The Dawn of Vavilov, the Twilight of Doré: Remedial Paths in Judicial Review of Rights-Affecting Administrative Decisions and the Unification of Canadian Public Law

28 Pages Posted: 9 Aug 2021 Last revised: 11 Mar 2022

See all articles by Anthony Sangiuliano

Anthony Sangiuliano

University of Toronto - Faculty of Law; York University - Faculty of Liberal Arts & Professional Studies

Date Written: August 5, 2021

Abstract

This article examines Canada’s position on the debate among comparative administrative law theorists about whether a court should apply the principle of proportionality to adjudicate allegations that an administrative agency has unjustifiably infringed human rights. On first impression, it would appear that decades ago, the Supreme Court of Canada affirmed the use of proportionality on judicial review of administrative decisions that allegedly limit rights that are explicitly protected under the Canadian Charter of Rights and Freedoms. It would then appear to be an open question whether or not the Supreme Court should “unify” Canadian public law by extending proportionality to cases where it is alleged that a decision has negatively impacted individual interests that do not enjoy constitutional protection. I argue that this framing of the debate from a Canadian perspective wrongly assumes that, by applying proportionality to adjudicate alleged infringements of Charter rights, the Supreme Court has applied it to all cases where an administrative decision has allegedly infringed human rights. In reality, the Supreme Court has applied proportionality only to cases where a person seeks a constitutional remedy for a violation of her Charter rights, not to cases where a person seeks an administrative law remedy traditionally available at common law for a negative impact on her human rights that are protected at common law. I argue that only more recent Supreme Court decisions can be interpreted as “unifying” Canadian public law by applying proportionality where a person seeks a common law remedy. Moreover, these conclusions suggest that the older legal doctrines the Supreme Court has developed applying proportionality where a person seeks a constitutional remedy should be substantially reformed.

Keywords: Administrative Law, Constitutional Law, Canadian Charter of Rights and Freedoms

JEL Classification: K23

Suggested Citation

Sangiuliano, Anthony, The Dawn of Vavilov, the Twilight of Doré: Remedial Paths in Judicial Review of Rights-Affecting Administrative Decisions and the Unification of Canadian Public Law (August 5, 2021). Alberta Law Review, vol. 29, no. 3, 2022, Available at SSRN: https://ssrn.com/abstract=3900044

Anthony Sangiuliano (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

York University - Faculty of Liberal Arts & Professional Studies ( email )

Toronto, Ontario M3J 1P3
Canada

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