Discussion[1]

The current standard of review by the RAD for assessing procedural fairness and credibility findings in RPD decisions

As established in Huruglica,[2] the RAD reviews RPD’s conclusions of fact or law by a standard of correctness.[3] This is further affirmed in Del Solar, however, the modifier “typically” is added to signal an unaddressed ambiguity in Huruglica. [4] The issue in Del Solar was whether the “the RAD should show restraint or deference to some of the RPD’s conclusions on credibility where the RPD was better-positioned to make them.”[5] The deference by RAD given to the RPD suggests a departure from the correctness standard. However, this was firmly rejected in Del Solar because RAD’s function is not to show deference to the RPD and to do so would duplicate the standard of reasonableness which is reserved for judicial review.[6] The function of the RAD is clarified and made harmonious with the legislative objective:[7] the RAD must take a non-deferential approach and conduct a correctness review of the RPD’s decisions.[8] Del Solar’s judgmentis treated positively.[9]

The correctness standard for the RAD in assessing the RPD straightforwardly applies to procedural fairness. All divisions of the IRB are bound by “fairness and natural justice.”[10] The deference tethered to the reasonableness standard does not fit with this statutory objective.[11] The correct assessment of the measure of sufficient procedural fairness can be found in Baker.[12] There are still some puzzling caselaw,[13] but procedural fairness certainly attracts the correctness standard. This is not a live issue.

The current standard of review by the Federal Court for assessing RAD’s assessment of the standard of review[14]

Judicial review of the RAD’s assessment of the RFD is generally deferential and employs the reasonableness standard.[15] This means that the court has a limited role and is not tasked with rehearing the case from scratch.[16] More specifically, the FC polices the tribunal’s decisions for overstepping the rule of law,[17] and whether the RAD’s decision contains such reviewable errors.[18] Oddly, an issue of interpreting an administrative body’s home statute gives rise to the presumption of reasonableness.[19] The reasonableness standard is further explicated in Dunsmuir as “concerned mostly with the existence of justification, transparency and intelligibility…”[20] Additionally, the deference threshold for errors of fact on review is one of “palpable and overriding error.”[21]

By and large, judicial review shows a high amount of deference to expert administrative decision-makers. This reasonableness standard in judicial review is straightforward for assessing the RAD’s assessment of credibility.[22] Del Solar is a strong example of how such an analysis ought to proceed. The FC is clear of their narrow role in finding reviewable errors.[23] This is not a live issue.

The standard of review for the FC for issues of procedural fairness is nuanced. In practice, it is often difficult to distinguish substantive matters from purely procedural issues.[24] As a result, Baker defines the boundaries of procedural fairness through a contextual analysis, which is different from a standard of reasonableness.[25] While some courts have shown deference on procedural matters,[26] Justice Binnie, affirming Dunsmuir, explains that procedural issues “are to be determined by a court on the basis of a correctness standard of review.”[27] There is ambiguity in the conceptual relation between “correctness” and “deference.”

“Deference” is a problematic term to apply to procedural fairness, where “even though there is awkwardness in the use of the terminology, this reviewing exercise is ‘best reflected in the correctness standard’ even though, strictly speaking, no standard of review is being applied.”[28] The correctness standard is for mere practical parlance and does not denote how procedural fairness is conceptualized. In one sense, deference might be given to administrative bodies in their procedural choices, but it cannot undermine procedural fairness simplicter. Consequently, the question of what standard is applied is in one sense moot. It is all about assessing the overall outcome and not about the mode or standard by which a particular outcome is reached.[29] The “correctness” and “reasonableness” standards seem to collapse into a contextual standard of fairness within the circumstances.[30] Again, this illustrates the robust legacy of Baker.[31]

Post-Vavilov changes to the above[32]

Tracking the relative significance of Vavilov may call for a detailed historical look at key doctrinal developments, like Pushpanathan,[33] Dunsmuir,[34]or Doré.[35] This approach is too broad for the purposes here.[36] If we take Del Solar is a starting point, there are not many substantive “changes” in the law in terms of the standards of review; through this lens, Vavilov has more of a heuristic function in clarifying deviations in the caselaw and streamlining the analytic pathway.[37] Nonetheless, there seem to be some internal tensions in Vavilov’s notion of deference which need to be spelled out.

Vavilov establishes the standard of reasonableness as the starting point for all cases of judicial review. There are two categorical exceptions which trigger the standard of correctness: explicit appeal rights in the statute and rule of law related issues.[38] Under rule of law related issues, there is an open list which includes constitutional issues, questions of central legal importance, and issues of overlapping jurisdiction.[39] The rationale for the default reasonableness standard is based on respecting legislative decisions to confer decision-making powers on administrative bodies.[40] More precisely, reasonableness is contextual and must take into consideration that “administrative justice” does not look like “judicial justice.”[41] This approach is supposed to have the effect of simplifying the law and ensure subsequent uniformity of procedure.[42]

Gomes,[43] a post-Vavilov case, affirmed the approach taken above in Del Solar.[44] Gomes used the standard of reasonableness to guide their assessment of the RAD’s decision and narrowed their reviewable scope to consistency with the rule of law. More specifically, the reasonableness standard looks to determine “whether the RAD’s process and conclusions are justified, transparent and intelligible in the light of its underlying rationale.”[45] The court further affirmed that the RAD’s standard of review for assessing the RPD’s decision is correctness.[46] Gomes illustrates the symmetry in the level of deference between Del Solar and Vavilov.

Importantly, Vavilov’s deferential approach is cashed out differently between questions of credibility and questions of procedural fairness. For questions relating to credibility, the reasonableness standard straightforwardly persists and courts must look for palpable and overriding error.[47] Next, Vavilov makes clear that procedural fairness is not collapsed into the reasonableness review. It is crucial to disentangle procedural fairness and substantive review in Vavilov. The example used is the adequacy of reasons. In one sense, the procedural “inadequacy”of reasons can be a relevant reasonableness issue because it fails to be the “requisite standard of justification, transparency and intelligibility.”[48] However, in another sense, procedural fairness guarantees are entirely separate from the substantive review analysis in Vavilov and the appropriate starting point would instead begin with Baker. Again, it seems that the terminology employed in Vavilov results in a disjointed conception of procedural fairness.[49]

Promising areas for reform[50]

The current Vavilov framework appears particularly vulnerable to a body of inconsistent decision-making by administrative “experts,” which triggers further judicial intervention.[51] While the expertise (perceived or otherwise) of the administrative decision-makers appropriately do not determine the selection of the standard of review, it is inadequate to waive away the question of why the legislature defers to administrative experts with the superficial answer of legislative “institutional design.”[52] In the context of the IRB, members are rarely legal experts and fail to demonstrate expertise on key indicators of proficiency in the role.[53] It is problematic that judges, with legal expertise, ought to defer matters of law to non-legal experts under the guise of blind deference.

On a theoretical level, the problem of deference is more complex. The justification for deferring to non-legal experts is to strike a balance between the two poles of legislative deference and judicial activism.[54] Del Solar correctly observed that correctness and deference are mutually exclusive concepts,[55] but it is not obvious that a more rigorous judicial review necessarily implies that there is improper respect for legislative intent. As was the case for analyzing procedural fairness, the established categories of “correctness” or “reasonableness” are at best awkward and clunky ways of explicating procedural fairness. Instead, this vexing language game can be explained by looking to the purpose:[56] for procedural fairness, an aspirational ideal of natural justice.[57] In taking this purpose-driven method derived from Baker, [58] we end up with a contextual, result-oriented approach.[59]  In similar fashion, with respect to the deference shown to administrative actors, the approach should look to the aspirational ideal of the rule of law. [60]

To be clear, a charitable reading of Vavilov must first be constructed before the rule of law problem becomes identifiable. To begin, legislative intent should be understood as upholding the rule of law.[61] The question that emerges is how non-legal experts uphold this ideal in the administrative context.[62] A key assumption seems to be that judges and judicial scrutiny does not automatically bring us closer to the rule of law.[63] In fact, the legislative purpose of showing deference to administrative decision-makers is to move closer to the ideal of the rule of law.[64] The putative expertise of administrative decision-makers is supposed to give texture to the intention of the governing law.[65] The judiciary may do its part in guiding this process to ensure that rights are protected and experts are not acting unreasonably, but it is cautioned that judicial overreach and judges imposing their own conception of justice frustrates the intentions of parliament and undermines the rule of law.[66]

The rule of law should be understood in terms of protection against arbitrariness.[67] Vavilov emphasizes that reasons in the administrative decision-making process can ‘‘shield against arbitrariness as well as the perception of arbitrariness in the exercise of public power.”[68] What is “arbitrary,” in other Canadian law contexts, [69] connotes when reasons are not rationally connected to the purpose of an act.[70] A parallel can be drawn between how the “test” in Baker provides a guide to realizing the ideal of natural justice and how the “test” for arbitrariness can be used as a guide to realizing the ideal of the rule of law.

Tying this back to Vavilov, the framework fails to imbed arbitrariness into its analysis and thereby fails to capture scenarios where the rule of law is being undermined.[71] Of course, Vavilov makes clear that rule of law issues attracts the correctness standard.[72] However, arbitrariness by decision-makers does not fit into the enumerated grounds of a rule of law issue in Vavilov and it is unlikely to be established as a new ground. [73] As the majority in Vavilov puts it, “questions of central importance are not transformed into a broad catch-all category for correctness review.”[74]

A salient instance of a violation of the rule of law which the Vavilov framework problematically permits is consistency across administrative decisions. Stare decisis is one principle to ensure non-arbitrariness and consistency in the law whereby the same facts do not arbitrarily deviate in legal adjudication.[75] However, administrative decision-makers do not have this safeguard. Therefore, such deference to arbitrary decision-makers or to the effect of arbitrary decisions repugnantly undermines the rule of law.[76]

By way of practical recommendations, advocacy and test case litigation should focus on scenarios where expert and procedural fairness are overlapping concerns.[77] More specifically, when a RAD decision ends up in Federal Court, a good test case would have the following elements: the reasons provided by the RAD are procedurally sufficient (thus satisfying Baker), the reasons are pro tanto “reasonable” under Vavilov,[78] and yet the reasons are arbitrary.[79] This will illustrate the need for protection against arbitrariness within the reasonableness standard.[80]

This line of argumentation must confront objections. One may claim that the existing Vavilov framework comprehensive enough to address all these concerns. Granted, Vavilov makes room for constitutional issues and international legal obligations. So, perhaps egregious violations to individual rights and rule of law or arbitrariness problems can be resolved on these grounds. To its detriment, this response is insensitive to both Vavilov and Baker. Contrary to Vavilov, this reduces the “streamlining” and adds complex litigation into the system. Contrary to Baker, individual rights on such impactful matters are not better protected by having to go through the justice system. This generates access to justice issues for individuals who are already vulnerable and marginalized. In a word, Vavilov’s reasonableness review needs more scrutiny.[81]

To be sure, it is certainly possible to use this line of argumentation and instead argue that the correctness standard is more appropriate.[82] However, the problem then is the failure to take seriously the anxieties against judicial activism and undermining the legislative intent of deferring to expert administrative decision-makers.[83] In essence, a proposal for expanding the correctness standard would be insensitive to the underlying rationale of the Vavilov framework. The respect for legislative institutional design must be preserved and advocacy is less persuasive when overly revisionary.[84]

By and large, the upshot of the proposal here is again modelled on Baker: where the rule of law significantly impacts the individual, experts must demonstrate non-arbitrariness, or a rational connection between the purpose of the tribunal and the reasons provided. This would be an added consideration for reasonableness. This certainly overlaps with questions relating to the adequacy of reasons since demonstrating non-arbitrariness demands a level of comprehensive reasons. Nevertheless, it is important to emphasize that non-arbitrariness demands the “right kinds” of reasons.[85]

There is some movement in this direction already.[86] One useful tool to operationalize this change is the use of “jurisprudential guides.” [87] While administrative decision-makers are not bound to use such guides, it does provide some support insofar as making explicit what the judiciary is looking for and creating a notional checklist for the right kinds of reasons. Jurisprudential guides bridge the gap between judicial expertise and the expertise of the administrative decision-makers. One clear example where a jurisprudential guide would be helpful is in the realm of statutory interpretation. Legal experts have nuanced debates on the minutia of legislation. This is clearly an area where deference is inappropriate and it would be unreasonable to expect administrative experts to be legal experts.[88]

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[1] N.B. I should make explicit someassumptions and the corresponding reasoning in this legal memo. I have omitted a “facts” section because I understand the assignment to be driven by theory rather than facts – that is, we are not dealing with a particular case, rather we are looking at broad patterns in the jurisprudence. I also omitted an issue section because they are straightforwardly described by the supervising lawyer and I have instead opted for more descriptive headings. Additionally, I am assuming that most of the focus is on the last topic because the purpose of memo is for advocacy and test litigation – that is, it would make little sense to write extensively about the existing procedures, rather the existing procedures are merely the foundations for building a critique. Finally, I have deliberately excised details and specific case law relating to refugee law because they distract from the overall administrative law argument; in any case, refugee law serves as an example of how administrative principles take shape in practice. I appreciate that my role is an articling student for the Canadian Association of Refugee Lawyers, but my gripe is focused on Vavilov and what it means for the IRB (and not the other way around). 

[2] Canada (Citizenship and Immigration) v Huruglica, 2016 FCA 93, 396 DLR (4th) 527 [Huruglica].

[3] The caselaw before Huruglica is quite messy as to the question of the level of deference RAD owes to RPD.

[4] “…the Federal Court of Appeal held that, when considering the RPD’s factual and legal conclusions on appeal, the RAD must typically apply a correctness standard of review.” (Emphasis added.) Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, 2018 CF 1145 [Del Solar] at para 5.

[5] Ibid at para 6.

[6] Ibid at para 136.

[7] Canada (Public Safety and Emergency Preparedness) v Gebrewold, 2018 FC 374, 2018 CF 374 at para 25.

[8] In Del Solar, the court rejected the idea of “epistemic deference” and the idea that RPD may be “better-positioned.” See Del Solar, supra note 7 at para 55.

[9] See, for example, Hamid c. Canada (Citoyenneté et Immigration), 2018 FC 1246, 2018 CF 1246.

[10] IRPA, supra note 2 s 162(2).

[11] Note: “one should always keep in mind that the very first objective of the IRPA (s 3(2)(a)) is to recognize that the refugee program is about saving lives and offering protection to the displaced and persecuted…” Huruglica, supra note 5 at para 53.

[12] Baker v. Canada (Minister of Citizenship & Immigration), 1999 SCC 699, [1999] 2 SCR 817 [Baker] at paras 21-28.

[13] This seems to suggest some confusion even after Huruglica. See, for example, Corvil c. Canada (Citoyenneté et Immigration), 2019 FC 300, 2019 CF 300.

[14] It should be clarified that the scope of review and standard of review is an important distinction. The “scope” generally refers to the kinds of issues that are allowed in appeal; on the other hand, the “standard” generally refers to the level of scrutiny or deference. 

[15] Groia v Law Society of Upper Canada, 2018 SCC 27, 2018 CSC 27 at paras 45–47.

[16] Singh v Canada (Citizenship and Immigration), 2014 FC 1077, 2014 CF 1077 at para 9.

[17] Khela v. Mission Institution, 2014 SCC 24, 2014 CSC 24 at para 37.

[18] Tsleil-Waututh Nation v Canada (Attorney General), 2017 FCA 128, 2017 CAF 128 at para 78

[19] Williams Lake Indian Band v Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4, 2018 CSC 4 at para 138. I argue below that this is a good example of an area that is still problematic post-Vavilov and calls for further reform.

[20] Dunsmuir v. New Brunswick, 2008 SCC 90, [2008] 1 SCR 190 [Dunsmuir]at para 47.

[21] Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235 at para 10.

[22] Assuming they are questions of fact or mixed questions of law and fact. Some issues of law, even prior to Vavilov, seem to questionably attract the correctness standard. See, for example, Bakare v. Canada (Minister of Citizenship and Immigration), 2017 CarswellNat 656, 2017 FC 267.

[23] Again, to the existence of justification, transparency, and intelligibility within the decision-making, and to the threshold of palpable and overriding error.

[24] See Paul Daly, ‘‘Canada’s Bipolar Administrative Law: Time for Fusion,” (2014) 40:1 Queen’s LJ 213.

[25] For instance, procedural fairness for RPD may require sufficient reasons because of the importance of the matter to the individual. This is less deferential than the reasonableness standard.

[26] Knight v. Indian Head School Division No. 19, 1990 CarswellSask 146, [1990] 1 SCR 653 at 685. See also, Maritime Broadcasting System Ltd. v. Canadian Media Guild, 2014 FCA 59, 2014 CarswellNat 474 at para 50.

[27] Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 SCR 339.

[28] Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2018] FCJ No 382 para 54.

[29] This point is further supported by post-Vavilov case law. See, for example, Tsigehana v. Canada (Citizenship and Immigration), 2020 CarswellNat 1220, 2020 FC 426.

[30] Some see this as the “correctness” standard, but the use of this term here is confusing. However, if there is not much purchase in the argument that procedural fairness does not fit into either category of “reasonableness” or “correctness,” then it is perhaps more appropriate to call the standard “correctness” because it denotes a higher standard. See Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 SCR 559.

[31] For a closer analysis of the significance of Baker, see David Dyzenhaus & Evan Fox-Decent, “Rethinking the Process/Substance Distinction: Baker v. Canada” (2001) 51:3 UTLJ 193.

[32] My reading of Vavilov squarely stays within the majority opinion. The concurring reasons agree with much of what the majority says: Vavilov, supra note 1 at paras 291-296, 306, 311-313.

[33] Pushpanathan v. Canada (Minister of Employment & Immigration), [1998] 1 SCR. 982, [1998] SCJ No 46 [Pushpanathan].

[34] Dunsmuir, supra note 22.

[35] Doré c. Québec (Tribunal des professions), 2012 SCC 12, [2012] 1 SCR 395 [Doré].

[36] The focus here is to outline the changes from Vavilov in the analysis of the standard of review for credibility and procedural fairness, as put forth above. As a result, peripheral questions and deep dive into the case law must be set aside for the sake of clarity and brevity.

[37] Some may balk at this approach as it flattens the vast body of conflicting case law. I do not doubt that Vavilov’s impact is far greater than I have suggested, especially through its elucidation of the rationale behind judicial deference. Still, I write this within only a year of the decision and it is too early for sweeping statements about its impact on administrative law.

[38] See Vavilov paras 23, 47, 52…

[39] A statutory right appeal attracts a correctness standard on questions of law because (as elucidated below) the court looks to show deference to the legislature in prescribing a standard of review. This means that appeals can go directly to the court and the court then has a rigorous hand-on role to assess for correctness (rather than laxly reviewing for reasonableness). Vavilov, supra note 1 at paras 34-35.

[40] In other words, the legislature respects the expertise of the administrative decision-maker and the courts must follow suit. See Vavilov, supra note 1 at para 30.

[41] Vavilov, supra note 1 at para 92.

[42] The majority considers two ways a decision can be unreasonable. First, the reasoning must be “both rational and logical” and not “fail to reveal a rational chain of analysis”: Vavilov, supra note 1 at para 102. Second, the reasoning “must be justified in relation to the constellation of law and facts that are relevant to the decision”: Vavilov, supra note 1 at para 105.

[43] Gomes v. Canada (Citizenship and Immigration), 2020 FC 506, 2020 CarswellNat 1343 [Gomes] at paras 25 and 27.

[44] As far as the affect of Vavilov on the decision making goes, Gomes illustrate the simplicity of Vavilov’s analytic framework as compared to Del Solar and its hodgepodge of supporting case law.

[45] Ibid para 42.

[46] Ibid para 40.

[47] Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235.

[48] Vavilov, supra note 1 at para 98.

[49] To be sure, it would be a mistake to confuse the traditional distinction between substantive review and procedural fairness. However, depending on one’s theoretical commitments, this traditional distinction bleeds through, especially when considering what rights an individual is entitled to. For an excellent discussion on administrative law theory, see Martin Loughlin, “Procedural Fairness: A Study of the Crisis in Administrative Law Theory” (1978) 28:2 UTLJ 215.

[50] Much of the ideas here derive from pre-Vavilov commentary on Doré and general standard of review literature. See: Christopher Bredt & Ewa Krajewska, “Doré: All  That  Glitters  is  Not  Gold” (2014) 67 SCLR  339; Lorne Sossin & Colleen  Flood,  “The  Contextual  Turn:  Iacobucci’s  Legacy  and  the Standard of Review in Administrative Law” (2007) 11:54 UTLJ 581 at 591; Stephen Breyer, “Judicial Review of Questions of Law and Policy” (1986) 38:4 Admin L Rev 363; Victoria Wicks, “What Ktunaxa can teach us about Doré” (2018) 31:2 Can J Admin L & Prac 217.

[51] This is not a novel issue that is specific to Vavilov – rather, it an old criticism that is revived against the existing standard of review framework, which incidentally is Vavilov. See, for example, Lorne Sossin & Colleen M Flood, “The Contextual Turn: Iacobucci’s Legacy and the Standard of Review in Administrative Law” (2007) 57:2 UTLJ 581.

[52] Vavilov, supra note 1 at para 24.

[53] Examples include: difficulties in evaluating evidence, assessing credibility, and conducting hearings; problems in coping with vicarious traumatization and uncontrolled emotional reactions; poor knowledge of the political context, false representations of war, and cultural misunderstandings or insensitivity. See Cecile Rousseau et al, “The Complexity of Determining Refugeehood: Multidisciplinary Analysis of the Decision-Making Process of the Canadian Immigration and Refugee Board” (2002) 15:1 J of Refugee Studies 43.

[54] A coherent doctrinal narrative of judicial review is difficult to achieve due to the contentious nature of fundamental questions in this area of jurisprudence. For a look into such questions, see David Stratas, “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency” (2016) 42:1 Queen’s L.J. 27. 

[55] Del Solar, supra note 7paras 55-59.

[56] Linguistic approaches to conceptual analysis in law can be quite helpful for legal reform. See, for example, Brenda Danet, “Language in the Legal Process” (1980) 14:3 Law & Soc’y Rev 445.

[57] Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 SCR 1170, 1990 CarswellMan 235 at 1204.

[58] Note the appropriation of the language from Baker in Vavilov, supra note 1 at para 133.

[59] Doré, supra note 22. See also, Vavilov, supra note 1 at para 76.

[60] Some have also pushed the idea that the adequacy of reasons is not a rule of law issue. See, for example, Wawanesa Mutual Insurance Co. v. Renwick, 2020 ONSC 2226, 2020 CarswellOnt 5073 at paras 47-49. This objection undermines my entire argument and must be swiftly addressed. There are a number of passages in Vavilov which run contrary to this approach: ‘‘administrative decision-makers must adopt a culture of justification and demonstrate that their exercise of delegated public power can be ‘justified to citizens in terms of rationality and fairness’”[…] “the standard of review it applies must reflect the legislature’s intent with respect to the role of the reviewing court, except where giving effect to that intent is precluded by the rule of law” [….] ‘‘the provision of reasons for an administrative decision may have implications for its legitimacy, including in terms both of whether it is procedurally fair and of whether it is substantively reasonable.” (Emphasis added.) Vavilov, supra note 1 at paras 14, 23, 81.

[61] See, for example: Peter W Hogg & Cara F Zwibel, “The Rule of Law in the Supreme Court of Canada” (2005) 55:3 UTLJ 715; Richard H Fallon Jr, “The Rule of Law as a Concept in Constitutional Discourse” (1997) 97:1 Colurn L Rev 1; Raz, Joseph. “The Rule of Law and Its Virtue” in Robert L. Cunningham, ed, Liberty and the Rule of Law (College Station: Texas A&M University Press, 1979); Lorraine E Weinrib, “The Supreme Court of Canada in the Age of Rights: Constitutional Democracy, the Rule of Law and Fundamental Rights under Canada’s Constitution” (2001) 80:1-2 Can Bar Rev 699.

[62] David Dyzenhaus, “The Rule of (Administrative) Law in International Law” (2005) 68:3&4 Law & Contemp Probs 127.

[63] Vavilov, supra note 1 para 92.

[64] Audrey Macklin, “Charter Right or Charter Lite? Administrative Discretion and the Charter” (2014) 67 SCLR 30.

[65] For example, laws created by non-medical professional which govern medical professionals are given a more nuanced interpretation by other medical professionals. For an elaboration on the justification for deference, see David Dyzenhaus, “Dignity in Administrative Law: Judicial Deference in a Culture of Justification” (2012) 17:1 Rev Const Stud 87. For a historical-doctrinal justification, see David Mullan, “The Supreme Court of Canada and Tribunals – Deference to the Administrative Process: A Recent Phenomenon or a Return to Basics” (2001) 80:1-2 Can Bar Rev 399.

[66] Paul Daly, “The Unfortunate Triumph of Form over Substance in Canadian Administrative Law” (2012) 50 Osgoode Hall L.J. 317. 

[67] This formulation is found in Reference re Secession of Quebec, [1998] 2 SCR 217, 161 DLR (4th) 385. Generally, the rule of law is treated as nebulous concept in Vavilov and it is difficult to pin down in precise terms. A running theme, however, is that administrative exercise of power needs to be justified in relation to the purpose of empowering body (e.g. the tribunal, the statute, or even something broader like the democratic will of the people embodied in the legislature…)

[68] Vavilov, supra note 1 para 79.

[69] Canadian jurisprudence on arbitrariness is also made explicit in the following Supreme Court of Canada cases: PHS Community Services Society v. Canada (Attorney General), 2011 SCC 44, [2011] 3 SCR 134; Bedford v. Canada (Attorney General), 2013 SCC 72, [2013] 3 SCR 1101; Carter v. Canada (Attorney General) 2015 SCC 5, [2015] 1 SCR 331.

[70] For example, a “reasonable” forensic expert on a refugee tribunal might claim that an individual shows a pattern of lying, the forensic expert is transparent about their analysis, and the analysis is intelligible. However, the forensic expert can be said to be “arbitrary” in that a forensic analysis is not rationally connected to the purpose of refugee tribunals. A philosophical distinction between “de dicto” and “de re” may help clarify things. It helps to clarify the seemingly contradictory belief that something is both reasonable and arbitrary. It might be reasonable de dicto, but arbitrary de re. See Alvin Plantinga, “De Re et De Dicto” (1969) 3:3 Noûs 235.

[71] A clear example in the IRB context is when the administrative experts fail to show their expertise in the decision-making. Since their expertise plays no role in their decision-making, the decision-making becomes arbitrary insofar as the decision is not rationally connected to the purposes of the tribunal. One of the purposes that is unfulfilled is the legislative intent of having expertise in the decision-making process to enhance the rule of law. Another unfilled purpose is having a fair, internally consistent decision-making process for refugees.

[72] Under Vavilov, rule of law issues remains a vaguely narrow yet apparently open list. Rule of law issues, in principle, can go beyond the three enumerated grounds, but it is unclear why they are non-exhaustive.

[73] Rather, arbitrariness is better fits with procedural fairness and adequacy of reasons, which merely informs the reasonableness review. Note: “…the requirements of the duty of procedural fairness in a given case — and in particular whether that duty requires a decision-maker to give reasons for its decision — will impact how a court conducts reasonableness review.” Vavilov, supra note 1 at para 76.

[74] Vavilov, supra note 1 at para 61.

[75] Even minor threats to the rule of law are made stark when the stakes are particularly high, as is the case in the IRB context. See Lewis F Powell Jr, “Stare Decisis and Judicial Restraint” (1990) 47:2 Wash & Lee L Rev 281.

[76] For a careful analysis on the Canadian jurisprudence connecting the rule of law to arbitrariness, see Mary Liston, “Witnessing Arbitrariness: Roncarelli v. Duplessis Fifty Years On” (2010) 55:3 McGill LJ 689. See also Barry, Brian. “Equal Opportunity and Moral Arbitrariness” in Julian Lamont, ed, Distributive Justice (Milton Park: Routledge, 2016)

[77] Under Vavilov, it is not up to the court to determine whether or not an administrative decision-maker is an expert, so there needs to be some other metric of determining expertise. As suggested in Gomes, the RAD must consider the “upstream” purposes, that is, the Federal Court potentially reviewing the RAD’s decisions. (See Gomes, supra note 47 at para 42.) This means that the expert administrative decision-makers must do more work for the Federal Courts in proving that they are experts. Practically, this also means that administrative decision-makers need to elaborate on their reasoning and provide more sophisticated justifications which draw on their expertise, especially when the stakes are particularly high as in the IRB context.

[78] Namely, justified, transparent, and intelligible, and also passing the enumerated correctness triggers. I say “pro tanto” to signal the inadequacy of the concept “reasonable” in Vavilov.

[79] On a more abstract level, arbitrariness can be understood to undermine the rule of law in a number of ways. For Rawls, arbitrariness undermines notions of egalitarian justice by violating the status of citizens as free and equal. For Dworkin, arbitrariness undermines the grounds of law as integrity by formulating a conception of law that does not fit with the law’s purpose in justifying coercion.

[80] Others use terms like “fairness” or “impartiality” instead of “arbitrariness.” See Lorne Sossin, “An Intimate Approach to Fairness, Impartiality and Reasonableness in Administrative Law” (2002) 27:2 Queen’s LJ 809. See also, Lorne Sossin, “Public Fiduciary Obligations, Political Trusts, and the Equitable Duty of Reasonableness in Administrative Law” (2003) 66:1 Sask L Rev 129.

[81] Additionally, the normal course of action for the court is to remint the matter back to the administrative decision-maker for reconsideration. (Vavilov, supra note 1 at para 136.) This exacerbates the problem because arbitrariness is not easily self-identified and the court’s corrective recourse appears limited to formulating certified questions.

[82] To reiterate, the argument is that the adverse effects of allowing arbitrariness (within Vavilov’s reasonableness review) undermines of the rule of law. One may argue that “reasonable” and “arbitrary” are mutually exclusive, but “reasonable” here is a vague term and defined in relation to “correctness.” Linguistic analyses or semantic distinctions do not provide guidance here. This “arbitrariness” is also not “correctness” because it is possible to pass the arbitrariness standard yet fail the correctness standard.

[83] The classic example is the Lochner era in American legal history. For a thorough explication, see Stephen A Siegel, “Lochner Era Jurisprudence and the American Constitutional Tradition ” (1991) 70:1 NCL Rev 1.

[84] The legislature expects the administrative decision-makers to have expertise which has the function of enhancing the rule of law in an administrative tribunal context. As such, the current approach is more attenuated by working under the Vavilov framework, yet teasing out the importance of non-arbitrariness.

[85] For a look into the “wrong kinds of reasons problem,” see Andrew Reisner, “The possibility of pragmatic reasons for belief and the wrong kind of reasons problem.” (2009) Philos Stud 1:145 257. The right kinds of reasons in the IRB context must demonstrate expertise of the reputed experts or demonstrate a rational connection to the purpose of the tribunal.

[86] See, for example, Keqaj v. Canada (Citizenship and Immigration), 2008 FC 388, [2008] FCJ No 495.

[87] Canadian Association of Refugee Lawyers v MCI, 2019 FC 1126, 2019 CarswellNat 4404.

[88] The argument here points to a flaw in the blanket reasonableness standard in Vavilov. The flaw is understood in terms of arbitrariness, which undermines the rule of law and the deference rationale underlying the Vavilov framework. Simply put, legislature intends deference to promote the rule of law and arbitrary decisions lacking a rationale connection to that purpose is counterproductive. This insight can be placed within a larger political research projects, especially on topics relating to liberal democracies and political legitimacy. See, for example, John Rawls, A Theory of Justice, 2nd ed (Massachusetts: Harvard University Press, 1971); Thomas Christiano, The Constitution of Equality: Democratic Authority and Its Limits (Oxford: Oxford University Press, 2010); Brian Barry, Justice as Impartiality (Oxford: Clarendon Press, 1995); Nicholas Wolterstorff, Understanding Liberal Democracy: Essays in Political Philosophy (Oxford: Oxford University Press, 2016).