Insights Header image
Insights Header image
Insights Header image

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

Insights (5 Posts)View More

Featured Insight

Competition Tribunal Does Big Box Office: Insights from the Cineplex Drip Pricing Decision

The Competition Tribunal issued a decision in Commissioner of Competition v. Cineplex Inc., marking the first enforcement of the "drip pricing" provisions

Read More
Feb 5, 2025
Featured Insight

The Pause on the Tariff War: How Businesses Can Use the Reprieve Wisely

Canadian businesses should prepare for US tariffs, set for March 4, 2025, by considering availability of duty drawbacks and remission applications.

Read More
Feb 5, 2025
Featured Insight

Trade Wars and the Workplace: An Employer’s Guide to Temporary Layoffs

Amid the uncertainty of a trade war, employers are well-advised to review the rules and legal consequences of temporary layoffs.

Read More
Feb 5, 2025
Featured Insight

Lobbying 101: Everything You Need to Know During the Ontario 2025 Election

This article covers lobbyists' responsibilities during the writ period for the 2025 Ontario provincial election.

Read More
Feb 4, 2025
Featured Insight

Show Me the Money: Contributions and Doing Business During the 2025 Ontario Election

Ontario's election takes place on February 27, 2025: This article explains how elections are funded and other important business considerations.

Read More
Feb 4, 2025