In two recent decisions, the SCC has re-written the standard of review to be applied by courts when hearing appeals of administrative decisions. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, a Canadian born child of two Russian spies, was initially stripped of his citizenship by the Canadian Registrar of Citizenship. That decision was upheld by the Federal Court which deferred to Registrar but overturned by the Federal Court of Appeal using the reasonableness standard of review. In Bell Canada v Canada (Attorney General), 2019 SCC 66, the CRTC ruled that Canadian Broadcasters could not substitute their Canadian feed (commercials) for the US feed. The Federal Court of Appeal dismissed Bell and the National Football League’s appeal on basis CRTC was entitled to deference, a decision based upon the correctness standard of review.
In its lead decision, Vavilov, the SCC made reasonableness the presumptive standard for any judicial review of administrative decisions, save for two exceptions: (1) where legislative intent makes the review standard clear and (2) rule of law makes it clear correctness standard ought to be applied. As such, the expertise of the administrative body used to support judicial deference, is no longer part of the test. Instead, the courts must examine whether the administrative decision is reasonably justified (i) “based upon an internally coherent and rational chain of analysis” and, (ii) “in relation to the facts and law that constrain the decision maker”. In Vavilov, the SCC then applied the reasonableness standard, there being no exception, and found the Registrar did not justify their decision at law or in fact. Accordingly, it quashed the Registrar’s decision, restoring Vavilov’s citizenship.
In Bell, the SCC applied the correctness standard due to the specific appeal mechanisms found in the Broadcast Act (the first exception to the general presumption that the reasonableness standard should apply). It then conducted its own review of the CRTC’s authority and, finding the CRTC did not have the requisite power to place such conditions upon specific programming, quashed the CRTC’s order.
The result of these two decisions is that the SCC has changed the standard of review of administrative decisions, instituting a presumptive reasonableness standard with only certain defined exceptions that would lead to the application of the correctness standard.