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Judicial Review - SOR - Other Critique

. 2813127 Ontario Inc. v. His Majesty the King

In 2813127 Ontario Inc. v. His Majesty the King (Div Court, 2023) the Divisional Court directly addressed an issue that I have found elusive of attention, that of the standard of review of a purely legal (here, statutory) issue under the JR 'reasonableness' standard from Vavilov:
[15] The court charged with a reasonableness review must defer to any reasonable interpretation of the legislation, even if other reasonable interpretations may exist. Judicial deference in such instances is itself a principle of modern statutory interpretation. (McLean v. British Columbia, 2013 SCC 67 at para 40; Vavilov, at para. 235.)
The result is apparently that 'reasonableness' is one over-riding standard for all of: legal issues, issues of mixed fact and law, and issues of fact.

. Andrews v. Public Service Alliance of Canada

In Andrews v. Public Service Alliance of Canada (Fed CA, 2022) the Federal Court of Appeal considered the distinction between administrative 'fairness and 'reasonableness' as the JR standard of review, where the applicant advanced what the court considered to be a substantive grounds of appeal - that of 'unsupported by the evidence':
[26] The applicant has attempted to characterize a number of her arguments as matters of procedural fairness. More specifically, she claims that some findings of the Board were unsupported by the evidence before it, or that the Board reached "“unfounded conclusions”". In essence, however, the applicant’s arguments take issue with the reasonableness of the Board’s findings of fact and amount to a disagreement with the Board’s conclusions. Such arguments do not pertain to procedural fairness and are best addressed in a substantive review of the merits under the reasonableness standard. Indeed, this Court has confirmed that the standard of review of Board decisions on the merits in cases of a duty of fair representation complaint is reasonableness: Osman v. Public Service Alliance of Canada, 2021 FCA 227, 340 A.C.W.S. (3d) 84 at para. 9; Pierre v. Public Service Alliance of Canada, 2013 FCA 223, 454 N.R. 223 at para. 11.

[27] Questions of procedural fairness are ones that concern the procedure used by the administrative decision maker, or ones which question the opportunity of those affected by the decision to be heard and have their views and evidence considered by the decision maker: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at para. 22. None of the arguments presented by the applicant address the procedure used by the Board or allege a denial of her right to fully participate in a fair and open procedure.
. AWC Manufacturing LP v. Larocke

The Divisional Court's judicial review ruling in AWC Manufacturing LP v. Larocke (Div Ct, 2021) is a compelling case to argue against the deferential 'reasonableness' judicial review standard of review. Here, an employee was terminated for threatening another employee ["In a voicemail message, Mr Larocke went so far as to threaten Mr. MacBeth that he would kill him.": para 3], and then was granted ESA statutory termination and severance pay (upheld at the OLRB) despite the 'wilful misconduct' exception which excuses the employer from the duty to make such payments. The brief ruling [15 paras] upholding the OLRB's ruling bears reading in it's entirety.

. Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association

In Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association (SCC, 2022) the Supreme Court of Canada recognized a tension between an aspect of 'reasonableness' - that of administrative stare decisis (where administrative law will tolerate different legal interpretations) - and the rule of law [para 33-39]:
A. Issue 1: What Is the Appropriate Standard of Review?

(1) Prior Jurisprudence Needs to Be Reconsidered in Light of Vavilov

[22] Prior to Vavilov, the Board’s decisions on the scope of rights in the Copyright Act were reviewed on the standard of correctness: see, for example, Rogers, at paras. 10-20; Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57, [2015] 3 S.C.R. 615 (“CBC”), at para. 35.

[23] These pre-Vavilov cases held that correctness was appropriate because the Board and courts have concurrent first instance jurisdiction over some aspects of the Copyright Act. In infringement actions, the scope of rights under the Act is routinely brought before courts for interpretation. Similarly, the Board may need to decide the scope of rights in the Act in order to set tariffs, as occurred in this case: Rogers, at paras. 12-13. Given this shared jurisdiction, the pre-Vavilov cases concluded that correctness was appropriate because it minimized the risk of conflicting statutory interpretations and gave effect to legislative intent: Rogers, at paras. 12-15; CBC, at para. 35.

[24] In Vavilov, this Court reconsidered its standard of review jurisprudence. It simplified the law by holding that courts should review administrative decisions on a standard of reasonableness except when doing so would undermine legislative intent or the rule of law: paras. 17 and 69.

[25] Vavilov overtook the prior jurisprudence: para. 143. Cases from this Court applying a correctness standard to the Board’s decisions therefore need to be reconsidered in light of Vavilov.


(a) Legislative Intent

[29] Reasonableness is the standard of review that, in most instances, gives best effect to legislative intent. When the legislature has granted exclusive jurisdiction to an administrative decision maker, courts presume that the legislature wanted that decision maker to operate without undue judicial interference: Vavilov, at para. 24.

[30] When the legislature expressly involves the court in the administrative scheme, this presumption no longer applies. That is why legislated standards of review and statutory appeal mechanisms give rise to a correctness standard of review. Such statutory features indicate legislative intent for judicial involvement and a desire to subject those decisions to appellate standards of review: Vavilov, at para. 36.

[31] When the legislature enacts a statute that gives concurrent first instance jurisdiction to courts and administrative bodies, the legislature expressly involves the courts. Like legislated standards of review and statutory appeal mechanisms, concurrent first instance jurisdiction signals a legislative intent for judicial involvement. By conferring such jurisdiction, it should be inferred that the legislature wanted to subject those decisions to appellate standards of review.

[32] My colleague suggests that, because there is no statutory appeal mechanism or legislated standard of review, a sixth correctness category cannot be recognized on the basis of legislative intent. With respect, this argument misconceives the question at issue. If there were legislated standards of review or statutory appeal mechanisms, the Board’s decision would already be reviewed for correctness under those established correctness categories. There would be no reason to consider a sixth category of correctness. When there is no statutory appeal mechanism or legislated standard of review (or other established correctness category), the question is whether correctness is nevertheless appropriate because applying reasonableness would undermine legislative intent in a manner analogous to the established correctness categories. Since that is the case here, a sixth category of correctness is justified on the basis of legislative intent.

(b) Rule of Law

[33] The presumption of reasonableness must give way to considerations aimed at maintaining the rule of law, which requires that certain questions be answered consistently and definitively: Vavilov, at para. 53. Legal inconsistency “is antithetical to the rule of law”: Vavilov, at para. 72.

[34] Applying reasonableness to the Board’s interpretation of the rights in the Copyright Act creates two legal inconsistencies. First, it subjects the same legal issue to different standards of review depending solely on whether the issue arises before the Board or the courts. As this Court explained in Rogers, at para. 14,
[i]t would be inconsistent for the court to review a legal question on judicial review of a decision of the Board on a deferential standard and decide exactly the same legal question de novo if it arose in an infringement action in the court at first instance. It would be equally inconsistent if on appeal from a judicial review, the appeal court were to approach a legal question decided by the Board on a deferential standard, but adopt a correctness standard on an appeal from a decision of a court at first instance on the same legal question.
[35] Second, differing standards of review could lead to conflicting statutory interpretations. For example, the Board could interpret s. 2.4(1.1) as requiring that users pay a performance royalty when works are downloaded, while a court could interpret the provision such that no such royalties are payable in those circumstances.

[36] This raises different concerns than the potential for inconsistent decisions within an administrative body. In Vavilov, at para. 72, this Court declined to recognize a correctness category for legal questions on which there is persistent discord within an administrative body for three reasons: (1) ensuring that administrative bodies remain independent, as the legislature intended, requires tolerating some inconsistencies; (2) a robust reasonableness review can adequately manage the serious rule of law concerns that emerge when the law is indeterminate; and (3) the point at which internal discord becomes serious enough to warrant a correctness standard is impossible to define in the abstract. None of these rationales justifies maintaining a reasonableness standard of review when courts and administrative bodies have concurrent first instance jurisdiction.

[37] First, when there is concurrent first instance jurisdiction, the legislature has expressly involved the courts in the interpretation of a statute. While one may contemplate a degree of inconsistency within an administrative body regarding the interpretation of a statute, no such inconsistency can be tolerated when a court interprets a statute. When the legislature confers first instance concurrent jurisdiction, that necessarily carries with it the implication that, absent legislative direction to the contrary, courts will operate by their settled standards, as explained in Vavilov, at para. 37.

[38] Second, the more methodologically rigorous reasonableness review developed in Vavilov cannot adequately deal with an inconsistency in statutory interpretation between courts and administrative bodies. Vavilov offered guidance as to how to manage persistent discord within administrative bodies at paras. 129-32. But, other than telling administrative bodies to consider relevant judicial decisions, at para. 112, it offers little guidance on managing differing decisions between courts and tribunals. In those circumstances, unless the statute allows for only one reasonable interpretation, discord could persist indefinitely: see para. 124.

[39] Third, this correctness category can be defined with precision. It will apply when courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a statute. Such situations are rare. “Concurrent jurisdiction at first instance seems to appear only under intellectual property statutes where Parliament has preserved dual jurisdiction between the tribunals and the courts”: Rogers, at para. 19. Administrative bodies will also continue to benefit from the presumption of reasonableness in other circumstances. The Board’s decision on tariff rates, for example, will continue to be reviewed on a standard of reasonableness as that is a matter that comes within the Board’s exclusive jurisdiction.

(3) Conclusion: Standard of Review

[40] Recognizing concurrent first instance jurisdiction between courts and administrative bodies as a sixth category of correctness review gives effect to legislative intent and promotes the rule of law. I will therefore review the Board’s decision under the standard of correctness.

[41] I wish to emphasize that these reasons do not purport to change when it is appropriate to recognize a new correctness category. Vavilov contemplated that new correctness categories could be recognized only in rare and exceptional circumstances. Courts should only recognize new correctness categories when doing so is “consistent with the framework and the overarching principles set out in [Vavilov]”: para. 70. This is one of those circumstances.

[42] Nor do these reasons depart from Vavilov. Contrary to my colleague’s assertion, this Court never “chose not to make first instance concurrent jurisdiction an exception”: para. 125 (emphasis in original). When this Court wanted to reject the possibility of a certain correctness category, it did so expressly: see Vavilov, at paras. 71-72. Concurrent first instance jurisdiction was not discussed in Vavilov. Accordingly, I seek to give effect to Vavilov by considering whether treating concurrent first instance jurisdiction as a new correctness category furthers the framework and principles in Vavilov. With respect, I say that it is my colleague who departs from precedent by effectively reading the possibility of further correctness categories out of Vavilov.


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