The Good, the Bad and the Ugly
A Preliminary Assessment of whether the Vavilov Framework Adequately Addresses Concerns of Marginalized Communities in the Immigration Law Context
The Supreme Court of Canada's decision in Vavilov has modified the approach to judicial review in Canada. Does Vavilov address concerns by those representing marginalized communities in the administrative system? Grounding the discussion of this case in the immigration and refugee law context, this paper will look at positive opportunities (the good), missed opportunities (the bad) and potential issues to watch for (the ugly). First, a brief overview of the Vavilov framework will be provided. Then, the paper will provide some brief comments on the selection of the standard of review in Vavilov, specifically doing away with relative expertise (the good), the missed opportunity to revisit Doré (the bad), and confusion that might arise out of what constitutes a statutory appeal (the ugly). Third, I will assess the potential opportunities in the more robust reasonableness review (the good) in the immigration law context. Fourth, the paper will discuss how the court did not resolve the issue of how to address persistent discord adequately (the bad). Finally, I will provide my view on how the way the court addressed jurisdictional questions and the retention of relative expertise in the reasonableness review as potentially a site of messy confusion (the ugly).
Keywords:Vavilov, immigration, refugee, law, standard of review, reasonableness, correctness, jurisdictional boundaries, persistent discord, expertise, administrative law, procedural fairness
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