Judicial Review - SOR - The 'Reasonableness' Test (1)In the years immediately following the 2019 Supreme Court of Canada ruling in Vavilov, the lower courts strived to meet the 'new' reasonableness standard of review (SOR) for judicial reviews. These cases are examples of that.
. Canada (Attorney General) v. Zalys
In Canada (Attorney General) v. Zalys (Fed CA, 2020) the Federal Court of Appeal considered the ruling in Vavilov as follows:
 In assessing the Adjudicator’s decision, I am guided by the Supreme Court’s teachings in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 [Vavilov]. When the Court determines that the applicable standard is reasonableness, the Court "“must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified”" (Vavilov at para. 15). While the majority reasons in Vavilov describe reasonableness review as "“robust”", they also reiterate that it involves deference. Reasonableness review "“finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers”" and is "“meant to ensure that courts intervene in administrative matters only where it is truly necessary […] to safeguard the legality, rationality and fairness of the administrative process”" (Vavilov at paras. 12-13). The reasons themselves need "“not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred”" (Vavilov at para. 91, citing Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62,  3 S.C.R. 708 at para. 16). What distinguishes reasonableness review from correctness review is the court’s focus on the administrative decision and the justification offered for it, "“not on the conclusion the court itself would have reached in the administrative decision maker’s place”" (Vavilov at paras. 15, 83). It is, furthermore, only appropriate to quash a decision on the reasonableness standard where "“any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable”" (Vavilov at para. 100).. Nation Rise Wind Farm Limited Partnership v. Minister of the Environment, Conservation and Parks
In Nation Rise Wind Farm Limited Partnership v. Minister of the Environment, Conservation and Parks (Ont CA, 2020) the Divisional Court cited the Vavilov case on standard of review:
 All the parties agreed that the standard of review with respect to the merits of the Minister’s decision is reasonableness (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 23 - 24).. Alexion Pharmaceuticals Inc. v. Canada (Attorney General)
 In Vavilov, the Supreme Court set out a detailed guide for the conduct of reasonableness review, explaining the essential nature of the inquiry at para. 85:
… 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.Thus, in applying a standard of reasonableness, the court must focus on the reasons of the decision maker, considering both the reasoning process and the outcome (Vavilov at para. 83).
In Alexion Pharmaceuticals Inc. v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal (Stratas JA) sets out thoroughly the meaning and practice of the standard of review of 'reasonableness', according to the leading SCC case of Vavilov [paras 6-33].
. Canada (Citizenship and Immigration) v. Mason
In Canada (Citizenship and Immigration) v. Mason (Fed CA, 2021) the Federal Court of Appeal (Stratas JA) illustrates the meaning and practice of the standard of review of 'reasonableness', according to the leading SCC case of Vavilov and the Federal Court of Appeal 2019 case of Hillier v. Canada (Attorney General). The case makes the point that interpreting statutes may differ whether a court applies the correctness standard (as in appeals) or the reasonableness standard (as in judicial reviews)
[for more see paras 8-20 and 26-42]:
 By necessary implication, Vavilov supports the Hillier approach. Vavilov warns us that even though reviewing courts are accustomed in other contexts to interpret legislative provisions themselves, when conducting reasonableness review of administrative interpretations they should avoid that. Reviewing courts must not "“ask how they themselves would have resolved [the] issue”", "“undertake a de novo analysis”", "“ask itself what the correct decision would have been”" or "“[decide] the issue themselves”": Vavilov at paras. 75, 83 and 116. In other words, reviewing courts must not "“make [their] own yardstick and then use that yardstick to measure what the administrator did”": Vavilov at para. 83, citing Delios at para. 28. Instead, reviewing courts must exercise "“judicial restraint”" and respect "“the distinct role of administrative decision-makers”": Vavilov at para. 75. They are to do this by examining the administrator’s reasons with "“respectful attention”" and by "“seeking to understand the reasoning process”": Vavilov at para. 84.. Bomanite Toronto Ltd. v. Carpenters and Allied Workers Local 27
In Bomanite Toronto Ltd. v. Carpenters and Allied Workers Local 27 (Div Ct, 2022) the Divisional Court set out the 'reasonableness' standard from Vavilov:
 In Ontario Power Generation v. The Society of United Professionals, 2020 ONSC 7824 (CanLII) at para. 22, this court summarized the Vavilov guiding principles for deciding whether a decision is reasonable as follows:
a. Reasonableness is concerned with justification, transparency and intelligibility. A decision is unreasonable if it is internally incoherent or if it is untenable having regard to the relevant factual and legal constraints.. Canada (Attorney General) v. Hull
b. The party challenging the decision has the burden of showing that it is unreasonable. A court should not set aside a decision based on minor flaws or peripheral shortcomings. To justify a finding of unreasonableness, the flaws or shortcomings must be sufficiently central or significant to the merits of the decision.
c. The role of the court is to review the decision and not to decide the issue afresh. The focus of the reasonableness inquiry is therefore on the decision making process and the outcome.
d. It is not the role of a reviewing court to re-weigh the evidence and make factual findings. Absent exceptional circumstances, a reviewing court should not interfere with a tribunal’s factual findings.
In Canada (Attorney General) v. Hull (Fed CA, 2022) the Federal Court of Appeal commented as follows on the standard of review for judicial review under Vavilov:
 According to the principles enunciated in Vavilov, in this judicial review:. Thales DIS Canada Inc. v. Ontario
1) the reviewing Court must determine "“…whether the decision bears the hallmarks of reasonableness ""― justification, transparency and intelligibility ""― and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”" (at para. 99);
2) "“[w]hether an interpretation is justified will depend on the context, including the language chosen by the legislature in describing the limits and contours of the decision maker’s authority.… What matters is whether, in the eyes of the reviewing court, the decision maker has properly justified its interpretation of the statute in light of the surrounding context. It will, of course, be impossible for an administrative decision maker to justify a decision that strays beyond the limits set by the statutory language it is interpreting.”" (at para. 110);
3) While "“[a]dministrative decision makers are not required to engage in a formalistic statutory interpretation exercise in every case.”" (at para. 119); and "“… the merits of an administrative decision maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision. In this sense, the usual principles of statutory interpretation apply equally when an administrative decision maker interprets a provision. Where, for example, the words used are “precise and unequivocal”, their ordinary meaning will usually play a more significant role in the interpretative exercise …”" (at para. 120);
4) "“The decision maker’s responsibility is to discern meaning and legislative intent, not to “reverse-engineer” a desired outcome.”" (at para. 121); and
5) "“Finally, even though the task of a court conducting a reasonableness review is not to perform a de novo analysis or to determine the “correct” interpretation of a disputed provision, it may sometimes become clear in the course of reviewing a decision that the interplay of text, context and purpose leaves room for a single reasonable interpretation of the statutory provision, or aspect of the statutory provision, that is at issue”" (at para.124).
In Thales DIS Canada Inc. v. Ontario (Div Court, 2022) the Divisional Court cites Vavilov guidance as to when a decision is 'reasonableness' for judicial review purpose:
The Applicable Legal Principles. United Steel Workers (Local 2251) v. Algoma Steel Inc.
 Before considering the reasonableness of the Decision, it is necessary to address two matters – the test for reasonableness according to Vavilov and the test to be applied as contemplated by the Brazil Decision to determine whether the domestic production requirement constitutes a measure that is “necessary” to protect public safety.
The reasonableness of a decision
 The relevant principles of a review for reasonableness have been set out by the Supreme Court in Vavilov. In this regard, I note the following.
 First, the “hallmarks” of reasonableness are justification, transparency and intelligibility and whether the decision is justified in relation to the relevant factual and legal constraints that bear on the decision.
 Second, to be reasonable, a decision must be based on reasoning that is both rational and logical. Of note, at paragraphs 102-104, the Supreme Court stated:
 To be reasonable, a decision must be based on reasoning that is both rational and logical. It follows that a failure in this respect may lead a reviewing court to conclude that a decision must be set aside. Reasonableness review is not a “line-by-line treasure hunt for error”: Irving Pulp & Paper, at para. 54, citing Newfoundland Nurses, at para. 14. However, the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”: Ryan, at para. 55; Southam, at para. 56. Reasons that “simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion” will rarely assist a reviewing court in understanding the rationale underlying a decision and “are no substitute for statements of fact, analysis, inference and judgment”: R. A. Macdonald and D. Lametti, “Reasons for Decision in Administrative Law” (1990), 3 C.J.A.L.P. 123, at p. 139; see also Gonzalez v. Canada (Minister of Citizenship and Immigration), 2014 FC 750, 27 Imm. L.R. (4th) 151, at paras. 57-59. Third, “elements of the legal and factual contexts of a decision operate as constraints on a decision-maker. Of particular relevance in the present context is the statement at paragraph 114 of Vavilov referred to above regarding the constraint imposed by international law:
 While, as we indicated earlier…, formal reasons should be read in light of the record and with due sensitivity to the administrative regime in which they were given, a decision will be unreasonable if the reasons for it, read holistically, fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis: see Wright v. Nova Scotia (Human Rights Commission), 2017 NSSC 11, 23 Admin. L.R. (6th) 110; Southam, at para. 56. …
 Similarly, the internal rationality of a decision may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise. … a reviewing court must ultimately be satisfied that the decision maker’s reasoning “adds up”.
We would also note that in some administrative decision making contexts, international law will operate as an important constraint on an administrative decision maker. It is well established that legislation is presumed to operate in conformity with Canada’s international obligations, and the legislature is “presumed to comply with . . . the values and principles of customary and conventional international law”: R. v. Hape, 2007 SCC 26,  2 S.C.R. 292, at para. 53; R. v. Appulonappa, 2015 SCC 59,  3 S.C.R. 754, at para. 40. Since Baker, it has also been clear that international treaties and conventions, even where they have not been implemented domestically by statute, can help to inform whether a decision was a reasonable exercise of administrative power: Baker, at paras. 69-71.In short, conformity with Canada’s international obligations will inform the reasonableness of any decision which engages such obligations.
In United Steel Workers (Local 2251) v. Algoma Steel Inc. (Div Court, 2022) the Divisional Court reviews the Vavilov 'reasonableness' standard of review for judicial reviews:
 The focus of a court reviewing an administrative decision must be on the decision actually made by the decision-maker and includes both the reasoning process and the outcome. It is not the place of a reviewing court to second-guess the administrative decision-maker or to impose a decision that it prefers. The reasons are examined in order to understand the reasoning process that the decision-maker followed to arrive at its conclusion: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 83-84.
 A reviewing court asks whether the decision under review and its underlying rationale bear the hallmarks of reasonableness – justification, transparency, and intelligibility – and whether the decision is justified in relation to the relevant factual and legal constraints that bear on it: Vavilov, at paras. 15, 99-100. The reasons must be read in the context of the record that was before the arbitrator: Vavilov, at paras. 91-94.
 Judicial restraint lies at the heart of a reasonableness review. The review must not devolve into a “line-by-line treasure hunt for error”: Vavilov, at paras. 91 and 102. However, justification is important. While a decision-maker is not required to respond to every argument raised by the parties, the failure to meaningfully address central concerns and issues may indicate gaps or flaws in reasoning and will raise legitimate concerns that the decision-maker has not given serious consideration to a party’s position: Vavilov, at paras. 127-128; Scarborough Health Network v. Canadian Union of Public Employees, Local 5852, 2020 ONSC 4577 (Div. Ct.), at para. 15.
 An unreasonable chain of analysis, one which does not justify even a reasonable conclusion, can be a fatal flaw that invalidates a decision: Vavilov, at paras. 86-87.