A comment on Canada v Vavilov
On December 19, the Supreme Court of Canada released its judgement in Canada (Minister of Citizenship and Immigration) v Vavilov (Vavilov), upholding a decision by the Federal Court of Appeal and confirming Toronto-born resident Alexander Vavilov’s status as a Canadian citizen.
Mr. Vavilov, 25, and brother Timothy, 29, saw their parents indicted nine years prior on charges of conspiring to act as covert Russian operatives. Both brothers were born in Canada, but the younger Vavilov’s attempt to renew his passport failed when the Registrar of Citizenship denied him under an exemption in the Citizenship Act.
According to section 3(2)(a) of the Act, the granting of citizenship by birth in Canada does not apply to those born to “diplomatic”, “consular”, or “other” employees of a foreign government. Among the issues brought before the Court was the question of whether the Registrar’s decision was unreasonable. A seven-to-two majority of the Court found that it was unreasonable, since the provision in its proper context was meant only to apply to children of diplomats with “privileges and immunities.”
The majority – led by Chief Justice Richard Wagner – also addressed the question of which standard of review courts ought to implement moving forward. As part of the debate surrounding reasonableness review, Vavilov is the latest in a development of cases which left off with 2008’s Dunsmuir v New Brunswick (Dunsmuir), a decision that left litigators confused as to which standard of review applied in which circumstances. The Court clarified its position by declaring a formal presumption of reasonableness review at law, making reasonableness – as opposed to correctness – the default standard in judicial review of administrative decisions.
In an email to Obiter, Professor Kate Glover Berger, Co-Director of the Public Law Research Group at the Western University Faculty of Law, pointed out the natural progression towards the Court’s commitment to a presumption of reasonableness:
“[Empirical] accounts show that the Court chose reasonableness as the applicable standard of review much more often than correctness in the years following Dunsmuir…[this tendency] was also seen in cases like Alberta Teachers, Saguenay, and Edmonton East, in which a majority confirmed that the [reasonableness] presumption arises whenever the issue under review required the administrative decision-maker to interpret home statutes [closely] related to its function.”
Reception to the decision among the bar was positive, with some practitioners praising the new reasonableness presumption and its resulting implications for lower courts. Margaret Robins, associate at Lenczner Slaght Royce Smith Griffin LLP, described Vavilov to Canadian Lawyer magazine as “providing us with a new framework” that will hopefully “give litigants more opportunity to focus on the merits of these appeals” rather than debating the appropriate standard.
However, the decision was met with apprehension by a minority comprised of Justices Rosalie Abella and Andromache Karakatsanis. The concurring opinion expressed fears of overreach by courts in future appeals. While reasonableness review was declared the default standard, the presumption could be rebutted and a correctness standard applied, according to the majority, where the legislature clearly indicated that a different standard should apply by explicitly “[providing] a statutory appeal mechanism.”
Berger agreed that this could theoretically broaden applications of correctness review beyond the scope that the majority intended: “[At]least when it comes to administrative decisions on questions of law…[the] approach will apply to existing administrative regimes that include a statutory appeal mechanism, altering the degree of deference shown to many decisions made by a fairly expansive set of [administrators].”
Justices Abella and Karakatsanis also expressed concern that the majority had written out a meaningful role for administrators’ own expertise, opining that “rather than ushering in a simplified next act, [the majority rewrote] the whole script” and ignored the specialized knowledge that administrators have of their home statutes.
According to the majority, however, administrative expertise is still afforded a role in the analysis, since an administrator may adduce evidence to defend a given decision by bringing “institutional expertise and experience to bear,” and in the process a seemingly problematic decision may be found to be consistent with its mandate.
The impact of Vavilov on a larger scale, according to Berger, will be unclear until legislatures have had a chance to internalize the decision and lower courts have had a chance to apply it. For scholars, however, one major question that remains is the underlying principle that motivated the majority’s commitment to a new framework.
An explicit vision of “the place of the administrative state in the broader constitutional order [is not] articulated in the majority’s reasons,” wrote Berger. “[N]or is there meaningful discussion of principle or architecture beyond gestures to institutional design, legislative intent, and the rule of law….[without which] it is hard to assess the full extent of Vavilov’s impact in administrative law jurisprudence going forward.”