Patent Unreasonableness after Vavilov

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.