Back to the Future; Supreme Court to revisit standard of review for Spy Kids and others. Or will it?

In a most curious manner, the Supreme Court of Canada issued the following direction in granting leave to appeal in the cases of MCI v. Vavilov and Bell Canada v. Canada:

To that end, the appellant and respondent are invited to devote a substantial part of their written and oral submissions on the appeal to the question of standard of review, and shall be allowed to file and serve a factum on appeal of at most 45 pages.

In other words: Don’t bother us too much with the merits, we want to hear about standard of review!

The above direction brought clarity to an earlier mystery, which saw the court announce the release date of its leave decision in the Vavilov case (the Spy Kids case) only to inexplicably cancel that date so that Bell Canada could catch up. Bell Canada? What could an immigration case involving children born in Canada to Russian secret agents have in common with the NFL and the CRTC? Of course, the issue of standard of review would unite them.

But, now, a new mystery has unfolded. Why does the court now want to hear about a subject it put out to sea in Dunsmuir v. New Brunswick? Indeed, when in Kanthasamy v. Canada, I argued that we needed to take another look at Dunsmuir, I was judiciously informed by Justice Rosalie Abella that “that ship has sailed.”

The key to this mystery lies in understanding what Justice David Stratas of the Federal Court of Appeal recognized in his Vavilov decision. Stratus saw that Dunsmuir had created an immense fissure in the common law, into which the very rule of law itself was left teetering. He saw, as did others, that barbarians were once again at the gates of civilization and action had to be taken to avoid a return to rule by autocratic whim rather than by patient logic and precedent!

OK, maybe he didn’t use those exact words, but you get where I’m going.

A direct byproduct of the standard of reasonableness (and deference to the home tribunal) was the new notion that the very law itself could have multiple interpretations. And, so, provided a tribunal adopted one of those interpretations, a court would not interfere. In the result, the interpretation and application of the law depended on the luck of the draw, as in on which tribunal member one drew. An applicant’s win or loss would depend on which meaning was selected by the presiding member, with full confidence that, regardless of the meaning chosen or the coin flipped, no court would interfere. The common law system, which had prided itself on the same justice for all, was repositioning into a system of unpredictable arbitrariness. 

Don’t believe me?

In immigration law, an omen of this disaster was revealed in Martinez Hoyos v. Canada, a post-Dunsmuir-age decision. The Federal Court was faced with two divergent lines of authority on the definition of a child for the purpose of a best-interest assessment under s. 25 of the Immigration and Refugee Protection Act. Under one set of judgements, the court had held that the dividing line for such an assessment was the age of 18; in another set, a more culturally nuanced and sensitive approach was taken to incorporate family dependency and tradition in determining age of dependency. In other words, in certain circumstances, someone over the age of 18 could still be considered a child in immigration law. In the decision under review in Hoyos, the immigration officer had drawn a hard line at 18 years old. On judicial review, instead of resolving the issue of the conflicting authorities, Justice Mary Gleason of the trial division applied Dunsmuir and deference, noting that either of the divergent approaches was possible and so the decision of the officer was reasonable. Gleason’s decision essentially meant that an applicant aged 19 could benefit from a best interest assessment if they drew officer X but not if they drew officer Y, and in either case, the decision, as different as it possibly could be — was reasonable.

In Vavilov, Stratas adopted and applied a review of Dunsmuir aimed at displacing the arbitrariness produced by allowing multiple interpretations of the same law by tribunals. In that case, he held that the reasonableness standard evoked a “margin of appreciation” so that where the interests of an individual were high (thus triggering the court’s sensitivity to rule of law concerns), the court would apply the reasonableness standard in a more exacting way. For Stratas, the application of the reasonableness standard would be so exacting as to leave only one possible interpretation of a statute. That sounds like correctness. It also sounds sensible.

In dissent in Vavilov, Gleason (the same judge who decided Hoyos, above, now elevated to the Court of Appeal), applied a strict reading of the deferential standard and decided that two interpretations of the Citizenship Act were possible; and as long as the officer had chosen one of the two, her decision was reasonable. Once again, Gleason’s decision means that, on any given day, a Canadian-born child with Russian spies as parents could either be Canadian or not, depending on which official had their file.

In the companion case of Bell Canada v. Canada, the panel of the Federal Court of Appeal took issue with the margin-of-appreciation concept and held that the determination to be made was whether the decision was reasonable in the circumstances; nothing more and nothing less — an implicit rejection of Stratas’ view. Of interest is the fact that Gleason sat on the three-member panel in Bell Canada, which unanimously rejected the margin of appreciation notion put forward by Stratas. Seems that Gleason just won’t give up the so-called reasonable fight.

So, back to the SCC we go, to revisit Dunsmuir and all that followed and then to the future, a future in which either the rule of law will prevail (as envisioned by Stratas) or the whims of tribunal members will rule.