Someone asked a question – In a question relating to Standard of Review, do we just have to fulfill the requirements of the Vavilov test, or do we have to get into the Dore/Loyola Framework as well?
According to Vavilov para 57, the standard of review where the issue on review is whether a provision of the decision maker’s enabling statute violates the Charter should be reviewed on a correctness standard but the Vavilov decision is silent on what to do when the effect of the administrative decision being reviewed is to unjustifiably limit rights under the Canadian Charter of Rights and Freedoms. We have seen this scenario play out previously when the Supreme Court revived the pragmatic and functional factors without clarifying the faith and future application of the assumptions under Dunsmuir. Just like it was done before, the principle continues to apply until the SCC clarifies its position on its application.
There are however a few issues to reconcile:
Who has the onus of establishing reasonableness under Dore/Loyola framework? Remember that the justification test for administrative decisions that infringes a Charter right is decided on the basis of the Dore/Loyola framework which is quite similar in some respect to the s1. Approach. Under the s.1 approach, the government bears the burden of establishing reasonableness. The Minority decision in Vavilov agrees with this but the majority never articulated a position as to whether it should be the government or not.
Does Reasonableness under Dore mean the same as in Vavilov? Look to Trinity Western’s case. The definition of reasonableness offered by the Majority in that case which adopted the Dore framework and pre-dates Vavilov is not sufficiently different and as a result there is no substantial inconsistency with the definition of reasonableness as set out by the SCC in the Vavilov trilogy of cases.
In summary, where the issue on review is whether a provision of the decision maker’s enabling statute violates the Charter, it should be reviewed on a correctness standard in accordance to Vavilov. On the other hand, when the effect of the administrative decision being reviewed is to unjustifiably limit rights under the Canadian Charter of Rights and Freedoms, apply the standard of reasonableness citing the Dore/Loyola authority. In practical terms, if I have to answer this question in an examination, I will start by stating the Vavilov selection for standard of review and the excerpt from paragraph 57 before proceeding to apply Dore.