Author:Daly, Paul

The substantive law of judicial review of administrative action has grown in leaps and bounds in recent decades. In particular, modern doctrines of reasonableness and procedural fairness have gradually encroached on what administrative lawyers once called "the merits" of administrative decisions. Where previously errors "within jurisdiction" were more or less immune from judicial oversight and correction, nothing is now off limits as far as reviewing courts are concerned: errors of law and fact alike can provide grounds for judicial intervention. Doctrines of deference ensure that judges exercise their judicial review function with due caution, such that administrative decisions generally tend to survive challenges to their substantive reasonableness. (1) However, there can be no doubt that, in principle, the breadth and depth of judicial review of administrative action is much greater than it was several decades ago. The Supreme Court of Canada's (SCC) formulation of reasonableness review--"justification, transparency and intelligibility" in the reasoning process and oversight to ensure that decisions fall within the range of possible, acceptable outcomes--(2) would have been unthinkable a generation ago.

The increased breadth and depth of judicial review has, of course, given rise to predictable controversy. (3) A less appreciated consequence is that the procedural law of judicial review may have fallen behind substantive administrative law. (4) My interest in this area was prompted by recent cases in which Canadian courts addressed issues such as: the content of the record on judicial review applications, the extent to which administrative decision makers can participate in judicial reviews of their decisions, superior court reviews of federal prison decisions, and tribunals' capacity to reconsider their decisions. On these issues, the procedural law has lagged the substantive law, which has required Canadian courts to consider whether, and to what extent, the procedural law can be updated.

I think it is reasonable to classify these issues as procedural in nature because they relate to questions about how applications for judicial review function in practice: what material can be put before the reviewing court, who is entitled to address the reviewing court and on what grounds, whether an administrative tribunal can review its own decisions, and in what forum an application for judicial review can be made. Of course, there are other procedural issues that arise in judicial review cases. Those I discuss happen to have been considered recently by Canadian courts and thus provide a useful starting point for discussion.

Prompted by these recent cases on the procedural law of judicial review, I will, in this article, set out considerations courts should bear in mind when updating the procedural law of judicial review of administrative action. This set of considerations can certainly be applied to the contemporary issues identified above and should also be of use to Canadian courts in dealing with other procedural issues. I should note at the outset that I do not envisage the procedural and substantive law moving forward in lockstep. As I hope to demonstrate, the relationship between the procedural and the substantive in the common law tradition is dynamic and unpredictable.

I will lay out the set of considerations in Part I. Courts must exercise caution in updating the procedural law in order to avoid subsequent pressure to apply broadly or further reform the substantive law. Changes to the procedural law of judicial review of administrative action should only be made in an incremental fashion where development of the law is necessary to ensure that the courts can effectively carry out their reviewing function. These changes fall to be considered in a particular setting, one shaped by an understanding of the constitutional role of the courts vis-a-vis the administration--in particular, that judges may not substitute their judgment for the judgment of the decision-maker designated by the legislature. Finally, changes to the procedural law should, in the interests of coherence, be made by reference to the same principles and values that shape the substantive law.

In Part II, I critically analyze a series of recent Canadian cases that have addressed the procedural law of judicial review of administrative action in light of the considerations set out in Part I. These cases have not been chosen for their analytical or conceptual characteristics; I have chosen them because they provide contemporary examples of the difficulties created by the procedural law of judicial review lagging behind the substantive law. I conclude that Canadian courts have struggled with some issues--tribunal reconsideration and tribunal standing--but have done reasonably well on others--the content of the record and superior-court jurisdiction over federal prisons.

My general goal is that the set of considerations outlined in Part I, along with the critical analysis conducted in Part II, will prompt further thought and discussion about mismatches between substantive and procedural law.


    In this section, I set out three considerations judges ought to bear in mind when updating the procedural law of judicial review of administrative action. My focus in this article is on judge-made changes to the common law. As such, it is appropriate to seek guidance primarily from the jurisprudence as to the permissible scope of judicial creativity. This is the source of the first two considerations. The first consideration, drawn from the jurisprudence of the SCC and the House of Lords, is that judges should have regard to their institutional and constitutional competence to make changes to the common law. The second consideration, uncontroversial in Canada, is that the common law should be changed in a manner respectful of constitutional principles. The third consideration--drawn more from the wisdom of scholars than the jurisprudence of the common-law courts--is that judges should bear in mind the dynamic relationship between procedural law and substantive law in the common law tradition.


      The SCC "has signalled its willingness to adapt and develop common law rules to reflect changing circumstances in society at large." (5) However, the common law judge "is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness." (6) Accordingly, judicial power to change the law is subject to "significant constraints". (7) In particular, "the process of change is a slow and incremental one, based largely on the mechanism of extending an existing principle to new circumstances.... [T]he courts have generally declined to introduce major and far-reaching changes in the rules hitherto accepted as governing the situation before them." (8)

      Considerations of institutional and constitutional competence have been raised in support of the position that the "judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society". (9) In terms of constitutional competence, sometimes the judiciary will not possess the necessary democratic legitimacy (relative to the legislature) to change the law. On other occasions, it will lack the tools needed to change the law--a matter of institutional competence. As McLachlin J (as she was then) put it, with characteristic clarity, in a passage worth quoting at length:

      The court may not be in the best position to assess the deficiencies of the existing law, much less problems which may be associated with the changes it might make. The court has before it a single case; major changes in the law should be predicated on a wider view of how the rule will operate in the broad generality of cases. Moreover, the court may not be in a position to appreciate fully the economic and policy issues underlying the choice it is asked to make. Major changes to the law often involve devising subsidiary rules and procedures relevant to their implementation, a task which is better accomplished through consultation between courts and practitioners than by judicial decree. Finally, and perhaps most importantly, there is the long-established principle that in a constitutional democracy it is the legislature, as the elected btanch of government, which should assume the major responsibility for law reform. (10) In the area of procedural law, it is generally assumed that judges have the necessary institutional and constitutional competence. As Lord Donovan observed in Myers v Director of Public Prosecutions: "[t]he common law is moulded by the judges and it is still their province to adapt it from time to time so as to make it serve the interests of those it binds. Particularly is this so in the field of procedural law." (11) Lord Reid referred similarly to a distinction between "'lawyer's law'" and "matters which directly affect the lives and interests of large sections of the community" (12)--the implication being that the former can be left to lawyers but the latter is best addressed by elected representatives.

      Yet caution is still advisable, for several reasons. To begin with, the symbiotic relationship between procedure and substance in the common law (described above) should always be borne in mind. It is worth noting Lord Reid's observations from Myers: "there are limits to what we can or should do. If we are to extend the law it must be by the development and application of fundamental principles." (13) In this regard, it is also worth noting that both the substantive and procedural law of judicial review are tied into the larger tapestry of "public law values," (14)

      principles immanent in administrative law and repeatedly sounded in the case law especially when reviewing courts explain their exercises of discretions. These...

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