Patent Unreasonableness after Vavilov

Happy New Year!

I have posted “Patent Unreasonableness after Vavilov” to SSRN. Here is the abstract:

Much ink has already been spilled about the implications of the Supreme Court of Canada’s reformulation of administrative law in Canada (Citizenship and Immigration) v Vavilov.

One issue, which has largely been overlooked in the literature but will require detailed attention in the near future is the status of the patent unreasonableness standard of review, enshrined in law in several provincial statutes, most notably British Columbia’s Administrative Tribunals Act.

In this note, I consider how patent unreasonableness might interact with reasonableness review as articulated in Vavilov.

In summary, while legislated standards of review must be respected, the content of the patent unreasonableness standard can be calibrated by reference to Vavilovian reasonableness review.

In short, in British Columbia and elsewhere in Canada, the simplest and most straightforward approach to take post-Vavilov is to give decision-makers to whose decisions patent unreasonableness applies a wider margin of appreciation in the exercise of their functions.

Download it here.

This content has been updated on January 13, 2021 at 15:49.


2 commentaires pour “Patent Unreasonableness after Vavilov”

Don Jordan

January 14, 2021 at 20:00

Thought you would like to know that the BCCA heard the appeal of the Team Transport case on November 27th, 2020. The approach taken by the Appellant was much influenced by previous commentaries in the blog prior to your most recent paper tying things together.

    Paul Daly

    January 15, 2021 at 21:03

    That is very gratifying, Don, thanks! I look forward to the BCCA’s comments on this interesting matter. Hopefully, unlike the ONCA, they will take the opportunity to grapple with the issue.