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VAVILOV - Appeals - Nature. 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 gets basic, addressing the statutory interpretation of the term 'appeal' itself:[44] More generally, there is no convincing reason to presume that legislatures mean something entirely different when they use the word “appeal” in an administrative law statute than they do in, for example, a criminal or commercial law context. Accepting that the word “appeal” refers to the same type of procedure in all these contexts also accords with the presumption of consistent expression, according to which the legislature is presumed to use language such that the same words have the same meaning both within a statute and across statutes: R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at p. 217. Accepting that the legislature intends an appellate standard of review to be applied when it uses the word “appeal” also helps to explain why many statutes provide for both appeal and judicial review mechanisms in different contexts, thereby indicating two roles for reviewing courts: see, e.g., Federal Courts Act, R.S.C. 1985, c. F-7, ss. 27 and 28. This offers further support for giving effect to statutory rights of appeal. Our colleagues’ suggestion that our position in this regard “hinges” on what they call a “textualist argument” (at para. 246) is inaccurate.
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