Only three years after the Supreme Court of Canada (SCC) refashioned the standard of review in administrative law, the Court has added a new category that attracts the stringent “correctness” review standard: matters where an administrative decision-maker and a court have concurrent jurisdiction. However, this category is not truly new. Concurrent jurisdiction attracted correctness review under the Dunsmuir framework that Vavilov[1]replaced and in which the Court set out five categories that attract correctness review. With the SCC’s decision in Society of Composers, Authors and Music Publishers of Canada v Entertainment Software Association (SOCAN), there are now six categories where the correctness standard applies.[2]
This decision immediately caused speculation that the Court is open to adding additional categories of correctness review and consequently may cause parties to continue to argue for an expansion. However, a close reading of the decision of the majority of the SCC shows that there is little interest on the bench in re-hashing the standard of review debate and that the structure, clarity, and certainty of the standard of review framework in Vavilov continues to prevail.
Refresher on the standard of review
The standard of review determines the manner and stringency in which a court approaches the judicial review of an administrative decision. A “reasonableness” standard of review operates through deference and judicial restraint: a court will defer and respect the decision made by an administrative decision-maker to “safeguard the legality, rationality, and fairness of the administrative process.”[3] The rationale is that the courts should defer to decision-makers who are delegated by the legislature to uphold legislative intent. In other words, it is more challenging to overturn an administrative decision under reasonableness review, which is guided by the Court’s respect for the rule of law and legislative supremacy.
“Correctness” review is a harsher standard that allows courts to wade into the substance of a case and overturn the conclusions made by an administrative decision-maker where it determines the decision is incorrect, regardless of whether it falls within a range of reasonable options.
Over many decades, the SCC wrestled with various standards of review, oscillating between different levels of reasonableness and correctness. In Vavilov, the Court made a significant effort to simplify the standard of review analysis. Vavilov holds that there is a presumptive standard of reasonableness on judicial review but that this presumption is rebutted in five explicit circumstances: i) legislated standards of review; ii) statutory appeal mechanisms; iii) constitutional questions; iv) general questions of law of central importance to the legal system as a whole, and; v) questions related to the jurisdictional boundaries between two or more administrative bodies.[4]
The areas identified as appropriate for correctness review are rationalized by the Court’s respect for legislative supremacy and the rule of law.[5] Each category of correctness either relates to the way that the standard of review is specifically legislated,[6] showing respect for the legislature, or it is based on such fundamental questions that one unified approach from the courts is required for consistency to uphold the rule of law.[7]
A “new” category of correctness: an overview of SOCAN
The Court in Vavilov was clear that new categories of correctness must only be added in “rare and exceptional circumstances” where “applying reasonableness would undermine legislative intent or the rule of law.”[8] However, only three years after Vavilov was released, the SCC in SOCAN added another category of correctness: rare situations of “concurrent jurisdiction” where an administrative body and first instance courts have the same decision-making jurisdiction.
Writing for the majority, Justice Rowe recognized this new sixth category of correctness review as aligning with the underlying rationale set out by the Court in Vavilov.[9] As Justice Rowe explains, reviewing concurrent jurisdiction on questions of law was an instance where “legislative intent or the rule of law will require a derogation from the presumption of reasonableness review.”[10] The majority regarded the granting of concurrent jurisdiction to both the courts and administrative bodies as showing sufficient legislative intent for judicial involvement in the review process. Additionally, applying the less deferential standard of correctness would promote the rule of law by avoiding conflicting statutory interpretations between courts and administrative bodies that could exist if a reasonableness standard were applied. Notably, this aligns with respect for legislative supremacy and the rule of law – the spirit and basis on which Vavilov was decided.
In dissent, Justice Karakatsanis and Justice Martin were not persuaded that issues of concurrent jurisdiction fell within the “circumstances which could not be realistically foreseen” that Vavilov set as the threshold for creating a new correctness standard.[11] The dissenting justices held that the recognition of a new category of correctness review, in this case, would have the effect of opening the floodgates of litigation for all standard of review cases in the future – the exact result that Vavilov aimed to avoid. To Justices Karakatsanis and Martin, creating a new category of correctness review only three years after Vavilov was contrary to the principles of certainty and predictability that the majority in Vavilov set out to establish.
The “floodgates of correctness” are likely not opened
Despite the minority’s concern that SOCAN opens the floodgates to new categories of correctness, it is clear that concurrent jurisdiction belongs with the five other categories outlined in Vavilov. To not include concurrent jurisdiction as a category of correctness would depart more clearly from the precedent in Vavilov through the SCC’s commitment to deference to the legislature and respect for the rule of law. Concurrent jurisdiction does not fall squarely within the five categories of correctness set out in Vavilov; however, its basis in legislation makes it a proper sixth category. The decision of SOCAN, therefore, does not depart from Vavilov and, in our view, does not suggest the Court is eager or ready to create new categories of correctness review. Rather, the addition of concurrent jurisdiction as a category of correctness demonstrates the SCC’s committed approach to legislative supremacy and the rule of law and addresses an omission in Vavilov.
Key takeaways
- The SCC has added a sixth category of correctness review: concurrent jurisdiction.
- Concurrent jurisdiction occurs in rare circumstances and is set out clearly in legislation.
- It is unlikely that the recognition of an additional category of correctness of concurrent jurisdiction has opened the floodgates to further categories of correctness.
- The presumption of reasonableness and the stability provided by Vavilov continues to persist in Canadian administrative law.
For more information, please reach out to the authors, Laurie Livingstone and David Konkin.
[1] 2019 SCC 65[Vavilov].
[2] 2022 SCC 30 [SOCAN].
[3] Vavilov at para 12.
[4] Ibid at para 69.
[5] Vavilov at para 53.
[6] For example, legislated standards of review; statutory appeal mechanisms; and questions related to the jurisdictional boundaries between two or more administrative bodies.
[7] Constitutional questions, general questions of law of central importance to the legal system as a whole.
[8] Ibid at para 27.
[9] Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30 at para 26.
[10] Supra note 1 at para 70.
[11] Supra note 3 at para 124.
