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JR - SOR - Reasonableness - Use of Pre-Vavilov Precedents. Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency)
In Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from a Federal Court judgment dismissing "an application for judicial review of two related decisions of the respondent, the Canadian Food Inspection Agency (the CFIA)" in a high-media case involving the cull of a flock of farmed ostriches.
Here the court considers JR 'reasonableness review' - and it's history, expressly overriding the pre-Vavilov Maple Lodge Farms v. Government of Canada (SCC, 1982) case:C. The approach to reasonableness review in this matter
[46] We start the discussion by noting that the Federal Court largely adopted the general approach to reasonableness review, as outlined by the Supreme Court of Canada in Vavilov, to the review of the CFIA’s two decisions and to the CFIA’s adoption of the Stamping-Out Policy: see FC Decision at paras. 72–74.
[47] Prior to the decision in Vavilov, the approach to reviewing policy decisions framed reasonableness around whether a decision was made in "“bad faith, did not conform with the principles of natural justice, or if reliance was placed upon considerations that are irrelevant or extraneous to the legislative purpose”" (Malcolm v. Canada (Fisheries and Oceans), 2014 FCA 130, 460 N.R. 357 at para. 32, leave to appeal to SCC refused, 36012 (20 November 2014), citing Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2, 1982 CanLII 24 [Maple Lodge] and Carpenter Fishing Corp. v. Canada (1997), 155 D.L.R. (4th) 572, 1997 CanLII 26668 (F.C.A).)
[48] Neither party contests that Vavilov has overtaken the Maple Lodge categories of unreasonableness. The parties did not refer us to any decision of this or another appellate court that has ruled on this question. We note, however, that the Federal Court has split on the issue of the continued relevance of the Maple Lodge categories: Mowi Canada West Inc. v. Canada (Fisheries, Oceans and Coast Guard), 2022 FC 588, 48 C.E.L.R. (4th) 122 at para. 240; Saltstream Engineering Ltd. v. Canada (Fisheries, Oceans and Coast Guard), 2022 FC 621 at para. 59, Barry Seafoods NB Inc. v. Canada (Fisheries, Oceans and Coast Guard), 2021 FC 725 at para. 35; South Shore Trading Co. Ltd. v. Canada (Fisheries, Oceans and Coast Guard), 2025 FC 174 [South Shore] at paras. 49–51; Munroe v. Canada (Attorney General), 2021 FC 727 at paras. 40, 43–45; Fortune Dairy Products Limited v. Canada (Attorney General), 2020 FC 540 at para. 105; Prince Edward Island Fishermen’s Association Ltd. v. Canada (Attorney General), 2025 FC 737 at paras. 81–84.
[49] We agree with the parties and the Federal Court in the instant case that Vavilov requires reformulation of how reasonableness review applies to discretionary policy decisions and that the approach in Maple Lodge has been overtaken.
[50] In this regard, we see no principled reason why the reasonableness review of a discretionary policy decision should not be framed in the manner set out in Vavilov, which asks whether a 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”": Vavilov at para. 99.
[51] Vavilov is the starting point for undertaking a judicial review and sets out a holistic approach. Earlier case law on conducting reasonableness review can provide insight but must be aligned with the Vavilovian approach: Vavilov at para. 143. Discretionary policy decisions should not be an exception. The Supreme Court in Vavilov noted the existence of decisions by "“ministers”" and matters of "“high policy”" (at para. 88). Yet, it held that "“reasonableness remains a single standard, and elements of a decision’s context do not modulate the standard or the degree of scrutiny by the reviewing court”" but instead act as constraints (at para. 89).
[52] This Court in Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100, [2021] 1 F.C.R. 374 [Entertainment Software] at paragraphs 25–30, aff’d 2022 SCC 30, [2022] 2 S.C.R. 303 outlined a variety of policy-laden decisions, subject to review for reasonableness that are unconstrained in nature and are thus very hard to set aside, and noted that, unless an exception applies, reasonableness as mandated by Vavilov is the correct approach to reviewing policy-laden decisions. Thus, the categories listed in Maple Lodge now serve as examples of when a discretionary policy decision would be unreasonable but do not fully categorize unreasonable policy decisions. Rather, the requisite analysis is that mandated by Vavilov.
[53] Pursuant to Vavilov, reasonableness review is deferential, and the reviewing court does not ask itself what decision it would have made or whether the decision under review is correct (at para. 83). Rather, the reviewing court is limited to considering whether the outcome of an administrative decision is transparent, intelligible, and justified in light of the reasons, if any, that may have been given by the administrative decision-maker and in light of the legal and factual constraints that bear on the decision: Vavilov at paras. 85, 99. Where no reasons are given for a decision, as is often the case when a policy is adopted, reasonableness review requires a reviewing court to consider the reasonableness of the policy in light of the record before the administrative decision-maker and the relevant constraints, including the applicable statutory provisions: Vavilov at paras. 137–138.
[54] In the present case, no reasons were given for the adoption of the Stamping-Out Policy or the Notice to Dispose decision. Thus, we are called upon to determine if they were reasonable in light of the Act and, in particular, the broad discretion afforded to the Minister or ministerial delegates under section 48, and in light of the relevant contextual factors, which include the prior case law of this Court and of the Federal Court in similar cases and the record that was before the CFIA. Reasons were provided for the Exemption Denial decision; its reasonableness must therefore be assessed in light of those reasons and the relevant contextual factors, which also include the Act and the broad discretion afforded to the Minister or ministerial delegates under section 48, the prior case law of this Court and of the Federal Court in similar cases, and the record before the Exemption Committee, including the appellant’s submissions to it.
[55] Fact-based determinations may be reviewed pursuant to the formulation established by Vavilov, but the bar for establishing unreasonableness is high. For a decision to be unreasonable on a factual basis, an applicant must demonstrate that the "“decision maker has fundamentally misapprehended or failed to account for the evidence before it”" (Vavilov at para. 126), or in the words of paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7, "“based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it”". See also Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161 [Best Buy] at paras. 114, 121–123. Where there was factual evidence before the decision-maker that is capable of supporting its decision (unless the decision-maker is shown to have ignored crucial evidence going the other way), the decision will generally be reasonable: Best Buy at paras.123, 129–130.
[56] Discretionary policy decisions are also reviewable for reasonableness, but, once again, the bar for establishing unreasonableness is high, often requiring an applicant to establish that the decision fails to respect the provisions in the statute pursuant to which the discretionary decision was made, which may provide constraints on the way in which discretion was exercised: Entertainment Software at paras. 31–33. See also Donald J.M. Brown et al., Judicial Review of Administrative Action in Canada (Toronto: Thomson Reuters Canada, 2009) (looseleaf release 2025-02) (WL) at § 15:63. . Auer v. Auer
In Auer v. Auer (SCC, 2024) the Supreme Court of Canada dismissed an appeal of a JR, here challenging the Federal Child Support Guidelines as ultra vires their Governor-in-Counsel-delegated Divorce Act authority.
Here the court considers the role of past precedents, particularly in the context of determining issues of 'true jurisdiction':[31] In setting out Vavilov’s comprehensive framework for determining the applicable standard of review, our Court did not entirely discard prior jurisprudence. Rather, the Court explicitly stated that “past precedents will often continue to provide helpful guidance” (para. 143). This remains true even when considering cases involving “true questions of jurisdiction or vires”, though they “will necessarily have less precedential force” because Vavilov ceased to recognize such questions as a distinct category attracting correctness review (paras. 65 and 143). As Paul Daly explains, “past jurisprudence has not been ‘ousted’” by Vavilov ((2023), at pp. 148‑49, citing Terrigno v. Calgary (City), 2021 ABQB 41, 1 Admin. L.R. (7th) 134, at para. 62). Since Katz Group involved a true question of jurisdiction or vires, the Court must carefully examine the role of that case going forward.
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