Administrative law just got a new ‘standard of review’

More on the Vavilov decision and possible implications for refugee claimants and others (a Citizenship Act amendment would be needed to prevent future Vavilov-type situations):

A Supreme Court of Canada judgment made headlines around the world in December by deciding that Alexander Vavilov, born in Canada to “deep cover” Russian spies, was entitled to Canadian citizenship. Lawyers and scholars took to Twitter to joke that reporters had missed the really exciting part: the Supreme Court of Canada had just redefined the “standard of review” in administrative law.

The terms confuse even lawyers in other fields, but the stakes are high: administrative law concerns how all levels of government — from a municipality granting construction permits to the governor general making someone a member of the Order of Canada — reach their decisions; the standard of review is how much scrutiny the courts will apply if someone challenges those decisions. The Court has given new directions in the Vavilov case on how the lower courts determine what makes a decision legal or reasonable — directions that will help vulnerable individuals who bear the brunt of government decision-making.

For years, courts have debated how much deference they owe. On the one hand, if Parliament or a legislature has delegated a decision to an official, board or tribunal, courts should be reluctant to interfere. On the other hand, the rule of law means the courts must ensure that government action is consistent with legal rules, including the Constitution, and is neither arbitrary nor unfair.

These issues mattered to Vavilov because just after his 20th birthday, the Canadian Registrar of Citizenship cancelled his citizenship certificate, based only on written submissions. The issue was his parents’ status when he was born: they were foreigners living under false identities and working for Russia as spies. He learned their story only just before his 16th birthday, when they were arrested in their Boston home. The family was sent to Russia in a “spy swap,” but for Alexander, it was a move to a country he had never known.

Canada grants citizenship to almost everyone born here, but the Registrar of Citizenship relied on a few words in the Citizenship Act that create an exception for the children of “a diplomatic or consular officer or other representative or employee in Canada of a foreign government”; she argued that Alexander fell into this exception and was ineligible for citizenship.

The underlying issue — the kind that makes non-lawyers shake their heads — was whether the exception applies to any “employee of a foreign government” or whether those few words take their meaning from the larger context and apply only to foreign government employees with diplomatic status, which the Vavilovs were not. Alexander’s lawyers pointed out that restricting the exception to diplomatic employees was the only interpretation consistent with international treaties and with a generous view of citizenship; on their reading, Alexander’s parents were not diplomatic or similar employees, and he would be outside the exception and eligible for citizenship by birth.

The procedural issue was just how much deference the courts had to show to the Registrar’s own interpretation of the Citizenship Act. Vavilov argued that she had to make a decision that was correct: that is, there could be only one valid interpretation of the statute, and the Registrar had to get it right. Government lawyers argued the opposite: officials need only render a decision that appears reasonable, even if the courts might disagree.

The Supreme Court of Canada announced that it would use the case to reconsider the standard of review for government decision-making in general. The judgment decided that the category of cases in which administrative decisions must be correct — where the courts have the final word on interpreting the law — will continue to be limited: where a formal appeal is provided for or where the issues are constitutional or of fundamental importance to the legal system. All other decisions are entitled to deference and must only be reasonable.

But all nine judges decided the decision to cancel Alexander Vavilov’s citizenship was notreasonable: his parents did not benefit from any diplomatic privilege or immunity, so the exception from citizenship by birth was not meant for Alexander; and the Registrar did not consider the harsh consequences that her decision would have for him.

The majority defined what reasonableness means. Among other things, for a decision to be reasonable, it must be consistent with Canada’s international law obligations. In addition, a decision’s impact matters: an individual whose “life, liberty, dignity or livelihood” will be affected deserves greater procedural protection.

This is good news for individuals like refugee claimants facing a return to danger or tenants facing evictions: “ordinary people, including the most vulnerable among us,” in the Supreme Court’s words. They can rely on Canada’s international promises to protect refugees from harm or to ensure the right to adequate housing, along with other economic and social rights. They can also demand that government decision-makers take into account the real-life consequences for them.

Source: Administrative law just got a new ‘standard of review’

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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