NCA Administrative Law 1 — Questions and Answers
Question 1: Which Supreme Court of Canada decision replaced the Dunsmuir framework and established the current standard of review analysis for administrative decisions?
- Dunsmuir v. New Brunswick [2008]
- Canada (Minister of Citizenship and Immigration) v. Vavilov [2019] (Correct answer)
- Pushpanathan v. Canada [1998]
- Dr. Q v. College of Physicians and Surgeons of BC [2003]
Correct answer: Canada (Minister of Citizenship and Immigration) v. Vavilov [2019]
Canada (MCI) v. Vavilov [2019] overhauled the standard of review framework. The presumptive standard is now reasonableness for most administrative decisions, with correctness reserved for constitutional questions, questions of central importance to the legal system, and jurisdictional questions between tribunals.
Question 2: Under the Vavilov framework, when will a court apply the correctness standard of review?
- Whenever the administrative decision-maker makes a legal error
- For constitutional questions, questions of central importance to the legal system, and jurisdictional questions between administrative bodies (Correct answer)
- Whenever the court disagrees with the outcome
- Only for questions of procedural fairness
Correct answer: For constitutional questions, questions of central importance to the legal system, and jurisdictional questions between administrative bodies
Vavilov identified categories where correctness applies: (1) constitutional questions; (2) questions of law of central importance to the legal system and outside the decision-maker's expertise; (3) jurisdictional questions between administrative bodies; (4) where a legislature indicates correctness through an appeal mechanism on questions of law.
Question 3: The duty of procedural fairness in Canadian administrative law is grounded in which principle?
- The principle that all government decisions must be made by elected officials
- That persons affected by government decisions have a right to be heard and to have decisions made by an unbiased decision-maker (Correct answer)
- That administrative tribunals must follow the same procedures as superior courts
- The principle that any decision affecting rights must be subject to a full trial
Correct answer: That persons affected by government decisions have a right to be heard and to have decisions made by an unbiased decision-maker
The duty of procedural fairness (audi alteram partem and nemo judex in sua causa) requires that affected persons receive notice, an opportunity to be heard, and an impartial decision-maker. The content of fairness varies with context per Baker v. Canada [1999].
Question 4: What test does the SCC apply to determine whether a reasonable apprehension of bias exists against an administrative decision-maker?
- Whether the decision-maker has a personal financial interest in the outcome
- Whether an informed person, viewing the matter realistically and practically, would think it more likely than not that the decision-maker would not decide fairly (Correct answer)
- Whether the decision-maker has previously ruled against the applicant
- Whether the decision-maker expressed any opinion before the hearing
Correct answer: Whether an informed person, viewing the matter realistically and practically, would think it more likely than not that the decision-maker would not decide fairly
The reasonable apprehension of bias test (from R v. S (RD) [1997] and Committee for Justice and Liberty v. National Energy Board [1978]) asks whether an informed, reasonable observer would conclude there is a real possibility the decision-maker was biased. It is an objective test.
Question 5: Judicial review of administrative decisions is typically sought in which court in most Canadian provinces?
- The provincial small claims court
- The Divisional Court or the Court of Queen's Bench (or equivalent superior court) (Correct answer)
- The Federal Court, which has exclusive jurisdiction over all administrative matters
- The provincial Court of Appeal directly
Correct answer: The Divisional Court or the Court of Queen's Bench (or equivalent superior court)
Judicial review of provincial administrative tribunal decisions is sought in the provincial superior court (e.g., Divisional Court in Ontario, Court of King's Bench in Alberta). Federal administrative decisions are reviewed in the Federal Court under the Federal Courts Act.
Question 6: A labour arbitrator interprets a collective agreement in a way that a party argues is unreasonable. On judicial review, which standard applies under Vavilov?
- Correctness, because contract interpretation is a legal question
- Reasonableness, because the arbitrator has expertise in labour relations and the legislature conferred interpretive authority (Correct answer)
- Patent unreasonableness, which is still available for labour arbitrators
- Correctness, because collective agreements affect Charter rights
Correct answer: Reasonableness, because the arbitrator has expertise in labour relations and the legislature conferred interpretive authority
Under Vavilov, arbitrators interpreting collective agreements are reviewed on the reasonableness standard. The legislature has granted them authority over such disputes and their expertise in labour relations supports deference. Correctness is not triggered by any of the enumerated exceptions.
