Vavilov on the Road
22 Pages Posted: 17 Dec 2021
Date Written: October 15, 2021
In this paper, I draw attention to recent cases and issues arising from the Supreme Court of Canada's 2019 reformulation of administrative law principles in Vavilov. These recent materials either confirm the direction of travel or require slight adjustments to keep things on track.
First, selecting the standard of review, which remains a largely straightforward exercise following the simple rules laid out in Vavilov. Second, the content of reasonableness review – again, the recalibration in Vavilov has been relatively easy for lower courts to grasp, reasonableness remaining a deferential standard but with some decision-makers struggling to adjust to the brave new world of Vavilovian reasonableness review. These first two areas are very settled indeed.
The five other areas addressed in this piece prompt interesting discussions, however. Third, the content of the record on judicial review for reasonableness is the site of fascinating developments, with recent decisions of the Federal Court of Appeal advancing the cause of open government. Fourth, the standard of review of procedural fairness determinations by appellate administrative decision-makers is unsettled. Fifth, the scope of limited rights of appeal – the subject of a mysterious passing comment in Vavilov – is unclear, with Ontario’s Divisional Court and the Federal Court of Appeal taking divergent approaches. Lastly, the state of the law in respect of the standard of review on arbitration appeals seems set to remain unsettled until the Supreme Court finally resolves the issue. I will conclude with a brief note on the ‘internal standard of review’, that is the standard to be applied on an internal appeal from one administrative decision-maker to another.
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