicial review of administrative action by the independent judicial branch”,[13] because “the scope of jurisdictional issues that arise in administrative law cases is exceedingly limited, if such issues may still even be said to exist at all”.[14] Post Vavilov, jurisdictional issues indeed no longer “exist at all”. As Gleason JA explained, the result would be that decisions of the Board would be “largely unreviewable”, but given the constitutional basis of judicial review in Canadian law: “This cannot be”.[15] Rather, the exclusion of several grounds of review indicated that decisions of the Board should be reviewed deferentially.[16]

Let me put the difficulty in stark terms. There is nothing, on the face of Vavilov, to prevent a legislature from eliminating reasonableness review. As the majority puts it, “where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law.”[17] But the “rule of law” here means only that limited class of cases in which correctness review applies to allow the courts to furnish a final, definitive answer to a question in the interests of uniformity. As long as the courts are able to review constitutional questions, questions of central importance to the legal system or questions of overlapping jurisdiction for correctness, nothing seems to stand in the way of legislation to eliminate reasonableness review.

This is not merely a theoretical difficulty. There are a couple of ways in which reasonableness review could be eliminated, directly or indirectly. In Alberta, s. 539 of the Municipal Government Act[18] provides: “No bylaw or resolution may be challenged on the ground that it is unreasonable”. Meanwhile, in various provincial statutes[19] and, most famously, British Columbia, patent unreasonableness has been prescribed as the standard of review of some types of administrative action.[20] Indirectly, reasonableness review could be ousted by providing for a limited right of appeal. For example, the Federal Court of Appeal has interpreted various provisions relating to statutory appeals on issues of “law or jurisdiction” as excluding the consideration of factual matters.[21] Where an appellate court whose jurisdiction is circumscribed in this way refuses to grant leave or finds that a matter raised by a party is outside the scope of the appeal clause, reasonableness review is unavailable. This would be a simple solution and would provide significant clarity. Here, however, I would invoke Einstein: everything should be made as simple as possible, but no simpler.

Appearances, moreover, may be deceptive. On the face of it, Vavilov would permit legislative ouster of reasonableness review. But only on the face of it. Indeed, Hamlet springs to mind: “God hath given you one face, and you make yourself another.”[22]

First, in the same paragraph that eliminated jurisdictional error as a category of correctness review one finds the following assertion: “A proper application of the reasonableness standard will enable courts to fulfill their constitutional duty to ensure that administrative bodies have acted within the scope of their lawful authority.”[23] The language of constitutional duty is the language of Crevier and Dunsmuir. It suggests that reasonableness review cannot, in fact, be ousted, for its elimination may prevent courts from doing their constitutional duty.

Second, although the point is not expressed in constitutional terms, the majority was very clear that it was directing administrative decision-makers to henceforth “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.’”[24] If reasonableness review has been eliminated, administrative decision-makers need never demonstrate that their exercise of public power can be justified in terms of rationality and fairness. This would knock the legs from under a central pillar of the architecture of Vavilov.

The result, I submit, is that Vavilov establishes a core constitutional minimum of reasonableness review. With respect, the insistence that correctness review – and only correctness review – must be constitutionally entrenched is, and has been, misplaced. Julius Grey put the point with admirable clarity in the mid-1980s:

What Crevier does entrench is some degree of review. The courts will not interfere at the same moment on all issues or against all tribunals. However, they now clearly possess a constitutional right to step in when the bounds of tolerance are exceeded by any decision-maker. Clearly, the precise location of the bounds of tolerance is left to the court and that is quite consistent with the general trends in modern administrative law.^[25]

In short, the “bounds of tolerance” are supplied in Vavilov by reasonableness review. Inasmuch as constitutional questions, questions of central importance to the legal system and questions of overlapping jurisdiction have a “constitutional dimension,”[26] correctness review is also constitutionally entrenched.

Indeed, this description of the constitutional foundations of Vavilov provides an explanation for an otherwise mysterious passage in the majority reasons. Having established institutional design as a key, grounding concept in the selection of the standard of review, the majority considered limited rights of appeal – such as those restricted to questions of law or jurisdiction – and observed: “the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal.”[27] If respect for institutional design choices is so important, why can unappealable aspects of decisions nonetheless be judicially reviewed? The answer is that reasonableness review is constitutionally entrenched. A limitation of a right of appeal cannot, constitutionally, effect the elimination of reasonableness review of aspects of a decision.

How, then, should courts address direct and indirect limitations on reasonableness review post Vavilov? Consider first direct limitations, that is those imposed by eliminating grounds of review or specifying a deferential ground of review. Here, the legislative language can be taken as an indication that the decision-maker should benefit from a wider margin of appreciation. As was the case with privative clauses prior to Vavilov, they would not be enforced to the letter, but their spirit would be respected. Vavilovian reasonableness review is capacious enough to accommodate this solution. In Vavilov, the majority recognized that “the language chosen by the legislature in describing the limits and contours of the decision maker’s authority” may differ from case to case, sometimes allowing “greater flexibility”, sometimes “tightly constraining the decision maker”.[28] Where a ground of review has been eliminated, or patent unreasonableness specified as the standard of review, these statutory provisions can be taken as “language chosen by the legislature” to give “greater flexibility” to the decision-maker. In this way, reasonableness review is preserved and the constitutionally entrenched core minimum of judicial review safeguarded.[29] This is a fairly simple solution, which takes advantage of the thick conception of reasonableness review set out in Vavilov, and provides crystalline clarity about the scope of judicial review.

The second question, of indirect limitations, is slightly more complex. Where an appeal is limited to questions of law or jurisdiction, it is arguable that any issue relating to the “constitutional duty” to ensure that administrative decision-makers remain within the boundaries of their authority will fall within the appeal clause. Historically, this was certainly the case, as such clauses respected the constitutional boundaries set out in Crevier. However, the core constitutional minimum I have ascribed to reasonableness review includes matters which go beyond questions of law or jurisdiction. For example, the harsh consequences a decision visits upon an individual as a matter of fact – perhaps leaving them homeless[30] – would probably not fall within a limited appeal clause; this would be problematic, as it would limit the courts’ ability to police the boundaries of administrative decision-makers’ authority and ensure that exercises of state power are publicly justified, to exclude any such issues. Similarly, the responsiveness of a decision to the arguments of the parties and evidence presented is a key feature of Vavilovian reasonableness review but again would not necessarily come within the scope of a limited appeal clause. The contemporaneity requirement might also be in play in some cases, as on appeal a decision-maker may seek to defend its position by relying on documents and other material not referenced in its decision; on a statutory appeal, the court’s analysis will be on the correctness of the outcome, whereas on reasonableness review, the question for the court will be whether the reasons adequately justify the outcome.[31]

These considerations help to explain why the majority in Vavilov refused to accept that a limited appeal clause could oust judicial review of matters not falling within the clause. Doing so would be unconstitutional.

This has significant practical consequences, but the resulting inconveniences can be addressed relatively straightforwardly. Where a question of law or jurisdiction is appealable only with leave of the appellate court and leave is refused, the appellant should be able to make an application for judicial review; and where an appeal is provided for on a question of law or a question of law or jurisdiction, an appellant should also be able to make an application for judicial review of matters falling outside of the appeal clause. Indeed, it might be wise to make the application for judicial review and an appeal (or application for leave to appeal) simultaneously, with the judicial review stayed pending the disposition of the appeal (if leave is granted). Where the appeal and judicial review can be made to the same court, the files can be consolidated pursuant to the relevant procedural rules. Where the appeal is to a court of appeal but judicial review jurisdiction resides in a superior court, consolidation is obviously not an option. Instead, consistent with the principle that an applicant for judicial review should exhaust alternative remedies (most obviously, a right of appeal),[32] the appeal should be considered first of all, with the judicial review application stayed in the interim. Inasmuch as stays lie in the discretion of the judge seized of the matter, the discretion should be exercised largely and liberally: as long as the applicant has made an application for judicial review in a timely manner, stays pending the disposition of the parallel appeal should be readily granted.

This, I think, is the simplest possible set of solutions, perhaps not the one which I or anyone else would have woven from whole cloth but the best available design from the fabric provided by Vavilov. It will require some compromises, perhaps, but Vavilov was all about compromise.

[1] Dunsmuir, supra note 4 at para 27.

[2] Ibid at para 29.

[3] Ibid at para 30.

[4] Ibid at para 27.

[5] Ibid at para 31.

[6] Vavilov, supra note 1 at para 9.

[7] [1981] 2 SCR 220.

[8] Ibid at 238.

[9] Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 SCR 654 at para 103.

[10] Vavilov, supra note 1 at paras 65-67.

[11] 2019 FCA 41 [Public Service Alliance].

[12] SC 2013, c 40, s 365.

[13] Public Service Alliance, supra note 63 at para 30.

[14] Ibid at para 30.

[15] Ibid at para 31.

[16] Ibid at para 34.

[17] Vavilov, supra note 1 at para 35.

[18] RSA 2000, c M-26.

[19] Traffic Safety Act, RSA 2000, c T-6, s 47.1(3); Environmental Assessment Act, RSO 1990, c E-18, s 23.1; Labour Relations Act, 1995, SO 1995, c 1, Sch A, s 163.3(39); Health Professions Act, SY 2003, c 24, s 29.

[20] Administrative Tribunals Act,SBC 2004, c 45, ss 58-59.

[21] See e.g. Bell Canada v British Columbia Broadband Association, 2020 FCA 140.

[22] William Shakespeare, Hamlet, Act 3 Scene 1 Line 155.

[23] Vavilov, supra note 1 at para 67 [emphasis added].

[24] Ibid at para 14, citing the Rt. Hon. B. McLachlin, “The Roles of Administrative Tribunals and Courts in Maintaining the Rule of Law” (1998) 12 CJALP171 at 174 [emphasis deleted].

[25] Julius Grey, “Sections 96-100: A Defense” (1985) 1 Admin LJ 3 at 11.

[26] Bank of Montreal v Li, 2020 FCA 22 at para 28.

[27] Vavilov, supra note 1 at para 52.

[28] Vavilov, supra note 1 at para 110.

[29] Equally, one could do as the Ontario courts have (so far) done and simply assimilate patent unreasonableness to reasonableness: Intercounty Tennis Association v Human Rights Tribunal of Ontario, 2020 ONSC 1632 at para 30-38; Ontario v Association of Ontario Midwives, 2020 ONSC 2839 at para 88. I do not think this is a viable strategy in British Columbia, however, where patent unreasonableness has long been considered to have content which is distinct from the Supreme Court’s reasonableness standard. See e.g. Speckling v British Columbia (Workers’ Compensation Board), 2005 BCCA 80 at para 33; West Fraser Mills Ltd. v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22 at para 28. See further “One Year of Vavilov”, supra note 11 at pp 30-33.

[30] See e.g. Residential Tenancies Act, 2006, SO 2006, c 17, ss 30(1) and 32.

[31] Ortiz v Canada (Citizenship and Immigration), 2020 FC 188 at para 22.

[32] See generally Milner Power Inc. v. Alberta (Energy and Utilities Board), 2007 ABCA 265.

This content has been updated on November 17, 2020 at 19:02.