Standard of Correctness - Limited Use (LTB)
Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII)
[52] Third, we would note that statutory appeal rights are often circumscribed, as their scope might be limited with reference to the types of questions on which a party may appeal (where, for example, appeals are limited to questions of law) or the types of decisions that may be appealed (where, for example, not every decision of an administrative decision maker may be appealed to a court), or to the party or parties that may bring an appeal. However, the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal. But any such application for judicial review is distinct from an appeal, and the presumption of reasonableness review that applies on judicial review cannot then be rebutted by reference to the statutory appeal mechanism.
[53] In our view, respect for the rule of law requires courts to apply the standard of correctness for certain types of legal questions: constitutional questions, general questions of law of central importance to the legal system as a whole and questions regarding the jurisdictional boundaries between two or more administrative bodies. The application of the correctness standard for such questions respects the unique role of the judiciary in interpreting the Constitution and ensures that courts are able to provide the last word on questions for which the rule of law requires consistency and for which a final and determinate answer is necessary: Dunsmuir, at para. 58.
[54] When applying the correctness standard, the reviewing court may choose either to uphold the administrative decision maker’s determination or to substitute its own view: Dunsmuir, at para. 50. While it should take the administrative decision maker’s reasoning into account — and indeed, it may find that reasoning persuasive and adopt it — the reviewing court is ultimately empowered to come to its own conclusions on the question.
[62] In short, general questions of law of central importance to the legal system as a whole require a single determinate answer. In cases involving such questions, the rule of law requires courts to provide a greater degree of legal certainty than reasonableness review allows.
[64] Administrative decisions are rarely contested on this basis. Where they are, however, the rule of law requires courts to intervene where one administrative body has interpreted the scope of its authority in a manner that is incompatible with the jurisdiction of another. The rationale for this category of questions is simple: the rule of law cannot tolerate conflicting orders and proceedings where they result in a true operational conflict between two administrative bodies, pulling a party in two different and incompatible directions: see British Columbia Telephone Co., at para. 80, per McLachlin J. (as she then was), concurring. Members of the public must know where to turn in order to resolve a dispute. As with general questions of law of central importance to the legal system as a whole, the application of the correctness standard in these cases safeguards predictability, finality and certainty in the law of administrative decision making.
[65] We would cease to recognize jurisdictional questions as a distinct category attracting correctness review. The majority in Dunsmuir held that it was “without question” (para. 50) that the correctness standard must be applied in reviewing jurisdictional questions (also referred to as true questions of jurisdiction or vires). True questions of jurisdiction were said to arise “where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter”: see Dunsmuir, at para. 59; Quebec (Attorney General) v. Guérin, 2017 SCC 42, [2017] 2 S.C.R. 3, at para. 32. Since Dunsmuir, however, majorities of this Court have questioned the necessity of this category, struggled to articulate its scope and “expressed serious reservations about whether such questions can be distinguished as a separate category of questions of law”: McLean, at para. 25, referring to Alberta Teachers, at para. 34; Edmonton East, at para. 26; Guérin, at paras. 32-36; CHRC, at paras. 31-41.
[67] In CHRC, the majority, while noting this inherent difficulty — and the negative impact on litigants of the resulting uncertainty in the law — nonetheless left the question of whether the category of true questions of jurisdiction remains necessary to be determined in a later case. After hearing submissions on this issue and having an adequate opportunity for reflection on this point, we are now in a position to conclude that it is not necessary to maintain this category of correctness review. The arguments that support maintaining this category — in particular the concern that a delegated decision maker should not be free to determine the scope of its own authority — can be addressed adequately by applying the framework for conducting reasonableness review that we describe below. Reasonableness review is both robust and responsive to context. A proper application of the reasonableness standard will enable courts to fulfill their constitutional duty to ensure that administrative bodies have acted within the scope of their lawful authority without having to conduct a preliminary assessment regarding whether a particular interpretation raises a “truly” or “narrowly” jurisdictional issue and without having to apply the correctness standard.
[74] In this section of our reasons, we endeavour to provide that guidance. The approach we set out is one that focuses on justification, offers methodological consistency and reinforces the principle “that reasoned decision-making is the lynchpin of institutional legitimacy”: amici curiae factum, at para. 12.
