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Judicial Review - SOR - Pre-Vavilov (1)The 2019 Supreme Court of Canada case of Vavilov made it clear that it was the latest word on standard of review - all reviews, both judicial review and appeals [para 143]:These reasons set out a holistic revision of the framework for determining the applicable standard of review. A court seeking to determine what standard is appropriate in a case before it should look to these reasons first in order to determine how this general framework applies to that case. These pre-Vavilov cases therefore have limited use, except perhaps in the Federal Court system where some (Stratas JA) feel that Vavilov has had little effect on judicial review standard of reviews 'since they were already there'.
. Trinity Western University v. Law Society of Upper Canada
In Trinity Western University v. Law Society of Upper Canada (SCC, 2018) the Supreme Court of Canada ties the standard of review issue of 'reasonableness' with the administrative law issue of 'giving reasons for a decision' in a way that I find compelling. It's not that I agree with the case that some decisions can avoid reasons, I don't - but the connection of 'reasons' from these two (what I've always considered separate) areas of law is novel to me. Now we can argue that, as a matter of 'reasonableness' - as a standard of review - that a decision that lacks written reasons thereby fails the 'reasonableness' standard of review (though the other side can argue this passage in opposition):[28] For the same reasons given in Law Society of B.C., there was no requirement on the part of the LSUC to give reasons which provided formal explanation for why the decision to refuse to accredit TWU’s proposed law school amounted to a proportionate balancing of freedom of religion with the statutory objectives of the Law Society Act (paras. 52-54). The speeches the LSUC Benchers made during the Convocations of April 10 and 24, 2014, demonstrate that the Benchers were alive to the question of the balance to be struck between freedom of religion and their statutory duties.
[29] Reasonableness review requires “a respectful attention to the reasons offered or which could be offered in support of a decision” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 48 (emphasis added); see also Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 11). Reviewing courts “may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome” (Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at para. 52, quoting Newfoundland Nurses, at para. 15). In our view, the Benchers came to a decision that reflected a proportionate balance. . Canadian National Railway Co. v. Canada (Attorney General)
In Canadian National Railway Co. v. Canada (Attorney General) (SCC, 2014) the Supreme Court of Canada clarifies that the Dunsmuir principles that determine the standard of review in judicial reviews apply to both decisions of administrative tribunals and decisions of administrators generally:[53] Dunsmuir is not limited to judicial review of tribunal decisions (paras. 27-28; Public Mobile, at para. 30). Rather, in Dunsmuir, the standard of review analysis was discussed in the context of “various administrative bodies”, “all exercises of public authority”, “those who exercise statutory powers”, and “administrative decision makers” (paras. 27, 28 and 49).
[54] This Court has applied the Dunsmuir framework to a variety of administrative bodies (see, for example, Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2 (CanLII), 2012 SCC 2, [2012] 1 S.C.R. 5, at paras. 13 and 35, per McLachlin C.J.). The precedents instruct that the Dunsmuir framework applies to administrative decision-makers generally and not just to administrative tribunals. The Dunsmuir framework thus is applicable to adjudicative decisions of the Governor in Council. . Prince Edward County Field Naturalists v. Ostrander Point GP Inc.
In Prince Edward County Field Naturalists v. Ostrander Point GP Inc. (Ont CA, 2015) the Court of Appeal affirmed that the standards of review applicable to judicial reviews and statutory appeals were the same:[39] Though this case involves a statutory appeal, the parties relied on judicial review authorities in their submissions regarding the proper standard of review. This was entirely appropriate.
[40] The Supreme Court has noted that "[t]he term 'judicial review' embraces review of administrative decisions by way of both application for judicial review and statutory rights of appeal": Dr. Q. v. College of Physicians & Surgeons of British Columbia, 2003 SCC 19 (CanLII), [2003] 1 S.C.R. 226, at para. 21 (emphasis added). Moreover, the standards of review established by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2009 SCC 9 (CanLII), [2008] 1 S.C.R. 1990, apply not only to judicial review, but also to statutory appeals from tribunals: First Ontario Realty Corp. v. Deng, 2011 ONCA 54 (CanLII), 274 O.A.C. 338, at para. 16.
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