Unresolved Issues after Vavilov

Abstract

In its decision in Canada (Citizenship and Immigration) v Vavilov the Supreme Court of Canada fundamentally altered Canadian administrative law. For the most part, the Court’s analysis was comprehensible and comprehensive. But on a number of key issues, the implications of Vavilov are obscure. In order of importance, these unresolved issues are: how does Vavilov apply to internal statutory appeals; what framework governs procedural fairness in administrative law; is arbitration subject to administrative law principles; are administrative decisions touching the Charter of Rights and Freedoms still to be reviewed deferentially; and what are the constitutional foundations of Vavilovian judicial review? In my Hugh Ketcheson QC Memorial Lecture, I will explain the importance of these issues and lay out answers and solutions which are faithful to the Vavilov framework.