This week will mark the end of the third season of Fantasy Courts. There are four appeals on the line. On Thursday, December 19, 2019, the Supreme Court of Canada is releasing the long-awaited (only 378 days) standard of review trilogy. On Friday, December 20, 2019, the SCC is releasing the last remaining decision in the one-year-wait club: Canada Post Corporation v. Canadian Union of Postal Workers. Get your predictions in now.
The standard of review trilogy involves one immigration case (Vavilov v. Canada) and two CRTC matters (Bell Canada v. Canada & NFL v. Canada). When the SCC granted leave to appeal in these cases, it specifically stated that it was “of the view that these appeals provide an opportunity to consider the nature and scope of judicial review of administrative action, as addressed in Dunsmuir…” In other words, the SCC is more interested in sorting out the standard of review than addressing the substantive merits of these particular cases.
When an administrative decision-maker’s decision is reviewed by a court, the court must decide the standard against which it is to be reviewed. With its decision in Dunsmuir v. New Brunswick, 2008 SCC 9, the SCC went from three to only two standards for judicial review: correctness and reasonableness. When applying the correctness standard in respect of jurisdictional and some other questions of law, a reviewing court will not show deference to the decision-maker’s reasoning process. Instead, it will undertake its own analysis of the question and if the court disagrees with the decision under review, it will substitute its own view and provide the correct answer. The reasonableness standard applies in most cases and requires the reviewing court to be deferential to the decision-maker. If the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law, then the reviewing court won’t interfere.
While Dunsmuir helped simplify things by reducing the number of standards available, there was still a lot of confusion about when a court could apply a correctness standard. The Federal Court of Appeal’s decision in Vavilov provides a good example of the issue. Mr. Vavilov was born in Canada in 1994. His parents were undercover Russian spies. In 2010, they were arrested in the US and returned to Russia in a spy swap. In 2014, Canada cancelled Vavilov’s citizenship on the basis that his parents were not lawfully Canadian citizens or permanent residents at the time of his birth, and they were, at that time, “employees or representatives of a foreign government” for the purposes of s. 3(2)(a) of the Citizenship Act. This meant they fell within the exception to the rule that you’re a Canadian citizen if you were born in Canada. The Federal Court dismissed Vavilov’s application for judicial review. It applied a correctness standard and found that s. 3(2) applies to representatives and employees of foreign governments in Canada regardless of their diplomatic or consular status.
A majority of the Federal Court of Appeal allowed Vavilov’s appeal and quashed the Registrar of Citizenship’s decision. The majority found that a reasonableness standard applies to the review of a decision of an administrative decision-maker familiar with a frequently used statute, like the Registrar of Citizenship here who is interpreting the Citizenship Act. It held that the Registrar’s decision was unreasonable and s. 3(2) only applies to employees in Canada of a foreign government who enjoy diplomatic privileges and immunities. The dissenting judge also applied a reasonableness standard, but found the Registrar’s interpretation of s. 3(2) reasonable. Before the SCC, the Appellant Minister of Immigration and Citizenship argued for a deferential standard of review limited to only a few exceptions.
Bell & NFL
In the Bell and NFL cases, the CRTC responded to public complaints and issued an order excluding the Super Bowl from the simultaneous substitution regime. Historically, Canadian viewers of the Super Bowl did not see US ads because they were replaced with Canadian ads. The CRTC’s order meant that US stations broadcasting in Canada would have US ads. Bell and the NFL challenged this order because Bell is the exclusive rights holder for the Super Bowl in Canada and it recoups the costs of the license by selling the ad space to Canadian businesses. The Federal Court of Appeal applied a reasonableness standard of review and dismissed the appeal. The Appellants, Bell & NFL, challenged the CRTC’s jurisdiction to make the order, so this case gives the Supreme Court of Canada the opportunity to consider the proper standard of review applied to questions of jurisdiction. Before the SCC, Bell argued for a separate category of jurisdictional questions which attract correctness review.
Predictions on the Trilogy
Unlike most appeals, the trilogy appears to be more concerned about a legal concept than the substance of the particular cases. This makes a prediction particularly difficult. The SCC could completely upend the law, while still dismissing the appeals. I’m going to go with appeal allowed in Vavilov and appeal dismissed in Bell & NFL on the basis that a majority will stand by the principle of deference to administrative decision-makers. I should note though that the Court’s been chipping away at deference the past few years and always seem to find a way to interfere with a decision when it wants to.
Canada Post v. Postal Workers
Last but not least is Canada Post Corporation v. Canadian Union of Postal Workers. The Canada Labour Code requires annual work place inspections. At issue is whether Canada Post has to inspect only their physical offices, or whether they also have to inspect mail routes. A Health and Safety Officer found there was an obligation to inspect areas outside of the employer’s building. An Appeals Officer varied that decision finding that only the inspection obligation did not apply to any place where a letter carrier is engaged in work outside of the physical office building. The employer has no control over these outside workplaces so it could not comply with inspection obligations. The Federal Court dismissed the Union’s application for judicial review finding that the Appeals Officer’s decision was reasonable. A majority of the Federal Court of Canada allowed the Union’s appeal. I’m leaning towards appeal dismissed in this case along the lines of Justice Rennie’s concurring reasons. He took a more nuanced approach saying the inspection obligation varies depending on the context: “Canada Post may tell postal workers how to navigate icy sidewalks and provide them with cleats, but this does not mean that there is an obligation to inspect all of the sidewalks in a city or check on the effectiveness of city sidewalk snow clearing and sanding operations.”