Supreme Court of Canada Revisits Standard of Review Applicable to Administrative Agencies
Administrative law governs the activities and powers of administrative agencies appointed by the government. In Alberta, this includes a vast array of agencies such as the Alberta Utilities Commission, the Alberta Energy Regulator, the Labour Relations Board, the Law Enforcement Review Board, the Alberta Human Rights Commission, and the Municipal Government Board. Federally, administrative law applies to the Immigration and Refugee Board of Canada, the Canadian Radio-television and Telecommunications Commission, and the National Resources Conservation Board, among many others.
In 2008, the Supreme Court attempted to simplify the law regarding the judicial review of administrative decisions in a decision called Dunsmuir v. New Brunswick. The issue before the Court was how judges should treat the decisions of administrative agencies on appeal: should they be deferential to the decision makers (who often have no legal training) or should they hold them to the same standard expected of the courts? Should courts ensure that the decisions are correct, or merely reasonable? Unfortunately, the framework provided by the Supreme Court in Dunsmuir was inadequate. Since that time, Canadian courts have persistently struggled to apply the law in a predictable and consistent manner.
Today, the Supreme Court released two decisions – Canada (Minister of Citizenship and Immigration) v. Vavilov and Bell Canada v. Canada (Attorney General) –
which set out a revised framework for determining the appropriate standard of review to be applied by a court when reviewing the merits of an administrative decision.
Under the revised framework, the presumptive standard of review is reasonableness. That means that the reviewing court must consider only whether the administrative decision, including both the rationale for the decision and the outcome to which it led, was reasonable. If the court determines that the decision is reasonable, it will be upheld – even if the court would have decided differently on its own.
There are two exceptions to the presumptive reasonableness standard. The first is where the legislature has expressly indicated the applicable standard of review. If the empowering legislation states that a correctness standard applies, the courts must respect the legislature’s intention. Similarly, when the empowering legislation provides an express right of appeal, the courts will now apply the ordinary “appellate” standards of review to an administrative decision. These are the standards courts use to decide appeals from lower court decisions: the interpretation of statutes and other questions of law will be decided on the correctness standard, and the standard of “palpable and overriding error” will be applied to an administrative adjudicator’s findings of fact.
The second exception is when the administrative decision raises a constitutional issue, a general question of law of central importance to the legal system as a whole, or a question related to the jurisdictional boundaries between two or more administrative bodies. The Supreme Court has determined that the correctness standard must be applied by the courts to these issues in order to provide a single determinate answer.
These two Supreme Court decisions represent a profound and far-reaching change to administrative law. We anticipate that many administrative tribunals will now face much greater scrutiny from courts on appeal. Unfortunately, the Supreme Court’s revised framework will not necessarily achieve the desired goal of allowing courts to spend less time deciding how decisions should be reviewed and more time actually reviewing the decisions themselves. For example, more time may now be required to examine whether an administrative decision involves particular issues that must be decided correctly. In addition, courts hearing statutory appeals may now need to spend more time attempting to separate questions of law from questions of fact.
A link to both decisions is below. Stay tuned for further commentary from McLennan Ross LLP.