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Judicial Review - Standard of Review - Post-Vavilov III

. Thales DIS Canada Inc. v. Ontario

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

[85] 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

[86] 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.

[87] 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.

[88] 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:
[102] 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.

[103] 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. …

[104] 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”.
[89] 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:
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, [2007] 2 S.C.R. 292, at para. 53; R. v. Appulonappa, 2015 SCC 59, [2015] 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.
. Xanthopoulos v. Canada (Attorney General)

In Xanthopoulos v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considers the standard of review for appealing dismissal of a judicial review for prematurity:
[3] As stated, this is an appeal of a decision striking an application for judicial review for prematurity. It is not a ruling on the merits of the application itself or the Conduct Board’s decision. Accordingly, the applicable standard of review is the normal appellate standard as set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235: correctness on issues of law, and palpable and overriding error on issues of fact or of mixed fact and law in which there is no extricable issue of law. As stated in Canada v. South Yukon Forest Corporation, 2012 FCA 165 at para. 46:
“Palpable” means an error that is obvious. “Overriding” means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall.
. Canada (Attorney General) v. Hull

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:
[13] According to the principles enunciated in Vavilov, in this judicial review:
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).
. YUDC v. Information and Privacy Commissioner

In YUDC v. Information and Privacy Commissioner (Div Ct, 2022) the Divisional Court considers what the standard of review is with respect an issue of law in the judicial review of a FIPPA IPC reconsideration:
[34] Neither York nor YUDC made specific submissions about the standard of review applicable to considering the denial of a request for reconsideration, with the exception that YUDC made submissions in relation to the burden of proof applied by the Adjudicator as it related to the assessment whether the records were under the control of York within the meaning of s. 10(1) of FIPPA. YUDC submits that the question of the onus of proof applied by the Adjudicator in the Reconsideration Order is an issue of central importance to the legal system as a whole because in this case the central issue in the reconsideration request related to the IPC’s jurisdiction, and thus the correctness standard of review should apply.

[35] I do not accept this submission. As I explain in more detail below, the issue in relation to the onus of proof relates solely to the onus imposed in the context of an application for reconsideration under the IPC Code of Procedure. This issue is limited to the access to information context, and further limited to the context of a party seeking reconsideration after an order has been made by an adjudicator. This issue involves the IPC interpreting its own Code of Procedure. It raises no issue of central importance to the legal system. The standard of review is reasonableness. I note as well that in a pre-Vavilov decision, the Ontario Court of Appeal recognized that reconsideration under the IPC Code of Procedure is a discretionary decision, and that a decision of the IPC on reconsideration is entitled to deference: Barker v. Ontario (Information and Privacy Commissioner), 2019 ONCA 275, 433 D.L.R. (4th) 514 at paras. 124-127.
. YUDC v. Information and Privacy Commissioner

In YUDC v. Information and Privacy Commissioner (Div Ct, 2022) the Divisional Court considers whether the issues of their case are of 'central importance to the legal system' [Vavilov, para 16-17, 23, 58-62] to justify the higher standard of review of correctness in this judicial review application (SS: they weren't):
[30] YUDC and York submit that the standard of review on the issue of the interpretation and application of s. 10(1) of FIPPA is correctness. They submit the issue raises a question of law of central importance to the legal system that requires a single correct answer, that of separate corporate personality.

[31] I disagree. The analysis of standard of review starts with a presumption that reasonableness is the applicable standard. In order for an exception to the presumptive reasonableness standard of review to apply to a question of law, the issue must be a general question of law of central importance to the legal system as a whole. The fact that a question touches on an important issue is not sufficient to fall into this category of correctness review. Rather, the question must have broad applicability to the legal system as a whole, beyond the particular context in the review: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 at paras. 16-17, 23, 58-62.

[32] The issue of the interpretation and application of whether records are “in the custody or under the control of” an institution in s. 10(1) of FIPPA is a question of statutory interpretation and application of the IPC’s home statute. Although the nature of the relationship between YUDC and York was a factor that the Adjudicator considered in her decision, she considered the nature of the relationship as one factor in the assessment of all of the circumstances in the context of interpreting and applying s. 10(1) of FIPPA. Further, the Adjudicator’s consideration of the relationship between YUDC and York was limited to the context of the particular records at issue in the access request, not the relationship more broadly between YUDC and York. The Adjudicator’s decision does not make general pronouncements about the law in relation to separate corporate entities, nor does it have application outside of the access to information context: Brockville (City) v. Information and Privacy Commissioner, Ontario, 2020 ONSC 4413, 3 M.P.L.R. (6th) 222 (Div. Ct.) at paras. 24-25.

[33] Accordingly, the presumptive standard of review of reasonableness applies to the issues about the interpretation and application of s. 10(1) of FIPPA in these applications.
. Northern Regional Health Authority v. Horrocks

In Northern Regional Health Authority v. Horrocks (SCC, 2021) the Supreme Court of Canada held that an appeal of a judicial review decision on the issue of competing tribunal jurisdiction is considered on a standard of review of correctness, not reasonableness:
[9] I am not persuaded that such reconsideration is necessary or desirable. As I will explain below, correctly determining the jurisdictional lines between two administrative bodies requires that a decision‑maker correctly identify the essential character of the dispute. Applying a reasonableness standard to this component of the analysis would undermine the objective of ensuring that one adjudicative body does not trespass on the jurisdiction of the other. I note as well that appellate authority concerning the jurisdictional lines between courts and tribunals has generally held that the essential character determination is reviewed for correctness (Stene v. Telus Communications Company, 2019 BCCA 215, 24 B.C.L.R. (6th) 74, at para. 38; Bruce v. Cohon, 2017 BCCA 186, 97 B.C.L.R. (5th) 296, at para. 80; Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), 2007 NSCA 38, 253 N.S.R. (2d) 144, at para. 12). These authorities explain that this is so notwithstanding the fact‑specific nature of the essential character inquiry, because it grounds a determination of jurisdiction.
. 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:
[60] 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.

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.
. AWC Manufacturing LP v. Larocke

The Divisional Court's judicial review ruling in AWC Manufacturing LP v. Larocke (Div Ct, 2021) is a compelling case to argue against the deferential 'reasonableness' judicial review standard of review. Here, an employee was terminated for threatening another employee ["In a voicemail message, Mr Larocke went so far as to threaten Mr. MacBeth that he would kill him.": para 3], and then was granted ESA statutory termination and severance pay (upheld at the OLRB) despite the 'wilful misconduct' exception which excuses the employer from the duty to make such payments. The brief ruling [15 paras], upholding the OLRB's ruling, bears reading in it's entirety.

. Mohamed v. Aviva Insurance Company

In Mohamed v. Aviva Insurance Company (Div Ct, 2021) the Divisional Court considered what constitutes a question of law for appeal purposes:
[8] This Court, in Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507 (Div. Ct.), at para. 28, explained what constitutes a question of law in an appeal:
On a statutory appeal limited to questions of law alone, the court considers whether the decision-maker correctly identified and interpreted the governing law or legal standard relevant to the facts found by the decision-maker. There are limited circumstances in which findings of fact, or the administrative decision-maker’s assessment of evidence, may give rise to an error of law alone for the purposes of appeal. If the adjudicator ignored items of evidence that the law required him or her to consider in making the decision, then the adjudicator erred in law: Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748 at para. 41. Challenges to the sufficiency or weight of evidence supporting a finding of fact do not give rise to a question of law. An error in law or legal principle made during the fact-finding exercise, however, can give rise to an extricable question of law. A “misapprehension” of the evidence does not constitute an error of law unless the failure is based on a wrong legal principle: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 25 and 29. It is an error of law to make a finding of fact on a material point where the factual finding is based solely on (a) no evidence, (b) irrelevant evidence, or (c) an irrational inference (Johannson v. Saskatchewan Government Insurance, 2019 SKCA 52 at paras. 24-25). [Emphasis added]
. Alexion Pharmaceuticals Inc. v. Canada (Attorney General)

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]:
[20] 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.


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