Standards of review Flashcards
What is the standard of review?
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
What are the 2 standards of review?
What standard do each have
Judicial -
Correctness
Reasonableness
Appellate
Correctness
Palpable and overriding error
Can the degree of scrutiny change?
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.
Determining the aplicable standard of review whats the presumption
Presumption of reasonablness for all admin decisions
How can presumption of reasonableness rebiew be rebutted
Where the rile of law provides for it
Where the statute intends that another method for review be used
Legislative intent
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.
Statutorty appeals
State case
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
Housen v Nikolsen
on standards for appellare review ?
- Correctness on questions of law
- 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.
What is q of law
Legal principle/ rules
What is q of fact
detetmining decision based on evidence
qhat is q of mix lw and fact
applying legal rules to facts/evidence
what is extricible q of law
An instance where fact-finding is tainted by improper/misapplication of the law
Correctness
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
Correctness
Name case and name justiication
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.
Palpable and overriding error
Much less strict, much more deferencial
Courts only intervene once there is a palpable and overriding error
Palpable meaning
Housen
Problem that is clear to see
One that is plainly obvious
Ovveriding meaning
South yukon
Goes to the very core of the outcome of the case/.
Justification of palpable and overriding being more deferential
Housen
Allows for more autonomy in decision-making
Judicial economy- saves resources, time and money
Recognises the expertise
What are all admin decisions reviewed on
Standard of reasonableness
When is the standard of reasonableness rebutted
When the legislature provides for it
Wherre the rule of law requires it
Case on presumption of reasonableness
Vavilov- legislature intended for all decisions to be reviewable on reasonableness
Why are admin decisions not shielded from scrutiny
because of s96
Legislative intent rebutting reasonableness case
Vavilov
If the legislature prescribes a different standard of review, the courts must honour this
When will appelate standard apply
Case
Vavilov
Where the legislatire provides for an appeal, the appealate standard as in housen applies
Why does the RoL require a corrrectness standard?
To allow for certainty and consistency about certain legal questions
When will RoL require a correctness standard
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
Con questions
Vavilov
Con q need corectness standard because they rewuire to be determinative and final
Examples of con q’s
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
Questions of central importance
And examples
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
Questions of central importance justificiation
Correctness adds a greater degree of certainty than reasonableness review
Questions about the juridictional boundaries between 2 or more admin bodies
Justification
Vavilov
Need to know who to bring the issue to
Courts must intervene where one tribunals interpretation of scope is inconsitent with another
Concurrent first instance jurisdcition between the courts and admin tribunal
SOCAN
expressly giving both courts and tribunal jursidicito and some issues can overlap
therefore reasonableness s rebitted and correctness applies
Justification for Concurrent first instance jurisdcition between the courts and admin tribunal
So different standards if review rent applied to the same issue leading to inconsitency
Also could lead to inconsistency in statutory interpreation
Jurisdicitonal qs
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
Reasonableness review? What is is
Vavilov
Looking at the deicision that was made, not what the court wouldve concluded
It must be transparent/intelligible and justified.
When will a decision be reasonable?
When it has an internally coherent and rationale chain of analysis
When it is justified based on the facts and law
Appeals from judicial review
Whats the standard?
When JR of an admin decision, vavilov applies
When its an appeal of this decision, agreira applies, not the housen appellate review standard
Agraira review
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
What is the sthe standard of review
How much deference the courts has towards the admin decision maker
How much scrutiny
Why are there different standards for review
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
Pre- vavilov what was the standard of review
Dunsmuir
Reasonableness but it was contextual- focused on privaive clauses, expertise etc.
What did vavilov establish the standard of review was
Reaosnbaleness with no contexutal analysis
Exception
Where RoL provides
Where the legislature intends a different stadard
How does legislature intend different standard
Express- says it in the statute
Implied- adds an appeal mechanism
Vavilov on expertise
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
Reasonable review according to vavilov
Looks at the decision and reasoning, not what the courts wouldve decidied, solely on justification
Reasonabless review according to dunsmuir
Must be justified/intelligible and transparent
Reasonableness CMRA v Apple
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.
Reasoning and vavilov
Looks at the written reasons and determne if thats reasonable
Expertise and vavilov
Aware that tribunal has expertise and knows that a deicison may look reaosnable to a person w expertise on that matter
To be reasonable a decision must be
Based on internally coherent and rational chain of analysis
Must be justified in relation to the facts and law
Constraints on reasonableness by vavilov
- Governing statute
- Other applicable statute/CL
- Statutory interpretation
- Evidence and facts
- Submissions of parties
- Past decisions
- Impact on the person affected
Governing statute
Look to see what the statutte gives authority for the decision maker to decide on
Other statute./common law
if diverting from precedent in this area, must be justified why they have decided to do so
Statutory interpretation
May be a case where the statute can only be interpreted in one reasomable way
Not a correctness thing
Evidence
Must have made a reasonabole decision baed on the facts and evidence in front of them
PArties submissions
Must take into account th parties submissions and arguments
Past decisions
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
Impact
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.
