Supreme Court of Canada reshapes standards of review for administrative appeals
In Canada (Minister of Citizenship and Immigration) v. Vavilov [PDF], the Supreme Court of Canada recently determined that the appellate standards of review (correctness and palpable and overriding error) now apply to statutory appeals from administrative decision-makers. This was a significant departure from past jurisprudence. As discussed in Sopinka & Gelowitz on the Conduct of an Appeal, Fourth Edition, the standard of review for appeals from administrative decision-makers had previously been based on the same administrative law principles that applied to judicial review. As a result, even pure legal questions could be reviewed on the deferential “reasonableness” standard, under which the decision-maker might have the “right to be wrong”. Following Vavilov, this is no longer. Legal questions on statutory appeal will now be reviewed for correctness, and appellate courts will no longer defer to decisions that they consider to be incorrect.
Background
Vavilov involved an application for judicial review (not a statutory appeal) from a decision of the Canadian Registrar of Citizenship to cancel an individual’s certificate of citizenship. The facts of the case, although remarkable and related to charges of espionage against the individual’s parents, are unnecessary for this post.
Vavilov is significant because the Court took the opportunity to reshape the framework for determining (and applying) the standard of review in applications for judicial review and statutory appeals from administrative decision-makers. In an exceptional move, the Court stated in its judgments granting leave to appeal in Vavilov and the two other cases heard together (collectively, the Administrative Law Trilogy) that the Court intended to consider—i.e. clarify—this area of law.
The two other cases in the Administrative Law Trilogy involved statutory appeals from a decision of the CRTC (a statutory tribunal). Vavilov contained the Court’s discussion of the legal framework generally, and the Court then applied that law to the rest of the Trilogy. For more regarding the administrative law implications of the Administrative Law Trilogy, see our previous Osler Update.
Reversing the “right to be wrong”
Prior to Vavilov, the Court would have applied the principles of judicial review to determine the standard of review for statutory appeals from administrative decision-makers. As discussed in Conduct of an Appeal at §2.52, this meant that appellate courts might owe deference to the legal conclusions of statutory tribunals that would not be owed on appeal from a lower court. In a case involving an appeal from the Ontario Securities Commission, for example, the Divisional Court held that the administrative law standard of review gave the Commission the “right to be wrong” (Sears Holdings Corp. v. Ontario Securities Commission). As remarkable as that may be, it meant that an appellate court could uphold a decision as “reasonable” even if it were “incorrect”.
We argued in Conduct of an Appeal that applying the administrative law standards of review to administrative appeals attenuated these statutorily-guaranteed rights of appeal. With the majority’s decision in Vavilov, that law (and the corollary “right to be wrong”) is now overtaken and replaced with a rule that the standards of review from Housen v. Nikolaisen (the standards of review for appeals from judges) also apply to statutory appeals from administrative decision-makers. As a result, legal questions on appeal will be reviewed for correctness without the appellate court showing any deference to the administrative decision-maker. If the appellate court determines that the decision-maker was incorrect, there is no “right to be wrong”. As with appeals from judges, deference in the form of the “palpable and overriding error” standard only applies to questions of fact and mixed fact and law where a legal principle is not readily extricable for correctness review.
The appellate standards of review will apply on a categorical basis regardless of whether the statute grants a right of appeal, or whether the appellant must first seek leave to appeal. In both cases, the majority held that the legislature that created the appeal mechanism intended for the Housen standards to apply as opposed to the standards of review applicable to judicial review. Naturally, this presumed legislative intent is overridden if the legislature prescribes a different rule to apply.
Moving forward
By importing the Housen standards into the context of statutory appeals from administrative decision-makers, appeals formerly governed by the principles of administrative law will now be subject to an entirely different body of jurisprudence. Unlike the administrative law standards of review, the Housen standards have been relatively stable for nearly two decades. However, Housen does not stand alone and has built up its own jurisprudence dealing with a variety of subsidiary issues, such as extricating legal issues from mixed questions, the treatment of legislative and social facts, the standard of review from discretionary orders, and the review of contractual interpretation. See the extensive discussion in Conduct of an Appeal, Chapter 2, Part B. This resource may prove useful to practitioners of appeals that were formally governed by the administrative law principles.