Vavilov and the Culture of Justification in Contemporary Administrative Law
(2020) Supreme Court Law Review (2d), Forthcoming
29 Pages Posted: 29 Jun 2020
Date Written: June 3, 2020
The Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 represents a response to a pair of problems which have plagued Canadian administrative lawyers for decades: selecting the standard of review and applying the reasonableness standard. More broadly, however, the articulation of reasonableness review in Vavilov fits into a much larger picture of the seemingly inexorable rise – in Canada and elsewhere in the common law world – of a “culture of justification” in administrative law. Despite the culture of justification’s contemporary status, and a significant amount of scholarship on its benefits, what it actually consists of remains somewhat obscure. Adopting a descriptive and analytical approach, I seek to describe and analyze the culture of justification in contemporary administrative law, with particular reference to the majority reasons in Vavilov.
I suggest in Part I that the four strands of reasonableness review woven together by the majority in Vavilov – reasoned decision-making, responsiveness, demonstrated expertise and contextualism – provide an account of the culture of justification. In Part II, I expand on the discussion of Vavilov, a case concerned with substantive review – the assessment of the reasonableness of administrative decisions – and describe how the culture of justification has permeated other areas of administrative law, such as procedural fairness, justiciability and standing. I then venture, in Part III, to explain why the culture of justification has risen to such prominence in contemporary administrative law. Focusing on endogenous rather than exogenous factors I identify the development of general principles of administrative law and the expanded record of administrative decision-making as likely contributors, hypothesizing that expansive reason-giving and record generation have caused more exacting standards of reasonableness and fairness. Finally, in Part IV, I assess the future prospects of the culture of justification. Noting that a culture of authority had crept into substantive review in Canadian administrative law in the years leading up to Vavilov, I suggest that the majority’s approach represents a repudiation of claims to authority based on political legitimacy, expediency and technocratic expertise.
Finally, having bracketed normative questions at the outset, I return to address them in the Conclusion, arguing that there are good normative reasons to support a culture of justification in administrative law, grounded in the rule of law and democracy, two of the unwritten principles of the Canadian constitutional order.
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