standard of review – Gib van Ert

The Supreme Court of Canada chose the unlikely case of Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65 as its platform for an extensive rewrite of Canadian administrative law. The decision will mostly be cited for its discussions of how to determine the standard of review applicable in judicial review of administrative decision-making and how to conduct such review on a reasonableness standard. But Vavilov is also important for its consideration of the place of public international legal considerations in judicial review. While the decision might not seem to say much about international law, what it does say, and where it says it, are developments to be welcomed. Vavilov brings the interpretive presumption of conformity with international law to administrative decision making, and reasserts that presumption in judicial reviews of those decisions. [PDF]

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In Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner) 2018 ONCA 559 (18 June 2018), Benotto JA for the Court of Appeal for Ontario invokes the Convention on the Rights of the Child 1989 repeatedly (and in my view correctly) despite its supposedly unimplemented status in Canadian law. She frames her use of the Convention as part of the contextual approach to statutory interpretation without purporting to apply the presumption of conformity with international law. But the end result is the same: an interpretation of domestic law in line with our treaty obligations.

Continue reading “Court of Appeal uses Convention on the Rights of the Child to protect Children’s Lawyer’s records from FIPPA disclosure” →