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Ontario and Canada
Appeal Court Dicta

Judicial Review - SOR - "Patent Unreasonableness"

These cases deal (mostly) with a provision of Ontario's Human Rights Code [s.45.8] that purport to restrict judicial review to matters that are 'patently unreasonable', a higher standard of review (SOR) than set out in Vavilov, where the SOR is 'reasonableness'. They are an example of the legislature trying to restrict judicial review and the court's resisting it.

. Xia v. Board of Governors of Lakehead University

In Xia v. Board of Governors of Lakehead University (Div Ct, 2020) the Divisional Court considered a near-privative clause in the Ontario Human Rights Code (a privative clause is a statutory provision that attempts to prohibit judicial review of a government decision). This provision prohibited judicial review unless "the decision is patently unreasonable”, which by all principles of statutory interpretation is more extreme than plain "reasonableness", the standard of review affirmed in Vavilov in 2019. However the court read the two standards to be the same, obviously to avoid the justiciability crisis that would result if the provision were read literally. This is an ongoing justiciability issue, the courts trying to preserve their supervisory role over government and the government (here Ontario) trying to avoid judicial scrutiny [you need to review the Intercounty Tennis and the Midwives cases cited there]:
[14] Section 45.8 of the Code provides that a decision of the Tribunal “is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable”.

[15] Dr. Xia and Lakehead submit that the standard of review to be applied is reasonableness, relying in part on Intercounty Tennis Association v. Human Rights Tribunal of Ontario, 2020 ONSC 1632 (Div. Ct.) at paras. 37, 45; see also Ontario v. Association of Ontario Midwives, 2020 ONSC 2839 (CanLII) at paras. 77-88.

[16] On the other hand, the HRTO submits that the Divisional Court is bound to apply the legislated standard of review of patent unreasonableness, by which it means the specific and distinct rules associated with the patent unreasonableness standard as set out in the pre-Dunsmuir case law. The HRTO submits that the legislated standard requires deference unless a decision is “clearly irrational” and “evidently not in accordance with reason.” I do not agree, for the reasons set out in the Intercounty Tennis Association and Association of Ontario Midwives cases discussed above. The standard of review is reasonableness as explained in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII) (SCC).
The balance of the case is worth reading for it's treatment of procedural fairness and HR rules issues which, in my opinion, reflect an overly harsh treatment of the human rights applicant [paras 18-40].


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