Author: Robert Hamilton Page 2 of 3

By: Howard Kislowicz and Robert Hamilton

 PDF Version: The Standard of Review and the Duty to Consult and Accommodate Indigenous Peoples: What is the Impact of Vavilov? Part 2

Case Commented On: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII)

In our last post, we laid out some background on how the standard of review applies in cases involving the Crown’s constitutional duty to consult and accommodate (DTCA) Indigenous peoples. We argued that the changes brought by Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII) with respect to statutory appeals – where a statute provides that a government decision may be appealed to a court – might allow legislatures to insulate the decisions of the executive by subjecting them to a “palpable and overriding error” standard of review rather than a reasonableness standard. In this post, we look at the other, more common kind of case that arises in administrative law: judicial scrutiny of government decisions through an application for judicial review. Here, the standard of review analysis differs.

In applications for judicial review, Vavilov establishes a general presumption that the standard of review for an administrative decision will be reasonableness (at paras 23–32). However, it also carves out some exceptions to this presumption, in which the standard of review will be correctness. The relevant exception for this post is for questions regarding “the scope of Aboriginal and treaty rights under s. 35 of the Constitution Act, 1982” (at para 55). Important ambiguities persist about what this means for the DTCA. On one hand, DTCA litigation does not determine Aboriginal rights. The DTCA was designed to apply where the Crown considered an action that could impact an Aboriginal right that had not yet been adjudicated. Though it was later extended to established rights, it remains a procedural duty on the Crown rather than an Aboriginal right per se). If this is the case, this would suggest that the correctness exception does not include DTCA issues. On the other hand, the DTCA is a constitutional obligation understood as a limit on the exercise of sovereignty; it shares much in common with the other issues to which Vavilov applies the correctness standard. We argue that the logic supporting the existence of the constitutional exception in Vavilov also supports the application of the correctness standard to a broader range of DTCA issues than is currently the practice. This post considers how Vavilov may have changed considerations of judicial reviews arising in DTCA contexts.

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By: Howard Kislowicz and Robert Hamilton

PDF Version:  The Standard of Review and the Duty to Consult and Accommodate Indigenous Peoples: What is the Impact of Vavilov? Part 1

Case Commented On: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII)

This is a two-part post that examines the potential impact of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII) on the Crown’s duty to consult and accommodate (DTCA) Indigenous peoples. Part 1 deals with statutory rights of appeal. Part 2 deals with applications for judicial review. Other ABlawg contributors have touched on related questions; Nigel Bankes’ “Statutory Appeal Rights in Relation to Administrative Decision-Maker Now Attract an Appellate Standard of Review: A Possible Legislative Response” is particularly relevant, as is Shaun Fluker’s post “Vavilov on Standard of Review in Canadian Administrative Law.”

The Supreme Court’s decision in Vavilov (and the Vavilov-trilogy as a whole) was intended by the Court to provide much needed clarity to Canadian administrative law. The impact of the decision is clear: it has been cited by no fewer than 1500 lower court decisions in less than a year. Despite the Court’s attempt at comprehensive refinement of the doctrine, however, Vavilov left considerable uncertainty concerning the applicability of the new rules in the context of the Crown’s DTCA Indigenous peoples. Two things lead to this uncertainty. Vavilov changes the standard of review analysis in two kinds of cases: (1) where a court reviews an administrative decision under a statutory appeal mechanism, and (2) where a court reviews an administrative decision through an application for judicial review. The first uncertainty arises in relation to statutory appeals. Under Vavilov, the standard of review on statutory appeals follows the case law on appeals: questions of law will generally be reviewed on a correctness standard and questions of fact or mixed fact and law will be reviewed on the palpable and overriding error standard (Vavilov at para 37; Housen v Nikolaisen, 2002 SCC 33 (CanLII)). In the context of the DTCA, uncertainty attends the application of this framework, as it appears to secure greater judicial deference to decision-makers on issues of fact and mixed fact and law. Because of this, it appears to be possible for a legislature to ensure greater judicial deference for executive action (such as ministerial decisions) where it anticipates issues with the DTCA through the inclusion of a statutory right of review. This seems contrary to Vavilov’s reasoning that statutory appeals are indications that the legislature prefers less, rather than more, deference. It is not clear that the court contemplated this possibility and, if so, whether it considered it an acceptable consequence of the doctrinal refinement.

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