Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 represents the Court’s latest effort to draft a comprehensive judgment simplifying how to arrive at the appropriate standard of review on appeal or judicial review. Vavilov’s adoption of a presumptive reasonableness standard, rebuttable only in limited circumstances and subject to clear legislative intent (such as an appeal on one hand or a legislated patent unreasonableness standard on the other), is grounded in both pragmatism and principle.

Vavilov expressly stated that “Dunsmuir’s promise of simplicity and predictability... has not been fully realized.” By adopting a presumptive reasonableness standard at common law, Vavilov has succeeded in allowing parties and courts (usually) to spend less time arguing about the standard and focusing instead on its application. Where the jury is still out on Vavilov is whether it promoted jurisprudential consistency in what the Court branded its “robust” reasonableness standard of review, which can be difficult in application to distinguish from “correctness” review.

What about the principle underscoring the presumption of reasonableness in Vavilov? Vavilov held that legislative delegation of a decision to a state agent is in and of itself a sufficient basis for applying a deferential standard of review on all questions that come before an administrative decision-maker, including questions of law. Where the legislature has not expressly provided for a more active judicial role such as a right of appeal, it can “safely be assumed” that the legislature intends curial deference.

Vavilov’s “safe assumption” for Canada was resoundingly rejected in the United States in Loper Bright Enterprises v. Raimondo. In Loper Bright, the Supreme Court of the United States overturned its famous precedent in Chevron. The Court held that deference on questions of law — including the interpretation of ambiguous statutory provisions — is not justified as a matter of pragmatism, principle or respect for legislative intent. Like Dunsmuir, Chevron had in practice given rise to considerable inconsistency in application. In principle, the Constitution intends Courts, not agencies, to finally interpret laws, even where the agency’s view is entitled to great respect. As a matter of legislative intent, the Administrative Procedures Act (ignored in Chevron) explicitly charges reviewing courts to “decide all questions of law” and “interpret statutory provisions.”

Vavilov and Loper Bright share the intention to clarify and simplify the law for reviewing courts. Each is in its own way also grounded in respect for legislative intent. But the judgments diverge fundamentally on whether, presumptively and institutionally, the “correctness” of interpretations should be decided by judges or the relevant administrators and tribunals. Implicit in all this are several profound issues which have been mooted throughout the common law world for as long as judicial review has existed. Who is constitutionally, institutionally and pragmatically better equipped to divine legislative intent and “resolve statutory ambiguity”? Who is better equipped to interpret statutes in a fashion that respects individual rights and freedoms? What weight should we place on those rights and freedoms as against state objectives? As reflected in the reaction to Loper Bright, frankly political questions are also at play. Observers’ answers will likely be informed by their own politics, the dominant judicial philosophy of the particular judiciary, and the particular policy orientation of the executive branch.

Canadian administrative law had become so exhausted with the “standard of review” debate over the past several decades that most everyone was relieved to receive Vavilov and just get on with it. Loper Bright demonstrates, however, that there is indeed an alternative and powerful perspective on the standard of review on matters of statutory interpretation.

And just one final thought: For all the sound and fury surrounding Loper Bright, one wonders whether in practice Canadian judges applying Vavilov and American judges applying Loper Bright might well come to the same result in many cases.