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>>>>>>>>>> Interpretation, Standards of Review, Vavilov - It's All About Presumptions [09 June 2025]Most separate legal doctrine embodies their own versions of the generally-recognized-as-distinct concepts of 'interpretation' (both general and statutory) and 'standard of review (SOR)'. Indeed it's hard to locate a body of law for which this is not true. While 'interpretation' operates at the trial (or administrative hearing) stage, and 'standard of review' operates at the review (appeal or judicial review) stages, they share the common feature of being necessary preliminary 'framing' inquiries before the 'workhorse' task of merit assessment can be undertaken.
Recently I have also come to believe that they share another feature: ie. they can both be located accurately within the larger category of legal 'presumptions'. Let's explore that theory.
With respect to 'interpretation' (and once the relevant adjudicative body finds statutory, regulatory or other 'ambiguity'), the presumptions are of a different nature according to the many different interpretive doctrines being considered. For example:. in the benefits-conferring law situation the presumption is one of a "broad and generous manner" in favour of the claimant [Rizzo & Rizzo Shoes Ltd. (Re) (SCC, 1998), para 36];
. in the ejusdem generis situation the presumption is one that "where a class of things is modified by general wording that expands the class, the general wording is usually restricted to things of the same type as the listed items" [County of Lambton Community Development Corporation v Municipal Property Assessment Corporation et al. (Div Court, 2023), para 14];
. in the multiple-statute situation the interpretation is one that "presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter" [BNSF Railway Company v. Greater Vancouver Water District (Fed CA, 2025), para 81];
. in the statutory 'silence' context the presumption is that "the exclusion of words from legislation reflects intention" [University Health Network v. Ontario (Minister of Finance) (Ont CA, 2001)]. With respect to the appellate SOR (ie. 'correctness v. palpable and overriding error') structuring, the presumption is that the trial (or administrative hearing) assessment on fact (both pure and mixed with law) issues will be deferred-to at the appeal stage, but not the legal issues - which are assessed on a 'correctness' standard (which is essentially no standard at all). Thus in this appeal context the presumption is one of 'deference'.
With respect to the judicial review (JR) SOR (ie. 'reasonableness') structuring, the presumption is that the administrative hearing (or, less commonly, the administrative decision) will be conducted in accordance with the Vavilov 'tribunals must do it just like courts, mostly' facade, a pained politically-induced process whereby the Supreme Court attempts to retain respect for the legislature while not rocking the boat too much otherwise. The de facto presumption here is pretty much the same as in the appellate context (ie. deference for fact decisions), because courts' can't (quite rightly) stomach anything different. This is the case because after centuries of engaging in mass good faith truth-finding, they have - unsurprisingly - 'got it right'. They'd be idiots to vary from that, and they're not idiots - far from it.
The above observations illustrate that the much fussed-over Vavilov appeal-JR 'standards of review' structuring is nothing more (and nothing less) than another 'new' interpretative doctrine (that is, a 'presumption' that fact-findings by the trial court are to be respected) applicable to review situations. If the term 'standard of review' were replaced with, respectively: appeal, JR and/or review interpretation doctrine' - the net effect would be an improvement in our semantic usage, as the new term connotes more information than the former.
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