|
JR - SOR - Reasonableness - Nature of Error (Law, Fact, Mixed Fact and Law)
COMMENT
The issue here is that - since Vavilov, the default standard of review (SOR) for judicial reviews (JR) has been 'reasonableness' (which is addressed extensively in this sub-topic). But - despite (at least by me) being sensitive as to whether this applies to all three types of errors (law, fact, mixed fact and law) - the courts have been remarkably silent on whether the 'reasonableness' standard applies to errors of fact and mixed fact and law (which arises openly with joint appeal/JR Yatar cases now), despite them being subject to the (presumably) lower SOR for appeals of 'palpable and overriding error'. In fairness, one explanation may be that 'reasonableness' applies to the entire case (much as the 'beyond a reasonable doubt' standard for criminal prosecutions does) - but I have yet to see the issue hashed out to my satisfaction. In any event, this extract stream is to capture judicial comments on the theme.
. Nuroh v TD General Insurance Co.
In Nuroh v TD General Insurance Co. (Ont Div Ct, 2025) the Ontario Divisional Court allowed a LAT SABS joint appeal/JR, this brought against a LAT finding that the appellant/applicant were "not catastrophically impaired".
Here, while considering the SORs applicable in a joint (Yatar) appeal-application, the court states that the JR SOR for errors of fact and mixed fact and law is 'reasonableness' [para 26] (the competing alternative would be 'palpable and overriding error'):Standard of Review
[24] On the appeal, the standard of review is correctness for questions of law: Housen, at para. 8; Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37.
[25] Whether there has been a breach of procedural fairness is a question of law on appeal, subject to correctness review: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328, at paras. 26-30. The degree of procedural fairness required is determined by reference to all the circumstances of the case, including (i) the nature of the decision being made, and the process followed in making it, (ii) the nature of the statutory scheme, (iii) the importance of the decision to the individual or individuals affected, (iv) the legitimate expectations of the person challenging the decision, and (v) the choices of procedure made by the administrative decision maker itself: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at paras. 21-28; see also Vavilov, at para. 77.
[26] There is a presumption that the standard of review for judicial review of questions of fact and questions of mixed fact and law not subject to the statutory right of appeal is reasonableness: Vavilov, at paras. 23-25; Yatar, at para. 42. That presumption is not rebutted in this case.
|
