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Canada (Minister of Citizenship and Immigration) v. Vavilov (2019 SCC 65)

Link to Case Summarized

Administrative Law – Standard of Review

In this case, a 7-2 majority of the Supreme Court of Canada (the “Supreme Court”) revised the rules that govern the standard of review, and provided additional guidance in conducting a reasonableness review.    

The Supreme Court noted that reasonableness will be the presumptive applicable standard in all cases.  It can be rebutted in two types of situations:

1.        Where the legislature has indicated that it intends a different standard to apply.  This will be the case where the legislature explicitly prescribes an applicable standard of review, or where the legislature has provided a statutory appeal mechanism from an administrative decision to a court, thereby signalling the legislature’s intent that appellate standards should apply.

2.        Where the rule of law requires that the standard of correctness should be applied.  This will include cases that involve certain categories of questions, namely constitutional questions, general questions of law of importance to the legal system as a whole, and questions related to the jurisdictional boundaries between two or more administrative bodies.  

The Supreme Court also provided guidance on conducting a reasonableness review.  It noted the importance of coherent reasoning which justifies the outcome of a decision.  It is the reasoning that must be the focus, rather than just the conclusion.  The exercise of public power must be justified, intelligible and transparent, not only in the abstract, but to the individuals subject to it. 

The Supreme Court further noted that a reasonable decision is justified in light of the legal and factual constraints that bear on the decision. These include:

(a)      the governing statutory scheme;

(b)      other statutory or common law;

(c)      principles of statutory interpretation;

(d)      evidence before the decision maker;

(e)      submissions of the parties; and

(f)       past practices and past decisions.

The Supreme Court then went on to apply the reasonableness standard to the Vavilov case.  Mr. Vavilov was born in Canada.  When he was 16 years old, he learned that his parents were Russian spies after they were arrested in the United States.  At the time that they lived in Canada, Mr. Vavilov’s parents did not have any diplomatic status. 

The Canadian Registrar of Citizenship cancelled Mr. Vavilov’s certificate of citizenship, noting that his parents were “employees or representatives of a foreign government”, and that under section 3(2)(a) of the Citizenship Act, citizenship by birth does not apply if either parent was “a diplomatic or consular officer or other representative or employee in Canada of a foreign government.”

The Supreme Court found the decision of the Registrar to be unreasonable, noting that the decision was not justified in light of constraints imposed by the text of section 3 of the Citizenship Act considered as a whole, by other legislation and international treaties that inform the purpose of s. 3, by the jurisprudence on the interpretation of s. 3(2)(a) and by the potential consequences of her interpretation.  Each of these elements – viewed individually and cumulatively – strongly supported the conclusion that s. 3(2)(a) was not intended to apply to children of foreign government representatives or employees who had not been granted diplomatic privileges and immunities.

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