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An Administrative Law Anthology: Digesting Vavilov

7 minute read

It’s been just over a month since the Supreme Court of Canada released its long-awaited and much anticipated administrative law trilogy of administrative law decisions in Canada (Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Bell Canada v. Canada (Attorney General); National Football League. v. Canada (Attorney General), 2019 SCC 66. Back in December, when the SCC announced that it was releasing the decisions on December 19, 2019, we Canadian lawyers touted the announcement as an early Christmas present. On Twitter, Corey Shefman (@coreyshefman) aptly observed: “If you're trying to get in touch with your Canadian lawyer on December 19th, best to wait until the afternoon, we're all going to be a bit preoccupied in the morning.”

My response: “I’ll be free in the morning of December 19th, but forget about the afternoon... I’ll be engulfed in the #lawtwitter frenzy reading about what everyone else was reading that morning.” While partially in jest (I couldn’t resist diving into Vavilov along with everyone else), I was serious in my eagerness to digest the insights of the administrative law bar. I may not have appreciated what I was in for! It seems that nearly as much ink has been spilled digesting this new “Vavilov Framework” to judicial review as had been spilled anticipating it.

It seemed only fitting to provide an administrative law anthology, a guide to digesting Vavilov so that others interested in taking the same deep dive as I did can have a handbook of sorts to do so. This surely isn’t everything that has been written, and I know there is much more to come, but what follows is a list of useful summaries and unique insights that I have found.

  • “The Supreme Court of Canada simplifies the standard of review analysis in historic Super Bowl trilogy”, McCarthy Tétrault LLP (Steven Mason, Brandon Kain, Joanna Nairn, Rischard Lizius and James Holtom): This team, who represented Bell Canada and NFL, the appellants before the SCC, provided a timely turnaround, putting out a detailed summary of the decisions and their implications the day after they were released. Mason, Kain, et al, remind us what the “standard of review” is and why it matters, lay out the context of the trilogy of appeals, and provide a useful summary of the framework and its application.
  • Canada (Minister of Citizenship and Immigration) v. Vavilov: A Practical Guide to the Revised Standard of Review Analysis”, BLG LLP (Ewa Krajewska, Mannu Chowdhury): In another timely comment, Krajewska and Chowdhury provide a roadmap of how the Vavilov standard of review framework operates. In this three-step guide, they explain: (1) Reasonableness is the Presumptive Applicable Standard to Administrative Decisions; (2) Correctness Review is Possible in Two Circumstances; and (3) Performing the Reasonableness Review.
  • “Supreme Court of Canada Reforms Judicial Review”, Bennett Jones LLP, (Scott Bower, Andrew Little, Brynne Harding and Russell Kruger): This article provides a very readable overview of the Vavilov framework and its application in reasonableness review of administrative decisions. The authors note that the Vavilov changes may provide greater scope to parties challenging decisions of tribunals and other decision-makers in a statutory appeal process.
  • “Vavilov : Changes to administrative law in Canada”, Gowling WLG (James Green): This article provides an excellent summary of the decisions and the Vavilov framework before turning to address some open questions concerning how Vavilov will apply to Canada's intellectual property regime. Green raises some considerations about the application of Vavilov to decisions under the Trademarks Act, the Patent Act, and the Copyright Act, as examples, making this article an important read for any lawyers with an IP practice.
  • “Supreme Court of Canada Establishes New Approach to Standard of Review”, Goodmans LLP (Ryan Cookson, Tamryn Jacobson, Matthew Lakatos-Hayward): This post provides another detailed summary of the decisions, the new framework, and its application. The authors comment that the decisions provide much needed clarity to the standard of review analysis, and provide, in a downloadable PDF, a helpful “Vavilov Decision Tree” flowchart to determining the applicable standard of review.
  • “SCC re-rewrites the standard of review”, Torys LLP (John A. Terry, Andrew Bernstein, Yael Bienenstock, Jeremy Opolsky, Jon Silver): In addition to a very thorough review and summary of the decisions and the Vavilov framework, this articles provides a concise “what you need to know” on statutory appeals, the presumption of reasonableness review, exceptions to reasonableness review, defining reasonableness review, and encouraging fewer disputes about the standard of review and more about the application.
  • “Supreme Court of Canada reshapes standards of review for administrative appeals”, Osler LLP (Mark Gelowitz, W. David Rankin): In this post from the co-authors of Sopinka & Gelowitz on the Conduct of an Appeal, Fourth Edition, the authors provide interesting insight about the effect of the Vavilov framework on statutory appeals from administrative decisions.
  • “The Vavilov Framework V: Concluding Thoughts”, Administrative Law Matters (Paul Daly): In this concluding part of a five-part series in which Daly provides a most comprehensive review and academic analysis of the Vavilov framework, the author concludes that Vavilov may represent the triumph of pragmatism over principle. Daly leaves us to consider his top ten issues, tensions and sources of pressure generated by the majority reasons which will need to be addressed in subsequent jurisprudence.
  • “20 Things to Be Grateful For as Administrative Law Enters the 2020s”, Advocates for the Rule of Law (Gerrard Kennedy): In this quirky post on the website of ARL, an intervenor in the appeals, Kennedy gives us his list of twenty things to be thankful for about Vavilov. Spread over three posts, this top 20 is as amusing as it is serious, making for excellent reading.
  • “The spies who saved judicial review: The top 10 takeaways from Vavilov, Stewart McKelvey, (Twila Reid, Jennifer Taylor and Richard Jordan): The final mention in this anthology tips the hat to our east coast colleagues in Atlantic Canada for the best Vavilov blog title. The authors’ top ten takeaways also provide a useful digest of the Vavilov framework and its implications.

So there you have it. A short anthology of administrative law commentary on what was certainly the most anticipated decision of last year (perhaps even last decade), with my second-hand thoughts on some of the insights offered by an excellent assortment of Canadian counsel.

As each of these articles seemed to conclude, along with many others not mentioned here, we’ll all collectively wait and see where the dust settles after the Vavilov deconstruction and rebuilding of the governing approach to appeals and judicial review in administrative law as courts and counsel alike begin to navigate this exciting new framework.

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Jacob R. W. Damstra

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