In December 2019, the Supreme Court of Canada (SCC) released decisions that brought clarity to the post-Dunsmuir standard of review landscape. In the first of the decisions, Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (Vavilov), the SCC readdressed and further clarified the standard of review. The second decision, Bell Canada v Canada (Attorney General), 2019 SCC 66, applied the standard of review outlined in Vavilov.

In Vavilov, the SCC clarified that there is a presumption of review on the basis of reasonableness and that the expertise of the decision maker is no longer relevant when determining which standard of review to apply. There are only two exceptions where the presumption of reasonableness will not apply and instead, the standard of correctness will apply. The first exception involves questions of law such as (1) constitutional questions, (2) questions of law of central importance to the legal system, and (3) questions regarding jurisdictional boundaries between two or more administrative bodies.  The second exception involves appellate standards of review. Where the legislature has created a statutory right of appeal, questions of law will be reviewed on the basis of correctness, while questions of mixed fact and law will apply a palpable and overriding error standard. The SCC left open the possibility of other categories where correctness review applies; however, additional categories would be “exceptional”.

The Majority also clarifies that the application of reasonableness review is two-fold. One must consider: (1) whether it is “based on an internally coherent and rational chain of analysis”; and (2) whether it is “justified in relation to the facts and law that constrain the decision maker”.

With the release of these decisions, the question for Canadian courts will not be which standard to apply but rather how it is to be applied.

Summary By: Juliette Sakran


20 01 29

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