Selecting a Standard of Review: What Does This Entail Post-Vavilov?

Abstract

Considerable scholarly and judicial attention has been devoted to the selection of the standard of review in Canadian administrative law. Through generational analysis of the developments and challenges in administrative law, and a comparison of the different standards of review, the article examines the place of Canada (Minister of Citizenship and Immigration) v. Vavilov in the jurisprudential landscape. The article suggests that Vavilov now serves as the new Baker v. Canada (Minister of Citizenship and Immigration), providing practical guidance and a stable framework by simplifying the selection of the standard of review process but requires further refinement by attending to transparency and justification regarding the reweighing of factors and the use of Charter values. Ultimately, this article proposes that Baker and Vavilov together could inform the next generational shift in administrative law: the formal recognition of a general duty to provide reasons.