**updated typos, April 13**
Afolabi v Law Society of Ontario, 2025 ONCA 257 (April 7, 2025)
Category: Procedural fairness.
Context: This is an appeal of the judicial review decision dealing with the Law Society of Ontario’s so-called “cheating scandal.” The LSO found that the integrity of its November 2021 licensing examinations was compromised by the distribution of test content in advance. The LSO voided the exam results and registrations of 20 candidates associated with the compromised exam. On judicial review, the Divisional Court held that the LSO breached the applicants’ right to procedural fairness by voiding their registrations without a hearing (see Mirza et al v Law Society of Ontario, 2023 ONSC 6727 (Issue #116). The Divisional Court premised its reasoning on a rejection of the LSO’s fundamental argument—that, given institutional constraints, it would be impracticable to hold individual hearings for each case. Despite these challenges, the Divisional Court held that this administrative challenge could not override the Applicants’ right to procedural fairness.
Issue: Was the proper level of fairness given to the candidates?
Holding: Yes. The Court, per Gillese JA, concludes that the Divisional Court erred in its application of the Baker factors. A proper application of those factors leads to the conclusion that the proper level of fairness was given to the candidates.
Analysis: Many procedural fairness cases come down to a contest between different Baker factors. Often the contest is between “the importance of the decision to the affected individuals” (Baker Factor #3) and the “choice of procedure” of the decision-maker (Baker Factor #4). So it is here. Sometimes, this contest is difficult to resolve, given the discretionary nature of the Baker factors. Where the contest, however, is premised on a deficient understanding of the statutory language, an error in the application of the Baker factors can ensue.
Beginning with the statute, the Divisional Court held that the LSO implicitly made character findings against the candidates, which necessitates an oral hearing under the relevant legislation. However, a negative finding of good character deals with “refused entry to the profession” not “licensing and registration” [81]. It was the latter process engaged by the revocation of registrations. In truth, the debate over the statute might come down to how onwe reads the record. The Divisional Court thought that the LSO must have implicitly proceeded to make a good character finding, in a way that would have required it to hold an oral hearing. Gillese JA, however, finds no indication in the record of this—and at any rate, the legislation contemplates that good character is different from licensing and registration.
If one reads the legislation like Gillese JA, then the contest between Baker Factors #3 and #5 evaporates. The statutory language does not provide that a hearing is required before a decision is made under the relevant bylaws or policies [74]. As a result, and though Gillese JA explains that the decision is obviously important to the individuals, the imposition of an oral hearing when not provided by the legislation gives “inadequate consideration to the institutional constraints the LSO faced” [96]. In the absence of a requirement for an oral hearing, there was no reason to question the choice of procedure made by the LSO—the applicants were given disclosure, opportunities for written submissions, etc. In absence of any legislative warrant otherwise, there was no need to insist on an oral hearing.
Again, the application of the Baker factors is discretionary, and sometimes this might lead to the temptation that there is no “right” answer. But this case is an example of how statutory language grounds the Baker analysis. If one accepts that the Divisional Court proceeded with a deficient understanding of the statute, then it invited a contest between Baker Factor #3 (which also supported an oral hearing) and Baker Factor #5. But on Gillese JA’s understanding, the statutory language—which grounds the analysis—gives support to the LSO’s choice of procedure. This meant that it did not matter so much that the matter was deeply important to the individuals involved—the LSO met the stakes given the statutory context and its choices of procedure.
Dr Ignacio Tan III v Alberta Veterinary Medical Association, 2025 ABCA 119 (April 8, 2025)
Category: Conducting reasonableness/appellate review.
Context: This is a decision of the Committee of the Council of the Alberta Veterinary Medical Association. The Council sat in appeal of decisions of the Hearing Tribunal, making findings of professional misconduct and sanctions against the appellant.
Issue and Analysis: I highlight this case because of the interesting comments of Watson JA (Ho and Kirker JJA concurring in the result) on expertise. As Leonid Sirota and I write in our paper here, Vavilov (rightly, in our view) dispatched expertise as an automatic reason for deference. However, it left open the possibility that a decision-maker could, through its reasons, demonstrate expertise. This is most likely to manifest in reasons that cannot be understood without some reflection on the administrator’s application of her own knowledge or practical experience.
Fair enough—although even this should be approached with caution, lest judicial review turn into a rubber-stamping of supposedly “expert” insights. However, in this case, expertise arises in an interesting way—and offers an example for how a party can make expertise relevant in judicial review. Here, the appellant argued that the findings of professional misconduct were based on a divergence of professional opinions about surgical techniques and that there were no clear standards of written practice applicable in the case [27-28]. Coupled with this argument was one that challenged, generally speaking, the potential “unfairness of ‘internalized expertise’ by the decider in some cases…” [21]. Here, however, “[t]he existence of apparent qualifications of expertise by members of a Council” may assist in the evaluaition of expert testimony and in applying unwritten standards of practice [24].
That was the case here. The Council is in a position to evaluate competing evidence, even expert evidence, based on unwritten standards informed by its view of professional practice. The fact that there are no written standards of practice to definitively resolve disputes among experts is no reason to fault the Council for understanding the evidence in a particular way. The “alleged existence of an opposing viewpoint does not automatically forestall the ability of the decider to accept and rule on the viewpoint that the decider does have based on the expert opinion evidence before it” [59]. So long as the expertise justification for deference is reserved to these circumstances, it recognizes a simple fact of administrative decision-making.
Lydford v Canada (Revenue Agency), 2025 FC 627 (April 7, 2025)
Category: Application of the reasonableness standard.
Context: This is a judicial review of a second review decision of a Canada Emergency Benefits Validation Officer of the Canada Revenue Agency. The Officer concluded that the applicant was not eligible for CERB.
Issue: Is the decision to deny CERB to the applicant reasonable?
Holding: No. The Court concludes (per Duchesne J) that the decision is unreasonable.
Analysis: This is a good example of the heightened bar for reasonableness established in Vavilov and re-affirmed in later cases like Mason v Canada (Citizenship and Immigration), 2023 SCC 21 (Issue #108). This example comes in an interesting situation.
In a nutshell, if an administrative decision—particularly one with high stakes to the individual—cannot be read to provide reasons why the outcome is reached, it will be impossible for the court to conduct judicial review. In such cases, rather than reaching for a plausible but non-obvious justification in the record, courts should simply conclude that the decision is unreasonable (see e.g. Cavendish Farms Corporation v Lethbridge (City), 2022 ABCA 312 (Issue #60), where the ABCA made this clear in an excellent decision).
Here, and properly, the same result follows. The applicant made a single argument: it was unclear how the officer dealt with the tax consequences of employment insurance sickness benefits in determining whether the applicant met CERB’s eligibility requirements [56]. The big problem here was that “[t]he reasons do not provide any answer as to whether the decision” dealt with this key argument [57]. As Duchesne J says, “[t]he reasons are conclusory, refer to unidentified information that was reviewed by the decision-maker, and fail to address the Applicant’s sole argument” [57]. I would save this passage as an excellent description of unreasonable boilerplate in administrative decision-making.
Simple enough, but the problem was compounded in this case. Extraordinarily, there was an absence of a certified tribunal record in the case—as Duchesne J says, “[t]here are nevertheless situations where no request for a certified tribunal record is made or where no certified tribunal record is produced” [10]. That was the case here, and the respondent led no evidence at all [14]. This only reinforced the unreasonableness of the decision. While the respondent argued that it should not be prejudiced by a choice not to lead evidence, Duchesne J reasons that the respondent’s failure to lead evidence can relate to a failure of justification [59]. This is particularly so where there is no certified tribunal record.
This is a fine line. Duchesne J reinforces the rule that the applicant bears the burden on judicial review, including the burden to raise all arguments. One might think that means that the applicant should suffer the consequences of failing to request a tribunal record. But Duchesne J’s conclusion in this case can be seen as an affirmation of the overall direction of reasonableness review: the Vavilov framework puts a strong burden on the respondent to justify a decision. This somtimes leads to conflicts between the ordinary rules of reasonableness review and Vavilovian justification (for example, in cases where the court holds the decision-maker to a legal standard not squarely put before the decision-maker, as in Mason). An interesting and technical area that will require some work.
Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own