Big Changes in the Standard of Review

In case you were wondering how to spend the holiday season, why not curl up with a cup of hot chocolate and read the Supreme Court’s latest decisions on the standard of review?

On December 19, 2019, the Supreme Court issued its decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. You can access it here: https://scc-csc.lexum.com/scc-csc/scc-csc/en/18078/1/document.do. This decision (and others issued with it) means big changes for the way appeals will be treated in all areas of law, including municipal law.

“Standard of review” refers to the standard courts will hold tribunals to when reviewing their decisions. Simply put, how wrong does the court have to think a tribunal is before the court will intervene? There are generally two standards, reasonableness and correctness.

Correctness is pretty straightforward: if the court would have decided the case differently, it will overturn the decision. Reasonableness is a more deferential standard. A lot of litigation has happened over the question of when to apply the reasonableness or the correctness standard.

As a starting point, courts are directed to assume that they are applying the reasonableness standard. However, there are two circumstances that would suggest that the correctness standard would apply instead.

First, there is the question of legislative intent. Did the legislature prescribe a different standard of review? If not, did the legislature give a statutory right of appeal? A statutory right of appeal has now been taken to indicate that the legislature intended that the same standards of review would apply to challenges to administrative decisions as in other appeals. I would expect some debates on this point in future cases.

Second, the integrity of the legal system (the “rule of law”) might require a correctness standard in some circumstances. These would include constitutional issues, issues of central importance to the legal system, and issues about where one type of administrative tribunal’s jurisdiction ends and another one begins.

Assuming that the reasonableness standard is going to be applied, what does this look like? In general, it is a review of the decision and the process used to reach it to determine if the decision is transparent, intelligible and justified. The decision will be considered in context, looking at the submissions, arguments and legislative provisions. The decision will also be reviewed for internal coherence.

Also, administrative tribunals should keep in mind that even though they aren’t bound by their past decisions (precedent), if they are issuing inconsistent decisions this could support a finding that their decisions are unreasonable.

This is a significant case with major implications for a lot of areas of law. In the municipal context, this could impact challenges to SDABs, ARBs, and the like. Stay tuned for more commentary as we all have time to really digest this case.