Twenty years ago, the Supreme Court of Canada declared in the case of Nanaimo (City) v. Rascal Trucking Ltd.1, that the question of whether a local government was acting within the scope of its authority should be determined on the standard of correctness. Subsequently, the Supreme Court of Canada affirmed that such a question “will always be reviewed on a standard of correctness”.2
However, at the tail end of 2019 the Chief Justice of Canada declared in the decision Canada (Minister of Citizenship and Immigration) v. Vavilov2 that the Court could “cease to recognize jurisdictional questions as a distinct category attracting correctness review”.4
While the facts of the Vavilov decision sound like something out of a John Grisham novel (the Canadian-born child of Russian spies fighting for his right to claim Canadian citizenship), the important thing for our local government clients to take away from the case is the departure it represents from past jurisprudence and the “holistic revision” it presents to the framework for judicial review.
The new Vavilov framework starts with the presumption that all matters on judicial review will be assessed on a standard of reasonableness, which is only to be rebutted where:
- The Legislature has indicated a different standard is to apply, either by:
a. Explicitly prescribing the standard of review that is to apply, or
b. Providing a statutory appeal mechanism; Or,
- The Rule of Law requires a standard of correctness, namely:
a. Constitutional Questions,
b. General questions of law of central importance to the legal system as a whole, or
c. Questions of jurisdictional boundaries between two or more administrative bodies.5
As indicated above, notably absent from this list is the previously recognized category of “true questions of jurisdiction”. Most decisions of a local government do not fall into one of the five situations listed above which depart from the presumption. Therefore, a court reviewing a local government’s decision on a judicial review will generally apply the standard of reasonableness.
As such, when a displeased constituent brings a petition alleging that her municipal council acted outside its jurisdiction, the Supreme Court of Canada has indicated that the municipality’s interpretation of the scope of its authority will need to fall with the range of reasonable options, and need no longer be purely “correct”.
In determining the reasonable scope of the local government’s authority, the court will look to the Local Government Act, the Community Charter, and any other statutory delegation of power, to assess how narrow or broad the legislature intended the local government’s jurisdiction to be. As stated in Vavilov, “where the legislature has afforded a decision maker broad powers in general terms – and has provided no right of appeal to a court – the legislature’s intention that the decision maker have greater leeway in interpreting its enabling statute should be given effect.”6
This brings us to the second aspect of the Vavilov decision: a clarification of how the courts are to apply the reasonableness standard of review.
As in the past, the burden is on the party challenging the decision to show that it was unreasonable. This can be done in two ways, by showing that: a) the overarching logic in the decision was internally incoherent or irrational; or b) the decision was untenable in light of the legal and factual constraints that came to bear on the decision.7
In many cases, a decision results in a written set of reasons which articulates the rationale for reaching the conclusion and the facts and law upon which it is based. However, what happens when the situation does not lend itself to a single set of written reasons, for example, when a local government passes a bylaw? Chief Justice Wagner has stated that, even in such circumstances, “the reasoning process that underlies the decision will not usually be opaque”. A reviewing judge should look to the record as a whole, such as the debate, deliberations, and statements of policy that gave rise to the bylaw, to understand the decision. Often, in doing so, the court will uncover clear rationale for the decision, and be able to determine whether the decision was made for a proper motive or permissible reason.8
In conclusion, it remains important that all local governments be aware of the scope of the authority that has been granted to them by the legislature. Even if courts are now directed to review most decisions on the more deferential standard of reasonableness, it remains to be seen how narrow the courts construe the reasonable scope of a local government’s authority. As always, when in doubt, a local government should seek legal advice before making any decisions that appear to be on the fringes of its jurisdiction.
1 Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13 at para 29.
2 United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19 at para 5
3 Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov]
4 Vavilov, at para 65
5 Vavilov, at para 17
6 Vavilov, at para 68
7 Vavilov, at paras 100-101
8 Vavilov, at para 137