The Good, the Bad, and the Ugly: A Preliminary Assessment of Whether the Vavilov Framework Adequately Addresses Concerns of Marginalized Communities

Abstract

The Supreme Court of Canada's decision in Vavilov has modified the approach to judicial review in Canada. This paper looks at how the Vavilov framework may or may not address concerns by those representing marginalized communities in the administrative system. The paper will first provide a brief overview of the Vavilov framework. The paper will then provide some brief comments on the selection of the standard of review in Vavilov, specifically doing away with relative expertise (the good), the missed opportunity to revisit Doré (the bad), and confusion that might arise out of what constitutes a statutory appeal (the ugly). Third, I will assess the potential opportunities in the more robust reasonableness review (the good) in the immigration law context. Fourth, the paper will discuss how the court did not resolve the issue of how to address persistent discord adequately (the bad). Finally, I will provide my view on how the way the court addressed jurisdictional questions as potentially a site of messy confusion (the ugly).

Keywords: Vavilov, administrative law, standard of review, reasonableness, correctness, law, immigration, refugee, citizenship