Canada's Bi-Polar Administrative Law: Time for Fusion
26 Pages Posted: 17 Aug 2014 Last revised: 24 Mar 2015
Date Written: August 14, 2014
A bi-polarity afflicts the Canadian law of judicial review of administrative action. On matters of substance – interpretations of law and exercises of discretion – Canadian courts preach deference. For more than thirty years, they have refused to substitute their judgments for those of administrative decision-makers even on legal questions, intervening only on the ground of unreasonableness. Yet on matters of procedure, courts have no qualms about stepping into the shoes of administrative decision-makers.
The bi-polarity is explained by the comparatively different role played by legislative intent at the poles of substantive review and procedural review. On matters of substance, legislative intent plays an important role in justifying deferential judicial review; statutory provisions are taken to reveal a legislative preference for the primacy of administrative interpretation over judicial interpretation. By contrast, on matters of procedure, legislative intent plays a subordinate role, as statutes provide the context in which courts review for correctness the fairness of decision-making processes; courts maintain a position of interpretive supremacy, regardless of the breadth of decision-making power delegated by statute.
However, the Court’s reformulation of administrative law doctrine in Dunsmuir v. New Brunswick and Khosa v. Canada (Citizenship and Immigration) has affirmed the decisive role of legislative intent in substantive review. Attempting to keep it in a subordinate position in procedural review has become more and more difficult.
Building on recent appellate jurisprudence, I argue based on, first, the desirability of doctrinal cohesion and, second, from first principles, that the two poles ought to be fused. Traditionalists who fear the extension of deference to questions of procedural fairness need not recoil. Modern reasonableness review is robust enough to provide adequate protection for procedural rights. Fusion would further the values of democracy and good administration while also respecting the rule of law.
Keywords: Deference, procedural fairness, procedural review, substantive review, Dunsmuir, Khosa, administrative common law
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