Both parties rely on Justice Dawson’s decision in Morin v. Canada 2001 FCT 1430 at paragraphs 58 and 59, where she discussed the applicable standard of review of a Minister’s decision on an appeal pursuant to section 47 of the Act as follows: ... The pragmatic and functional approach requires consideration of the existence of a privative clause, the nature of the decision under review, the purpose of the legislation, and the expertise of the decision-maker. In the present case, there is no privative provision, the nature of the decision as to whether the 1986 will evidences a testamentary intent is substantially one of fact, the purpose of the relevant provisions of the Indian Act are to balance individual rights (and so the issues are not polycentric) and there is no evidence of any particular expertise on the part of the decision-maker. The standard of review should therefore fall somewhere on a spectrum between reasonableness simpliciter and patent unreasonableness.
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