Administrative Law · Administrative Law

CA — Administrative Law (AI set 1)

Judicial review of administrative action — standard of review, procedural fairness, and reasonableness.

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All cards in this deck

Vavilov (2019) — what is the default standard of review for administrative decisions?: Reasonableness is the presumptive standard of review for all administrative decisions. Correctness applies only in limited categories: constitutional questions, general questions of central importance to the legal system, questions of jurisdictional boundaries between tribunals, and where legislation explicitly provides for it. See Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.
Vavilov — what makes a decision unreasonable on judicial review?: A decision is unreasonable if it lacks justification, transparency, or intelligibility, or if it is not justified in relation to the facts and law. A reviewing court must not substitute its own view but instead ask whether the decision bears the hallmarks of a reasonable decision: Vavilov, 2019 SCC 65.
Baker (1999) — what are the five factors governing the content of procedural fairness?: Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, identifies five factors: (1) the nature of the decision and process used; (2) the statutory scheme; (3) the importance of the decision to the affected individual; (4) the individual's legitimate expectations; and (5) the decision-maker's own choices about procedure. These factors inform the content of the duty of fairness owed in a given case.
Baker (1999) — can reasons from a subordinate officer satisfy procedural fairness for a discretionary humanitarian decision?: Yes. In Baker, the Supreme Court held that notes made by an immigration officer reviewing the file could constitute adequate reasons for a humanitarian and compassionate decision, even though the decision-maker herself gave none, provided those notes were disclosed and allowed meaningful review. Reasons satisfy procedural fairness if they inform the individual of the basis for the decision.
Ali v. Canada (AG) (2024) — what standard governs review of a federal administrative decision where reasons are provided?: In Ali v Canada (Attorney General), 2024 FC 19, the Federal Court confirmed that reasonableness under Vavilov is the applicable standard and that the reviewing court must examine whether the decision-maker's reasons, read holistically, disclose a rational chain of analysis connecting the evidence to the outcome. A failure to grapple with relevant evidence or submissions can render a decision unreasonable.
Clark v. Canada (AG) (2024) — what is the consequence of a tribunal failing to address a central argument?: In Clark v Canada (Attorney General), 2024 FC 395, the Federal Court held that a decision is unreasonable under Vavilov where the decision-maker fails to meaningfully engage with a central argument or relevant evidence, because such an omission undermines the justification and intelligibility of the decision. The reviewing court may set the decision aside and remit the matter for redetermination.
On judicial review, when will a court grant certiorari rather than remitting the matter to the decision-maker?: A court may quash a decision and decline to remit where remitting would be futile — for example, where the outcome is predetermined, the delay would cause serious prejudice, or only one reasonable outcome is possible on the record: Dunsmuir v New Brunswick, 2008 SCC 9. Remittal is, however, the ordinary remedy to respect the legislative choice to assign decision-making to the tribunal.
Lawlor v. Canada (AG) (2022) — what does procedural fairness require when new adverse information is relied upon?: In Lawlor v Canada (Attorney General), 2022 FC 821, the Federal Court held that procedural fairness requires a decision-maker to disclose new adverse information to the affected party and provide a meaningful opportunity to respond before relying on that information in the decision. Failure to do so breaches the duty of fairness regardless of the ultimate merits, and the decision will be set aside.
Vavilov — when does correctness, not reasonableness, apply as the standard of review?: Correctness applies in four categories: constitutional questions, general questions of law of central importance to the legal system, questions regarding jurisdictional boundaries between administrative bodies, and where a legislature has prescribed a statutory appeal on a question of law. Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.
Baker (1999) — what procedural fairness duty arises when a decision affects a person's vital interests?: Where a decision has a serious impact on an individual's life, liberty, or security — such as a deportation order affecting Canadian-born children — the duty of fairness is heightened and requires meaningful opportunity to present one's case. Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817.
Lewis v. Canada (AG) (2021) — what standard of review applies to a grievance adjudicator's interpretation of a collective agreement?: Following Vavilov, an adjudicator's interpretation of a collective agreement is reviewed on the reasonableness standard, and the court must examine whether the decision is justified, intelligible, and transparent in light of the relevant legal and factual constraints. Lewis v Canada (Attorney General), 2021 FC 1385.
Allen v. Canada (AG) (2021) — what is required for an administrative decision-maker's reasons to be adequate?: Reasons must meaningfully grapple with the key issues and evidence, and a failure to engage with central submissions renders the decision unreasonable under the Vavilov framework. Allen v Canada (Attorney General), 2021 FC 364.
Latour v. Canada (AG) (2004 FCA) — can a party waive procedural fairness objections by failing to raise them before the tribunal?: Yes — a party who participates in a tribunal proceeding without objecting to a procedural irregularity of which they are aware may be found to have waived the right to raise that objection on judicial review. Latour v Canada (Attorney General), 2004 FCA 103.
Dunsmuir (2008) — what two-step framework did the SCC establish for selecting the standard of review (pre-Vavilov)?: Dunsmuir collapsed the patent unreasonableness and reasonableness simpliciter standards into a single 'reasonableness' standard, leaving correctness for jurisdictional and constitutional questions; courts were to first check whether existing jurisprudence settled the standard, then conduct a contextual analysis if not. Dunsmuir v New Brunswick, 2008 SCC 9. (Note: Vavilov 2019 subsequently refined this framework.)
On judicial review, when is remittal to the decision-maker the presumptive remedy after finding unreasonableness?: Under Vavilov, once a decision is found unreasonable, the normal remedy is to set it aside and remit for fresh determination; a court should substitute its own decision only in the narrow circumstance where the outcome is inevitable and remittal would serve no useful purpose. Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, at paras 141–142.
Baker (1999) — what weight must a decision-maker give to children's interests under procedural fairness and substantive review?: In Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, the Supreme Court held that a decision-maker exercising humanitarian and compassionate discretion must give serious weight to the best interests of children affected by the decision, and failure to do so renders the decision unreasonable. This principle informs both the content of procedural fairness and the substantive reasonableness of the outcome.
Wilson v. Atomic Energy of Canada Ltd. (2016 SCC 29) — what is the substantive effect of finding an unjust dismissal under the Canada Labour Code?: In Wilson v Atomic Energy of Canada Ltd, 2016 SCC 29, the Supreme Court held (on reasonableness review) that the Canada Labour Code's unjust dismissal regime does not permit dismissal without cause for non-managerial employees, meaning without-cause termination with severance pay is not a lawful option under the Code. An adjudicator's interpretation to the contrary is unreasonable because it defeats the legislative purpose of providing substantive job security.

All cards in this deck

Vavilov (2019) — what is the default standard of review for administrative decisions?

Reasonableness is the presumptive standard of review for all administrative decisions. Correctness applies only in limited categories: constitutional questions, general questions of central importance to the legal system, questions of jurisdictional boundaries between tribunals, and where legislation explicitly provides for it. See Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.

Vavilov — what makes a decision unreasonable on judicial review?

A decision is unreasonable if it lacks justification, transparency, or intelligibility, or if it is not justified in relation to the facts and law. A reviewing court must not substitute its own view but instead ask whether the decision bears the hallmarks of a reasonable decision: Vavilov, 2019 SCC 65.

Baker (1999) — what are the five factors governing the content of procedural fairness?

Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, identifies five factors: (1) the nature of the decision and process used; (2) the statutory scheme; (3) the importance of the decision to the affected individual; (4) the individual's legitimate expectations; and (5) the decision-maker's own choices about procedure. These factors inform the content of the duty of fairness owed in a given case.

Baker (1999) — can reasons from a subordinate officer satisfy procedural fairness for a discretionary humanitarian decision?

Yes. In Baker, the Supreme Court held that notes made by an immigration officer reviewing the file could constitute adequate reasons for a humanitarian and compassionate decision, even though the decision-maker herself gave none, provided those notes were disclosed and allowed meaningful review. Reasons satisfy procedural fairness if they inform the individual of the basis for the decision.

Ali v. Canada (AG) (2024) — what standard governs review of a federal administrative decision where reasons are provided?

In Ali v Canada (Attorney General), 2024 FC 19, the Federal Court confirmed that reasonableness under Vavilov is the applicable standard and that the reviewing court must examine whether the decision-maker's reasons, read holistically, disclose a rational chain of analysis connecting the evidence to the outcome. A failure to grapple with relevant evidence or submissions can render a decision unreasonable.

Clark v. Canada (AG) (2024) — what is the consequence of a tribunal failing to address a central argument?

In Clark v Canada (Attorney General), 2024 FC 395, the Federal Court held that a decision is unreasonable under Vavilov where the decision-maker fails to meaningfully engage with a central argument or relevant evidence, because such an omission undermines the justification and intelligibility of the decision. The reviewing court may set the decision aside and remit the matter for redetermination.

On judicial review, when will a court grant certiorari rather than remitting the matter to the decision-maker?

A court may quash a decision and decline to remit where remitting would be futile — for example, where the outcome is predetermined, the delay would cause serious prejudice, or only one reasonable outcome is possible on the record: Dunsmuir v New Brunswick, 2008 SCC 9. Remittal is, however, the ordinary remedy to respect the legislative choice to assign decision-making to the tribunal.

Lawlor v. Canada (AG) (2022) — what does procedural fairness require when new adverse information is relied upon?

In Lawlor v Canada (Attorney General), 2022 FC 821, the Federal Court held that procedural fairness requires a decision-maker to disclose new adverse information to the affected party and provide a meaningful opportunity to respond before relying on that information in the decision. Failure to do so breaches the duty of fairness regardless of the ultimate merits, and the decision will be set aside.

Vavilov — when does correctness, not reasonableness, apply as the standard of review?

Correctness applies in four categories: constitutional questions, general questions of law of central importance to the legal system, questions regarding jurisdictional boundaries between administrative bodies, and where a legislature has prescribed a statutory appeal on a question of law. Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.

Baker (1999) — what procedural fairness duty arises when a decision affects a person's vital interests?

Where a decision has a serious impact on an individual's life, liberty, or security — such as a deportation order affecting Canadian-born children — the duty of fairness is heightened and requires meaningful opportunity to present one's case. Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817.

Lewis v. Canada (AG) (2021) — what standard of review applies to a grievance adjudicator's interpretation of a collective agreement?

Following Vavilov, an adjudicator's interpretation of a collective agreement is reviewed on the reasonableness standard, and the court must examine whether the decision is justified, intelligible, and transparent in light of the relevant legal and factual constraints. Lewis v Canada (Attorney General), 2021 FC 1385.

Allen v. Canada (AG) (2021) — what is required for an administrative decision-maker's reasons to be adequate?

Reasons must meaningfully grapple with the key issues and evidence, and a failure to engage with central submissions renders the decision unreasonable under the Vavilov framework. Allen v Canada (Attorney General), 2021 FC 364.

Latour v. Canada (AG) (2004 FCA) — can a party waive procedural fairness objections by failing to raise them before the tribunal?

Yes — a party who participates in a tribunal proceeding without objecting to a procedural irregularity of which they are aware may be found to have waived the right to raise that objection on judicial review. Latour v Canada (Attorney General), 2004 FCA 103.

Dunsmuir (2008) — what two-step framework did the SCC establish for selecting the standard of review (pre-Vavilov)?

Dunsmuir collapsed the patent unreasonableness and reasonableness simpliciter standards into a single 'reasonableness' standard, leaving correctness for jurisdictional and constitutional questions; courts were to first check whether existing jurisprudence settled the standard, then conduct a contextual analysis if not. Dunsmuir v New Brunswick, 2008 SCC 9. (Note: Vavilov 2019 subsequently refined this framework.)

On judicial review, when is remittal to the decision-maker the presumptive remedy after finding unreasonableness?

Under Vavilov, once a decision is found unreasonable, the normal remedy is to set it aside and remit for fresh determination; a court should substitute its own decision only in the narrow circumstance where the outcome is inevitable and remittal would serve no useful purpose. Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, at paras 141–142.

Baker (1999) — what weight must a decision-maker give to children's interests under procedural fairness and substantive review?

In Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, the Supreme Court held that a decision-maker exercising humanitarian and compassionate discretion must give serious weight to the best interests of children affected by the decision, and failure to do so renders the decision unreasonable. This principle informs both the content of procedural fairness and the substantive reasonableness of the outcome.

Wilson v. Atomic Energy of Canada Ltd. (2016 SCC 29) — what is the substantive effect of finding an unjust dismissal under the Canada Labour Code?

In Wilson v Atomic Energy of Canada Ltd, 2016 SCC 29, the Supreme Court held (on reasonableness review) that the Canada Labour Code's unjust dismissal regime does not permit dismissal without cause for non-managerial employees, meaning without-cause termination with severance pay is not a lawful option under the Code. An adjudicator's interpretation to the contrary is unreasonable because it defeats the legislative purpose of providing substantive job security.