THE ADVOCATE 665
VOL. 79 PART 5 SEPTEMBER 2021
review analysis and the lack of clarity on how to apply the reasonableness
standard.15 The majority in Vavilov, looking back on the framework set out
in Dunsmuir, expressed that the words of Justice Binnie in that case were
still apt more than a decade later:
Judicial review is burdened with undue cost and delay . . . . If litigants
do take the plunge, they may find the court’s attention focussed not on
their complaints, or the government’s response, but on lengthy and
arcane discussions of something they are told is the choice of standard
analysis.16
The court observed that similarly harsh criticism had been expressed
regarding the application of the reasonableness standard: “administrative
decisions are entitled only to an outcome somewhere between ‘good
enough’ and ‘not quite wrong’”.17 In light of this opprobrium, the majority of
the court determined that it was best to go back to the drawing board and
recalibrate the legal framework for standard of review and the reasonableness
standard. Their goal, it appears, was to simplify the “lengthy and
arcane” discussions of standard of review and make more robust the
approach to assessing reasonableness.
To achieve that ambition, the majority set out a simple, rules-based formula
for determining the standard of review, which places legislative intent
at the forefront of the analysis. The majority recognized that the legislative
intent behind appointing an administrative decision maker to administer a
statutory scheme is to imbue said decision maker with the authority to function
with a minimum of judicial interference.18 As such, the starting point
for the analysis of the standard of review under the Vavilov framework is
that the standard of review is presumed to be reasonableness. In coming to
this conclusion, the majority stepped back from a number of historical reasons
for finding that the reasonableness standard would apply when reviewing
the decision of an administrative decision maker. In particular, the
majority held that the expertise of the administrative decision maker was
no longer relevant to the standard of review analysis and a factor in favour
of reasonableness.19
As is expected, the new starting point of reasonableness is a rebuttable
presumption. The majority, however, has endorsed very few exceptions to
reasonableness, although the majority was clear that there remains a possibility
of recognizing an additional category of legal questions requiring
derogation from the presumption in the future.20 Four of the categories of
circumstances requiring derogation from the presumption of reasonableness
are in line with the categories of questions that attracted a standard of
correctness under the Dunsmuir framework: (1) where the legislature has
indicated that courts are to apply the standard of correctness; (2) constitu-