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JR - SOR - Exceptions - Persistent Discord [not an exception]. Patel v. Canada (Attorney General)
In Patel v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against the denial of a Federal Court JR, and that from "two decisions (CJC decisions) of the interim executive director (executive director) of the Canadian Judicial Council (CJC) who determined at the screening stage that Dr. Patel’s complaints against two judges of Saskatchewan did not raise issues of judicial conduct but rather fell within the ambit of judicial decision-making and the exercise of judicial discretion, issues which are subject to appellate review and not of the nature reviewable by the CJC."
Here the court considers an issue of 'tolerated uncertainty', created by the SCC with Vavilov's 2019 'reasonableness' standard of review - and it's declining to create a JR SOR exception (for correctness) for 'persistent discord':[6] I cannot agree with Dr. Patel. I am not persuaded that either the context in which CJC screening decisions are made or their nature fall within any of the existing categories for correctness review or warrant a distinct correctness category under the principles set out by the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653 (Vavilov). In Vavilov, the Supreme Court addressed the situation of possible discord within an administrative body and determined that the prospect of conflicting decisions does not warrant a distinct correctness category for judicial review (Vavilov at para. 72). ....
[7] Thus, I agree with the Federal Court. The standard of review for the CJC decisions is reasonableness for all issues other than procedural fairness (Duhamel v. Canada (Attorney General), 2022 FCA 219 at para. 19). .... . Pepa v. Canada (Citizenship and Immigration) [failed exception]
In Pepa v. Canada (Citizenship and Immigration) (SCC, 2025) the Supreme Court of Canada considered (but decided against) a JR SOR exception [which would have allowed an SOR of 'correctness'] for issues of 'persistent discord':[39] Further, the interpretation of s. 63(2) of the IRPA does not warrant a new category of correctness review. In Vavilov, the amici curiae submitted that, “where competing reasonable legal interpretations linger over time at the administrative level — such that a statute comes to mean, simultaneously, both ‘yes’ and ‘no’ — the courts must step in to provide a determinative answer to the question without according deference to the administrative decision maker” (para. 71). Well aware of this argument, the Court specifically chose not to “recognize a distinct correctness category for legal questions on which there is persistent discord within an administrative body” and stated (at para. 72):In our view, however, the more robust form of reasonableness review set out below, which accounts for the value of consistency and the threat of arbitrariness, is capable, in tandem with internal administrative processes to promote consistency and with legislative oversight (see Domtar, at p. 801), of guarding against threats to the rule of law.
This Court has thus already addressed whether the possibility of multiple interpretations of the same provision being available gives rise to a correctness standard, and answered in the negative. [40] Nor do “similar rule-of-law considerations arise in the case at bar” as in Society of Composers (A.F., at para. 32). That case did not say the possibility of inconsistent decisions within an administrative body would justify a correctness analysis. Instead, it dealt with the possibility of inconsistent decisions between an administrative body and a court when the legislature had given them concurrent first instance jurisdiction over a legal issue in a statute (Society of Composers, at paras. 35-39). This was characterized as one of those “rare and exceptional circumstances where it is appropriate to recognize a new category of correctness review” (para. 28): the legislature had expressly involved a court in the administrative scheme, and this rebutted any presumption that the legislature wanted the decision-maker to operate without undue judicial interference (para. 29). Creating a category of correctness review for possible inconsistent decisions within an administrative body has already been thoroughly canvassed and rejected in Vavilov, and Society of Composers did not open the door for reconsideration of that principle.
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