Date01 January 2017
AuthorLewans, Matthew

"Our administrative law is a never-ending construction site where one crew builds structures and then a later crew tears them down to build anew, seemingly without an overall plan." (1)

  1. Introduction

    Like a hundred-year-old heritage home, the law governing judicial review of administrative action attracts conflicting opinions. Everyone agrees that it has a sound constitutional foundation, which guarantees (2) that administrative decisions remain subject to independent scrutiny in order to ensure they are rendered fairly (3) and comply substantively with the rule of law. (4) But almost no one is satisfied with the outdated aspects of its infrastructure, particularly the arcane "law office metaphysics" (5) lawyers and judges employ in order to determine the standard of review independently of "the who, what, why and wherefor of the litigant's complaint on the merits." (6)

    So every year administrative lawyers, judges, and law professors offer suggestions for reconstructing the law of judicial review by penning thoughtful opinions, (7) extra-judicial essays, (8) and academic articles. (9) The common theme running through many of these contributions is that the Dunsmuir framework is flawed, but there remains deep disagreement about how to repair it. Some argue we should avoid sharp distinctions between different standards of review, because the intensity of judicial review is irreducibly variable and therefore must be calibrated to suit a particular administrative decision; (10) some propose to demolish the categories reserved for correctness scrutiny, (11) so as to facilitate reasonableness review across the board; (12) and some propose to expand Dunsmuir's categories for correctness scrutiny in order to impose some semblance of judicial order on an otherwise heterogeneous corpus of administrative law. (13) And then there are those who think we should forgo renovations altogether--at least for the time being--because they would destabilize an already wobbly analytical framework. (14)

    In this paper, I want to highlight some of the more remarkable contributions to the debate regarding the standard of review over the past year. But before proceeding, I want to revisit the history to that debate, because if we lose track of important points of reference we might forget some hard-won lessons and thereby lose the ability to critically assess contemporary proposals for reform.

    In Part II, I will briefly review the history of judicial review in order to identify two conflicting, but enduring, intellectual frameworks that have shaped that enterprise. The first, formalist intellectual framework relies upon a set of abstract analytical distinctions from which judges purport to deduce the parameters of judicial review without encroaching upon the merits of an administrative decision. The second intellectual framework conceives of judicial review as an evaluative exercise whereby judges scrutinize administrative decision-making processes and reasons in order to ensure that they are consistent with fundamental values which underpin the legitimacy of administrative law. The formalist approach is typified by elaborate attempts to define and deduce the scope of judicial review as a threshold matter without considering the attributes of a particular administrative decision, whereas the evaluative approach proceeds more directly to assess whether a particular administrative decision has been produced and explained in a fair and reasonable manner which warrants the respect of individuals and other legal officials. I will argue that the current controversy regarding the standard of review analysis stems from the fact that the Supreme Court of Canada in Dunsmuir erected a more elaborate formalist apparatus for determining the standard of review, which has distracted attention from the fundamental values which underwrite the legitimacy of administrative law and the moral purposes of judicial review. Thus, instead of simplifying the law of judicial review, the Dunsmuir framework has produced an esoteric and unproductive debate about how to define and delineate Dunsmuir's formal concepts and categories instead of elucidating how the legitimacy of administrative decisions are tied to their legality in a procedural and substantive sense.

    In Part III, I will examine and critique four proposals for reforming the law of judicial review that surfaced in Wilson v Atomic Energy of Canada Ltd--a case which served as a lightning rod for the standard of review debate in 2016. I will argue that each of these proposals are unlikely to produce a more principled approach to judicial review, because they seek to resolve confusion about the standard of review by either buttressing Dunsmuir"s formalist apparatus or adding new refinements to it instead of honing an evaluative methodology for assessing the legality of administrative decisions across a broad range of regulatory contexts.

    Finally, in Part IV I will conclude by offering a tentative proposal about how we might move beyond the perennial fascination with the standard of review analysis by explaining how judicial review can sustain the procedural and substantive legality of administrative decisions without resorting to categorical or conceptual claims regarding the scope of judicial review. I will argue that such an approach can be gleaned by revisiting the normative underpinnings of L'Heureux-Dube J's landmark opinion in Baker v Canada in order to better understand why administrative decisions which are fair and reasonable merit judicial respect.

  2. A Brief History of Judicial Review

    Complaints about the erratic nature of judicial review are hardly new. In fact, the common criticism that the law of judicial review is radically incoherent has not changed much since DM Gordon's scathing critique of jurisdictional error in 1929. (15) In undertaking what he likened to a Herculean labour to "ventilate one of the worst corners of the Augean stable," Gordon remarked that "[anything like a serious examination at large of the case law on jurisdiction must convince an open-minded inquirer that there is virtually no proposition so preposterous that some show of authority to support it cannot be found." (16) In this respect, Gordon strikes the same note as David Stratas, Canada's leading administrative law judge, who noted in 2016 that "[d]octrinal incoherence and inconsistency plague the Canadian law of judicial review. This must stop." (17)

    The doctrinal incoherence that Gordon, Stratas, and many others have criticized has a long pedigree, (18) but the basic problem is that judges struggle to articulate a legal framework for judicial review which avoids both judicial quiescence and judicial overreach, and is equally applicable to decisions rendered by arbitrators, (19) labour adjudicators, (20) immigration officials, (21) copyright boards, (22) human rights tribunals, (23) law societies, (24) and countless other administrative agencies. (25) The history of how judges have wrestled with this problem is worth recounting briefly, because it helps explain how we got into this standard of review mess in the first place, and to gauge whether we are any closer to cleaning it up.

    The doctrine of jurisdictional error, which continues to lurk within the Dunsmuir framework, grounded the dominant approach to judicial review until 1978. Its underlying constitutional premise was that the different branches of government perform analytically distinct roles: legislatures have the exclusive power to create law, the judiciary has exclusive power to interpret law, and administrative officials wield residual discretionary power to render findings of fact and implement laws created by the legislature and interpreted by the judiciary. (26) The important point is that this conception of the separation of powers reserved questions of law exclusively to superior courts, while administrative officials merely retained a discretionary power to apply the law to a particular set of facts. When defined in this way, the doctrine of jurisdictional error seemed to be based upon an apolitical (and therefore constitutionally acceptable) account of judicial review, whereby judges determine "jurisdictional" questions of law, but nevertheless allow administrative officials to determine "non-jurisdictional" questions, usually relating to findings of fact and public policy questions left undetermined by statute. (27) But despite projecting a sense of certainty and predictability regarding the conduct of judicial review, the doctrine was formalistic, reductive, controversial, and radically incoherent in practice.

    It was formalistic, because it was designed to articulate and maintain abstract conceptual distinctions instead of ensuring that governmental decisions (regardless of their abstract classification) were consistent with fundamental legal values. (28) Thus, instead of explaining how judicial review might vindicate the dignity of individuals by ensuring that administrative decisions are rendered fairly and provide a public, intelligible, and rationally acceptable legal justification, legal analysis was preoccupied with the relatively esoteric exercise of slotting administrative action into conceptual categories that had no intrinsic connection to principles of political morality. If, for example, a reviewing court deemed that an administrative decision involved a "jurisdictional" question or the exercise of "judicial" or "quasi-judicial" power, the decision would be quashed if a trial-type process had not been observed even in the face of privative clause. (29) Conversely, if a judge deemed that an administrative decision involved the exercise of "administrative" power, the decision would be upheld regardless of whether there had been a hearing. (30) The upshot was an all-or-nothing approach to judicial review, which hinged on an arbitrary, formal categorization of administrative action rather than ensuring that...

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