Judicial Review in Canada: Where are We Now?

I have been working on a ‘year in review’ publication for the Energy Regulation Quarterly, which should be published open-access in English and French in the not-too-distant future. To whet your collective appetite, here are some opening thoughts…

Canadian administrative law is, at present, in a relatively settled state. The years since the seminal Supreme Court of Canada decisions of the late 1970s – Nicholson[1] and New Brunswick Liquor[2] – have been marked by constant, sometimes avulsive, change. With the decision in Vavilov in 2019 the Court sought to place the law of judicial review of administrative action on solid ground.[3] This endeavour has been a success: stability has replaced uncertainty; the transparent framework developed in Vavilov has allowed courts and counsel to get more quickly to the merits of disputes and make clear arguments.

Since Vavilov, the Court’s own interventions in administrative law have been sporadic. Pure administrative law appeals have been thin on the ground and most of the Court’s administrative law cases in the post-Vavilov era have had an extra dimension that needed clarification. Bell Canada[4] and Canada Post[5] accompanied Vavilov in 2019, there were no administrative law decisions of note in 2020 and just one in 2021 (where the Court was also asked to clear up a question about the role of appellate courts in judicial review cases[6]). Late that year, I remarked that the Court had been “virtually silent” on standard of review since Vavilov.[7] 2022 featured two decisions: Abrametz[8] was mostly a case about unreasonable delay in administrative proceedings and standard of review was mentioned only briefly; and Entertainment Software Association[9] was an interesting case which dealt with an issue left undecided in Vavilov and, though the analysis departed in some ways from the spirit of Vavilov, it was subtle enough that the ramifications are likely to be limited. Last year, there was another esoteric case dealing with language rights and Charter values (CSFTNO)[10] with a single pure administrative law decision in Mason[11] (though for the most part its significance lies in reaffirming the core principles of Vavilovian reasonableness review).

It seems clear that the Vavilov simplification exercise has reduced the number of live issues on which appellate courts part company and where the Court’s involvement is therefore required. The trend of the Court only hearing cases which have an extra dimension is likely to continue, with pure administrative law cases probably thin on the ground. Sure enough, three of the four administrative law cases currently on reserve undoubtedly have an extra dimension: Yatar deals with limited appeal rights and judicial discretion; York Teachers addresses the inter-relationship between judicial review and the Charter; and Société des casinos deals with the application of freedom of association jurisprudence by an expert labour relations tribunal.[12] The last of the quartet is the Ontario Mandate Letters case, and even it touches on matters of high constitutional principle (although, in my view, it can be resolved, as it was in the courts below, on standard application of reasonableness review).[13] Stability, therefore, means fewer pure administrative law cases being decided by the Court.

Several implications follow from this relative stability.

First, and most obviously, it means appellate courts become more influential. They are certainly more influential as far as litigants are concerned, as their word is increasingly sure to be the last word. They are probably also more influential in terms of developing the law: evidently, they must work within the Vavilov framework (and so the scope for innovation is limited to that extent) but have significant latitude in working out the requirements of reasonableness review in particular domains and, where the correctness standard applies, setting the legal framework particularly in areas of economic regulation.

Second, and relatedly, caution should be exercised before drawing sweeping conclusions from Supreme Court of Canada decisions. As I observed in a 2017 article in the University of New Brunswick Law Journal, it can be difficult to distinguish the “signal” from the “noise” in administrative law. Judicial review cases invariably involve the application of general principles to specific areas of law. But a decision intended to resolve an issue in a specific area of law might have implications for the operation of the general principles.[14] This is always true of an apex court that, by definition, is dealing only with questions of national importance and it is especially true at the moment because the general principles of judicial review were settled by Vavilov. In short, it is highly unlikely that the Court when resolving an issue in a specific area intends to change the way the general principles operate. A decision by the Court might well be “noise” as far as the general principles are concerned. It is only when there is a “signal” – a clear statement in one decision or an inference from several decisions – that it can safely be said that the general principles have changed. Hence my caution last year in describing the Entertainment Software Association and Abrametz decisions, with my analysis topped and tailed by caveats about “signal” and “noise”.[15]

Third, and perhaps most happily, the range of issues to be discussed in a ‘year in review’ paper is broader. With standard of review enjoying relative stability and the Court’s move to a more ‘administrative-law adjacent’ docket as far as judicial review is concerned, long-neglected topics might rise to prominence. The last year has provided a veritable cornucopia of fascinating administrative law issues around the country, especially in appellate courts. There have been important decisions on the duty to consult,[16] the duty to keep the commencement of legislation under review,[17] administrative independence,[18] the use of artificial intelligence in public administration,[19] the principle that administrative appeal procedures can ‘cure’ procedural defects,[20] the content of the record on judicial review,[21] and exhaustion of remedies.[22]

[1] Nicholson v. Haldimand-Norfolk Regional Police Commissioners, [1979] 1 SCR 311.

[2] C.U.P.E. v. N.B. Liquor Corporation, [1979] 2 SCR 227.

[3] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653.

[4] Bell Canada v. Canada (Attorney General), 2019 SCC 66, [2019] 4 SCR 845.

[5] Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 SCR 900.

[6] Northern Regional Health Authority v. Horrocks, 2021 SCC 42.

[7] “Life After Vavilov? The Supreme Court of Canada and Administrative Law in 2021”, CLEBC Administrative Law Conference, November 2021, at p. 1.

[8] Law Society of Saskatchewan v. Abrametz, 2022 SCC 29.

[9] Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30.

[10] Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31.

[11] Mason v. Canada (Citizenship and Immigration), 2023 SCC 21.

[12] Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446, SCC File #40348; Elementary Teachers Federation of Ontario v. York Region District School Board, 2022 ONCA 476, SCC File #40360; Association des cadres de la société des casinos du Québec c. Société des casinos du Québec, 2022 QCCA 180, SCC File #40123.

[13] Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2022 ONCA 74, SCC File #40078.

[14] “The Signal and the Noise in Administrative Law” (2017) 68 University of New Brunswick Law Journal 68.

[15] “Future Directions in Standard of Review in Canadian Administrative Law: Substantive Review and Procedural Fairness” (2023) 36 Canadian Journal of Administrative Law & Practice 69.

[16] Roseau River First Nation v. Canada (Attorney General), 2023 FCA 163.

[17] Canada Christian College and School of Graduate Theological Studies v. Post-Secondary Education Quality Assessment Board, 2023 ONCA 544.

[18] McAnsh v. Ontario, 2023 ONSC 3537.

[19] Haghshenas v. Canada (Citizenship and Immigration), 2023 FC 464; Safarian v. Canada (Citizenship and Immigration), 2023 FC 775.

[20] British Columbia (Attorney General) v. 992704 Ontario Limited, 2023 BCCA 346.

[21] British Columbia (Lieutenant Governor in Council) v. Canada Mink Breeders Association, 2023 BCCA 310.

[22] Viaguard Accu-Metrics Laboratory v. Standards Council of Canada, 2023 FCA 63.

This content has been updated on January 29, 2024 at 11:49.