DEFAULT DEFERENCE TO ADMINISTRATIVE TRIBUNALS – THE NEW ERA OF REVIEW STANDARDS

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DEFAULT DEFERENCE TO ADMINISTRATIVE TRIBUNALS – THE NEW ERA OF REVIEW STANDARDS

By: Sam Khajeei & Kenny Okunola | January 7, 2020

Background

Judicial review involves a process by which a court is asked to review a ruling made by an administrative tribunal in Canada (a Tribunal). Tribunals include the Investment Industry Regulatory Organization of Canada (IIROC), the Privacy Commissioner of Canada, the Trademarks Opposition Board and the Occupational Health and Safety Tribunal Canada.

Clients may, from time to time, be subject to rulings of a Tribunal and may therefore seek to weigh the advantages and disadvantages of having a court re-consider the process employed by such Tribunal in reaching such decision and/or the substance of the decision itself.

Although such Tribunals are established by legislation to provide regulatory and adjudicative oversight to specific industries and may, as a result, have acquired significant expertise in doing so, courts remain vested with the obligation to ensure that Tribunals uphold the rule of law in performing such oversight functions and otherwise do not exceed their mandates. When faced with a judicial review query, courts first look to determine the degree to which the decision of a Tribunal should be awarded deference, in other words, the standard of review that should apply.

Prior to the decision of the Supreme Court of Canada (the SCC) in Bell Canada v. Canada (Attorney General); National Football League v. Canada (Attorney General), 2019 SCC 66 (Bell) and Canada (Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (Vavilov), there were two distinct standards of review: (i) correctness; and (ii) reasonableness.

The correctness standard of review requires a court to undertake its own analysis of the question at hand. There is little to no deference given to the Tribunal and the judge may come to a completely different ruling.  On the other hand, the reasonableness standard of review requires that a court give deference to the decision made by the Tribunal and only interfere in limited circumstances. The reasonableness standard of review is concerned with the existence of justification, transparency and intelligibility within the decision-making process and whether the decision falls within a range of possible, acceptable outcomes which are defensible based on the facts and law. 

Unfortunately, the jurisprudence prior to Bell and Vavilov gave rise to significant frustration and litigation for parties in determining the appropriate standard of review that should apply in each case.  The decision of the SCC in Bell and Vavilov looks to mitigate some of this.

The Current Position

On December 19, 2019, the SCC released its much-anticipated decision in the Bell and Vavilov trilogy of administrative law cases. As a result, we anticipate that courts will begin to afford more deference to the decisions of Tribunals and will generally be more reluctant to interfere in the administrative decision-making process.

Through the Bell and Vavilov cases, the SCC simplified the standard of review approach as follows:

1. All Tribunal decisions should presumptively be given a reasonableness standard of review by default. This reasonableness standard of review requires that a court review both the ruling itself and the underlying rationale to determine whether it is justifiable by intelligible and rational reasoning. A decision may be rendered unreasonable if:

  • a Tribunal’s decision is not based on internally coherent reasoning that is both rational and logical or the rationale exhibits clear logical fallacies; or
  • where the conclusion reached cannot follow from the analysis undertaken or if the reasons read in conjunction with the record do not make it possible to understand the decision maker’s reasoning on a critical point.

2. The default position in section (1) above does not apply if:

  • the legislation establishing such Tribunal indicates that a different standard of review should apply; or
  • the rule of law requires that the correctness standard be applied, as is the case in constitutional questions, general questions of law of central importance to the legal system as a whole and/or questions related to the jurisdictional boundaries between two or more administrative bodies.

Under the legislative intent category, the statute may provide expressly for the applicable standard or provide for a statutory appeal mechanism to the courts thereby indicating the application of appellate standards. In this instance, the applicable standard will be determined based on the nature of the question and the court’s jurisprudence on appellate standards of review. Generally on appellate review, questions of law will be determined on a correctness standard and questions of facts will require a standard of palpable and overriding error.

3. If the presumption set forth in section (1) above is rebutted, then the correctness standard of review will apply absent any contrary legislative intention as discussed above.

Disclaimer:

Note that the foregoing is for general discussion purposes only and should not be construed as legal advice to any one person or company. If the issues discussed herein affect you or your company, you are encouraged to seek proper legal advice.

About the Authors

Sam Khajeei is a lawyer at Nerland Lindsey LLP, he has a mixed corporate practice with a focus on public and private transactions, franchising and commercial contracts. He works with a variety of clients, including companies involved in oil and gas exploration, franchise and retail and mining and technology.

Kenny Okunola is an internationally trained lawyer currently undergoing the licensing process in Canada.

This article was originally featured on https://nerlandlindsey.com/insights/default-deference-to-administrative-tribunals/

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