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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.

. 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:

[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.


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