Judicial Review - SoR - IntroductionA 'standard of review' (SOR) is the degree of deference to be accorded a lower body's (tribunal or court) decision when it is reviewed by a court, either in an appeal or a judicial review. Different SORs applies between appeals and judicial reviews, this section deals with the latter - judicial reviews.
Since the Vavilov (SCC, 2019) case, there have been a multitude of cases considering the standard of review (SOR) applying in judicial reviews (JR). The basic doctrine is simple, that all aspects of the decision or actions (law, fact and mixed fact and law) being judicially-reviewed are to be considered on a deferential, 'reasonableness' standard.
'Reasonableness', an inherently vague term, I find is best understood by focussing on two themes:
1. 'Reasonableness' Is Not 'Correctness'
'Correctness' is inherently easier for people - particularly lawyers (and all judges are lawyers) - to relate to. On a statutory appeal (which is the primary alternative legal 'review' procedure), the judge asks themselves the question, 'is this ruling legally correct?'. That allows them freely to adjudge the prior legal work without any form a legal deference. There might be some deference to the lower decision-maker on fact-findings (on the well-overplayed rationale that 'they were there', and so can adjudge the credibility of witnesses), but - legally - 'getting it right' has an instinctual meaning that most lawyers don't have a problem with.
But 'reasonableness' isn't 'correctness' - that much is plain. Therefore it seems obvious that 'reasonableness', in the mind of the JR judge, means what a different decision-maker could view as correct. It's equivalent to saying that the decision is 'plausible - not the one I would have given, but plausible'. In a world made up, necessarily, of a multitude of decision-makers, it can be viewed as a practical necessity that we tolerate - or defer - to other decision-makers. That is, as long as they are acting 'reasonably'. If the legal community offers one explanation for 'reasonableness', it is most often that of deference.
2. The Coherence of the Lower Body's 'Reasons for Decision'
This aspect of 'reasonableness' is more straight-forward and useful, and it harkens to a legal issue of long-standing. 'Reasons for decision' are the written justification that tribunal members and judges issue explaining their decisions (well ideally at least). An entire doctrine already exists on this theme: Inadequate Reasons.
Given this history, it's no surprise that the reasons given must be 'adequate'. These concerns have been summarized as including those of "justification, transparency and intelligibility" [Vavilov, para 99]. That means addressing - and showing that they have been addressed in the 'reasons' - all the good, sensible factors that you would expect from a legal decision-makers, namely:
These factors have been nicely harvested and set-out from Vavilov in two recent cases [Williams Lake Indian Band v. Canada (Indian Affairs and Northern Development) (Fed CA, 2021), para 36 and Pereira v. Hamilton Police Services Board (Div Ct, 2022), para 25]. It's no surprise that these factors are the same ones that a competent JR-deciding judge would (or at least, should) consider if they were in the lower decision-maker's position. But the essence of Vavilov's 'reasonableness' is that the JR-deciding judge defers to the reasoning faculties of the lower-body decision-makers, until they find it 'unreasonable' to do otherwise, according to these listed adjudicative factors.
- the governing (parent) statutory scheme,
- other statutory or common law,
- principles of statutory interpretation
- submissions of the parties,
- 'tribunal-local' legal and practice precedents,
- reasons proportional to the impact of the decision on the parties.
In this sense Vavilov may be a bit of a 'tempest in a teapot', only forcing some useful and prudent discipline on a judicial reviewing court. In fact, any appeal decision-maker or judge would do well to adopt the same checklist, for the same prudent purpose.