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Standards of review Flashcards

1
Q

What is the standard of review?

A

Its the degree of scrutiny the courts take on a decision- vavilov
Stratas J- its the intnsity of the review of a decision

Dunsmuir used to say that its the deference the courts think to gie to a dm

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2
Q

What are the 2 standards of review?
What standard do each have

A

Judicial -
Correctness
Reasonableness

Appellate
Correctness
Palpable and overriding error

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3
Q

Can the degree of scrutiny change?

A

Vavilov rejjeted tat privative clauses, saying that the decision cant bw reviewed, can chamge the degree of scritiny
Context canot change the degree of scrutiny.

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4
Q

Determining the aplicable standard of review whats the presumption

A

Presumption of reasonablness for all admin decisions

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5
Q

How can presumption of reasonableness rebiew be rebutted

A

Where the rile of law provides for it
Where the statute intends that another method for review be used

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6
Q

Legislative intent

A

Legislative intent as the polar star- vavilo
The lehislature says the will of the people and can make or unmake any laws as it sees fit withtin the constutional limits
Can say that it wants a specific method of review to be used.

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7
Q

Statutorty appeals
State case

A

Vavlov
The corts have to respect for legilsatures bintent
If the decision leaves mechanism for statutory appeal, the courts have to cnduct appellate rebiew
This rebts the presumption of reasonableness

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8
Q

Housen v Nikolsen
on standards for appellare review ?

A
  1. Correctness on questions of law
  2. Palpable and overriding error on questions of fact or mixed law and fact

General rule: the courts will accept a deicison ebased on the interpretatiom of evidence unless there is a palpable and overriding error
For questions of mixed law and fact, the palpable and overriding error is standard unless there has been an error made in the application of the law, then, the correctness standard applies.

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9
Q

What is q of law

A

Legal principle/ rules

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10
Q

What is q of fact

A

detetmining decision based on evidence

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11
Q

qhat is q of mix lw and fact

A

applying legal rules to facts/evidence

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12
Q

what is extricible q of law

A

An instance where fact-finding is tainted by improper/misapplication of the law

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13
Q

Correctness

A

No deference
Much more strict
the courts have to determine their own qanalusis of the legal q and see if it alligns w the dm, if not, they have to substitute the deicson

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14
Q

Correctness
Name case and name justiication

A

Housen v nicholsen
Q of law require correctness standard of review

This is to allow for legal certainty
Principle of universality: Law has to be interpreted the same way so that it’s stable and people have confidence in the system.

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15
Q

Palpable and overriding error

A

Much less strict, much more deferencial
Courts only intervene once there is a palpable and overriding error

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16
Q

Palpable meaning

A

Housen
Problem that is clear to see
One that is plainly obvious

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17
Q

Ovveriding meaning

A

South yukon
Goes to the very core of the outcome of the case/.

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18
Q

Justification of palpable and overriding being more deferential

A

Housen
Allows for more autonomy in decision-making
Judicial economy- saves resources, time and money
Recognises the expertise

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19
Q

What are all admin decisions reviewed on

A

Standard of reasonableness

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20
Q

When is the standard of reasonableness rebutted

A

When the legislature provides for it
Wherre the rule of law requires it

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21
Q

Case on presumption of reasonableness

A

Vavilov- legislature intended for all decisions to be reviewable on reasonableness

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22
Q

Why are admin decisions not shielded from scrutiny

A

because of s96

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23
Q

Legislative intent rebutting reasonableness case

A

Vavilov
If the legislature prescribes a different standard of review, the courts must honour this

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24
Q

When will appelate standard apply
Case

A

Vavilov
Where the legislatire provides for an appeal, the appealate standard as in housen applies

25
Q

Why does the RoL require a corrrectness standard?

A

To allow for certainty and consistency about certain legal questions

26
Q

When will RoL require a correctness standard

A

Vavilov
Con questions
General questions of central importance to the legal system
Questions about the juridictional boundaries between 2 or more admin bodies

SOCAN
Concurrent first instance jurisdcition between the courts and admin tribunal

27
Q

Con questions

A

Vavilov
Con q need corectness standard because they rewuire to be determinative and final

28
Q

Examples of con q’s

A

Vavilov
Division of powers in executive
Relationsgip of legislature to other branches of government
Treaty and aboriginal rights
Where the provision of an enabling statute violates charter rights, correctness applies

29
Q

Questions of central importance
And examples

A

Vavilov
They warrant correctness review and they require cetainty and need to be determiniatie

Examples
Scope of parliamentary privilege
Scope of religious neutrality
Scope of attorney client bprivillege

30
Q

Questions of central importance justificiation

A

Correctness adds a greater degree of certainty than reasonableness review

31
Q

Questions about the juridictional boundaries between 2 or more admin bodies
Justification

A

Vavilov
Need to know who to bring the issue to
Courts must intervene where one tribunals interpretation of scope is inconsitent with another

32
Q

Concurrent first instance jurisdcition between the courts and admin tribunal

A

SOCAN
expressly giving both courts and tribunal jursidicito and some issues can overlap
therefore reasonableness s rebitted and correctness applies

33
Q

Justification for Concurrent first instance jurisdcition between the courts and admin tribunal

A

So different standards if review rent applied to the same issue leading to inconsitency
Also could lead to inconsistency in statutory interpreation

34
Q

Jurisdicitonal qs

A

Dunsmuit said all q’s of pure jurisdiciton are correctness

Vavilov rejected this, arguing that any q can be jurisdictional cx they all turn on whether or not the admin dm had the authority to carry something out

35
Q

Reasonableness review? What is is

A

Vavilov
Looking at the deicision that was made, not what the court wouldve concluded
It must be transparent/intelligible and justified.

36
Q

When will a decision be reasonable?

A

When it has an internally coherent and rationale chain of analysis
When it is justified based on the facts and law

37
Q

Appeals from judicial review
Whats the standard?

A

When JR of an admin decision, vavilov applies

When its an appeal of this decision, agreira applies, not the housen appellate review standard

38
Q

Agraira review

A

Looks at whether the correct standard of review was applied
If yes, looks to see if it was applied correctly
If not- the courts substitute with their own decision, with no deference to the lower court- make the decision from scratch.
NB: NO PALPABLE AND OVERRIDING ERROR

39
Q

What is the sthe standard of review

A

How much deference the courts has towards the admin decision maker
How much scrutiny

40
Q

Why are there different standards for review

A

Parliamentary sovereinty- legislature intended to gve power to dm’s courts can only intervene to the extent the leg allows for it.

Dunsmuir- to uphold the rule of law and the will of parliament

41
Q

Pre- vavilov what was the standard of review

A

Dunsmuir
Reasonableness but it was contextual- focused on privaive clauses, expertise etc.

42
Q

What did vavilov establish the standard of review was

A

Reaosnbaleness with no contexutal analysis

Exception
Where RoL provides
Where the legislature intends a different stadard

43
Q

How does legislature intend different standard

A

Express- says it in the statute
Implied- adds an appeal mechanism

44
Q

Vavilov on expertise

A

The legislature intended that the tribunal to have the final word in the circumstance; it doesn’t need to determine why the leg gave the dm author, just whether the decision is reasonable

45
Q

Reasonable review according to vavilov

A

Looks at the decision and reasoning, not what the courts wouldve decidied, solely on justification

46
Q

Reasonabless review according to dunsmuir

A

Must be justified/intelligible and transparent

47
Q

Reasonableness CMRA v Apple

A

Sometimes, a tribunal can step away from past decisions and completely alter the jurisprudence, but that doesn’t mean that the decision in itself is unreasonable.

48
Q

Reasoning and vavilov

A

Looks at the written reasons and determne if thats reasonable

49
Q

Expertise and vavilov

A

Aware that tribunal has expertise and knows that a deicison may look reaosnable to a person w expertise on that matter

50
Q

To be reasonable a decision must be

A

Based on internally coherent and rational chain of analysis
Must be justified in relation to the facts and law

51
Q

Constraints on reasonableness by vavilov

A
  1. Governing statute
  2. Other applicable statute/CL
  3. Statutory interpretation
  4. Evidence and facts
  5. Submissions of parties
  6. Past decisions
  7. Impact on the person affected
52
Q

Governing statute

A

Look to see what the statutte gives authority for the decision maker to decide on

53
Q

Other statute./common law

A

if diverting from precedent in this area, must be justified why they have decided to do so

54
Q

Statutory interpretation

A

May be a case where the statute can only be interpreted in one reasomable way
Not a correctness thing

55
Q

Evidence

A

Must have made a reasonabole decision baed on the facts and evidence in front of them

56
Q

PArties submissions

A

Must take into account th parties submissions and arguments

57
Q

Past decisions

A

Reasonable to assume that thwy will follow deicisons that have been made on same issue
Need to justify why they are veering away from it

58
Q

Impact

A

if the decision has major consequences for the person, they must be able to justify why this decision was made
Considers the life, liberty and dignity of person

NB dont confuse w baker- PF
Here the deicison was already regarded as fair, now we are determining if its reasonable.

Admin (16 decks)

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