Vavilov in the WSIAT Context

On December 19, 2019, the Supreme Court of Canada issued its long-awaited decision, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”). In Vavilov, a seven-member majority of the Court identified two major aspects of the law applicable to judicial review that required simplification and clarification. First, the majority revised and simplified the framework for determining the appropriate standard of review. Second, the majority provided clarification and guidance about “reasonableness” review.

In a separate judgment concurring that the appeal should be dismissed, Justices Abella and Karakatsanis in Vavilov agreed with some aspects of the new framework but strongly objected to what they described as an expansion of “correctness” review.

Prior to the release of Vavilov, the Supreme Court of Canada had last comprehensively addressed the appropriate approach to judicial review in its seminal 2008 decision, Dunsmuir v. New Brunswick, 2008 SCC 9 (“Dunsmuir”). The majority’s new framework was applied to the merits in the Vavilov appeal, and has since been affirmed in two contemporaneous decisions: Bell Canada v. Canada (Attorney General), 2019 SCC 66[1], and Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67 (“Canada Post”).

The Vavilov decision has major significance for appeals in the area of workers’ compensation law. This importance was underscored by the conduct of the proceedings before the Supreme Court of Canada: 27 different organizations were granted leave to intervene in the Vavilov appeal, including a coalition comprised of Ontario’s Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) and four other Canadian workers’ compensation appeals tribunals (“WCAT”): the Northwest Territories and Nunavut WCAT, the Nova Scotia WCAT, the New Brunswick WCAT and the Appeals Commission for Alberta Workers’ Compensation.

This article provides a general overview of Vavilov and then summarizes a recent decision of the Ontario Divisional Court, Radzevicius v. Workplace Safety and Insurance Appeals Tribunal, 2020 ONSC 319, which applied the Vavilov framework to a WSIAT decision for the first time.