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JR - SOR - Reasonableness Review - The Nature of Reasonableness Review. 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 cites a novel characterization of JR 'reasonableness':[74] The Federal Court applied the reasonableness standard to the GIC’s decision to declare a public order emergency pursuant to subsection 17(1) of the Emergencies Act. In applying that standard, the Federal Court recognized that the question was "“whether the Governor in Council, acting on the recommendation of Cabinet, reasonably formed the belief that reasonable grounds existed to declare a public order emergency under section 17 of the Act”", defining "“reasonable grounds”" as the "“point where credibly-based probability replaces suspicion”" (Nagle at para. 202). . Canada (Attorney General) v. Responsible Plastic Use Coalition
In Canada (Attorney General) v. Responsible Plastic Use Coalition (Fed CA, 2026) the Federal Court of Appeal allowed an appeal, this brought against a successful industry-brought JR against "the GIC’s [SS: Governor in Council's] order and the Minister’s [SS: of the Environment and Climate Change] decision to not constitute a" Board of Review respecting the CEPA listing of plastics as a toxic.
Here the court considers (yet again) the Vavilov JR 'reasonableness review', starting out with 'constraints' on the decision-maker:[6] Vavilov requires courts conducting judicial review to assess the reasonableness of a decision in light of the constraints bearing on the decision maker, the primary of which is the empowering legislation. Further constraints include the facts before the decision maker, the common law and the decision maker’s past practices. Vavilov also instructs that reasonableness review be conducted with a view to understanding the decision and to assess the reasons in context against the measures of transparency, justification and intelligibility (Vavilov, at para. 99; Innovative Medicines Canada v. Canada (Attorney General), 2022 FCA 210, at para. 44).
[7] However, there are circumstances such as this where the decision maker is under no obligation to provide reasons; this is particularly the case where the decision maker is at the apex of the executive (Auer, at paras. 52–53, citing Mancini, Mark P. "“""One Rule to Rule Them All: Subordinate Legislation and the Law of Judicial Review”" (2024), 55 Ottawa L. Rev. 245, at 278–279). In these situations, "“something akin to justification”" may be found in background and contextual documents which shed light on the rationale and evidence underlying the decision (Vavilov, at para. 137). In the case of decisions of the GIC, the rationale may be found in the text of the legislation and associated instruments, such as the RIAS (Portnov v. Canada (Attorney General), 2021 FCA 171, at para. 34). Resort may also be had to Hansard, Parliamentary committee debates and government policy papers foreshadowing or accompanying the legislation.
[8] Of particular pertinence to this appeal is the admonition that reviewing courts must be careful not to "“make [their] own yardstick and then use that yardstick to measure what the administrator did”" (Vavilov, at para. 83, citing Delios v. Canada (Attorney General), 2015 FCA 117, at para. 28). This is a corollary of the proposition just noted, that judicial review methodology requires courts to read the reasons with a view to understanding and not to engage in the oft-quoted "“treasure hunt for error”" (Vavilov, at para. 102).
[9] In the ordinary course of judicial review and consistent with a "“reasons-first”" approach, a reviewing court does not start with its own independent analysis of the statutory scheme. As Jamal J. cautioned in Mason v. Canada (Citizenship and Immigration), 2023 SCC 21 (Mason) at para. 79 "“starting with its own perception of the merits may lead a court to slip into correctness review.”" Here, however, other than what can be gleaned from the context, past practice and documents associated with the legislative process as mentioned, there are no reasons. Consequently, the point of departure for reasonableness review in this case is an understanding of the legislative scheme. . Law Society of Ontario v. AA
In Law Society of Ontario v. AA (Ont CA, 2026) the Ontario Court of Appeal allowed an LSO appeal, that against the decision on an LSO-brought JR which upheld a LST Appeal Division decision supporting a lawyer application on good character grounds.
Here the court states it's approach to 'reasonableness review' under Vavilov:[46] I now turn to the relevant constraints on the Tribunal’s decision, which inform the determination of whether this decision was reasonable.
[47] Vavilov identifies a list of non-exhaustive constraints that bear on whether an administrative decision is intelligible and justified: at para. 106. Here, the Tribunal’s reasons concern its interpretation and application of the phrase “good character” in s. 27(2) of the Act. In my view, this means that the two most important constraints at play in this case are the statutory scheme under the Act and the principles of statutory interpretation. According to the Supreme Court in Vavilov, “because administrative decision makers receive their powers by statute, the governing statutory scheme is likely to be the most salient aspect of the legal context relevant to a particular decision”: at para. 108. It follows that where a decision is made pursuant to a particular provision, as here, the administrative decision maker’s interpretation of that provision is particularly relevant to the reasonableness analysis: see e.g., Pepa v. Canada (Citizenship and Immigration), 2025 SCC 21, 504 D.L.R. (4th) 1, at paras. 62-65.
[48] In Vavilov, the Supreme Court elaborated that the decision maker’s task is to interpret the contested provision in a manner that is consistent with its text, context and purpose: at para. 121. Further, it must demonstrate that it was alive to each of these essential elements: Mason, at para. 69.
[49] Within this framework, a decision will be unreasonable where the decision maker, “in interpreting a statutory provision, fails entirely to consider a pertinent aspect of its text, context or purpose” in a manner that “causes the reviewing court to lose confidence in the outcome reached by the decision maker”: Vavilov, at para. 122. This can happen where “it is clear that the administrative decision maker may well, had it considered a key element of a statutory provision’s text, context or purpose, have arrived at a different result”: Vavilov, at para. 122. . Abbott v. London Health Sciences Centre
In Abbott v. London Health Sciences Centre (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, this brought against a dismissed JR, which was in turn brought against the respondent board when they "without affording the appellants a hearing, decided to (i) cease providing OR time to the appellants and reassign that time to “clinical priority tertiary, quaternary-level surgical cases”, and (ii) cancel the hospital privileges of the appellants and revoke their staff appointments related to using OR time for their private practice patients", under s. 44 ['Ceasing to operate or provide services'] of the Public Hospitals Act.
Here the court engages in a recent summary of the 'reasonableness review':c. The Reasonableness Standard of Review
[49] Before analysing the merits of the appellants’ arguments, it is important to identify the manner in which these arguments are to be assessed.
[50] In the administrative law context, a decision is reasonable if it is both based on internally coherent reasoning and is justified in light of the relevant legal and factual constraints that bear on it: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 99.
[51] Thus, there are two types of “fundamental flaws” that may lead a reviewing court to find a decision unreasonable. First, a decision may be unreasonable because the reasoning process is internally irrational: Vavilov, at para. 101. The appellants’ arguments in this case do not raise this type of flaw. Second, a decision may be unreasonable because it is “untenable in light of the relevant factual and legal constraints that bear on it”, which includethe governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies: Vavilov, at paras. 101-6.
The appellants’ arguments assert these types of flaws – a fundamental misinterpretation of key elements of the statutory scheme and a misunderstanding of the universe of facts that were to be considered. [52] In conducting a reasonableness review where these types of errors are asserted, the court must focus on the decision actually made by the administrative decision maker – both the reasoning and the outcome: Vavilov, at para. 83. The reviewing court’s role is not to decide the issue afresh, or to “ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the problem”: Vavilov, at para. 83.
[53] In particular, while the administrative decision maker’s interpretation of a statutory enactment must be consistent with the text, context and purpose of the provision, the reviewing court does not undertake a de novo analysis or ask what the correct result would have been, and compare that to the administrative decision maker’s interpretation. It reviews the administrative decision as a whole – to determine, for example, whether omissions or gaps in the analysis cause the reviewing court to lose confidence in the outcome. Where the administrative decision has not explicitly considered the meaning of the relevant provision, a reviewing court, if it is able to determine from the record what the interpretation was, may determine whether the interpretation was reasonable: Vavilov, at paras. 116, 120 and 122-23.
[54] Similarly, as it pertains to facts, the reviewing court does not reweigh or reassess the evidence that was before the decision maker – it determines whether the decision was reasonable in light of the evidence and general factual matrix actually before the decision maker: Vavilov, at paras. 125-26. While a fundamental misapprehension or failure to account for evidence before the decision maker may make the decision unreasonable, the fact that a reviewing court would have assessed the evidence differently will not have that effect: Vavilov, at paras. 125-26. . Canada (Attorney General) v. Powless
In Canada (Attorney General) v. Powless (Fed CA, 2025) the Federal Court of Appeal dismissed a Crown appeal, here brought against a successful Federal Court respondent JR, this in turn brought against Indigenous Services Canada "decision to uphold, through its appeal process, its initial denial of the Respondent’s second application for funding" "to remediate the mould and make the necessary repairs to the home".
Here the court considers a JR SOR 'reasonableness review':A. Reasonableness Review and its Application to the ISC Appeal Decision
[30] To decide whether the ISC appeal decision is reasonable, I must "“focus…on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome”": Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (Vavilov) at para. 83. Put another way, "“judicial review is concerned with both outcome and process”" and "“reviewing courts must keep in mind the principle that the exercise of public power must be justified, intelligible and transparent”": Vavilov at paras. 87, 95.
[31] This means that, where reasons are required for a decision (and they were required here), they must demonstrate justification, transparency and intelligibility: Vavilov at para. 81. A reviewing court must start with the reasons, which must explain the rationale for the decision having regard to the relevant factual and legal constraints that bear on it: Vavilov at paras. 84‑86, 99; Pepa v. Canada (Citizenship and Immigration), 2025 SCC 21 at paras. 46, 49. Those constraints can include the relevant law, the evidence before the decision maker, the parties’ submissions, and the potential impact of the decision on the individual to whom it applies: Vavilov at para. 106.
[32] To determine whether the reasons justify the decision, the reasons are to be read holistically and contextually, having regard to the history of the proceeding and the institutional context in which the decision was made, with the objective of understanding the basis for the decision: Vavilov at paras. 91, 97.
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[73] As the Supreme Court has said, "“the exercise of public power must be justified, intelligible and transparent, not in the abstract, but to the individuals subject to it”"; those entrusted with "“power over the lives of ordinary people, including the most vulnerable among us”" must "“ensure that their reasons demonstrate that they have considered the consequences…and that those consequences are justified in light of the facts and law”": Vavilov at paras. 95, 135. . Cold Lake (City) v. Canada (Attorney General)
In Cold Lake (City) v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal allowed a municipality's appeal of a denied JR, this from "a decision of the Minister of Public Services and Procurement Canada (Minister)" which "concerns the annual land values of 4 Wing Cold Lake Military Base (4 Wing) for the years 2013 to 2021 (Minister's Decision)".
Here the court characterizes Vavilov's 'reasonableness review':[21] Further, reasonableness review pertains not only to outcomes but also to the articulation of reasons (Vavilov at para. 86). In particular, for the Minister’s Decision to be reasonable, the reasons provided must be responsive, meaning that they must meaningfully account for the central issues and concerns raised by the parties (Vavilov at para. 127). While administrative decision makers cannot be expected to respond to every argument or line of possible analysis, the failure to meaningfully address key issues or central arguments raised by the parties may call into question whether the decision maker was alert and sensitive to the matter before it (Vavilov at para. 128).
[22] It is important to keep in mind, however, that "“administrative justice”" will not always look like "“judicial justice”". The concepts and language employed by administrative decision makers may be specific to their fields of experience and may differ from those used by a lawyer or a judge. (See Vavilov at para. 92).
[23] Nor is the standard for reasons a standard of perfection (Vavilov at para. 91). Reasonableness review is not a "“line-by-line treasure hunt for error”" (Vavilov at para. 102). Where there is an omission, the key question is whether the omitted aspect of the analysis causes the reviewing court to lose confidence in the outcome reached (Vavilov at para. 122).
[24] As for issues relating to process, this Court must apply what is, in effect, a standard of correctness (Oleynik v. Canada (Attorney General), 2020 FCA 5 at paras. 38-39). Accordingly, the Court will undertake its own analysis of these issues. . Sistermans v. CAA Insurance Co.
In Sistermans v. CAA Insurance Co. (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a joint LAT SABS JR/appeal, here regarding a claim settlement and "an application before the Tribunal, seeking to set aside the settlement agreement on the basis that he lacked capacity to enter into the agreement".
Here the court consider JR SOR 'reasonableness review':[39] Reasonableness review “finds its starting point in the principle of judicial restraint” but remains “a robust form of review” rather than “a ‘rubber-stamping’ process or a means of sheltering administrative decision makers from accountability”: Vavilov, at para. 13. A reasonable decision is one that is based on an internally coherent and rational chain of analysis that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires a reviewing court to defer to such a decision: Vavilov, at para. 85. The relative expertise of administrative decision makers with respect to the questions before them is a relevant consideration in conducting reasonableness review: Vavilov, at paras. 31, 92-93.
[40] Two types of errors (referred to as fundamental flaws) that may render an administrative tribunal's decision unreasonable are (a) a failure of rationality internal to the reasoning process, and (b) the untenability of the decision, in light of the relevant factual and legal constraints that bear on it: Vavilov, at para. 101.
[41] A reasonable decision is one that is justified in light of the facts. The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it: Vavilov, at para. 126. However, absent exceptional circumstances, a reviewing court will not interfere with the decision maker’s factual findings. The reviewing court must refrain from reweighing and reassessing the evidence considered by the decision maker: Vavilov, at para. 125.
[42] The burden is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside on that basis, “the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”: Vavilov, at para. 100. . Pepa v. Canada (Citizenship and Immigration)
In Pepa v. Canada (Citizenship and Immigration) (SCC, 2025) the Supreme Court of Canada reviewed the earlier Vavilov JR 'reasonableness review':A. Guidance From Vavilov and its Companion Cases
[45] Vavilov and its companion cases, Bell Canada v. Canada (Attorney General), 2019 SCC 66, [2019] 4 S.C.R. 845, and Canada Post Corp. provide detailed guidance on conducting a reasonableness review of an administrative decision (Vavilov, at paras. 73-142; Canada Post Corp., at paras. 28-34).
[46] Administrative decision makers hold “the interpretative upper hand” (Canada Post Corp., at para. 40, quoting McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at para. 40). A principled approach to the reasonableness review begins by examining the reasons provided and “seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion” (Vavilov, at para. 84). The reasons are reviewed to determine if they led to a decision that was 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 (paras. 84-85).
[47] Under this “reasons first” approach, reviewing courts should remember that “the written reasons given by an administrative body must not be assessed against a standard of perfection”, and need “not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred” (Vavilov, at paras. 84 and 91, quoting Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 16). What is required will depend on the context (Canada Post Corp., at para. 30). The reviewing judge must read the decision maker’s reasons “holistically and contextually” (Vavilov, at para. 97), “in light of the history and context of the proceedings in which they were rendered”, including “the evidence before the decision maker, the submissions of the parties, publicly available policies or guidelines that informed the decision maker’s work, and past decisions of the relevant administrative body” (para. 94).
[48] Reviewing courts should not ask how they themselves would have resolved an issue, but should instead focus on whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led — was unreasonable (Vavilov, at paras. 75 and 83). A reviewing court should not create its “own yardstick and then use [it] to measure what the [administrative decision maker] did” (para. 83, and Canada Post Corp., at para. 40, both quoting Delios v. Canada (Attorney General), 2015 FCA 117, 100 Admin. L.R. (5th) 301, at para. 28). Nor should a reviewing court ask “what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the problem” (Vavilov, at para. 83; see also Canada Post Corp., at para. 40).
[49] Any flaws relied upon by the party challenging the decision must be “sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100). Vavilov specified two kinds of “fundamental flaws” that indicate an administrative decision is unreasonable: (1) a failure of rationality internal to the reasoning process; and (2) a failure of justification given the legal and factual constraints bearing on the decision (para. 101). A reviewing court is not required to classify unreasonableness into one of these categories, as they are merely useful descriptions for understanding how a decision might be unreasonable (para. 101).
[50] First, a failure of rationality internal to the reasoning process arises if the decision is not rational or logical, or, to put it more colloquially, whether or not the reasoning “adds up” (Vavilov, at paras. 102-4).
[51] Second, a failure of justification in light of the legal and factual constraints can include where a decision is in some respect untenable in light of: “. . . the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies” (Vavilov, at para. 106; see also paras. 99-115). These elements do not serve as a checklist, and each may vary in significance depending on the circumstances. They are provided “merely to highlight some elements of the surrounding context that can cause a reviewing court to lose confidence in the outcome reached” (para. 106). . Canada (Attorney General) v. Dominique
In Canada (Attorney General) v. Dominique (Fed CA, 2025) the Federal Court of Appeal dismissed a Crown appeal, here from a Federal Court ruling that "dismissed the Attorney General’s application for judicial review of a decision of the Canadian Human Rights Tribunal (the Tribunal)", that regarding "the funding of the operating costs for the self‑administered police service that the First Nation chose to establish in 1996 in connection with the First Nations Policing Policy (the Policy) implemented by the federal government ...".
Here the court summarizes the JR SOR of 'reasonableness':[46] As noted above, reasonableness is a deferential standard. This characteristic is fundamentally based on "“the legislature’s institutional design choice to delegate certain matters to [administrative] decision makers”" (Vavilov at para. 26). As a consequence of this choice, reviewing courts must avoid "“‘undue interference’ with the administrative decision maker’s discharge of its functions”" (Vavilov at para. 30).
[47] What this means, in practical terms, is that a reviewing court must refrain from deciding itself the issues that were before the administrative decision maker. In other words, a court "“does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision maker, conduct a ""de novo"" analysis or seek to determine the ‘correct’ solution to the problem”" (Vavilov at para. 83).
[48] Rather, the role of the reviewing court is to focus on the decision "“actually made by the decision maker”". In so doing, it must examine the reasons underlying the decision with "“respectful attention”", with the aim of ensuring that these reasons, which need not be assessed "“against a standard of perfection”", reflect an "“internally coherent and rational chain of analysis”" and that the resulting decision is "“justified in relation to the facts and law that constrain the decision maker”" (Vavilov at paras. 83-85, 91). Its effort must therefore focus on both the outcome of the decision and the reasoning that led to it (Vavilov at para. 87).
[49] Reasonableness provides for a robust review of administrative decision makers’ decisions, but because it goes to "“the constitutional role of judicial review”" (Vavilov at para. 82), the reviewing court will only intervene if there are flaws or shortcomings that are "“sufficiently central or significant to render the [impugned] decision unreasonable.”" This will be the case where the flaw or shortcoming is such "“that [the decision] cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”" (Vavilov at para. 100). . Giffen v. TM Mobility Inc.
In Giffen v. TM Mobility Inc. (Fed CA, 2024) the Federal Court of Appeal allowed an appeal, this from a denial of the Federal Court of a judicial review, this that "sought to set aside the ... decision of Adjudicator Michael Horan" that "determined that he had no jurisdiction to consider the appellant’s complaint that she had been unjustly dismissed following her return from maternity leave due to the limitation set out in paragraph 242(3.1)(a) of the Canada Labour Code" ... "(t)hat paragraph of the Code precluded an adjudicator from hearing an unjust dismissal complaint where a complainant was laid off because of a lack of work or discontinuance of a function."
Here the court finds fault with the Federal Court for deciding the underlying case themselves (a 'correctness' approach) and not performing a 'reasonableness review':[39] Here, the Federal Court correctly selected reasonableness as the appropriate standard of review, it being firmly settled that this standard applies to the review of adjudicators’ (and the CIRB’s) decisions under Division XIV of the Code: see Northern Inter-Tribal Health Authority Inc. v. Yang, 2023 FCA 47 at para. 49; Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, 399 D.L.R. (4th) 193 at paras. 15–18.
[40] However, the Federal Court erred in how it applied the reasonableness standard and wrongfully decided the issues that the adjudicator failed to consider. In short, it "“coopered up”" the adjudicator’s reasons in an unacceptable fashion. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 [Vavilov] at paragraph 96, the Supreme Court underscored that, absent exceptional circumstances, a reviewing court should not step in and decide issues of significance that are relevant to the outcome that were argued before the administrative decision maker that the decision maker neglected to consider. The majority stated as follows at paragraph 97 of Vavilov:We agree with the observations of Rennie J. in Komolafe v. Canada (Minister of Citizenship and Immigration), 2013 FC 431, 16 Imm. L.R. (4th) 267, at para. 11:
Newfoundland Nurses is not an open invitation to the Court to provide reasons that were not given, nor is it licence to guess what findings might have been made or to speculate as to what the tribunal might have been thinking. This is particularly so where the reasons are silent on a critical issue. It is ironic that Newfoundland Nurses, a case which at its core is about deference and standard of review, is urged as authority for the supervisory court to do the task that the decision maker did not do, to supply the reasons that might have been given and make findings of fact that were not made. This is to turn the jurisprudence on its head. Newfoundland Nurses allows reviewing courts to connect the dots on the page where the lines, and the direction they are headed, may be readily drawn. [41] Rather than proceeding as it did, the Federal Court should instead have focused on the reasons given by the adjudicator and determined whether the adjudicator reasonably considered the appellant’s arguments. Had the Federal Court done so, it would have been apparent that the adjudicator’s decision was unreasonable for its failure to address important arguments advanced by the appellant.
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