Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. Photo: Contributed

Kootnekoff: New analytical framework for administrative law cases

The Supreme Court of Canada recently released three much anticipated administrative law decisions

This article will look at the first of three administrative law decisions from the Supreme Court of Canada.

This week we will look at the first decision. All three decisions relate to the “standard of review” applied by courts when reviewing decisions of administrative decision makers. The standard of review is the level to which a court will scrutinize decisions of administrative bodies.

One purpose underlying administrative decision making is to allow justice to be brought “closer to the people.” One problem, though, is that these decision makers often lack independence.

Another problem is that the decision makers may have no legal expertise. They may routinely make problematic decisions or adopt processes that are unfair.

Given this, it is not surprising that these decisions are regularly challenged in court. This is where things can become more complicated.

The first decision in the trilogy, Canada (Minister of Citizenship and Immigration) v. Vavilov, was an immigration case. Mr. Vavilov was born in Canada in 1994 to two Russian spies. He was unaware of his parents’ secret identity. After his parents were arrested and returned to Russia, Mr. Vavilov applied to renew his Canadian passport. The Canadian registrar of citizenship cancelled his citizenship.

The issue before the Supreme Court of Canada was whether the registrar’s decision was valid. The court unanimously held that the decision was invalid because it was unreasonable.

In the course of making its decision, the court rewrote the analytical framework to be applied when deciding the standard of review. The starting point will be to assume “that the legislature intended the administrative decision maker to function with a minimum of judicial interference.” This assumption can be displaced in certain circumstances.

One such circumstance is when the rule of law requires the court to closely scrutinize the decision. This includes cases involving “constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies.”

In these cases, a “correctness” standard applies. A correctness standard means that the courts give little deference to the administrative decision maker. The court reviews the decision in its entirety. This is contrasted with the “reasonableness” standard, under which the court assesses whether the decision falls within a range of reasonable outcomes that reflect the facts and the law. A correctness standard results in greater judicial scrutiny of the decision.

As a result of the Vavilov decision, the expertise of the administrative decision maker will be less important than in the past.

The Supreme Court also identified two types of fundamental flaws that may lead to a decision being unreasonable.

“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.”

From time to time, lawyers who practice administrative law must explain to clients why an incorrect decision was left undisturbed by a court, because the court applied a “reasonableness” standard.

If this twists your mind, you are not alone. This is mental gymnastics at its best.

“Reasonableness” standards can sometimes result in a court leaving injustices undisturbed. While this certainly does not happen in anywhere close to all cases, it may feel to a complainant as though justice is not being done, due to what may feel like navel gazing within the legal profession.

It is ironic that an area of law that is supposed to be accessible to the masses is saddled with this level of complexity. This is especially vexing for self-represented litigants who try to challenge administrative decisions in court.

This case is sure to be the subject of much discussion among lawyers, academics and others. It gives rise to many questions, including how it will be applied, and how it interacts with certain other Supreme Court of Canada decisions.

Despite the Court’s laudable attempt to clarify the law in this area, one thing remains clear. As long as a “reasonableness” standard continues to exist, the “standard of review” will remain a central question in administrative law.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Specialist advice from a qualified legal professional should be sought about your specific circumstances.

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