Simon's Megalomaniacal Legal Resources

Judicial Review - SOR - 'Reasonable' Exceptions - General

When Vavilov was issued in 2019, the court set out several exceptions to the JR standard of review of 'reasonableness'. The effect of such an exception is typically that the SOR for the JR matter is one of 'correctness', rather than 'reasonableness'. The exceptions include constitutional issues (including the Charter), issues of 'central importance to the legal system', issues of jurisdictional line-drawing, where a statute prescribes a different SOR - and, the largest one, where a statute prescribes an appeal procedure. This last one, appeals, is so huge that it is the subject of a separate Isthatlegal Legal Guide.

. Khorsand v. Toronto Police Services Board

In Khorsand v. Toronto Police Services Board (Ont CA, 2024) the Ontario Court of Appeal allows an appeal of an earlier successful JR against a "security screening decision ... for employment as a special constable with the TCHC".

Here the court applies an exception to the presumptive JR SOR of 'reasonableness', as the issue is: "a question of law that engages principles of judicial review that must give rise to a single, correct answer":

[62] As previously noted, I would resolve this appeal on the first issue: whether the pre-screening decision is amenable to judicial review. I agree with the parties that the standard of appellate review on this issue is correctness. Whether the pre-screening decision is subject to review by the courts is a question of law that engages principles of judicial review that must give rise to a single, correct answer.

. Ballam v. Justices of the Peace Review Council

In Ballam v. Justices of the Peace Review Council (Div Court, 2023) the Divisional Court briefly set out exceptions to the Vavilov JR 'reasonableness' standard:

[6] Following the Supreme Court of Canada decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 17 (Vavilov), the standard on judicial review of the merits of a decision of the JPRC is reasonableness, unless the issue on review is a constitutional question, a general question of law critical to the legal system as a whole, or a question related to jurisdictional boundaries between administrative bodies: Lauzon v. Justices of the Peace Review Council, 2021 ONSC 6174 (Div. Ct.) at para. 6.

. Speck v. OLRB

In Speck v. OLRB (Div Ct, 2021) the Divisional Court nicely sets out the post-Vavilov standard of review for judicial review, including exceptions from reasonableness:

STANDARD OF REVIEW

[23] The parties agree that the standard of review in respect of both the Board’s interim and its final decision dismissing the applicant’s s. 96 application for delay is the presumptive standard of reasonableness as discussed in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 23.

[24] The reasonableness standard assesses whether there is justification, transparency and intelligibility within the decision-making process and whether the decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law: Vavilov, paras. 99-100.

[25] The reasonableness standard can be rebutted where a different standard has been explicitly prescribed by statute, or where the Legislature has provided for a statutory appeal mechanism and where the judicial review falls into one of three categories: constitutional questions, general questions of law of central importance to the legal system as a whole, and questions regarding the jurisdictional boundaries between two or more administrative bodies: Vavilov, at paras. 17, 53 and 69.

[26] The applicant submits that the Board’s decision concerning his Charter argument involves a constitutional issue requiring the standard of correctness. The responding parties disagree and submit that the issue before the Board was not a constitutional one and accordingly the presumptive standard of reasonableness is not rebutted.

[27] Where the issue being determined is whether a statutory provision contravenes the Charter, the standard of review is correctness. Where, however, the Charter is invoked as an aid to interpretation, the standard of review is reasonableness: Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, at paras. 42, 57-58; Vavilov, at para. 57.

[28] There is no standard of review with respect to procedural fairness. Rather, the reviewing court must conduct an assessment of the particular situation having regard to the factors set out by the Supreme Court of Canada in Baker v. Canada, 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817.