Standard of Review After Vavilov

The Vavilov framework

Canada (Minister of Citizenship and Immigration) v Vavilov (2019) restated Canadian administrative-law standard of review. The principles:

Reasonableness is presumed. When a court reviews an administrative decision on a question of law, mixed fact and law, or fact, the presumptive standard is reasonableness. The presumption is rooted in legislative intent and respect for institutional design.

Correctness applies in five categories:

1. Where the legislature has prescribed it (rare).
2. Where there is a statutory right of appeal — appellate-style review under Housen v Nikolaisen (correctness on questions of law, palpable and overriding error on facts).
3. Constitutional questions.
4. General questions of law of central importance to the legal system as a whole.
5. Jurisdictional boundaries between two administrative bodies.

How reasonableness now works

Vavilov collapsed the post-Dunsmuir doctrinal contestation into a single, robust standard. Reasonableness asks whether the decision is justified, transparent and intelligible. The reviewing court examines:

• The actual reasoning chain. Are the conclusions supported by a logical and rational analysis?
• The factual and legal constraints on the decision-maker. Are the conclusions defensible in light of the facts and the law?
• The quality of the explanation, including responsiveness to the central submissions.

The reviewing court does not engage in de novo analysis or hypothesise reasons that the decision-maker did not give. The actual reasons given are central.

Statutory rights of appeal

Vavilov resolved a long-standing contested issue: when Parliament provides a statutory right of appeal, it is signalling that appellate-style review applies. Housen-style standards govern: correctness on extricable questions of law, palpable and overriding error on questions of fact and mixed fact-and-law without an extricable legal question.

Procedural fairness sits separately

Vavilov did not change the procedural-fairness analysis. Baker v Canada (1999) governs: fairness exists on a spectrum, with content determined by the five Baker factors (nature of decision; statutory scheme; importance to those affected; legitimate expectations; agency's procedural choices).

What Vavilov did not change

• Roncarelli's rule-of-law foundation — there is no absolute discretion.
• The duty to give reasons where the matter is important to the affected (Baker).
• The role of the reviewing court as one of supervision, not substitution.

Drafting tip

Identify the standard early. If reasonableness, anchor your analysis to the actual reasons given by the decision-maker. If correctness, justify why one of the five categories applies — that justification is itself a step in the analysis.