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Appeal - Standard of Review (SOR) - Appeal of Judicial Review ('Shoes')

. Thomson v. Canada (Attorney General)

In Thomson v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal states the doctrine in Agraira and Horrocks (SCC, 2021) on appeals of judicial reviews:
[14] As this appeal is from a judgment on a judicial review application, in accordance with the Supreme Court of Canada’s decision in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paragraphs 45-46 [Agraira], this Court is required to step into the shoes of the Federal Court. We must determine whether the Federal Court selected the appropriate standard of review and, if it did, whether it applied it properly. Recently, the Supreme Court of Canada in Northern Regional Health Authority v. Horrocks, 2021 SCC 42, 462 D.L.R. (4th) 585, declined the invitation to reconsider Agraira and confirmed that its principles continue to apply.
. Longueépée v. University of Waterloo

In Longueépée v. University of Waterloo (Ont CA, 2020) the Court of Appeal spelled out the manner of determination of the standards of review on an appeal from a judicial review application:
[47] On an appeal of a judgment of the Divisional Court disposing of a judicial review application, this court must determine whether the Divisional Court identified the appropriate standard of review and applied it correctly. In doing so, this court will “step into the shoes” of the Divisional Court and focus on the administrative decision under review: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45-47; Groia v. Law Society of Upper Canada, 2016 ONCA 471, 131 O.R. (3d) 1, at para. 49, rev’d on other grounds 2018 SCC 27, [2018] 1 S.C.R. 772; Ball v. McAulay, 2020 ONCA 481, at para. 5.

[48] Accordingly, what is required in order to address the issues on appeal is for this court: (1) to determine the appropriate standard of review; (2) to apply that standard of review to the decisions of the Vice Chair; and if her decisions were properly set aside, (3) to determine the appropriate remedy.
. Ontario Nurses’ Association v. Participating

In Ontario Nurses’ Association v. Participating (Ont CA, 2021) the Court of Appeal considers the standard of review for an appeal of a judicial review application:
Guiding principles

[40] The focus of this court’s inquiry is the reasonableness of the Tribunal’s decision. This involves “stepping into the shoes” of the lower court and focusing on the Tribunal’s decision: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45-46.

[41] An inquiry into the reasonableness of an administrative tribunal’s decision begins with Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1.

[42] Post-Vavilov, there is a single standard of reasonableness. At para. 89:
[R]easonableness remains a single standard, and elements of a decision’s context do not modulate the standard or the degree of scrutiny by the reviewing court. Instead, the particular context of a decision constrains what will be reasonable for an administrative decision maker to decide in a given case. This is what it means to say that “[r]easonableness is a single standard that takes its colour from the context.” [Citations omitted.]
[43] A tribunal’s governing statute is an important part of considering whether the tribunal’s decision was reasonable “in light of the relevant factual and legal constraints that bear on it.” Vavilov, at para. 108:
Because administrative decision makers receive their powers by statute, the governing statutory scheme is likely to be the most salient aspect of the legal context relevant to a particular decision. That administrative decision makers play a role, along with courts, in elaborating the precise content of the administrative schemes they administer should not be taken to mean that administrative decision makers are permitted to disregard or rewrite the law as enacted by Parliament and the provincial legislatures.
[44] Vavilov reaffirms the “modern principle” of statutory interpretation, which requires that “the words of a statute must be read ‘in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament’”: Vavilov, at para. 117.

[45] The administrative decision must be consistent with principles of statutory interpretation and be compliant with the “rationale and purview of the statutory scheme under which it is adopted”: Vavilov, at paras. 108, 118. As set out in Vavilov at para. 121:
The administrative decision maker’s task is to interpret the contested provision in a manner consistent with the text, context and purpose, applying its particular insight into the statutory scheme at issue. [Emphasis added.]
[46] Vavilov cautions that a reviewing court is not interpreting the statute de novo. Rather, the focus should be on the reasonableness of the administrative decision. In other words, the focus of the analysis is on why the Tribunal’s decision is unreasonable, not what this court would have decided in the Tribunal’s place. This is explained at paras. 115-116:
Matters of statutory interpretation are not treated uniquely and, as with other questions of law, may be evaluated on a reasonableness standard. Although the general approach to reasonableness review described above applies in such cases, we recognize that it is necessary to provide additional guidance to reviewing courts on this point. This is because reviewing courts are accustomed to resolving questions of statutory interpretation in a context in which the issue is before them at first instance or on appeal, and where they are expected to perform their own independent analysis and come to their own conclusions.

Reasonableness review functions differently. Where reasonableness is the applicable standard on a question of statutory interpretation, the reviewing court does not undertake a de novo analysis of the question or “ask itself what the correct decision would have been”: Ryan, at para. 50. Instead, just as it does when applying the reasonableness standard in reviewing questions of fact, discretion or policy, the court must examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached. [Emphasis added.]
. Subramaniam v. Canada (Citizenship and Immigration)

In Subramaniam v. Canada (Citizenship and Immigration) (Fed CA, 2020) the Federal Court of Appeal considered an appeal from a denial of a judicial review in the Federal Court (the standard of review for issues of law on appeals is 'correctness', but for judicial review is 'reasonableness'):
[16] On appeal from a decision of the Federal Court sitting in judicial review of a decision of an administrative decision-maker, this Court must "“step into the shoes”" of the Federal Court to determine whether it identified the appropriate standard of review, and whether it applied this standard properly: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45-47.

[17] There is broad agreement between the parties that the applicable standard of review is that of reasonableness. ....
. Canada (Public Safety and Emergency Preparedness) v. Ahmed

In Canada (Public Safety and Emergency Preparedness) v. Ahmed (Fed CA, 2022) the Federal Court of Appeal affirmed that on an appeal from a judicial review application, the appeal court 'steps into the shoes' of the application court and effectively conducts a de novo judicial review:
[23] It is trite that on appeal from a decision of the Federal Court sitting in judicial review, this Court must determine whether the Federal Court chose the appropriate standard of review and, if so, whether it properly applied it in reviewing the impugned administrative decision. This requires the Court to "“step into the shoes”" of the Federal Court and effectively focus on the administrative decision under review (Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paras. 45-46).

[24] Recently, the Supreme Court of Canada, in Northern Regional Health Authority v. Horrocks, 2021 SCC 42, 462 D.L.R. (4th) 585 (Horrocks), declined the invitation to reconsider Agraira, and confirmed that its principles continue to apply. The Agraira approach, according to Horrocks, "“accords no deference to the reviewing judge’s application of the standard of review”"; it rather requires the Court to "“perform[] a de novo review of the administrative decision”" (Horrocks at para. 10).


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