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JR - SOR - 'Reasonableness Review' - General. Canada (Attorney General) v. Canadian Civil Liberties Association
In Canada (Attorney General) v. Canadian Civil Liberties Association (Fed CA, 2026) the Federal Court of Appeal dismissed a federal AG JR, this brought against "the Federal Court’s finding that the declaration of a public order emergency was unreasonable and that some provisions of the Regulations and of the Economic Order violated the Charter", here where the emergency order was made under the federal Emergencies Act.
Here the court offers another characterization of Vavilov's 'reasonableness review':[158] When applying the reasonableness standard, a reviewing court must start with a posture of judicial restraint and deference for the legislature’s choice to delegate decision making authority. A reviewing court must take a "“reasons first”" approach that evaluates the administrative decision-maker’s justification for its decision: Vavilov at para. 84; Mason v. Canada (Citizenship and Immigration), 2023 SCC 21 [Mason] at para. 8. In other words, a reviewing court must show respectful attention to the decision-maker’s reasons, seeking to understand the reasoning process followed to arrive at the conclusion (Vavilov at para. 84). Stated differently, a reviewing court "“must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place”" (Vavilov at para. 15).
[159] As to what it means for a decision to be reasonable, the Supreme Court in Vavilov made it clear that it requires consideration of both the outcome of the decision and the reasoning process that led to the outcome. In a nutshell, a reasonable decision is one "“that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”" (Vavilov at para. 85). Among the legal and factual considerations that can constrain an administrative decision-maker, the governing statutory scheme will usually be the most salient aspect of the legal context relevant to a particular decision (Vavilov at para. 108).
[160] Context is also relevant. As the Supreme Court has stated in a number of cases, "“reasonableness is a single standard that takes its colour from the context”": see, for example, Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at para. 59, and the cases cited at para. 89 in Vavilov. The Supreme Court has clarified, however, that reasonableness remains a single standard. Despite the diversity of decisions in terms of complexity and importance, "“elements of a decision’s context do not modulate the standard or the degree of scrutiny by the reviewing court”". Context will only constrain what is reasonable for an administrative decision-maker to decide in their specific case.
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