Articles 2023

In September 2023, the Supreme Court of Canada took the opportunity to further clarify the standard of review following the seminal case: Canada (Minister of Citizenship and Immigration) v. Vavilov. As discussed below, the Court made it clear that reasonableness is the default standard, and correctness will only arise in limited situations.

On December 8, 2023, the Supreme Court of Canada (SCC) released a decision mandating that administrative decision-makers account for Charter values (as well as or instead of Charter rights) in their rulings whether bidden or unbidden by the parties before them.

The Court of Appeal’s unanimous decision in this case is a forceful defence of focussing on the reasons of the decision-maker in reasonableness review.

Mr. Khorsand applied for judicial review of the Toronto Police Service Board’s background check after multiple failures as he sought employment as a Special Constable with the Toronto Community Housing Corporation. The Board refused to give Mr. Khorsand the reasons for the failed checks even though he has no prior criminal convictions or charges. After accessing police records that confirmed this, he challenged the Board’s decision by seeking Judicial Review of the Divisional Court.

Before advising clients to commence a judicial review of an administrative decision, it is important to verify that all administrative processes have been exhausted. This principle comes from an administrative law rule known by multiple names, including the doctrine of exhaustion, the rule against interlocutory judicial reviews, and the objection against premature judicial reviews (hereinafter referred to as the “Doctrine of Exhaustion”).

In Ontario (Premier) v. Canada (Commissioner of the Public Order Emergency Commission) the Federal Court provides a useful analysis of the application and scope of parliamentary privilege, in particular with respect to testimonial immunity.

Ms. Patchette appealed the decision made by the License Appeal Tribunal (“LAT”), finding that the appellant was not catastrophically impaired pursuant to sec. 3.1 (1) 2 iii of the STATUTORY ACCIDENTS BENEFITS SCHEDULE O reg 34/10 (“SABS”). This was the first time that sec. 3.1(1)2 iii of the Sabs was considered by LAT. The Appeal concerned the interpretation and application of s. 3.1(1) 2 iii of SABS, specifically the meaning of “permanent and serious.”

A recent appeal from a judgment of the Small Claims Court raised an interesting question as to how fence disputes are to be resolved in the City of Toronto, although it left the answer to this question to be determined at a later date.

In November 2021, the Supreme Court of Canada released its decision in Northern Regional Health Authority v. Horrocks. The decision upholds the status quo established in Agraira v. Canada (Public Safety and Emergency Preparedness) (an earlier Supreme Court decision) regarding the applicable appellate standard of review when the first instance court is tasked with determining the applicable standard of review.

In this year’s Annual Update on Judicial Review, held on October 18, 2021, the Honourable Justice David Stratas, Federal Court of Appeal, and Professor Paul Daly, University of Ottawa, discussed recent cases and developments in the administrative law jurisprudence across Canada. The event was chaired by Dina Awad and Jillian Siskind of the OBA Administrative Law Section Executive. This summary of the lively discussion is categorized into six themes, following the structure and flow of the event.