Vavilov and beyond! Correcting reasonableness (Part 4)

By March 6, 2020 Blog, Vavilov

Hold on to your hats, or your hair, at least. The Supreme Court of Canada has established, once and for all (or until the next time they do it), the final, definitive analysis and explanation of standard of review in MCI v. Vavilov.[1] So definitive and clear was the majority analysis that the minority said: “Huh,” and: “What the hell.”  Well, not in so many words, but that’s what they meant.  Their actual comments went something like this:

  • The majority framework “will be a roadblock to its promise of simplicity.”
  • The majority’s framework rests on a “flawed and incomplete conceptual account of judicial review.”
  • “The majority’s reasons are an encomium for correctness and a eulogy for deference.”
  • “instead of reformingthis generation’s evolutionary approach to administrative law, the majority reverses it, taking it back to the formalistic judge-centred approach this Court has spent decades dismantling.”

Wow. Now that’s a dissent. The majority appears to have done something big – very, very, big. Like dismantling all of law! However, in rebuttal (not seen in the Supreme Court since the bad old day of the very divided Lamer Court), the majority responded with: oh stop, you are exaggerating!

So, what is really going on?

The background to the case is intriguing on two levels, and extremely boring on the level of standard of review. The facts are now well-known. Two boys, the Vavilov brothers – born of secret Russian agents who first came to Canada to establish their background before travelling to the US for some spy work – were informed that though born in Canada, they were not citizens of Canada. “We don’t give citizenship to no sons of spies,” they were told. And told wrongly. The issue became one of statutory interpretation and whether the long-established principle of jus cogens (born here, citizen of here!) applied to the boys. The only accepted exception to the jus cogens principle applied to diplomats, consular officers, and others who, in Canada working for a foreign government, were not subject to Canadian laws. The logic behind that exception of course is that if you are not bound by the law of a land, your progeny cannot be its citizens, even if born there. Canada tried to extend this concept to include non-diplomatic employees, such as the Vavilov parents, who were in Canada not under diplomatic status, but in secret agent status. The Courts below bought that argument, but the majority of the Court of Appeal and the entire Supreme Court did not. So, children of spies, spies who had no diplomatic status, were Canadians if born in Canada – the was the first bit of intrigue.

The second level of intrigue resulted from a Federal Court of Appeal judge who baited the Supreme Court to take him on; he has to be given his due credit in all this. He had, for years, been expressing dissatisfaction with how Dunsmuir had developed. And he was right. His particular gripe, one with which all of us administrative law-types shared, was the thought that two or more possible interpretations of a law could be reasonable, and that a party’s success before a tribunal may simply depend on which member the party faced. In other words, success could depend on the luck of the draw. To overcome this problem, and stay within the Dunsmuir framework, the judge decided that the reasonableness review had a shifting scale, with a more “exacting” review standard akin to correctness when the interests of the individual are high and the issue is one of statutory interpretation.

Nice try, but the Supreme Court had already rejected this very idea, one he had also put forward, in Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770. So, he poked at them with it again, and bam, Vavilov was born. There is your second bit of intrigue.

The nitty gritty of the decision, aside from the fact that the boys were “declared” to be Canadian citizens by the Supreme Court, as no other reasonable interpretation of the section was possible, was a re-configuration of Dunsmuir. They now stated that the presumption of reasonableness applied to all tribunal decisions, which could be overcome if the legislature prescribed an appeal to a court, where the issue is a question of law of central importance to the legal system as a whole, given that such questions “require uniform and consistent answers,” and defined constitutional issues, and jurisdictional boundaries between two or more administrative bodies.

Once the standard of review is determined, and it will usually be reasonableness, the Court gave guidelines on the factors to examine in this review. It all starts with the reasons of the tribunal: the reasons must be justified and justifiable, which means that it is not simply the right answer which saves a decision, but the reasoning process that must also be coherent and rational. An unreasonable decision is one which suffers from “circular reasoning, false dilemmas, unfounded generalizations or an absurd premise […] a reviewing court must ultimately be satisfied that the decision maker’s reasoning ‘adds up.”

A reasonable decision will depend on how the decision maker considers and analyzes the submissions made to him or her, how rational and coherent the decision was and whether or not it applied principles of statutory interpretation, and applied them correctly.

In this light, arguably, submissions take on a more significant role than before.

In addition, though context, including expertise, will not determine the standard of review, it is relevant to an assessment of reasonableness. The limits which define the scope of a tribunal’s discretion, and therefore, the appropriate level of deference, are to be drawn by legal and factual contextual features. On this point, the Court held:

The approach to reasonableness review that we articulate in these reasons accounts for the diversity of administrative decision making by recognizing that what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review. These contextual constraints dictate the limits and contours of the space in which the decision maker may act and the types of solutions it may adopt. The fact that the contextual constraints operating on an administrative decision maker may vary from one decision to another does not pose a problem for the reasonableness standard, because each decision must be both justified by the administrative body and evaluated by reviewing courts in relation to its own particular context.[2]

The Supreme Court has flipped context out of the search for standard of review, and landed it as a measure of whether the decision itself should be sustained as reasonable; that is why the minority in Vavilov was ready to pounce – and why the majority decision is brilliant. Although presuming the standard to be reasonable, there is no presumption of deference. Examining who the decision maker is; the legislation at play; the interests at stake; the submissions made; previous interpretations; and other contextual factors, will now play a part in assessing whether the decision should stand as being reasonable or be overturned as unreasonable.

In this sense, the decision does recognize that no two decision-making regimes are the same and therefore, cannot be rewarded with the same deference. Context matters. A labour tribunal and a front-line immigration officer are different creatures, in regards, for example, to their decision-making capacities. Though a decision from either may attract a reasonableness standard, the contexts within which the decisions are made are so different that the level of deference will necessarily reflect that difference.

The other important feature of the decision relates to the fill-in-the-blank aspect of judicial review that has plagued immigration law, in particular since Newfoundland Nurses[3] and Alberta Teachers.

The Supreme Court decision in Argraira[4] followed these above precedents and opened a wound in immigration law that caused the issue of standard of review to become festering concern. In Agraira, the Court rigidly applied Newfoundland Nurses to import an elaborate rationale into a decision which, in fact, had no rationale, in order to find it reasonable.  No more than a check-mark on a decision was extrapolated into a thoughtful consideration of everything from public policy to human rights. Turns out, in doing so, the Court misinterpreted Newfoundland Nurses. As the Court in Vavilov held:

Even if the outcome of the decision could be reasonable under different circumstances, it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome: Delta Air Lines, at paras. 26-28. To allow a reviewing court to do so would be to allow an administrative decision maker to abdicate its responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion. This would also amount to adopting an approach to reasonableness review focused solely on the outcome of a decision, to the exclusion of the rationale for that decision. To the extent that cases such as Newfoundland Nurses and Alberta Teachers have been taken as suggesting otherwise, such a view is mistaken.[5]

Well, thanks for that, but a bit too late for Mr. Agraira and the countless others who lost on judicial review thanks to the courts “justifying” immigration decisions.

New framework, applied

So, why was the Registrar’s decision relying on the Analyst’s in Vavilov not reasonable? Several reasons;

  1. Although the analyst took a sensible approach to give the words “other representative or employee in Canada of a foreign government” a meaning distinct from that of “diplomatic or consular officer,” as it was generally consistent with the principle of statutory interpretation that Parliament intends each word in a statute to have meaning: Sullivan, at p. 211, it failed to address the immediate statutory context of s. 3(2)(a), including the closely related text in s. 3(2)(c). Section 3(2)(c) provides support for the interpretation that all persons in 3(2)(a), including other representatives or employees, must have been granted diplomatic privileges and immunities in some form.
  2. The arguments made to the Registrar by Mr. Vavilov were largely ignored. He argued that s. 3(2) of the Citizenship Actmust be read in conjunction with both the Foreign Missions and International Organizations ActC. 1991, c. 41 (“FMIOA“), and the Vienna Convention on Diplomatic Relations, Can. T.S. 1966 No. 29 (“VCDR“). The VCDR and the Vienna Convention on Consular Relations, Can. T.S. 1974 No. 25, are the two leading treaties that extend diplomatic and/or consular privileges and immunities to employees and representatives of foreign governments in diplomatic missions and consular posts. Parliament has implemented the relevant provisions of both conventions by means of s. 3(1) of the FMIOA. In his submissions to the Registrar, he argued that Parliament intended s. 3(2) of the Citizenship Act to simply mirror the FMIOA and the VCDR, as well as Article II of the Optional Protocol to the Vienna Convention on Diplomatic Relations, concerning Acquisition of Nationality, 500 U.N.T.S. 223, which provides that “[m]embers of the mission not being nationals of the receiving State, and members of their families forming part of their household, shall not, solely by the operation of the law of the receiving State, acquire the nationality of that State”. The SCC then cited Mr. Vavilov’s submissions and inclusion of excerpts from Hansard to the Registrar:

The purpose in excluding diplomats and their families, including newborn children, from    acquiring citizenship in the receiving state relates to the immunities which extend to this group of people. Diplomats and their family members are immune from criminal prosecution and civil liability in the receiving state. As such, they cannot acquire citizenship in the receiving state and also benefit from these immunities. A citizen has duties and responsibilities to its country. Immunity is inconsistent with this principle and so does not apply to citizens. See Article 37 of the Convention.

Section 3(2) legislates into Canadian domestic law the above principles and should be narrowly interpreted with these purposes in mind. The term “employee in Canada of a foreign government” must be interpreted to mean an employee of a diplomatic mission, or connected to it, who benefits from the immunities of the Convention. Any other interpretation would lead to absurd results. There is no purpose served in excluding any child born of a person not having a connection to a diplomatic mission in Canada while sojourning here from the principle of Jus soli.

The SCC held that the Registrar did not “grapple” with these arguments and references, and did not explain why they did not apply. This failure was noted to be a noticeable omission. The Court held:

Yet the analyst did not refer to the relevant international law, did not inquire into Parliament’s purpose in enacting s. 3(2) and did not respond to Mr. Vavilov’s submissions on this issue. Nor did she advance any alternate explanation for why Parliament would craft such a provision in the first place. In the face of compelling submissions that the underlying rationale of s. 3(2) was to implement a narrow exception to a general rule in a manner that was consistent with established principles of international law, the analyst and the Registrar chose a different interpretation without offering any reasoned explanation for doing so.

3. The Registrar did not consider the potential consequences of her interpretation of s. 3(2)(a) to include individuals who have not been granted diplomatic privileges and immunities. Citizenship has been described as “the right to have rights”: U.S. Supreme Court Chief Justice Earl Warren, as quoted in A. Brouwer, Statelessness in Canadian Context: A Discussion Paper (July 2003) (online), at p. 2. The importance of citizenship was recognized in Benner v. Canada (Secretary of State)[1997] 1 S.C.R. 358, in which Iacobucci J., writing for this Court, stated: “I cannot imagine an interest more fundamental to full membership in Canadian society than Canadian citizenship”: para. 68. This was reiterated in Canada (Minister of Citizenship and Immigration) v. Tobiass[1997] 3 S.C.R. 391, in which this Court unanimously held that “[f]or some, such as those who might become stateless if deprived of their citizenship, it may be valued as highly as liberty”: para. 108.

As you can see, the factors considered by the Court in assessing the reasonableness of the decision focused on: what was argued before the decision maker; whether that decision-maker explained why she did not agree with those arguments; and basic principles of statutory interpretation, including the context and purpose of the enactment, and other similar domestic and international laws concerning similar subject matter. Context, expertise, rules of statutory interpretation and consistency, were used to consider reasonableness.  It all starts with what was put to the decision maker in assessing a reasonable decision. You got it, that means more pressure on counsel for fulsome submissions.

The Supreme Court applied the Vavilov principles the next day in a case called Canada Post Corp v. Canadian Union of Postal Workers 2019 SCC 67. In that case, the majority exercised due deference and upheld the tribunal decision because the decision maker had interpreted the section at hand using “well‑established principles of statutory interpretation, with due regard to the submissions before him.” In addition, his reasons “amply demonstrate that he considered the text, context and purpose of the provision, and his focus on the practical implications of his interpretation enriched and elevated the interpretative exercise.”

Once again, the submissions to the tribunal were key, and this time, they were grappled with.

Minority decision

As noted above, the dissenters in Vavilov were troubled. What did they say to help us interpret the decision?

The minority view is that the majority eroded the principle of deference so seriously that the judge “will be entitled to substitute their own views for those of specialized decision-makers who apply their mandates on a daily basis.”[6]

This statement does find support in the majority’s reasons. Context is no longer important in an assessment of which standard applies. But it is important in considering whether the decision is unreasonable.  The Court is to apply well-established principles of statutory interpretation and other contextual features, and have regard to what was put to the decision maker, in order to assess whether its findings were reasonable. The minority position, led by Justice Abella and joined by Karakatsanis JJ, was that context was becoming less important to judicial review, but is now front and center in a reasonableness review. A regressive step, they said.

What is helpful from the minority comment is that contextual features, including expertise, purpose of the legislation, and other Baker like contextual features, are indeed back in the game, but this time they are relevant when determining whether or not the decision was reasonable or not. It is a good place for them to exist.

In addition, the minority admonishes the majority for allowing deference to give way whenever the rule of law demands it. Not sure what is wrong with that, but I will accept that interpretation.

On the clarity of reasons, the minority said,

the majority revives the kind of search for errors that dominated the Court’s prior jurisprudence. The majority’s multi-factored, open-ended list of constraints on administrative decision making will encourage reviewing courts to dissect administrative reasons in a line-by-line hunt for error. These constraints may function in practice as a wide-ranging catalogue of hypothetical errors to justify quashing an administrative decision.

In a sort of a reply to the minority, the majority does try to say that the dissent has exaggerated the impact of the majority decision. But, frankly, when you see how the majority immersed basic contextual factors, used to previously consider standard of review, into the assessment of reasonableness, their protest of the minority’s interpretation seems weak.

In summary, it appears that deference to the decision maker has in fact been weakened by how the Court frames the elements to be considered in a reasonableness review. The struggle going forward will no longer be which standard of review applies, but rather, on how far context and other factors can be used to conduct a robust review of the reasonableness of a decision – beginning with what counsel has to say in submissions.

From now on, deference will have different meanings and standards.


[1] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

[2] Supra note 1 at para 90.

[3] Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 SCR 654.

[4] Agraira v. Canada (Public Safety and Emergency Preparedness)2013 SCC 36, [2013] 2 SCR 559.

[5] Supra note 1 at para 96.

[6] Supra note 1, at para 201.


Click here for Part 5!

Ronald Poulton

Ronald Poulton

Immigration lawyer Ronald Poulton will attempt to steer the reader over the ever-changing landscape of immigration law and policy to ask the question: What's law got to do with it?

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