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JUDICIAL REVIEW AND STATUTORY APPEAL - Standard of review - Reasonableness

Thursday, December 19, 2019 @ 1:23 PM  


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Appeal from a judgment of the Federal Court of Appeal setting aside a decision of the Canadian Registrar of Citizenship (Registrar) cancelling Vavilov’s certificate of citizenship. Vavilov was born in Canada and his parents were later revealed to be Russian spies. The Registrar found, on the basis of an interpretation of s. 3(2)(a) of the Citizenship Act, that Vavilov was not a Canadian citizen and cancelled his certificate of citizenship under s. 26(3) of the Citizenship Regulations. The Court viewed the appeal as an opportunity to consider the law applicable to the judicial review of administrative decisions as addressed in Dunsmuir and subsequent cases.

HELD: Appeal dismissed. Reasonableness review was an approach meant to ensure that courts intervene in administrative matters only where it was truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. Its starting point was the principle of judicial restraint and respect for the distinct role of administrative decision makers. However, it was not a “rubber-stamping” process or a means of sheltering administrative decision makers from accountability. It remained a robust form of review. In conducting a reasonableness review, a court had to consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole was transparent, intelligible and justified. The Court should focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place. The standard of review analysis required courts to give effect to the legislature’s institutional design choices to delegate authority through statute. There was no convincing reason to presume that legislatures meant something different when they used the word “appeal” in an administrative law statute than they did in a criminal or commercial law context. Respect for the rule of law required courts to apply the standard of correctness for certain types of legal questions: constitutional questions, general questions of law of central importance to the legal system as a whole and questions regarding the jurisdictional boundaries between two or more administrative bodies. Written reasons were the means by which the decision maker communicated the rationale for its decision. A principled approach to reasonableness review was one which put those reasons first. To be reasonable, a decision had to be based on reasoning that was both rational and logical. A failure in this respect could lead a reviewing court to conclude that a decision must be set aside. The decision also had to be justified in relation to the relevant constellation of law and facts. Whether an interpretation was justified will depend on the context, including the language chosen by the legislature in describing the limits and contours of the decision maker’s authority. Where the reasonableness standard was applied in conducting a judicial review, the choice of remedy had to be guided by the rationale for applying that standard to begin with, including the recognition by the reviewing court that the legislature had entrusted the matter to the administrative decision maker, and not to the court, to decide. Applying this analysis, the standard to be applied in reviewing the merits of the Registrar’s decision in this case was reasonableness. The Registrar failed to justify her interpretation of s. 3(2)(a) of the Citizenship Act in light of the constraints imposed by the text of s. 3 as a whole, by other legislation and international treaties that informed the purpose of s. 3, by the jurisprudence on the interpretation of s. 3(2)(a), and by the potential consequences of her interpretation. It was unreasonable for the Registrar to find that the phrase “diplomatic or consular officer or other representative or employee in Canada of a foreign government” applied to individuals who had not been granted diplomatic privileges and immunities in Canada. Vavilov’s parents had not been granted such privileges and immunities. Rules concerning citizenship required a high degree of interpretive consistency in order to shield against a perception of arbitrariness and to ensure conformity with Canada’s international obligations. Since Vavilov’s parents, as undercover spies, were granted no such privileges, it would serve no purpose to remit the matter in this case to the Registrar. As a person who was born in Canada after February 14, 1977, Vavilov’s status was governed only by the general rule set out in s. 3(1)(a) of the Citizenship Act. He was a Canadian citizen.

Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] S.C.J. No. 65, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, C. Gascon, S. Côté, R. Brown, M. Rowe and S.L. Martin JJ., December 19, 2019. Digest No. TLD-December162019011-SCC