Certiorari

Standard of Review

Courts provide decision makers with different levels of deference depending on the issue under review. This level of deference is known as the standard of review.

Reasonableness

In most cases, a court will not overturn a decision simply because the court thinks the decision is incorrect. A decision usually must be “unreasonable”.

Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 23

Correctness

Only six types of issues are reviewed on the standard of correctness:

• Legislated standards of review,
• Statutory appeal mechanisms,
• Constitutional questions,
• General questions of law of central importance to the legal system as a whole,
• Questions related to the jurisdictional boundaries between two or more administrative bodies,
• Concurrent first instance jurisdiction between courts and administrative bodies.

Society of Composers, Authors and Music Publishers of Canada v Entertainment Software Association, 2022 SCC 30 at paras 26-28

Procedural Fairness

Decisions can also be overturned if they were made in a procedurally unfair manner. The standard for determining whether the decision maker complied with the duty of procedural fairness is correctness.

Mission Institution v Khela, 2014 SCC 24 at para 79

Reasonableness Review

Principles

The focus of reasonableness review is on the reasoning of the decision maker. Courts are not allowed to decide the issue themselves.

For a decision to be reasonable it must be transparent, intelligible, and justified. Notably, it is not enough for the outcome of a decision to be justifiable; the decision must by justified by way of its reasons. Courts cannot disregard the flawed basis for a decision and substitute their own justification for the outcome.

However, any flaws need to be more than superficial or peripheral to the merits of the decision; they must be sufficiently central or significant to render the decision unreasonable.

Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 83, 86, 96 & 100

Types of Flaws

There are two types of fundamental flaws:

1. A failure of rationality internal to the reasoning process,
2. A failure of justification in light of the relevant factual and legal constraints that bear on the decision.

The following constraints may be relevant to consider:

1. The governing statutory scheme,
2. Other relevant statutory or common law,
3. The principles of statutory interpretation,
4. The evidence before the decision maker and facts of which the decision maker may take notice,
5. The submissions of the parties,
6. The past practices and decisions of the administrative body,
7. The potential impact of the decision on the individual to whom it applies.

Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 101 & 106

Procedural Fairness Review

Procedural fairness ensures individuals affected by a decision have the opportunity to present their case fully and fairly, and have decisions made using a fair, impartial, and open process, appropriate to the context of the decision.

Courts may consider the following factors, among others, to determine what is required by the duty of procedural fairness:

1. The nature of the decision being made and process followed in making it,
2. The nature of the statutory scheme and the terms of the statute pursuant to which the body operates,
3. The importance of the decision to the individual or individuals affected,
4. The legitimate expectations of the person challenging the decision,
5. The choices of procedure made by the agency itself.

Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 at paras 23-28

Remedy

Overturn and Remit

In most cases, if an application for judicial review is successful, the court will overturn the decision and remit it to the original decision maker to be redetermined in accordance with the court's reasons.

Directed Outcome

In rare circumstances, a court might direct the decision maker to make the decision in a certain way, such as if the court finds the outcome is inevitable. Courts may consider the following factors to determined whether to decline to remit a decision:

1. Delay,
2. Fairness to the parties,
3. Urgency of providing a resolution to the dispute,
4. The nature of the particular regulatory regime,
5. Whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question,
6. Costs to the parties,
7. The efficient use of public resources.

Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 142