Dunsmir- Pre Vavilov
Vavilov Framework
complex framework for selecting the standard
of review based on a presumption of expertise
and featuring the weighing of several
contextual factors.
A general presumption of reasonableness
review for all administrative decisions gives way
to statutorily prescribed standards of review or,
where a statutory right of appeal is present, to
appellate standards.
Simpler rule-based approach
Rule of law requires correctness review:
I.
where an administrative decision raises
a constitutional question or
II.
a general question of central
importance to the legal system as a
whole or
III.
requires the court to establish
jurisdictional boundaries between
administrative bodies.
What no longer applies:
a) “true questions of jurisdiction”
requiring review on a correctness
standard;
b) the expertise of an administrative
decision-maker relative to the
reviewing court;
c) the presence of a statutory privative
clause limiting judicial intervention play
any role in the selection of the standard
of review.
Contextual factors:
a) the reviewing court’s assessment of the
decision-maker’s relative expertise with
respect to the question at issue based
on a contextual analysis of the
statutorily mandated qualifications of
the decision-maker’s members,
b) their experience in a particular area,
and
c) their involvement in policy-making.
d) decision-makers’ proximity and
responsiveness to stakeholders,
e) their ability to render decisions
promptly, flexibly, and efficiently,
f) and their ability to provide simplified
and streamlined proceedings that
support access to justice.
Broadly:
a) focused on the presence of a privative
clause or right of appeal,
b) the decision-maker’s relative expertise
and its nexus to the question,
c) the purpose of the provision and
statute at issue, and the nature of the
question.
Why a general presumption of reasonableness
makes sense:
Purpose of the legislatureto delegate certain matters to non-judicial
decision-makers through statute. Because
“the very fact that the legislature has chosen to
delegate authority” justifies a presumption of
reasonableness review, it is no longer necessary
for reviewing courts to evaluate whether other
rationales for deference to administrative
decision-making apply to the decision under
review.
e.g Parliament intended reviewing courts to
defer to visa officers’ decisions on questions of
law, including the interpretation of their home
statute?
Vavilov: a presumption of
reasonableness review can
be rebutted by strong and
compelling signals from the
legislature that it intends
for a different standard to
apply
Expressly prescribed
standards of review in
statutes
Implicitly prescribed
appellate standard of
review-statutory appeal
mechanism from ADM to
court