Vavilov’s Impact on Military Administration

It has been just over a month since the Supreme Court of Canada handed down it’s judgment in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, concluding the ‘Administrative Law Trilogy’.

There has been a fair bit of commentary from administrative law scholars and practitioners, and much – though not all – of this commentary has been positive.

Three consistent observations include:

1. Vavilov has clarified the parameters for selecting the Standard of Review;
2. Vavilov has clarified the application of reasonableness review; and
3. While the Court provided direction concerning remedies available on judicial review, it remains to be seen how lower courts will apply this direction.

While there are certainly other issues concerning Vavilov’s impact on administrative law generally, the focus of this blog article is on its potential impact on the administration of the affairs of the Canadian Forces and the application of administrative law within that particular context.

Having the benefit of both time to reflect on the judgment, and commentary from some very astute scholars and practitioners, I conclude that, while Vavilov might have significant impact on administrative law generally, its impact within the context of the CF will be limited.

The three issues that I examine below are:

1. The Standard of Review;
2. Deference; and
3. Remedy.

Standard of Review

Vavilov reinforces, more than did Dunsmuir, that the default starting position for standard of review is ‘reasonableness’.  Gone is the contextual examination of factors to determine the appropriate standard of review.  No longer will courts evaluate factors like ‘expertise’ to determine the appropriate standard of review.

In order to derogate from the presumption of ‘reasonableness review’, the courts will instead look to the legislature’s intent, and the legislature’s intent is typically expressed by whether it has provided for statutory appeal:

Any framework rooted in legislative intent must, to the extent possible, respect clear statutory language that prescribes the applicable standard of review. …

It follows that where a legislature has indicated that courts are to apply the standard of correctness in reviewing certain questions, that standard must be applied. In British Columbia, the legislature has established the applicable standard of review for many tribunals by reference to the Administrative Tribunals Act, … We continue to be of the view that where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law.

We have reaffirmed that, to the extent possible, the standard of review analysis requires courts to give effect to the legislature’s institutional design choices to delegate authority through statute. In our view, this principled position also requires courts to give effect to the legislature’s intent, signalled by the presence of a statutory appeal mechanism from an administrative decision to a court, that the court is to perform an appellate function with respect to that decision. Just as a legislature may, within constitutional limits, insulate administrative decisions from judicial interference, it may also choose to establish a regime “which does not exclude the courts but rather makes them part of the enforcement machinery” … [Vavilov, paras 34 to 36]

Thus, where the legislature has directed that a party has a right of statutory appeal, appellate standards of review will apply.  Where it has not, then reasonableness review will be the default standard.  However, for constitutional issues, questions of central importance to the law, or conflicting jurisdictional issues between two or more tribunals, the standard of review is ‘correctness’.[1]  [Vavilov, paras 53 to 64]  Privative clauses – what our British cousins might refer to as ‘ouster clauses’ – now, definitively, seem to be a thing of the past [Vavilov, para 49].

The Supreme Court of Canada has also ‘left the door slightly ajar’ for matters involving the rule of law [Vavilov, paras 69 to 72].  However, reviewing courts, not the least among them, the Supreme Court of Canada, will be reluctant to permit anything to pass through that narrow gap.  I suggest that the Supreme Court of Canada has a tendency to leave such narrow gaps [“…we would not definitively foreclose the possibility that another category could be recognized…” Vavilov, para 70] in order to avoid painting themselves into a corner.  They are quick to insert such ‘safety valves’ in their judgments; but are much more hesitant to use them.  Nevertheless, advocates will still push against such reluctance.

The abbreviated conclusion might be drawn by some that: existence of statutory appeal or one of the narrowly defined ‘central importance’ issues equates to the limited deference of correctness review; and, the absence of an express statutory appeal equates to the deference that arises with reasonableness review.

Paul Daly has observed that this more simplified approach to the determination of standard of review might, in some cases, actually grant greater deference to the statutory decision-maker where there is a right of statutory appeal.[2]  This is because the appellate standard of review described in Housen v Nikolaisen, 2002 SCC 33 limits ‘correctness review’ to questions of law; for all other matters, the standard of review is the much more deferential standard of ‘palpable and overriding error’, including for mixed questions of law and fact.

Professor Daly – as is typical of his commentary – raises pertinent concerns for administrative law practitioners.  But, as significant as this development is for administrative law generally, nothing much has changed for its application to CF statutory decision-makers.

The majority of CF-related matters that are subject to judicial review are reviews of decisions by the Chief of the Defence Staff (CDS), or his delegate, as the final authority in the CF grievance process.

Under the Dunsmuir regime, it was well established that the final authority was generally subject to a ‘reasonableness’ standard of review.  That hasn’t changed.  Where an issue raised in a grievance concerns the application of constitutional law, or a conflict between the jurisdiction of the CF grievance process and another tribunal (e.g. the Canadian Human Rights Tribunal) the standard of review will likely be correctness on that narrow issue.  I suggest that, under Dunsmuir, that was already generally the case.  However, it could be said that Vavilov has provided greater clarity and certainty that, where these issues arise in an grievance, and are relevant to a subsequent judicial review of the determination by the final authority, the reviewing court must examine those specific issues on a standard of correctness.  I suggest that, over the past decade, that was not consistently followed.

I have not identified any conclusive statement of law in Vavilov concerning the perennially problematic application of ‘Charter values’.  However, in the Blog “Double Aspect”, Mark Mancini has recently offered an early examination of how Doré v Barreau du Québec, 2012 SCC 12 might be applied within the Vavilov regime.[3]

The majority in Vavilov have signalled that Parliament could change the standard of review by enacting a statutory right of appeal from grievance determinations.  However, what is the likelihood that Parliament would, at the behest of the Executive, enact provisions that would increase the degree of judicial scrutiny of the determination of CF grievances?

Yup – my conclusion as well.

So, we can anticipate that there will be no change in the standard of review of CF statutory decision-making.  While the justification for reasonableness review might change, the practical impact does not.

Deference

Deference is no longer a factor in the determination of the standard of review.  Neither is expertise.  However:

In conducting reasonableness review, judges should be attentive to the application by decision makers of specialized knowledge, as demonstrated by their reasons. Respectful attention to a decision maker’s demonstrated expertise may reveal to a reviewing court that an outcome that might be puzzling or counterintuitive on its face nevertheless accords with the purposes and practical realities of the relevant administrative regime and represents a reasonable approach given the consequences and the operational impact of the decision. This demonstrated experience and expertise may also explain why a given issue is treated in less detail. [Vavilov, para 93]

Thus, the purported expertise of senior CF decision-makers will still be considered by judges when applying the reasonableness standard, much as was the case under Dunsmuir.

In terms of the application of the reasonableness standard, Vavilov does offer some meritorious, if minor, improvements to the existing principles.  It clarified the importance of reasons.  Arguably, it stopped short of creating a common law principle that reasons are mandatory; however, the majority did emphasize the importance of reasons to the extent that it appears that it would be difficult for a statutory decision-maker to justify the reasonableness of a decision without offering reasons.

Since I cannot materially improve upon Professor Daly’s concise examination of this factor, I will instead cite his comment from his Blog post “The Vavilov Framework II: Reasonableness Review”:

…  Whereas the brute fact of a legislative choice to create an administrative decision-maker is sufficient to create an almost irrebuttable presumption of reasonableness review, in its articulation of reasonableness review, the majority emphasizes the need for reasons to be “responsive” (at paras. 127 and 133) and stresses “the principle that the exercise of public power must be justified, intelligible and transparent, not in the abstract, but to the individuals subject to it” (at para. 95) with legitimacy flowing ultimately from the reasoned exercise of authority granted by legislation, not the mere fact of its existence. And expertise is irrelevant to selecting the standard of review but the “demonstrated experience and expertise” of an administrative decision-maker will help to support the conclusion that a given decision was reasonable (at para. 93, emphasis added).[4]

The benefit to CF applicants for judicial review – albeit a minor benefit – is that one need not worry that a reviewing court will interpret Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 as representing an opportunity to ‘read in’ sufficient reasons where the statutory decision-maker was silent; thus, there will likely be no need to argue that Delta Air Lines Inc. v Lukács, 2018 SCC 2 reinforces the obligation under Dunsmuir that a decision-maker must actually articulate reasons that are justified, transparent and intelligible.

However, the guidance that the Court offers in Vavilov does not significantly alter the requirement for the final authority to provide reasons for a determination.

The provision of reasons is not generally the biggest obstacle that CF grievors and applicants encounter, although inadequacy of reasons does still arise from time to time [Armstrong v Canada (Attorney General), 2018 FC 184].

Rather, the challenge that most CF personnel face is a consequence of their relationship with the Crown and the continued requirement to exhaust internal remedies before turning to constitutionally independent courts.  Both of these factors are desperately in need of better articulation by the courts within the context of the CF grievance structure.

The current received wisdom is that CF personnel are in a non-contractual unilateral relationship with the Crown in return for which Her Majesty assumes no obligations and for which there is no remedy before civil courts.  The last part of this definition is manifestly incorrect, as CF personnel often obtain remedy before civil courts (albeit in a fairly narrow set of circumstances).  However, when examining applications (and the rarer actions) brought by CF personnel, courts typically refer back to the other elements of this definition, which are based upon a decision at first instance over 40 years ago.  Unless, of course, a court chooses not to do so, which can arise from time to time, and results in a degree of inconsistency of application of this problematic principle.

This blog article will not delve into how the Crown-soldier relationship can be better defined.  My point is simply that it is poorly defined and to the detriment of CF personnel.  This factor, combined with a continuing over-simplification of the perceived obligation to exhaust internal remedial mechanisms – even when those mechanisms cannot adequately remedy the impugned harm – places CF personnel at a disadvantage.

They must navigate a two-tiered grievance process in which the CF generally controls the process, access to relevant information, and the narrative.  While there is a time limit at the first tier, there is no time limit imposed on the final authority.  The final authority’s remedial powers are limited to those powers he (or, eventually, she) exercises as CDS.  In some circumstances these powers are quite broad.  However, the CDS cannot grant damages, cannot settle claims against the Crown, and cannot reinstate CF personnel who have been unjustly compulsorily released from the CF.

Remedies

Under Vavilov, where a court concludes that a statutory decision has failed to meet the applicable standard of review, the remedies remain largely the same.  Remitting a matter back to (typically, a differently constituted) decision-maker will still be the norm [Vavilov, para 140].  Drawing upon the prior precedent of Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, the Court concluded: “… the question of remedy must also be guided by concerns related to the proper administration of the justice system, the need to ensure access to justice and ‘the goal of expedient and cost-efficient decision making, which often motivates the creation of specialized administrative tribunals in the first place’ ”. [Vavilov, para 140].

Vavilov does offer some additional direction when courts may choose, instead, to direct a specific outcome:

However, while courts should, as a general rule, respect the legislature’s intention to entrust the matter to the administrative decision maker, there are limited scenarios in which remitting the matter would stymie the timely and effective resolution of matters in a manner that no legislature could have intended …  An intention that the administrative decision maker decide the matter at first instance cannot give rise to an endless merry-go-round of judicial reviews 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]

The Court offers examples of what might justify greater intrusion by the reviewing court:

• Concern for delay;
• Fairness to the parties;
• Urgency of providing a resolution to the dispute;
• The nature of the particular regulatory regime;
• Whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question;
• Costs to the parties; and
• The efficient use of public resources.

In the CF context, it remains highly likely that the courts will remit matters back to CF decision-makers.  Civilian judges will be reluctant to make decisions about promotions, postings, remedial measures, or similar ‘personnel management’ tasks, and understandably so.  However, in rare cases, specific circumstances might prompt a court to refer a matter back to the CDS with very specific direction regarding scope of remedy: see Smith v Canada (National Defence), 2010 FC 321.

In broader circumstances, the courts also still have the capacity, as they have demonstrated in the past (e.g. Hamilton v Canada (Attorney General), 2016 FC 930), to remit matters back to the CF decision-makers with specific direction that may be applied to the particular matter, or that the matter be reconsidered “… in accordance with the reasons …” offered in the judgment on judicial review., or to similar matters.

This may be motivated, in part, by the tacit acknowledgement or realization that it is often not possible to remit a matter back to a differently constituted decision-maker.  If a Federal Court judge reviews a grievance determination of the CDS (acting as final authority), and concludes that the outcome was unreasonable, the judge may only remit the matter back to the final authority.  Parliament has delineated who shall be the decision-maker in CF grievances.  Unless there has been a change of CDS in the interval, it will be the same person who considers and determines the grievance.  (Although in light of the delays in reconsideration of grievances, there is a fair possibility that a different successor might occupy the CDS’ ‘chair’).  See: Canada (Attorney General) v Beddows, 2016 FCA 294, particularly paras 52 and 53.

Where the final authority was a delegate of the CDS (e.g. the Commander of the Canadian Army) there is scope for the judge to direct that the CDS, personally, must act as the final authority (or, at the very least, a different delegate).  While this would fetter the CDS’ discretion, it would not be an unlawful or improper order by the reviewing court.  However, the court (or at least one of the advocates before the court) would need to be alive to this nuance.

Ultimately, however, if a matter is remitted back to the statutory decision-maker, it will be a senior CF officer, and often the CDS him- (or her-) self.  More to the point, any institutional bias or predilection that manifested the initial unreasonable decision may still be relevant.  The question then becomes whether the final authority will acknowledge the shortcoming that led to the unreasonable result and then proceed to a fair and open-minded determination or, perhaps more cynically, identify the source of the error for the purpose of maintaining the same unreasonable outcome, but change the narrative so that a reviewing court would be more inclined to conclude that the outcome was reasonable, even if it differs from what the court may have concluded.

Conclusion

In the interests of brevity concerning the present blog article, in a subsequent blog in the days to come, I will present a hypothetical fact scenario that will illustrate the limited impact that Vavilov will likely have on the review of CF grievance determinations.  This hypothetical example will not be a mere ‘strawman’; while it is a fictional fact scenario, its elements are drawn from my own experiences with how decision-making proceeds in the CF.

For CF personnel who contemplate seeking judicial review of decisions made in the administration of the affairs of the Canadian Forces, Vavilov offers greater clarity regarding this process and certainty regarding select principles of law.  However, from a practical perspective, the standard of review that will be applied to the judicial review of statutory decisions in the administration of the affairs of the CF has not generally changed.  What has changed is the clarity for the basis of the standard of review.

There is little to be gained from trying to lower the degree of deference by arguing that something is a jurisdictional issue.  However, CF applicants can expect the courts to apply a correctness standard to constitutional (including Charter) questions or questions of competing jurisdiction.  Correctness also applies to ‘questions of central importance to the legal system’.  The extent to which such questions will be framed beyond constitutional questions will be better defined over time, but we can anticipate that reviewing courts will not hasten to expand this ‘catch-all’ category.

Similarly, if we can learn from past experience under Dunsmuir, even though the Supreme Court of Canada has ‘left the door slightly ajar’ for expansion of categories of correctness review for matters involving the rule of law, courts will be reluctant to permit advocates to exploit that gap.  But that doesn’t mean we won’t try.

After all, a 3-inch gap in the door may be sufficient for Jim Hopper to come back in Season 4 of Stranger Things.  Oops – sorry – ‘spoiler alert’.

Vavilov will provide greater certainty for judicial review.  However, this is simply the first step in moving beyond Dunsmuir.  The framing of ‘questions of central importance’, the interpretation of precedents under Dunsmuir, and the application of the new framework for ‘reasonableness review’ will be refined by future judgments.  And this greater fidelity will generally not be offered by the Supreme Court of Canada, but by reviewing courts at first instance and the initial appellate review.  For members of the CF, the importance of Vavilov is how the judges of the Federal Court and Federal Court of Appeal will apply it in the months and years to come.

[1] Vavilov was silent on whether legislatures might impose a more deferential Standard of Review for issues that the Court concludes merit correctness review.  Most of the commentators I have reviewed are skeptical of such a course of action.  I share that scepticism.

[2] Paul Daly, “The Vavilov Framework V: Concluding Thoughts”, Administrative Law Matter, posted December 29, 2019 https://www.administrativelawmatters.com/blog/2019/12/29/the-vavilov-framework-v-concluding-thoughts/.

[3] Mark Mancini, “After Vavilov, Doré is Under Stress”, Double Aspect, posted January 6, 2020 https://doubleaspect.blog/2020/01/06/after-vavilov-dore-is-under-stress/.

[4] Paul Daly, “The Vavilov Framework II: Reasonableness Review”, Administrative Law Matters, posted December 21, 2019, https://www.administrativelawmatters.com/blog/2019/12/21/the-vavilov-framework-ii-reasonableness-review/.

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