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Judicial Review - SoR - Exception - 'Central Importance to the Legal System'

. Nagy v. University of Ottawa

In Nagy v. University of Ottawa (Div Court, 2022) the Divisional Court considered exceptions to reasonableness standard of review for judicial review:
[6] In Canada (Minister of Immigration and Citizenship) v. Vavilov, 2019 SCC 65, the Supreme Court held that reasonableness is the presumptive standard of review of an administrative tribunal. The presumption is rebutted in two circumstances. The first circumstance is where the legislature has indicated its intention that the decision be reviewed on the standard of correctness, such as when it provides for a statutory appeal.

[7] The second circumstance is where the rule of law requires that the standard of correctness be applied. This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies.

[8] Regarding the second circumstance, the Court said:
[60] This Court’s jurisprudence continues to provide important guidance regarding what constitutes a general question of law of central importance to the legal system as a whole. For example, the following general questions of law have been held to be of central importance to the legal system as a whole: when an administrative proceeding will be barred by the doctrines of res judicata and abuse of process (Toronto (City), at para. 15); the scope of the state’s duty of religious neutrality (Saguenay, at para. 49); the appropriateness of limits on solicitor-client privilege (University of Calgary, at para. 20); and the scope of parliamentary privilege (Chagnon, at para. 17). We caution, however, that this jurisprudence must be read carefully, given that expertise is no longer a consideration in identifying such questions: see, e.g., CHRC, at para. 43.

[61] We would stress that the mere fact that a dispute is “of wider public concern” is not sufficient for a question to fall into this category — nor is the fact that the question, when framed in a general or abstract sense, touches on an important issue: see, e.g., Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458, at para. 66; McLean, at para. 28; Barreau du Québec v. Québec (Attorney General), 2017 SCC 56, [2017] 2 S.C.R. 488, at para. 18. …

[62] In short, general questions of law of central importance to the legal system as a whole require a single determinate answer. In cases involving such questions, the rule of law requires courts to provide a greater degree of legal certainty than reasonableness review allows.
. 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.


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