NCA Administrative Law 3 — Questions and Answers
Question 1: A tribunal issues a decision that conflicts with a clear and unambiguous statutory provision. Under Vavilov, how should a reviewing court characterize this?
- A procedural fairness breach requiring a new hearing
- An unreasonable decision because a reasonable decision-maker cannot ignore clear statutory language (Correct answer)
- A jurisdictional error requiring correctness review
- A valid exercise of interpretive discretion deserving full deference
Correct answer: An unreasonable decision because a reasonable decision-maker cannot ignore clear statutory language
Under Vavilov, a decision that ignores or misreads clear statutory language will typically be unreasonable. The reasonableness framework asks whether the decision is justified in light of the legal and factual constraints—clear statutory text is a key constraint.
Question 2: Which of the following is NOT a ground for judicial review of administrative action?
- Breach of procedural fairness
- Unreasonableness of the decision on the merits
- Failure to apply the best policy option (Correct answer)
- Acting in excess of jurisdiction
Correct answer: Failure to apply the best policy option
Judicial review is not an appeal on the merits or a policy review. Courts do not substitute their view of the best outcome. Recognized grounds include: jurisdictional error, procedural unfairness, unreasonableness (post-Vavilov), and unconstitutionality.
Question 3: The doctrine of 'curial deference' developed in Canadian administrative law primarily because:
- Courts lack constitutional authority over administrative tribunals
- Administrative decision-makers often have specialized expertise and are better positioned to resolve certain disputes than generalist courts (Correct answer)
- The Charter requires courts to defer to elected officials
- Common law courts cannot interpret statutes
Correct answer: Administrative decision-makers often have specialized expertise and are better positioned to resolve certain disputes than generalist courts
Deference recognizes that legislatures have chosen to delegate certain decisions to specialized bodies because of their expertise, proximity to the regulated sector, and policy-making function. Courts respect this legislative choice by applying reasonableness rather than correctness.
Question 4: A human rights tribunal finds an employer discriminated against an employee. The employer seeks judicial review, arguing the remedy (reinstatement) is unreasonable. Under Vavilov, which approach should the reviewing court take?
- Substitute its own view of the appropriate remedy
- Review whether the remedy is within the range of reasonable outcomes available to the tribunal (Correct answer)
- Apply correctness because remedies are legal questions
- Decline jurisdiction because human rights matters are exclusively for tribunals
Correct answer: Review whether the remedy is within the range of reasonable outcomes available to the tribunal
Remedies within a tribunal's statutory authority are reviewed on reasonableness. The court asks whether the remedy falls within the range of acceptable, defensible outcomes justified by the facts and law—not whether the court would have chosen the same remedy.
Question 5: In Baker v. Canada [1999], the SCC identified factors affecting the content of procedural fairness. Which factor was held to be MOST important?
- The nature of the statutory scheme and the decision being made (Correct answer)
- The cost of additional procedure to the government
- The number of parties affected
- The expertise of the tribunal
Correct answer: The nature of the statutory scheme and the decision being made
Baker identified five factors: (1) nature of the decision and process, (2) nature of the statutory scheme, (3) importance of the decision to the individual, (4) legitimate expectations, and (5) choices made by the tribunal. No single factor is listed as most important, but the nature of the decision—particularly its impact on important individual interests—heavily shapes the analysis.
Question 6: An administrative tribunal applies a legal test that its enabling statute does not support. Under Vavilov, what label best describes this error?
- A correctness error requiring the court to supply the right answer
- An unreasonable decision because it lacks justification in the governing legal framework (Correct answer)
- A jurisdictional error automatically voiding the decision
- A procedural fairness breach because the parties could not anticipate the test
Correct answer: An unreasonable decision because it lacks justification in the governing legal framework
Post-Vavilov, applying a legal test unsupported by the statute is an unreasonableness error—the decision lacks justification in the legal constraints that bear on it. The court does not automatically substitute its own test; it remits for reconsideration unless there is only one reasonable outcome.
NCA Administrative Law 3
A tribunal issues a decision that conflicts with a clear and unambiguous statutory provision.
Under Vavilov, how should a reviewing court characterize this?