Case Comment on Canada (Minister of Citizenship and Immigration) v. Vavilov

Leading up to the release of the Supreme Court of Canada's roughly decennial overhaul of administrative law's standards of review, one could be forgiven for thinking Canada (Minister of Citizenship and Immigration) v. Vavilov would be the latest marker in the inexorable march towards the death of correctness review and the establishment of reasonableness as the only standard of review for all administrative decisions. 1Instead, Vavilov delivered a smorgasbord of tweaks, clarifications, and statements of principle, and likely sent law students and lawyers alike running to their dictionaries to look up the definition of "encomium." 2 Vavilov, a decision unanimous in the result but with two sets of reasons on how to get there, presents a clear and spirited debate over the foundations of administrative law, focusing most strongly on the standard of review analysis, while also providing much-needed clarity in conducting reasonableness review.At the end of it all, however, Vavilov is more pragmatic than principled, though, as will be discussed, certainly not unprincipled.Both sets of opinions address the need for clarity in administrative law and decision-making, which, as the majority notes, is "one of the principal manifestations of state power in the lives of Canadians." 3In the selection of standard of review, the majority opinion represents a largely effective effort at bringing clarity, coherence, and predictability to administrative law.The majority reaffirms a blanket presumption of deference, subject to exceptions where legislative intent or the rule of law require a standard of correctness, including statutory rights of appeal and questions of central importance to the legal system.Where the concurring justices differ from the majority, it is because their desire for pragmatism runs into the boundaries of their principles.This is evident in two disagreements over the standard of review analysis.The majority eliminates all case-by-case examination of expertise at this stage and also creates a presumption that statutory rights of appeal lead to appellate standards of review.These rules are clear, coherent, and predictable.But they are also too much for the concurring justices, who are unwilling to sacrifice deference to determinations of questions of law within an administrative decision-maker's expertise and unwilling to inflexibly apply Housen v. Nikolaisen 4 whenever the word "appeal" pops up in a statute, merely for the sake of consistency.The concurring justices would, like the majority, eliminate the contextual factors analysis and the correctness category of "true questions of jurisdiction," but they would only allow for correctness in the three remaining categories from Dunsmuir v. New

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