Vavilov at One

I have posted “Vavilov at One” to SSRN. It is a comprehensive review of the first year of the roll-out of the framework established in Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65. Here is the abstract:

A year ago, in Canada (Citizenship and Immigration) v Vavilov, the Supreme Court of Canada fundamentally reshaped Canadian administrative law. Drawing on the approximately 1,500 cases in which this landmark decision has already been cited, I analyze how the Vavilov framework has been operationalized.

In turn, I assess the implications of Vavilov for the application of the reasonableness standard, the selection of the standard of review and remedial discretion.

Vavilov has made significant changes to the Canadian law of judicial review of administrative action.

Reasonableness review is now characterized by justification, demonstrated expertise, responsiveness and contemporaneity. Many decision-makers long accustomed to deference are going to have to recalibrate their decision-making practices.

Some deference persists on statutory appeals, as appellate courts classify issues within decision-makers’ expertise as questions of mixed fact and law subject to the highly deferential standard of palpable and overriding error. Where, however, appeals are brought on questions of law or jurisdiction, there is much less scope for deference.

In terms of remedial discretion, judges have largely been restrained in refusing to remit unreasonable decisions, though there are worrying signs of judicial activism in this regard.

Overall, the roll-out of the Vavilov framework has been relatively smooth, with judges abiding by the spirit of Vavilov, that is, the simplification and clarification of Canadian administrative law.

Download it here. I look forward to presenting the paper at the CLE BC Administrative Law Conference on November 20. There is a lot in there — more than 20,000 words of analysis — but the PDF has tabs which should help you navigate to the parts you find most interesting or useful.

This content has been updated on October 31, 2020 at 02:09.