Deciphering How Delegated Decision-Makers Can Provide Vavilov-Robust Reasons Amidst Cabinet Privilege, Deliberative Secrecy, and Other Barriers

October 30, 2024 2:00pm

Graeme King
General Counsel
Department of Justice

Scott MacKenzie, K.C.
Public Member
Canadian Investment Regulatory Organization

Ewa Krajewska
Partner
Heinen Hutchinson Robitaille LLP

Procedural and substantive fairness are hallmarks of the rule of law and public confidence in the administration of justice. Reasons that are not transparent and robust may be overturned on judicial review. Delegated decision-makers face this onus despite inherent tensions with respect to transparency such as cabinet privilege and deliberative secrecy. This panel will explore these tensions and other barriers, implicit or explicit, that delegated decision-makers grapple with. Topics of discussion include:

  • Understanding the limits of deliberative secrecy
    • Considering what must be included in written reasons (e.g., soft law)
  • Navigating cabinet privilege
    • Takeaways from the Supreme Court of Canada’s decision on the Doug Ford mandate letters’ case
    • Challenging or justifying an administrative decision when the inputs to regulations or other delegated legislation are subject to cabinet privilege
  • Exploring other barriers that influence what gets included in reasons (e.g., polarized media representation)