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

36 Pages Posted: 16 Jul 2020

See all articles by John Mark Keyes

John Mark Keyes

University of Ottawa - Faculty of Law

Date Written: June 18, 2020

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

Suggested Citation

Keyes, John Mark, Judicial Review of Delegated Legislation: The Long and Winding Road to Vavilov (June 18, 2020). Ottawa Faculty of Law Working Paper No. 2020-14, Available at SSRN: https://ssrn.com/abstract=3630636 or http://dx.doi.org/10.2139/ssrn.3630636

John Mark Keyes (Contact Author)

University of Ottawa - Faculty of Law ( email )

57 Louis Pasteur Street
Ottawa, Ontario K1N 6N5
Canada

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
215
Abstract Views
691
rank
176,795
PlumX Metrics