Digital Brain
digital brain
digital brain

The Supreme Court of Canada Set To Reconsider Judicial Review

May 2018 Litigation Bulletin 1 read

The Supreme Court of Canada recently signaled that it intends to revisit standard of review. [1] The Supreme Court’s decision will have important implications on parties who find themselves appealing a tribunal or administrative decision.

In a rare move, the Supreme Court provided reasons when granting leave to hear the appeal in Minister of Citizenship and Immigration v. Vavilov.  The Supreme Court said that it would hear the appeal with two others. It then commented:

The Court is of the view that these appeals provide an opportunity to consider the nature and scope of judicial review of administrative action, as addressed in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, and subsequent cases.

The Supreme Court’s reference to Dunsmuir[2] is a reference to a 2008 decision in which the Supreme Court sought to simplify the approach to reviewing administrative decisions. In Dunsmuir, the Supreme Court dictated that there be two standards of review – reasonableness and correctness. However, since that time, judges, practitioners and academics have noted that this more simplified approach has led to inconsistencies and confusion.[3] McMillan’s administrative law practitioners are following this case closely and will report back on the Supreme Court’s final decision and its implications for our clients.

by Jon Wypych and Adam Chisholm

[1] Minister of Citizenship and Immigration v. Vavilov, 2017 FCA 132, leave to appeal to S.C.C. granted, 37748 (May 10, 2018).
[2] 2008 SCC 9
[3] See eg. “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency” (2016), 42 Queen’s L.J. 27.

A Cautionary Note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2018

Related Publications (5 Posts)

Featured Insight

McMillan’s ESG Strategy Sessions

The COVID-19 pandemic and increased concerns over environmental and social issues, such as climate change and systemic racism, have prompted conversations throughout global capital markets.

Details
Wednesday, October 6, 2021
Featured Insight

Divisional Court confirms Environmental Significance of Ministerial Zoning Orders and Importance of Consultation under the Environmental Bill of Rights, 1993

Review of Divisional Court decision: Ontario’s compliance with Environmental Bill of Rights in passing Bill 197, particularly re: Ministerial Zoning Orders

Read More
Sep 13, 2021
Featured Insight

Federal Government Launches Consultations on Remedies Against Low-Priced Imports

A review of the stakeholder engagement process for proposed amendments to the Special Import Measures Act and the Canadian International Trade Tribunal Act

Read More
Sep 13, 2021
Featured Insight

Mandatory Mask Policy Does Not Breach Human Rights Act

Alberta's Human Rights Commission has dismissed a complaint alleging that Costco discriminated against a customer who refused to wear a mask or face shield.

Read More
Sep 9, 2021
Featured Insight

The pitfalls associated with sustainability-linked bonds

Short article on the pitfalls associated with sustainability-linked bonds.

Read More
Sep 8, 2021