Judicial Review of Delegated Legislation: The Long and Winding Road to Vavilov

Abstract

This paper considers whether the recent Supreme Court of Canada decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 clarifies the many unanswered questions about the application of standards of review to delegated legislation, notably:

1. Do they apply to the review of all delegated legislation and, in so far as they do apply, which standard applies?
2. How do the pre-Dunsmuir grounds for reviewing delegated legislation fit with the standards of review?
3. How do other pre-Dunsmuir considerations affecting judicial review of delegated legislation (presumption of validity, broad and purposive approach to interpretation, threshold for inconsistency with statutory purposes and the separation of policy from law) fit with the standards of review?

The paper concludes that:

1. All delegated legislation is subject to standards of review and the presumptively applicable standard is reasonablness.
2. The pre-Dunsmuir grounds of review have been amalgamated into the reasonableness standard of review.
3. The application of the other pre-Dunsmuir considerations in the context of the reasonableness standard of review is questionable.

Keywords: judicial review, delegated legislation, legislative interpretation

JEL Classification: K23