. Canada (Minister of Citizenship and Immigration) v. Vavilov
In Canada (Minister of Citizenship and Immigration) v. Vavilov (SCC, 2024) the Supreme Court of Canada revises the law of 'standard of review' ('SOR') for judicial reviews (JR). 'Standards of review' indicate the degree of deference that applies to the decisions of the lower court/tribunal/body - either on a JR or an appeal, when the reviewing court is performing their review task. This may surprise some non-lawyers. When a court performs a review (either JR or appeal), they don't ask whether the lower body was correct in all respects (broken down into: facts, law, and mixed questions of fact and law) - they don't repeat the lower body's task in it's entirety - rather they follow the applicable standard of review, or of 'deference'. The Vavilov (SCC) case revises and explains this JR 'standard of review' law as of 2019.
Here the court sets out that when judicially-reviewing an administrative decision on a 'correctness' standard, the court's remedial options are to uphold or decide the JR themselves - query: not apparently to remit it back down?:
[54] When applying the correctness standard, the reviewing court may choose either to uphold the administrative decision maker’s determination or to substitute its own view: Dunsmuir, at para. 50. While it should take the administrative decision maker’s reasoning into account — and indeed, it may find that reasoning persuasive and adopt it — the reviewing court is ultimately empowered to come to its own conclusions on the question.
The author has waived all copyright and related or neighboring rights to this Isthatlegal.ca webpage.
