Standards of review

Question 1

What is the standard of review?

Answer 1

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

Question 2

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

Answer 2

Judicial -
Correctness
Reasonableness

Appellate
Correctness
Palpable and overriding error

Question 3

Can the degree of scrutiny change?

Answer 3

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.

Question 4

Determining the aplicable standard of review whats the presumption

Answer 4

Presumption of reasonablness for all admin decisions

Question 5

How can presumption of reasonableness rebiew be rebutted

Answer 5

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

Question 6

Legislative intent

Answer 6

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.

Question 7

Statutorty appeals
State case

Answer 7

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

Question 8

Housen v Nikolsen
on standards for appellare review ?

Answer 8

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.

Question 9

What is q of law

Answer 9

Legal principle/ rules

Question 10

What is q of fact

Answer 10

detetmining decision based on evidence

Question 11

qhat is q of mix lw and fact

Answer 11

applying legal rules to facts/evidence

Question 12

what is extricible q of law

Answer 12

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

Question 13

Correctness

Answer 13

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

Question 14

Correctness
Name case and name justiication

Answer 14

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.

Question 15

Palpable and overriding error

Answer 15

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

Question 16

Palpable meaning

Answer 16

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

Question 17

Ovveriding meaning

Answer 17

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

Question 18

Justification of palpable and overriding being more deferential

Answer 18

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

Question 19

What are all admin decisions reviewed on

Answer 19

Standard of reasonableness

Question 20

When is the standard of reasonableness rebutted

Answer 20

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

Question 21

Case on presumption of reasonableness

Answer 21

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

Question 22

Why are admin decisions not shielded from scrutiny

Answer 22

because of s96

Question 23

Legislative intent rebutting reasonableness case

Answer 23

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

Question 24

When will appelate standard apply
Case

Answer 24

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

Question 25

Why does the RoL require a corrrectness standard?

Answer 25

To allow for certainty and consistency about certain legal questions

Question 26

When will RoL require a correctness standard

Answer 26

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

Question 27

Con questions

Answer 27

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

Question 28

Examples of con q's

Answer 28

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

Question 29

Questions of central importance And examples

Answer 29

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

Question 30

Questions of central importance justificiation

Answer 30

Correctness adds a greater degree of certainty than reasonableness review

Question 31

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

Answer 31

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

Question 32

Concurrent first instance jurisdcition between the courts and admin tribunal

Answer 32

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

Question 33

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

Answer 33

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

Question 34

Jurisdicitonal qs

Answer 34

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

Question 35

Reasonableness review? What is is

Answer 35

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

Question 36

When will a decision be reasonable?

Answer 36

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

Question 37

Appeals from judicial review Whats the standard?

Answer 37

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

Question 38

Agraira review

Answer 38

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

Question 39

What is the sthe standard of review

Answer 39

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

Question 40

Why are there different standards for review

Answer 40

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

Question 41

Pre- vavilov what was the standard of review

Answer 41

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

Question 42

What did vavilov establish the standard of review was

Answer 42

Reaosnbaleness with no contexutal analysis Exception Where RoL provides Where the legislature intends a different stadard

Question 43

How does legislature intend different standard

Answer 43

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

Question 44

Vavilov on expertise

Answer 44

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

Question 45

Reasonable review according to vavilov

Answer 45

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

Question 46

Reasonabless review according to dunsmuir

Answer 46

Must be justified/intelligible and transparent

Question 47

Reasonableness CMRA v Apple

Answer 47

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.

Question 48

Reasoning and vavilov

Answer 48

Looks at the written reasons and determne if thats reasonable

Question 49

Expertise and vavilov

Answer 49

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

Question 50

To be reasonable a decision must be

Answer 50

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

Question 51

Constraints on reasonableness by vavilov

Answer 51

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

Question 52

Governing statute

Answer 52

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

Question 53

Other statute./common law

Answer 53

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

Question 54

Statutory interpretation

Answer 54

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

Question 55

Evidence

Answer 55

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

Question 56

PArties submissions

Answer 56

Must take into account th parties submissions and arguments

Question 57

Past decisions

Answer 57

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

Question 58

Impact

Answer 58

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.