Learning moments – Supreme Court of Canada decision of Canada (Minister of Citizenship and Immigration) v Vavilov 2019 SCC 65, and its effects on immigration law.

Brought to you week by week by Chantal Desloges and her fabulous team. Visit them here.

Hello fellow practitioners! This week’s question deals with the recent Supreme Court of Canada decision of Canada (Minister of Citizenship and Immigration) v Vavilov 2019 SCC 65, and its effects on immigration law.

Now that the Court has given out its decision in Canada (Minister of Citizenship and Immigration) v Vavilov 2019 SCC 65 (“Vavilov”), would you please share your takeaways from the decision? What impact will this decision have on the practice of immigration law?

Please note that this decision is still very new and the effects of the decision on administrative law and immigration law will not be felt for a while. What this article will do is break down the case and its major significant dicta for practitioners to know its relevance towards the practice of immigration law.

It is suggested that everyone read the full case which can be found here:

· Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do)

Background

Mr. Vavilov was born in Canada. His parents were foreign nationals working on an assignment for the Russian foreign intelligence service, posing as Canadians under assumed names. Vavilov was unaware of his parents’ secret until 2010, when they were arrested in the United States and charged with espionage.

Following his parents’ arrest, Vavilov attempted to renew his Canadian passport. His efforts proved unsuccessful until 2013, when he was issued a certificate of Canadian citizenship. In 2014, the Canadian Registrar of Citizenship cancelled his certificate on the basis of section 3(2)(a) of the Citizenship Act. This provision provides that children of a “diplomatic or consular officer or other representative or employee in Canada of a foreign government” are exempt from the general rule that individuals born in Canada acquire Canadian citizenship by birth. According to the Registrar’s interpretation of the Act, since Vavilov’s parents were “employees” or “representatives” of Russia at the time of his birth, he was exempt from the general rule. Therefore, the Registrar stripped him of his citizenship. Vavilov applied for judicial review of the Registrar’s decision. According to the Supreme Court of Canada, the Registrar’s interpretation of the Citizenship Act was unreasonable, the decision was quashed, and the Court pronounced that Vavilov is a Canadian citizen (Vavilov, para 194-196).

SCC Decision

The Supreme Court of Canada (“SCC”) has set down in its majority decision, clarity on the applicable standard of review to be applied in administrative decisions. The significance of the judgement lies in its reconsideration of the standard of review analysis established in Dunsmuir v New Brunswick 2008 SCC 9.

Overall, in comparison to Dunsmuir, the Vavilov framework:

1) Identifies a few new circumstances in which a reviewing Court will apply correctness review over reasonableness review;

2) Places the reasons provided by an administrative decision-maker as the crux of the reasonableness analysis, while also cautioning judges to not generate reasons of their own to justify a decision; and

3) Provides clarity about what will make a decision reasonable or unreasonable.

The starting point of the majority’s “revised framework” for determining the standard of review in reveiwing administrative decisions is a “presumption of reasonableness.” (Vavilov, para 16). This presumption of deference applies to all decisions made by administrative decision makers and is not confined to the interpretation of their home statutes (Vavilov paras. 23-32) As stated by the Court,. “In our view it is the very fact that the legislature has chosen to delegate authority which justifies a default position of reasonableness review.” (Vavilov, para. 30)

This is not much of a change from existing jurisprudence, given the entrenchment of deference in pre-Vavilov cases. However, what is new is the circumstances in which this presumption of reasonableness may be rebutted.

The presumption of reasonableness review can be rebutted (and therefore correctness review applied) in the following circumstances:

1) Statutory Appeals – Where the legislature has provided a statutory appeal mechanism from an administrative decision to a court, the presumption may be rebutted. Where a legislature has provided that parties may appeal from an administrative decision to a court, either as of right or with leave, the majority held that a court hearing such an appeal is to apply appellate standards of review to that decision (Vavilov, para 37). For example, if the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (Vavilov, para 37). This is a major change from the Dunsmuir framework (Vavilov paras. 36-52).

While the existence of a leave requirement will affect whether a court will hear an appeal from a particular decision, it does not affect the standard to be applied if leave is given and the appeal is heard (para. 50)

The Court commented that this shift is necessary to bring coherence and balance to the standard of review analysis, where statutory appeal mechanisms are a clear signal of legislative intent with respect to the applicable standard of review (Vavilov, paras 38, 49).

2) Legislated Standard of review – where the legislature explicitly prescribes through statute what standard courts should apply when reviewing decisions of a particular decision maker, the presumption of reasonableness may be rebutted (Vavilov, para 33). It follows that where a legislature has indicated that courts are to apply the standard of correctness, that standard must be applied (Vavilov, para 35). This is the same under the Dunsmuir framework.

3) Where the Rule of Law requires a correctness review – The majority in Vavilov held that the rule of law requires courts to apply the standard of correctness for certain types of legal questions. When applying the correctness standard, the reviewing court may choose either to uphold the administrative decision maker’s determination or substitute its own view (Vavilov, para 54).

The majority provides a non-exhaustive list of the types of questions where a correctness standard is required (Vavilov paras. 55-64):

a. Constitutional Questions – questions regarding the division of powers between Parliament and the provinces, the relationship between the legislature and the other branches of the state, the scope of Aboriginal and treaty rights under section 35 of the Constitution Act, 1982, and other constitutional matters require a “final and determinate answer” from the courts (Vavilov, para 55). On such matters, the standard of correctness must be applied.

b. General questions of law of importance to the legal system as a whole – these questions require a “single determinate answer.” A correctness standard provides a greater degree of legal certainty than reasonableness review allows and hence, must be applied to these questions. examples of questions of law that have been held to be of central importance to the legal system as a whole, include (Vavilov para. 60):

i. the appropriateness of limits on solicitor-client privilege; and

ii. when an administrative proceeding will be barred by the doctrines of res judicata and abuse of process.

The additional requirement from Dunsmuir that the question also be “outside the adjudicator’s specialized area of expertise” has been dropped (Vavilov paras. 58-62). The majority also stressed that merely because a question is “of wider public concern” does not mean it amounts to a question of central importance (Vavilov para. 61).

c. Jurisdictional Boundaries – the majority held that the rule of law requires courts to intervene where one administrative body has interpreted the scope of its authority in a manner that is incompatible with the jurisdiction of another (Vavilov, paras. 63-64).

The main impact that the Vavilov decision will potentially have on immigration law, and specifically on immigration/refugee practitioners, is in the guidance that the SCC provides in performing a reasonableness review and in assessing when an administrative decision can be unreasonable.

The following, again, will only be a brief outline of the decision in this area, and it is encouraged that practitioners read the cited paragraphs and the case in its entirety.

The majority in Vavilov stick with the Dunsmuir dictum that reasonableness is a single, invariant standard (Vavilov, para. 89). The majority also reaffirm that a reasonableness review must take into account both the decision maker’s reasoning process for a decision, as well as the outcome that was reached (Vavilov, para 83). To determine whether a decision is “reasonable,” a reviewing court must ask whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constrains that bear on the decision (Vavilov, para 99).

The burden is on the party challenging the decision to show that it is unreasonable. The reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency (Vavilov, para 100).

The majority identifies “two types of fundamental flaws” that usually typify an unreasonable decision: “the first is a failure of rationality internal to the reasoning process. The second arises when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it” (Vavilov, para. 101).

1) An unreasonable decision is based on internally incoherent reasoning (Vavilov, paras. 102-104)

To be reasonable, a decision must be based on reasoning that is both rational and logical. According to the majority, a decision will be unreasonable if the reasons for it, read holistically, fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis (Vavilov, para 103). Decisions may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas or unfounded generalizations (Vavilov, para 104). Ultimately, a reviewing court must be satisfied that the decision maker’s reasoning “adds up” (Vavilov, para 104).

2) A decision can be unreasonable in light of the legal and factual constraints that bear on the decision. (Vavilov, paras. 105-135)

To be reasonable, a decision must be justified in relation to the law and facts that are relevant to the decision, and operate as constraints on the decision maker in the exercise of his or her delegated powers. The majority highlights some elements that are relevant in evaluating whether a given decision is reasonable, including:

· the governing statutory scheme; (see: Vavilov, para 110)

· other statutory or common law constraints on a decision maker; (see Vavilov, para 114)

· principles of statutory interpretation; (see: Vavilov, para 119-120)

· Evidence and facts of which decision maker may take notice; (see: Vavilov, para 126)

· submissions of the parties; (see: Vavilov, para 128)

· an administrative body’s past practices and past decisions; (see: Vavilov, para 131) and

· the impact of the decision on an affected party. (see: Vavilov, para 133-135)

If a decision fails to adhere to the preceding elements of reasonableness, a reviewing court may find the decision unreasonable.

Remedies on Judicial Review

The final area in which Vavilov will have an effect on immigration practice will be in the remedies handed down by courts in judicial review cases. The Court affirmed that although it’s usually most appropriate to remit decisions back for reconsideration, there are limited circumstances where doing so would prolong timely and effective resolution of matters.

An intention that the administrative decision maker decide the matter at first instance cannot give rise to an endless merry-go-round of judicial review and subsequent reconsiderations. Declining to remit a matter to the decision maker may be appropriate where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose. (Vavilov, para 142)