Is that all there is?
If that’s all there is my friends
Then let’s keep dancing…
“Is that all there is”, song by Jerry Leiber and Mike Stoller
Administrative law can be complicated. The Supreme Court of Canada in Canada (Citizenship and Immigration) v. Vavilov, 2019 SCC 65, tried to uncomplicate the law. Professor Paul Daly in his new book, A Culture of Justification: Vavilov and the Future of Administrative Law, outlines how well the court succeeded.
In 180 pages, he does a good job of situating Vavilov in the historical evolution of judicial review of administrative action. He has written extensively on Vavilov, and I recommend that you peruse the list of his recent articles available online.
Chapter 1 (“Why is Administrative Law So Complicated”) traces the complicated history of judicial review. A version of this chapter is available online. This chapter and the next two (“A Deep Dive into Judicial Review”, and “The Dunsmuir Decade”) set out the lay of the land pre-Vavilov. This will be primarily of interest to administrative law scholars and nerds. The past has very little application for administrative decision-makers in their day-to-day work.
In Chapter 4 (“The Big Bang”), Professor Daly sets out the reasoning of both the majority and the dissenters in Vavilov. Professor Daly prefers, on balance, the reasoning of the majority. He concludes that the majority decision “is better suited to contemporary judicial review – with its broad reach into all aspects of public administration – than a hands-off approach”. He notes that if some decision-makers “have to up their game, so be it”.
Chapter 5 (“Vavilov Hits the Road”) outlines the reception of Vavilov at the lower court levels. Professor Daly notes that Vavilov has set a higher bar for decision-makers than previously, with respect to justification, demonstrated experience (of the decision-maker), responsiveness (to the central points raised by the parties) and contemporaneity (no after-the-fact reasoning to bolster the initial decision). He notes:
While most respectable administrative tribunals are likely to continue to scale this bar with ease, others might find it more imposing. Those operating in high volume areas of decision making (such as immigration) and those used to receiving a high degree of deference on the basis of their expertise (such as labour arbitrators) or electoral legitimacy (such as ministers) have had to learn to jump higher than they have in the past.
Professor Daly outlines some of the future challenges that arise out of Vavilov in chapter 6, “Unresolved Issues after Vavilov”. He focuses on three “lingering questions”: 1. Its implications for the standard of review of questions of procedural fairness; 2. The impact on judicial review of administrative decisions infringing Charter rights; and 3. The constitutional foundations of judicial review.
In his concluding chapter, Professor Daly asks “how much does Vavilov really matter”? He states:
…This is an evergreen question for administrative lawyers. When matters are debated on judicial review in the courtroom, they are debated away from the front lines of administrative decision making. Hardly any of the hundreds of thousands of administrative decisions made in Canada every year are ever judicially reviewed. A lot of procedurally unfair and substantively unreasonable decisions are never challenged in court. Many administrative decision-making institutions are understaffed, underfunded, and subject to the whims of the government of the day when it comes to appointments (often partisan rather than merit-based) and funding (often inadequate). Some cynical observers might therefore think that counting angels on the standard review pinhead is a distraction from the new need to ensure that good decisions are made in the first place.
Professor Daly concludes that the Supreme Court justices “sent a message about the need for reasoned exercise of public power” and it is up to administrative decision-makers to “take that message seriously”.
Professor Andrew Green has found no statistical changes in the rates of successful judicial review applications since Vavilov.
Professor Daly, in a recent blog post, wrote that the goal of Vavilov was, in part, to “clarify and simplify the law for judges and lawyers, not to change the outcomes in cases”. His hypothesis is: “the clarity of the Vavilov framework means there are fewer important questions relating to judicial methodology that require appellate intervention”.
It may be impossible to measure, quantitatively, the impact of Vavilov on administrative decision-makers. I suspect its impact on adjudicative tribunals will be slight to nil. That is because decisions, for the most part, already were meeting the standard set out in Vavilov. Where the impact has likely been felt more significantly is in decisions made by so called “front-line decision-makers” – the public service employees who are making the first-level decisions on entitlements, such as benefits. See, for example, Mitchell v. Canada (Attorney General), 2023 FC 858.
Professor Daly successfully makes the case that Vavilov has provided significant clarity to the judicial review process. What was not addressed by the Supreme Court in that decision was the necessary balance between a “culture of justification” with a culture of efficiency. Decisions, especially front-line decisions, can no longer be delivered expeditiously if each decision must meet the higher standard of Vavilov. Or at least, these decisions cannot be delivered as expeditiously as before without significant increases in the number of decision-makers.
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