Selecting the Standard of Review after Vavilov
This is an excerpt from my paper, “The Scope and Meaning of Reasonableness Review after Vavilov“
As is well known, Vavilov establishes that the presumptive standard of review for any administrative decision is reasonableness,[1] subject to two sets of exceptions, one based on the rule of law and the other based on institutional design.
The Narrow Scope of the Correctness Categories
Both the “rule of law” and “institutional design” are potentially capacious concepts. Much has been written about ‘thick’ conceptions of the rule of law, for example. However, under Vavilov, the conceptions of the rule of law and institutional design are “wafer thin”.[2] The rule of law exception to the presumption of reasonableness review requires the application of the correctness standard in a limited set of situations where the superior courts must provide a uniform answer to ensure coherence and the integrity of the legal system. Each has “a need for uniform application of a legal principle”.[3]
- Questions about the constitutional validity of statutes are the classic example: a statute cannot be constitutionally valid on a Monday but invalid on a Tuesday, depending on the identity of the decision-maker opining on the question of validity;[4] the same is true of the meaning of a Charter [5]
- Jurisdictional overlaps are another: the identity of the decision-maker who will resolve a particular dispute must, where there is a risk of overlap, be authoritatively determined by a superior court.[6]
- General questions of law with a constitutional dimension are also subject to correctness review, such as matters of privilege (parliamentary[7] and professional[8]) and, perhaps, the interpretation of quasi-constitutional statutes.[9]
- Situations where an administrative decision-maker and a court share concurrent jurisdiction over the interpretation of a legal term in a statute.[10]
More on that last one in a moment. In general, these categories have given rise to relatively little debate in individual cases. I struggle to think of many controversial invocations of correctness review post-Vavilov.
As far as institutional design is concerned, the position is similarly simple. Where the legislature has provided for an “appeal”, the appellate standards of review apply: correctness for extricable questions of law but palpable and overriding error for all other questions (i.e. questions of mixed fact and law and questions of fact). There has been some debate about what constitutes an “appeal”,[11] but none of which has risen to the level of appellate courts, still less to meaningful appellate disagreement. A lingering question about whether the appellate standards from Vavilov apply in the context of arbitration appeals remains unresolved,[12] and the extent to which substantive considerations about expertise influence the classification of a question on appeal as one of “law” continues to fascinate,[13] but otherwise this is a not a particularly complex or controversial area of law. Beyond “appeals”, the legislature may otherwise specify a standard of review, but outside of British Columbia and some one-off provisions in statutes in Alberta and Ontario it has not taken up the invitation.[14] “Institutional design”, therefore, does not generally give rise to regular debates or disputes, a function – no doubt – of its thinness as a concept.
The Role of Context in Selecting the Standard of Review
The one significant post-Vavilov debate about the scope of reasonableness review has been about the role of context in determining whether new correctness categories should be recognized. In Vavilov itself, the majority deprecated contextual analysis, describing it as “unwieldy”[15] and vaunted the “elimination” of context from the selection of the standard of review.[16] However, the majority did not foreclose the possibility that additional correctness categories could be recognized where doing so would be consistent with the Vavilov “framework” and “overarching principles”.[17] This could be taken as an invitation to have recourse to contextual analysis in justifying the creation of a new correctness category.
Sure enough, in Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association,[18] the Supreme Court adopted a contextual approach. The underlying issue was whether the Copyright Board had erred in determining that there is a separate ‘making available’ right in Canadian copyright law. The Board had found that a right to payment exists where a recording is ‘made available’ for access in an online repository (think iTunes). On judicial review, the Federal Court of Appeal found that the Board’s decision was unreasonable. On appeal, the Supreme Court agreed, the majority (per Rowe J) concluding that the Board was incorrect, the minority (per Karakatsanis J) applying the reasonableness standard and finding the Board’s decision unreasonable.
This matter involved the interpretation by the Board of its home statute, the Copyright Act.[19] The question of whether the Act protects a ‘making available’ right did not fall into any of the correctness categories in Vavilov, either on the “institutional design” branch or “rule of law” branch. As this was a judicial review, not an appeal, the appellate standards of review could not apply on the basis of “institutional design”. And as the question involved the interpretation of the Board’s home statute the “rule of law” was not engaged.
But Rowe J held that this was a “rare and exceptional” case where it was “appropriate to recognize a new category of correctness review”, namely “when courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a statute.”[20] Questions of the interpretation of copyright law can arise on judicial review of decisions of the Board (at the Federal Court of Appeal) but also in the context of actions to enforce copyright heard in the Federal Court (with a right of appeal to the Federal Court of Appeal). This concurrent jurisdiction was enough, Rowe J held, to require the application of the appellate standards of review to decisions of the Board. This way, questions of copyright law will invariably be subject to correctness review in the Federal Court of Appeal regardless of whether the question is posed in a Board proceeding or an action in Federal Court in the first instance.
Rowe J provided several reasons why applying the correctness standard in such circumstances “accords with legislative intent and promotes the rule of law.”[21] In terms of legislative intent, Rowe J commented that Vavilov’s presumption of reasonableness review “no longer applies”[22] in a situation where “the legislature expressly involves the court in the administrative scheme”, because where interpretive decisions can be made either by courts or administrative decision-makers “it should be inferred that the legislature wanted to subject those decisions to appellate standards of review”.[23]
I have criticized this reasoning elsewhere.[24] Suffice it to say for present purposes that Rowe J took a much ‘thicker’ approach here to legislative intent. In Vavilov, remember, institutional design meant ‘appeals attract appellate standards’ or ‘legislatures may specify the standard of review’. Here, the magic word “appeal” did not appear, nor was there any legislative specification of the standard of review. Rowe J took a much more holistic – which is to say, contextual – view of legislative intent.
As far as the rule of law is concerned, Rowe J was concerned that deferential review of the Board’s interpretations of law could create legal inconsistencies which would be “antithetical” to the rule of law: it would potentially subject the same issue to a different standard of review depending on the forum deciding the issue in the first instance, which could lead to “conflicting statutory interpretations”[25] (e.g. reasonableness in the Federal Court of Appeal on an interpretive issue arising before the Board but correctness in the same court on any legal issue decided by the Federal Court).
Moreover, Rowe J held, this scenario is different in rule of law terms from discord within an administrative agency. In Vavilov, the majority refused to recognize “persistent discord” as justifying correctness review.[26] But for Rowe J the rationales offered for this reticence in Vavilov lose their gravitational force where the “discord” is between different decision-makers. Most significantly, he suggested that reasonableness review cannot safeguard the rule of law. The majority in “Vavilov offered guidance as to how to manage persistent discord within administrative bodies” but Vavilov gave “little guidance on managing differing decisions between courts and tribunals.”[27] However, whereas the rule of law categories in Vavilov are concerned with inconsistencies that would undermine the integrity of the legal system, Entertainment Software Association is concerned with the potential for inconsistency. There is no actual inconsistency (or any example of which I’m aware) between the courts and the Board on the interpretation of copyright law. If potential inconsistency and the resultant risk of discord is the trigger for rule of law concerns and, thus, the application of the correctness standard, the door to correctness review is more open than Vavilov envisioned. Context allowed Rowe J to crack it open that little bit wider, destabilizing the balance between form and substance.
But the openness to context and correctness did not last long. A year later, in Mason v. Canada (Citizenship and Immigration),[28] the Court firmly shut the door on contextual analysis in selecting the standard of review. The issue here involved the implications of the mechanism in the Immigration and Refugee Protection Act[29] that permits the Federal Court, having heard a judicial review application, to certify a question of general importance for resolution by the Federal Court of Appeal.[30] With colleagues I appeared for the intervener Canadian Association of Refugee Lawyers before the Court in Mason. We argued that under the Vavilov framework, the correctness standard should apply to questions of law arising in the immigration context. We leaned heavily on the apparent return to contextual analysis in ESA, making legislative intent and rule of law arguments consistent with the approach in ESA: the “institutional design” of the certified question regime envisioned authoritative resolution of legal questions by the Federal Court of Appeal, which furthered the “rule of law” by ensuring consistent application of the law in the tens of thousands of adjudications conducted annually under the Act by the Immigration and Refugee Board and the still more voluminous decisions made under the Act by civil servants in the Department of Immigration, Refugees and Citizenship Canada and their counterparts in the Canada Border Services Agency (an autonomous agency within the civil service).
Suffice it to say that having put our fingers through a door that was opened by ESA, in Mason, the door was slammed shut by Jamal J:
[R]ecognizing a new correctness category here would conflict with Vavilov’s goal of simplifying and making more predictable the standard of review framework by providing only limited exceptions to reasonableness review (para. 47). Treating s. 74(d) as justifying correctness review would effectively reintroduce a “contextual” approach to the standard of review — with the certification of a serious question of general importance being a “contextual” factor suggesting correctness — and thus would revive the approach that Vavilov eliminated because it created “uncertainty” and was “unwieldy” (para. 7; see also P. Daly, “Unresolved Issues after Vavilov” (2022), 85 Sask. L. Rev. 89, at pp. 91-92 (Vavilov is “an exercise in simplification and clarification” that “excised” the “‘vexing contextual factors’ . . . from the standard of review selection exercise”.))[31]
Although I let out a yelp of pain for my injured fingers and the definitive demise of correctness review on certified questions under the IRPA, I am not displeased at the overall outcome (as the citation to my work correctly suggests). Vavilov did simplify and clarify the law; rejecting context on the selection of the standard of review was an important part of the simplification and clarification exercise. Our argument for correctness review in Mason was narrowly tailored but a firm rejection of contextual analysis will strongly dissuade lower courts from opening up the correctness categories. Indeed, Jamal J did not give an inch on the scope of the existing categories. Certified questions are not, he held, general questions of law of central importance to the legal system, as “the issues raised are particular to the interpretation of the conditions for inadmissibility under [the IRPA]”.[32] This is commendably clear. I am happy to lose the battle over the IRPA if it means simplicity and clarity prevail in the wars that have raged for decades in Canadian administrative law.
Overall Assessment
Experience talking to lawyers and judges across Canada over the last half-decade teaches me that the Vavilov framework has wide support in the legal community. In my view, it has such support because it responds effectively to many of the difficulties that plagued this area of law a decade ago. Then, the presumption of reasonableness review was effectively irrefutable. This was true even of statutory appeals, even though it made little sense as a matter of principle to give no weight to the legislative choice to provide for a right of appeal, especially when the nature of the question at issue was legal.[33] Unsurprisingly, this became a major flash point.[34] By making an exception in Vavilov to the presumption of reasonableness review for statutory appeals, the majority of the Supreme Court neutered these critiques: it gave up quite a bit of administrative supremacy, leaning into the authority of legislative intent. Moreover, by preferring ‘thin’ conceptions of inherently contested concepts,[35] the majority judges used simple, formal rules and thereby managed to put in place a framework that is durable in practice (whatever about its theoretical frailties). As we will see, the emphasis on form over substance, judicial supremacy over administrative supremacy, and authority over reason for the purposes of selecting the standard of review was reversed when it came to setting out the reasonableness standard.
It is appropriate, however, to comment on some of the incoherence that has resulted from Vavilov’s ‘retreat from theory’.
Institutional Design
Take institutional design first and, in particular, the application of the appellate standards of review to “appeals”.
A resulting incoherence is that many economic regulators, who by any definition are highly expert and specialized,[36] are subject to appeal clauses and hence de novo review on questions of law whereas front-line decision-makers with no comparable expertise benefit from the presumption of reasonableness review. The precise reasons why legislatures considered rights of appeal appropriate have been lost in the mists of time. However, the upshot of a presumption of reasonableness review with an exception for statutory rights of appeal is that the reasonableness standard applies to officials with little or no legal training, who operate in pressurized environments, and who have little time, interest or experience in addressing legal issues but correctness applies to many decision-makers who have deep expertise and knowledge. This makes little sense. That said, this quibble relates to matters of theory rather than practice.
A more serious incoherence, which may ultimately have structural implications for the law of judicial review, is that the provision of a right of appeal now leads to less judicial oversight of mixed questions of law and fact and questions of fact than does judicial review. The approach preferred by the majority was to apply the appellate standards of review in any case where a statute affords a right of appeal from a decision-maker to a reviewing court. As a result, the standard of correctness applies only on extricable questions of law, with palpable and overriding error applying to everything else.
The difficulty with the wholesale application of appellate standards of review is that in two respects, the standard of review is less demanding on a statutory appeal than on judicial review. First, the test on a statutory appeal for the adequacy of reasons is a much less demanding standard than the standard of reasonableness.[37] On the appellate standard of review, the question is whether the reasons are so deficient that “an appellate court may consider itself unable to exercise appellate review in a meaningful way”.[38] By contrast, on reasonableness review, not only must the decision-maker’s reasons achieve this basic level of coherence, they must also justify the result in view of the relevant legal and factual constraints. Second, the palpable and overriding error standard, which requires errors that jump off the page and go right to the root of the decision, strongly discourages judicial intervention on questions of fact or mixed fact and law.[39] However, under reasonableness review, a decision must be justified given “the evidentiary record and the general factual matrix”,[40] must explain how the decision-maker grappled with key arguments,[41] must justify any departure from past practice,[42] and must take adequate account of any harsh consequences imposed on individuals.[43]
One would expect the provision of a statutory right of appeal to increase judicial oversight, not to decrease it. Yet, that is the result of the choice made by the majority in Vavilov to apply the appellate standards of review wholesale on statutory appeals from administrative decision-makers. My personal preference would be for Vavilovian reasonableness review to supplant palpable and overriding error and the adequacy-of-reasons standard. But unless and until the Supreme Court holds otherwise, we will just have to live with this incoherence.
The Rule of Law
As for the exceptions based on the rule of law, these are also well established and generally do not provoke serious debate or discussion between bench, bar and academy.
One reason for the relative calm is the elimination of the notion of true questions of jurisdiction.[44] No doubt, the notion of jurisdiction remains fundamental. A decision-maker may only exercise authority granted by statute and must remain within the four corners of the statute. For example, “[t]he Patented Medicine Prices Review Board regulates the pricing of medicines under the market power given by a patent—namely, patented medicines. The Board does not regulate the pricing of unpatented medicines. After all, it’s right in the Board’s name: the Board is the “Patented Medicine Prices Review Board”, not the “Patented and Unpatented Medicine Prices Review Board” or the “All Medicine Prices Review Board””.[45]
Jurisdiction, however, was a slippery concept.[46] The Supreme Court did everyone a favor by removing it from the judicial review framework. Again, the result was to enhance certainty.
Speaking of slippery concepts, Vavilov makes a categorical distinction between review of the merits of administrative decisions (subject to the Vavilov framework) and review of procedural aspects of administrative decisions.[47] It has justly been observed that by placing reasons at the heart of the judicial review exercise, the approach in Vavilov suggests that deference may be appropriate on procedural issues.[48] Where reasons have been given on a procedural issue, it can be said that any judicial review is of the merits (i.e. reasons for) the administrative decision.[49] This approach has found favour in Quebec since Vavilov,[50] but not elsewhere.[51] Courts have insisted either that the standard is correctness or that there is no standard of review at all and the court must ask whether the procedure was fair in all the circumstances. On statutory appeals, procedural fairness is considered on a correctness basis.[52] So far, the merits/procedure distinction has held as a matter of practice, unsatisfactory as it may be as a matter of theory.
Lastly, I must acknowledge that there is some debate about whether the correctness standard should apply to administrative decisions that infringe Charter rights.[53] The correctness standard here is something of a misnomer, because the real question is whether such a decision should be required to satisfy the Oakes test. But let us leave that terminological question aside. In terms of Vavilov, the issue is whether an individual Charter-infringing administrative decision comes within the ‘constitutional question’ category because of its implications for the integrity of the legal system. I have my doubts about that: there is a significant rule-of-law difference between differing decisions between administrative decision-makers about the constitutional validity of a statute (or the scope of a Charter right) and the validity of a one-off administrative decision;[54] and the Supreme Court has not cast any doubt on the line of cases setting the Oakes test aside, and indeed reaffirmed them at the first available opportunity.[55] Furthermore, there is now little-or-no practical difference between Vavilovian reasonableness review and the Oakes test.[56]
All in all, the framework has been a significant success in setting the scope of reasonableness review. The presumption is simple, as are the rules relating to its exceptions. Concerns about coherence notwithstanding, operational clarity has been obtained, which is a significant achievement. Not only that, but conceptual disagreement is now very rare, which speaks to the sociological legitimacy that Vavilov has achieved.
[1] Vavilov, at para. 24.
[2] Daly, “The Vavilov Framework and the Future of Canadian Administrative Law” (2020) 33 Canadian Journal of Administrative Law & Practice 111, at p. xxx.
[3] “The Scope and Meaning of Reasonableness Review” (2015) 52 Alberta Law Review 799, at p. 814.
[4] See Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13, at paras. 92-97.
[5] York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22, at para. 63.
[6] See Northern Regional Health Authority v. Horrocks, 2021 SCC 42, [2021] 3 SCR 107, at paras. 7-9.
[7] Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 SCR 687.
[8] Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 SCR 555. But see Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4, at para. 16, equivocating on the point, albeit in a context where the parties had agreed that reasonableness was the applicable standard in a case involving judicial review of a decision ordering the release of cabinet-level documents. See further Daly, “Case Comment: Ontario (AG) v Ontario (IPC)” (2024) 37 Canadian Journal of Administrative Law & Practice 167.
[9] See United Nurses of Alberta v Alberta Health Services, 2021 ABCA 194, at paras. 51-60.
[10] Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30, [2022] 2 SCR 303.
[11] See e.g. O’Shea/Oceanmount Community Association v Town of Gibsons, 2020 BCSC 698, at para. 52.
[12] Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7, [2021] 1 SCR 32; James Plotkin and Mark Mancini, “Inspired by Vavilov, Made for Arbitration: Why the Appellate Standard of Review Framework Should Apply to Appeals from Arbitral Awards” (2021) 2 Canadian Journal of Commercial Arbitration 1.
[13] Paul Daly, “Big Bang Theory: Vavilov’s New Framework for Administrative Law” in Paul Daly and Colleen Flood eds., Administrative Law in Context, 4th ed. (Emond Montgomery, Toronto, 2021) 327.
[14] Paul Daly, “Patent Unreasonableness After Vavilov” (2021) 34 Canadian Journal of Administrative Law & Practice 167.
[15] Vavilov, at para. 28.
[16] Vavilov, at para. 47.
[17] Vavilov, at para. 70.
[18] 2022 SCC 30, [2022] 2 SCR 303.
[19] In a previous era of Canadian administrative law, the Court held that correctness applies to the review of interpretations of law by the Board: Rogers Communications Inc. v Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35.
[21] ESA, at para. 28.
[24] “Future Directions in Standard of Review in Canadian Administrative Law: Substantive Review and Procedural Fairness” (2023) 36 Canadian Journal of Administrative Law & Practice 69.
[26] Vavilov, at paras. 71-72.
[28] 2023 SCC 21.
[29] SC 2001, c 27, s. 74(d).
[30] As the Supreme Court explained in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982, at para. 43:
The key to the legislative intention as to the standard of review is the use of the words “a serious question of general importance” (emphasis added). The general importance of the question, that is, its applicability to numerous future cases, warrants the review by a court of justice. Would that review serve any purpose if the Court of Appeal were obliged to defer to incorrect decisions of the Board? Is it possible that the legislator would have provided for an exceptional appeal to the Court of Appeal on questions of “general importance”, but then required that despite the “general importance” of the question, the court accept decisions of the Board which are wrong in law, even clearly wrong in law, but not patently unreasonable? The only way in which s. 83(1) can be given its explicitly articulated scope is if the Court of Appeal — and inferentially, the Federal Court, Trial Division — is permitted to substitute its own opinion for that of the Board in respect of questions of general importance.
In 2015, the Supreme Court abruptly changed course, applying the reasonableness standard to a question of interpretation in Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 SCR 909.
[31] Mason, at para. 53.
[32] Mason, at para. 47.
[33] Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 SCR 293, at paras. 78-79, per Côté and Brown JJ, dissenting.
[34] See especially, Atlantic Mining NS Corp. (D.D.V. Gold Limited) v. Oakley, 2019 NSCA 22 at para 13.
[35] See generally Megan Pfiffer, “What’s the Problem With Substantive Review?” (2024) 69 McGill Law Journal 325, at pp. 331-338.
[36] Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 SCR 557; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 SCR 748.
[37] See Vavilov, at para. 285, per Abella and Karakatsanis JJ, concurring: “Structuring reasonableness review in this fashion effectively imposes on administrative decision-makers a higher standard of justification than that applied to trial judges”. Though see Halton (Regional Municipality) v. Canada (Transportation Agency), 2024 FCA 122, at para. 22; Best Buy Canada Ltd. v. Canada (Border Services Agency), 2025 FCA 45, at para. 11. For discussion, see Paul Daly, “Unappealing Applications for Judicial Review: Best Buy Canada Ltd. v. Canada (Border Services Agency), 2025 FCA 45”, Administrative Law Matters (blog), 6 March 2025, online: < https://www.administrativelawmatters.com/blog/2025/03/06/unappealing-applications-for-judicial-review-best-buy-canada-ltd-v-canada-border-services-agency-2025-fca-45/>
[38] R. v. Sheppard, 2002 SCC 26, [2002] 1 SCR 869, at para. 28.
[39] Canada v. South Yukon Forest Corporation, 2012 FCA 165, at para. 46; J.G. v. Nadeau, 2016 QCCA 167, at para. 77.
[40] Vavilov, at para. 126.
[41] Vavilov, at para. 128.
[42] Vavilov, at para. 131.
[43] Vavilov, at para. 135.
[44] Vavilov, at paras. 65-68.
[45] Galderma Canada Inc. v. Canada (Attorney General), 2024 FCA 208, at para. 4.
[46] See generally Paul Daly, A Theory of Deference in Administrative Law: Basis, Application and Scope (Cambridge University Press, Cambridge, 2012), chapter 6, and the many sources relied on therein.
[47] Vavilov, at para. 23.
[48] Kevin Bouchard et Monica Popescu, « La substance et la procédure :l’effritement d’une distinction classique et ses conséquences pour le contrôle judiciaire » (2024) 65 Les Cahiers de droit 789.
[49] Paul Daly, “Unresolved Issues after Vavilov” (2022) 85 Saskatchewan Law Review 89.
[50] Kevin Bouchard et Monica Popescu, « La substance et la procédure :l’effritement d’une distinction classique et ses conséquences pour le contrôle judiciaire » (2024) 65 Les Cahiers de droit 789
[51] See especially Abiodun v. Canada (Citizenship and Immigration), 2021 FC 642, at para. 10.
[52] Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, [2022] 2 SCR 220, at paras. 26-30. The implications of this decision have not, in my view, been fully teased out: “Future Directions in Standard of Review in Canadian Administrative Law: Substantive Review and Procedural Fairness” (2023) 36 Canadian Journal of Administrative Law & Practice 69.
[53] On this, compare Paul Daly, “Unresolved Issues after Vavilov” (2022) 85 Saskatchewan Law Review 89 with Mark Mancini, “The Conceptual Gap Between Doré and Vavilov” (2020) 43 Dal LJ 793.
[54] To my mind, this point holds even though mixed questions of fact and law arising in the correctness categories attract correctness review. In order for correctness to apply on a mixed question, the decision at issue must fall within a correctness category in the first place. As far as individualized Charter-infringing decisions are concerned, it is necessary to demonstrate that they should actually be within a correctness category to begin with. It is not enough to justify correctness review that an individualized decision may involve considerations of mixed fact and law. For thoughtful discussion, see Anthony Sangiuliano and Mark Friedman, “What is the Standard of Review for (Mixed) Constitutional Questions?” (2025) University of British Columbia Law Review (forthcoming).
[55] Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, at paras. 60-75.
[56] See especially Lauzon v. Ontario (Justices of the Peace Review Council), 2023 ONCA 425, at para. 151.
This content has been updated on June 13, 2025 at 16:54.