Simon's Legal Resources

Judicial Review (JR-6)

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8. JR STANDARDS OF REVIEW (SOR)

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(a) Introduction

If you are unfamiliar with JR law, this next (essential) issue may come as a surprise. Judicial review (JR) is - quite counter-intuitively - not about whether the administrative decision-maker 'got it right' - or 'correct', rather they are about whether it's decision or action was 'reasonable'. 'Reasonableness' is a large (and growing) doctrine of law that examines whether legally-required procedures (which can vary with the nature of each case) were followed in the making of the decision or action. In other words, the central JR inquiry is not necessarily whether they 'got it right' - just whether they 'did it right'.

This is an aspect of 'deference' to the below administrative decision-maker and - more recently - the result of a political self-compromise by the Supreme Court, which extends greater respect to administrative actors (mostly tribunals). Their thinking (apparently) is that administrative tribunals and similar entities are creatures of the legislation (and thus are more 'democratic') rather than the Superior courts, which are creatures of the constitution [Constitution Act, 1867, s.96] which is (the reasoning necessarily goes) less democratic.

If you are interested in this oddity of modern Canadian law, you can review some of it in JR - SOR - Tolerated Uncertainty below. In any event, if you are seriously considering conducting a JR yourself you will have to learn how to 'think in' - and to 'speak' - the language of 'reasonableness'.

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(b) 'Reasonableness'

Overview

'Reasonableness' is the presumptive 'standard of review' (SOR) for JRs. That is, unless an exception applies to your case issues, your JR will be assessed from the perspective of whether it was 'reasonable.' Note that a huge amount of case reasoning has been devoted to this concept since the Vavilov case come down in the SCC in 2019.

VAVILOV - JR - Vavilov is the Doctrinal Starting Point
JR Cases - SOR - Vavilov is Starting Point

VAVILOV - JR - SOR - Reasonableness - 'A Single Concept'

JR Cases - SOR - 'Reasonableness' in a Nutshell
JR Cases - SOR - 'Patent Unreasonableness'
JR Cases - SOR - Reasonableness - Nature of Error (Law, Fact and Mixed Fact and Law)

JR Cases - SOR - 'Reasonableness' Test Examples (+)

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(c) Reasonableness Review

The Nature of 'Reasonableness Review'

'Reasonableness review' is the multi-factored process of implementing the JR standard of review (SOR).

VAVILOV - JR - SOR - Reasonableness Review - The Nature of Reasonableness Review
JR Cases - SOR - Reasonableness Review - The Nature of Reasonableness Review

General
JR Cases - SOR - Reasonableness Review - General

Justification
VAVILOV - JR - SOR - Reasonableness Review - Justification - General

Justification - Impact of the Decision
VAVILOV - JR - SOR - Reasonableness Review - Justification - Impact of the Decision
JR Cases - SOR - Reasonableness Review - Impact of the Decision

Justification - Submissions of the Parties
VAVILOV - JR - SOR - Reasonableness Review - Justification - Submissions of the Parties
JR Cases - SOR - Reasonableness Review - Submissions of the Parties

Justification - Evidence
VAVILOV - JR - SOR - Reasonableness Review - Justification - Evidence
JR Cases - SOR - Fact Issues
JR Cases - SOR - 'Reasonableness' - Fact-finding

Justification - Statutory Interpretation
VAVILOV - JR - SOR - Reasonableness Review - Justification - Statutory Interpretation
JR Cases - SOR - Reasonableness Review - Justification - Statutory Interpretation

Justification - Other Statutory or Common Law
VAVILOV - JR - SOR - Reasonableness Review - Justification - Other Statutory or Common Law
JR Cases - SOR - Reasonableness Review - Justification - Other Statutory and Common Law

Justification - Governing Statutory Scheme
VAVILOV - JR - SOR - Reasonableness Review - Justification - Governing Statutory Scheme
JR Cases - SOR - Reasonableness Review - Justification - Governing Statutory Scheme

Internal Coherence
VAVILOV - JR - SOR - Reasonableness Review - Internally Coherent
JR Cases - SOR - 'Reasonableness' - Failure of Rationality
JR Cases - SOR - 'Reasonableness' - 'Line-by-line Treasure Hunt'

Use of Pre-Vavilov Precedents
VAVILOV - JR - SOR - Reasonableness Review - Justification - Past Practices
JR Cases - SOR - 'Reasonableness' - Use of Pre-Vavilov Cases
JR Cases - Pre-Vavilov Cases

Use of Post-Vavilov Precedents
JR Cases - SOR - 'Reasonableness' - Examining Legal Precedents (+)

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(d) 'Reasonableness' Exceptions

General
'Reasonableness' exceptions are just that - situations where 'reasonableness' is not the applicable standard of review (SOR). When an exception applies (as below) the SOR will be that of 'correctness', more recently re-termed the 'appellate SOR' - which is (unsurprisingly) the default SOR for legal issues in appeals (for appeals the SORs are: correctness for legal issues, palpable and overriding errors for fact - and for mixed errors of fact and law).
VAVILOV - JR - SOR - Exceptions - General
VAVILOV - JR - SOR - Rule-of-Law Exceptions to Reasonableness
JR Cases - SOR - 'Reasonableness' Exceptions - General

Central Importance to the Legal System
VAVILOV - JR Cases - SOR - Rule of Law Exceptions - Central Importance to the Law
JR Cases - SOR - 'Reasonableness' Exception - 'Central Importance to the Legal System' (+)

Constitutional Questions
VAVILOV - JR - SOR - Rule of Law Exceptions - Constitutional Questions
JR Cases - SOR - 'Reasonableness' Exception - Constitutional Questions (+)

Tribunal Boundaries
VAVILOV - JR - SOR - Rule of Law Exceptions - Tribunal Boundaries
JR Cases - SOR - 'Reasonableness' Exception - Tribunal Boundaries

New (and Failed) Exceptions
VAVILOV - JR - SOR - 'Reasonableness' Exceptions - Future
JR Cases - SOR - 'Reasonableness' Exceptions - Future
>>> JR Cases - SOR - 'Reasonableness' Exception - Human Rights
>>> JR Cases - SOR - 'Reasonableness' Exception - Evidentiary Privilege
>>> JR Cases - SOR - 'Reasonableness' Exception - Concurrency
>>> JR Cases - SOR - 'Reasonableness' Exception - Indigenous
>>> JR Cases - SOR - 'Reasonableness' Exceptions - Where Both JR and Appeal Advanced
>>> JR Cases - SOR - 'Reasonableness' Exceptions - Ultra Vires Delegated Legislation (+)
>>> JR Cases - SOR - 'Reasonableness' Exception - Bias
>>> JR Cases - SOR - 'Reasonableness' Exception - Jurisdiction
>>> JR Cases - SOR - 'Reasonableness' Exception - Persistent Discord [FAILED]
>>> JR Cases - SOR - 'Reasonableness' Exception - Immigration Appeals [FAILED]
>>> JR Cases - SOR - 'Reasonableness' Exception - 'First-Instance Decision-Maker' [NEW]
>>> JR Cases - SOR - 'Reasonableness' Exception - 'Court in same position to decide facts' [UNCERTAIN]

Exceptions to Exceptions
JR Cases - SOR - Exceptions to Exceptions - Fact Issues

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(e) Reasons for Decision

'Reasonableness' (unsurprisingly) is largely assessed by any 'reasons for decision' issued by tribunals. In cases where 'reasons for decision' are weak or non-existent, the court will likely have reference to the tribunal record, using it as a basis of inferring the thinking of the decision-maker [for these cases, see the separate Reasons topic].

VAVILOV - JR - SOR - Reasonableness Review - Reasons - When Required

JR Cases - SOR - 'Reasonableness' and 'Reasons for Decision'
JR Cases - SOR - No Reasons
JR Cases - SOR - Reasonableness - Not Court's Own Analysis

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(f) Procedural Fairness

VAVILOV - JR - SOR - Reasonableness Review - Fairness

JR Cases - SOR - Fairness
JR Cases - Reasonableness versus Procedural Fairness

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(g) 'Reasonableness' and Specific Areas of Law

Jurisdiction
VAVILOV - JR - SOR - Non-Exception - Jurisdiction
JR Cases - SOR - Statutory Range of the Decision-Maker

International Law
JR Cases - SOR - International Law

Cabinet Confidentiality
JR Cases - SOR - Cabinet Confidentiality

Charter
JR Cases - SOR - Charter

Policy
JR Cases - SOR - Policy

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(h) Other Issues

Remedies
VAVILOV - JR - Remedy - General
VAVILOV - JR - Remedies
JR Cases - SOR - Remedies

Privative Clauses
VAVILOV - JR - Privative Clauses
JR Cases - SOR - Privative Clauses

Expertise
VAVILOV - JR - SOR - Expertise
JR Cases - SOR - Expertise (+)

Statutory Interpretation
JR Cases - SOR - Statutory-Interpretation

The Role of Errors in 'Reasonableness'
JR Cases - SOR - The Role of Errors in 'Reasonableness'

Reconsiderations (Administrative)
JR Cases - SOR - Reconsideration

Finality
JR Cases - SOR - Finality

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(i) Vavilov Critique

As mentioned, the Vavilov case has resulted in huge amounts of judicial assessment - and criticism. Here are some examples of criticism.

Tolerated Uncertainty in Law
VAVILOV - JR - SOR - Tolerated Uncertainty in Law
VAVILOV - JR - SOR - Tolerating Uncertainty - Administrative Stare Decisis JR Bump-Up
JR Cases - SOR - Tolerated Uncertainty

Administrative Law as Pseudo-Law
VAVILOV - JR Cases - SOR - Reasonableness Review - Administrative Law as Pseudo-law

Stratas JA
JR Cases - SOR - 'Reasonableness' and Stratas JA

Other
JR Cases - SOR - 'Reasonableness' and Other Critique

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