One Year of Vavilov

43 Pages Posted: 2 Dec 2020

See all articles by Paul Daly

Paul Daly

University of Ottawa - Common Law Section

Date Written: November 30, 2020

Abstract

A year ago, in Canada (Citizenship and Immigration) v Vavilov, the Supreme Court of Canada fundamentally reshaped Canadian administrative law. Drawing on the approximately 1,500 cases in which this landmark decision has already been cited, I analyze how the Vavilov framework has been operationalized.

In turn, I assess the implications of Vavilov for the application of the reasonableness standard, the selection of the standard of review and remedial discretion.

Vavilov has made significant changes to the Canadian law of judicial review of administrative action.

Reasonableness review is now characterized by justification, demonstrated expertise, responsiveness and contemporaneity. Many decision-makers long accustomed to deference are going to have to recalibrate their decision-making practices.

Some deference persists on statutory appeals, as appellate courts classify issues within decision-makers' expertise as questions of mixed fact and law subject to the highly deferential standard of palpable and overriding error. Where, however, appeals are brought on questions of law or jurisdiction, there is much less scope for deference.

In terms of remedial discretion, judges have largely been restrained in refusing to remit unreasonable decisions, though there are worrying signs of judicial activism in this regard.

Overall, the roll-out of the Vavilov framework has been relatively smooth, with judges abiding by the spirit of Vavilov, that is, the simplification and clarification of Canadian administrative law.

Suggested Citation

Daly, Paul, One Year of Vavilov (November 30, 2020). Ottawa Faculty of Law Working Paper No. 2020-34, Available at SSRN: https://ssrn.com/abstract=3722312 or http://dx.doi.org/10.2139/ssrn.3722312

Paul Daly (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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