May 14, 2018

The Supreme Court Has Announced it is Revisiting Dunsmuir

In 2008, the Supreme Court of Canada essentially abandoned the old system and reconsidered the standard of review in Dunsmuir v. New Brunswick which has now arguably become one of the most commonly cited authorities on standard of review since it was decided.

In Dunsmuir, the Supreme Court reconsidered the analytical process of judicial review and clarified that the function of judicial review was to ensure “the legality, the reasonableness, and the fairness of the administrative process and its outcomes.” The court also highlighted that in judicial review, although the court’s inquiry into whether a decision is reasonable is “concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process, it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” [emphasis added].

The question of standard of review is now being revisited. On 10 May 2018, the Supreme Court granted leave in Minister of Citizenship and Immigration v. Alexander Vavilov, which will be heard together with the appeal in Bell Canada, et al. v. Attorney General of Canada and National Football League, et al. v. Attorney General of Canada.

In Vavilov, the Registrar of Citizenship (Registrar) revoked Mr. Vavilov’s citizenship under subparagraph 3(2)(a) of the Citizenship Act on the basis that Mr. Vavilov’s parents were foreign employees (spies) who had adopted assumed identities of two-deceased Canadians. The parents moved to Boston, Massachusetts where they became naturalized American citizens using their assumed Canadian identities. In 2010, the United States Federal Bureau of Investigation (FBI) arrested the parents and removed them to Russia “in a spy swap.”

Although Mr. Vavilov was born in Canada, the Registrar justified his citizenship revocation on the basis that his parents worked for a foreign government as spies and were not “lawful Canadian citizens” at the time of his birth. The Federal Court found that the standard of review is correctness and that “the interpretation of subparagraph 3(2)(a) of the Citizenship Act is a question of law of general application across Canada and raises a pure question of statutory interpretation.” It upheld the Registrar’s decision on judicial review.

The Federal Court of Appeal, however, found that the Registrar’s determination was unreasonable pursuant to Dunsmuir. The court stated that “deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity.” The court concluded that despite affording the Registrar deference under the reasonableness standard, the decision in the circumstances of the case “is not supportable, defensible or acceptable” because the parents were not employees of a foreign government within the meaning of subparagraph 3(2)(a). The Minister of Citizenship has now challenged the decision before the Supreme Court for which leave has been granted and the court has invited oral and written submissions from the appellant and respondent specifically on the issue of standard of review.