Real Estate Law Blog

In the cases referred to as Vavilov or the Trilogy – Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 and Bell Canada v. Canada (Attorney General), 2019 SCC 66 – the Supreme Court of Canada (SCC) clarified the framework for judicial review of administrative decisions. In the Trilogy, the SCC has ostensibly simplified the law by redefining the framework to determine the standard of review a court is to use when reviewing an administrative tribunal decision. The standard of review determines the degree to which the court may intervene in or must defer to the tribunal’s decision and is fundamental to administrative law practitioners and all whose rights are decided by tribunals.

While this may sound like legalese better left to the studies of first year law students, the practical consequences for this shift in the administrative law could be significant. Administrative bodies are engaged in and oversee decisions about many aspects of our lives, from granting citizenship to allowing Canadian viewers to watch the highly anticipated (American) Super Bowl commercials (the factual issues at play in the Trilogy cases).

Given the time of year, one area where this shift in the law may see immediate use is in relation to decisions of the Property Assessment Appeal Board. The Board is created under the Assessment Act, R.S.B.C. 1996, c. 20, to decide property tax assessment appeals. The Act includes a statutory appeal provision called a “stated case appeal” that allows a party to a Board decision to appeal as of right a question of law arising from the Board’s decision to court.

Historically, a judge hearing a stated case applied a “correctness” standard when reviewing a Board’s interpretation of the law, allowing the judge to substitute their interpretation if they disagreed with the Board’s. Importantly, this provided parties to an assessment appeal with a “second kick at the can” on legal issues.

However, in 2010, implementing the SCC’s direction to defer to tribunals even on legal interpretations, B.C. Courts were forced to switch to the “reasonableness” standard in stated case appeals. This prevented judges from substituting their interpretation of law for the Board’s except in the rarest of cases where the Board’s interpretation was irrational. The implementation of the reasonableness standard of review effectively shut down the “second kick at the can”, meaning tax appeals were conclusively decided by the Board. 

The SCC’s decisions in the Trilogy have returned the correctness standard of review to assessment appeal stated cases (because, as discussed further below, such appeals are created by statute).  Going forward, the Trilogy will restore a judge’s right to correct interpretation errors in assessment appeal Board decisions, returning the “second kick at the can” for all who appear before the Board.

As a general overview of the changes brought on by the Trilogy, there are two aspects to the judicial review framework that are impacted. First, with respect to the applicable standard of review this analysis now starts with a presumption that reasonableness is the applicable standard. The reasonableness standard requires that courts limit their interference with the administrative decision maker. The application of this standard, and the court’s limited involvement, is aimed at respecting the legislature’s intention that the administrative body, not the court, should be the one fulfilling its mandate and interpreting the law and issues the legislature has decided should come before it. By creating a presumption that the reasonableness standard applies, the Trilogy has removed the need for a contextual analysis to determine the appropriate standard of review. One hope is that this will streamline the judicial review process, making it more efficient and cost-effective.

As with any presumption, there are certain situations where the presumed standard of review will not apply. Two situations were expressly set out in the Trilogy. One of these, likely of limited application, arises where the rule of law requires that the standard of correctness be applied. This will occur where certain categories of legal questions are under review, including constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to jurisdictional boundaries between two or more administrative bodies.

The other circumstance in which the reasonableness presumption will be rebutted, and which, as in the case of assessment appeal stated cases, will likely see more frequent application, is where the legislature has signaled an intention that the less deferential correctness standard apply. One way the legislature can signal this intent is by creating a statutory appeal mechanism (such as an assessment appeal stated case) permitting an appeal of the administrative tribunal’s decision to the courts. Prior to the Trilogy, where the legislature had included such statutory appeal rights the court would still have to undertake a complicated analysis to determine the appropriate standard of review – far more often than not deciding that the reasonableness standard applied, resulting, as with assessment stated cases, in courts rarely if ever interfering with tribunal decisions even on questions of law.

By once again associating statutory appeal rights with the correctness standard, the Trilogy cases should reinforce the traditional supervisory role of the court on legal issues, a significant improvement in access to justice in the administrative law world. Where statutory appeal rights are not provided and judicial review remains the mechanism to appeal tribunal decisions to court, the Trilogy generally confirms the continued application of the more deferential reasonableness standard.