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In Vavilov, the Supreme Court of Canada revised the applicable legal framework for the determination and application of the standard of judicial review of administrative decisions. Changes were made to the analytical framework for determining the applicable standard of review and clarification was provided as to how the standard of reasonableness should be applied. The objective was a more easily identifiable standard and diminished debate on the standard of review applicable to a given administrative matter. On December 19 and 20, 2019, the Supreme Court of Canada published three administrative judicial review decisions in the cases of Vavilov1, Bell Canada2 and Canada Post Corporation3. In the first case, which dealt with espionage, the majority set out a new approach to the judicial review of administrative decisions, with particular regard to the application of the reasonableness standard. The other two decisions similarly illustrate the application of these new principles. Determining the appropriate standard of review Presumption of reasonableness The new analytical framework includes a presumption that reasonableness is the applicable standard in all cases. Going forward, whenever a court reviews the merits of an administrative decision, it should begin with the presumption that the applicable standard of review for all aspects of that decision will be reasonableness. As a result, it is not necessary for courts to engage in a contextual analysis as there are no longer categories of questions for which the standard of review is not identified at the outset. Categories of questions subject to the correctness standard The categories of questions to which the standard of correctness applies remain essentially the same: Constitutional questions; Questions regarding the respective jurisdictional boundaries of the specialized tribunals; Questions of law of central importance to the legal system as a whole; more specifically, it is no longer necessary for the question submitted to be outside the area of expertise of the decision-maker; rather, it is sufficient that it is of central importance to the legal system as a whole. Category of jurisdictional questions “Jurisdictional questions”or “true questions of jurisdiction” are no longer questions for which the correctness standard must be applied. Although this is not a major change in itself, the Supreme Court has often stated that this type of question is exceptional. Now that the fate of these questions has been clarified, the standard of reasonableness applies. Cases where the law provides for a statutory appeal mechanism In cases where the law provides for an appeal of an administrative decision to a court of law4, counsel must now defer to the appellate standards of review, keeping in mind the nature of the question at hand (question of law, question of fact or question of mixed fact and law) as opposed to the standards of judicial review. Cases where the law specifies the applicable standard of review The presumption of reasonableness review can be rebutted where a legislature expressly outlines the standard of review applicable to a given administrative decision. In such cases, the standard determined by the legislature applies. Important Take Aways The Vavilov judgment marks a major shift in the state of the law of judicial review. For this reason, prior case law should be treated with caution. The situations in which the presumption of reasonableness review can be rebutted are limited to the five listed above: the three categories of questions where the application of the correctness standard is required, cases of appeal provided for by law, and cases in which the legislature has expressly specified the applicable standard. Nevertheless, the Supreme Court appears to have opened the door to subsequent recognition of new exceptions, albeit on an exceptional basis and in accordance with the analytical framework and principles set out in the decision. Applying the reasonableness standard – Moving forward In addition to revising the analytical framework for determining the applicable standard of review, the majority provides a series of clarifications and indications on how the standard of reasonableness should be applied, and refers to a “more robust form of reasonableness review.” It is important to follow future judgments of the Supreme Court (in addition to other lower courts) in order to accurately measure the impact of this new framework for applying the reasonableness standard. Our colleagues specialized in administrative law, labour law and litigation remain at your disposal for any questions that may arise.   Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. Bell Canada v. Canada (Attorney General), 2019 SCC 66. Canada Post Corporation v. Canadian Union of Postal Workers For example, the appeal of certain decisions of the Administrative Tribunal of Québec to the Court of Québec.

THE 1979 STATUTEIt is well known that, under the legal regime for the protection of agricultural lands, the acquisition of agriculturally zoned lands with a surface area of four hectares or more by a person not residing in Quebec is subject to the authorization of the Commission de protection des terres agricoles. This is the object of the Act respecting the acquisition of farm land by non-residents (CQLR chapter A-4.1) (the “Act”), which has been in force since December 21, 1979.This Act provides that the Commission must authorize the acquisition of land by a non-resident if it finds that the land in question is not suitable for the cultivation of the soil or raising of livestock. It must also do so if the person making the application declares that they intend to settle in Quebec. In that case, the authorization is conditional upon proof by the purchaser that it has become a resident and, once such proof is submitted, the acquisition of the land in question becomes irrevocable. In all other cases, the Commission will consider the application for authorization on the basis of the biophysical conditions of the soil and of the environment, the economic consequences arising from the possible uses of the land for agricultural purposes, the effect of granting the application on the preservation of the agricultural soil and on the homogeneity of the farming community and farming operations.CHANGESBill 46, which was assented to and came into force last October 30,1 substantially reduces the access to agricultural zones by non-resident purchasers. The amendments it makes to the Act have three main restrictive effects: they increase the stringency of the conditions required to qualify as a resident of Quebec; they add an annual limit on the area of the lands open to acquisition by non-residents; and they impose additional criteria which the Commission must take into account when considering an application for authorization.THE QUEBEC RESIDENCY CONDITIONSSince 1979, a natural person2 was considered to reside in Quebec if the person had stayed in Quebec for at least 366 days (12 months and one day) during the 24 months immediately preceding the date of the acquisition of the farm land, or following the acquisition date, in the case of a non-resident who intended to settle in Quebec.Henceforth, to be a resident of Quebec, a natural person must be a Canadian Citizen or permanent resident under the Immigration and Refugee Protection Act (S.C. 2001, c. 27) and must have lived in Quebec for at least 1,095 days (36 months) during the 48 months immediately preceding the date of acquisition or, in the case of a person who intends to settle in Quebec, following the date of the conditional acquisition authorized by the Commission, as the case may be.By requiring citizenship or permanent residency and by increasing the duration of the stay in Quebec from 12 out of 24 months to 36 out of 48 months, the legislature aims to reserve access to good farm land to true residents of Quebec.LIMIT OF 1,000 HECTARES PER YEARFurthermore, a new provision has been added to the Act (s. 15.3) which places a limit of 1,000 hectares on the total annual area of land suitable for the cultivation of the soil or the raising of livestock which the Commission may authorize the acquisition of by persons not intending to settle in Quebec.This purpose of this new legislative restriction imposed on the Commission is essentially to reduce the risk of a massive land grab of good farm land by non-residents.NEW CRITERIAFinally, when assessing an application to authorize the acquisition of land where it finds it to be suitable for the cultivation of the soil or the raising of livestock based on the biophysical conditions of the soil and of the environment, the Commission must henceforth take the following factors into consideration:1° the intended use, in particular the applicant’s intention to cultivate the soil or raise livestock on the farm land that is the subject of the application;2° the impact of the acquisition on the price of farm land in the region;3° the effects of the acquisition or projected use on the economic development of the region;4° the development of agricultural products and the development of underutilized farm land; and5° the impact on land occupancy.The imposition on the Commission of this specific set of criteria for its analysis indicates the legislator’s intention of ensuring that the acquired lands are in fact used for agricultural activities and of preventing lands suitable for cultivation or the raising of livestock from being acquired for purely speculative purposes.These amendments have no retroactive effect and do not apply to applications for authorization pending on October 30, 2013.SANCTION OF NULLITYIn closing, we note that the Act provides that the acquisition of farm land by a person not residing in Quebec without the Commission’s authorization, or without complying with the conditions prescribed by law, is null and void, and any interested person, including the Attorney General of Quebec, may apply to the Superior Court for a declaration of the nullity thereof. If no such action is instituted, the Commission may order the contravening purchaser to divest itself of the farm land within a time period determined by it. If the purchaser does not comply with the order, the Commission may apply to the Superior Court for authorization to sell the land by judicial sale (s. 28)._________________________________________ 1. An Act to amend the Act respecting the acquisition of farm land by non-residents (2013, chapter 24).2. A legal person is considered to reside in Quebec if it is controlled by one or more natural persons residing in Quebec.

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