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Human Rights Stories

Supreme Court of Canada Revisits and Restates the Standard of Review

The Human Rights Tribunal (HRTO) is subject to judicial review by the courts under the Human Rights Code.  This means that the courts have the final say about whether an HRTO decision  complies with the law. An important part of judicial review is what is called the standard of review, which is a standard the court applies to the HRTO decision.  There are two standards of review – correctness and reasonableness. Which one applies to the HRTO? The answer is – it depends on the nature of the legal question being reviewed by the court but, in almost every case, the standard applied to the HRTO will be reasonableness.

On December 12, 2019  the Supreme Court of Canada (SCC) released its decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII). The SCC found that courts should presumptively review administrative decisions on a standard of reasonableness, except in two types of situations. The first exception is where the legislature has indicated that it intends a different standard to apply such as where it has explicitly prescribed the applicable standard of review.  The second situation is where the rule of law requires that the standard of correctness be applied, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies.  What does this mean for parties whose HRTO decision is being judicially reviewed at the Divisional Court ? It means that you can expect that the Court will adopt a deferential and respectful approach to the HRTO decision under review and the standard applied will be reasonableness, unless the judicial review raises constitutional questions. Questions of law of central importance to the legal system as a whole,  or questions of law related to the jurisdictional boundaries between two or more administrative bodies. 

See the full decision here.

See media coverage here.