Simon's Megalomaniacal Legal Resources

Judicial Review - SOR - Reasonableness - Examining Legal Precedents

. Turner v. Canada (Attorney General)

In Turner v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal, hearing a judicial review, considered a failure to examine and expressly vary from established precedents as a factor showing unreasonableness:

[8] The adjudicator’s decision is thus unreasonable because the case law requires that, to be reasonable, an administrative decision must, among other things, provide reasons for departing from decided authority and must also must engage with the central arguments raised by the parties: Vavilov at paras. 127–132; Walker v. Canada (Attorney General), 2020 FCA 44 at para. 9, 314 A.C.W.S. (3d) 843; and Bell Canada v. Copyright Collective of Canada, 2021 FCA 148 at para. 43, 336 A.C.W.S. (3d) 538.

. The Corporation of the City of Mississauga v. Information and Privacy Commissioner of Ontario

In The Corporation of the City of Mississauga v. Information and Privacy Commissioner of Ontario (Div Court, 2022) the Divisional Court considered the practice of reviewing legal precedents as a JR SOR 'reasonableness' factor:

Was the IPC’s Reliance on the Gombu Decision Unreasonable?

[32] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, the Supreme Court specifically states that if there are precedents on an issue before an administrative decision maker, these will act as a constraint on what that decision maker can reasonably decide. As put by the Supreme Court at para. 112:

Any precedents on the issue before the administrative decision maker on a similar issue will act as a constraint on what the decision maker can reasonably decide. An administrative body’s decision may be unreasonable on the basis that the body failed to explain or justify a departure from a binding precedent in which the same provision has been interpreted. Where, for example, there is a relevant case in which a court considered a statutory provision, it would be unreasonable for an administrative decision maker to interpret or apply the provision without regard to that precedent.

[33] In Gombu, the Divisional Court was dealing with the interaction of s. 14(1)(d) of MFIPPA and s. 88(5) of the MEA. The same issue was before the IPC. It would have been unreasonable for the IPC to render its decision without considering and applying Gombu, unless it could be distinguished.