The Rule of Law in Judicial Review Today

Forgotten Foundations Symposium, Supreme Court Law Review v 105

24 Pages Posted: 20 Dec 2021 Last revised: 1 Jun 2022

See all articles by Mark Mancini

Mark Mancini

University of British Columbia (UBC), Faculty of Law

Date Written: May 31, 2022

Abstract

In the Supreme Court's renewal of the standards of judicial review in Vavilov, it held that the legislature can stipulate the standard of review within the limits imposed by the rule of law. Otherwise, legislative stipulation of the standard of review must be respected by a court. The rule of law will demand a correctness standard of review in a number of situations, including on "constitutional questions." The question: what happens if a legislature purports to stipulate a standard of review of reasonableness on the categories of questions recognized by Vavilov as requiring correctness review, under the Rule of Law?

Answering this question requires an exploration of the Rule of Law in Canada's law of judicial review, especially in light of the Supreme Court's recent decision in City of Toronto. This paper argues that the unwritten principle of the Rule of Law described in Vavilov could embed a set of structural protections that prevents legislatures from insulating administrative action from certain forms of judicial review at certain strengths. In this sense, I contend that the Rule of Law is playing an important role in judicial review today, one with a certain definition. For its part, the recent City of Toronto case does not change this reality, and in fact, bolsters it.

The paper proceeds in three parts. Part I reviews the status of the unwritten Rule of Law principle in Canadian law against the backdrop of unwritten constitutional principles more generally, as recently confirmed in the City of Toronto case. Part II focuses on a group of cases that applies the Rule of Law, in conjunction with s.96 of the Constitution Act, 1867, to limit legislative action so as to protect the role of courts on judicial review. These cases include Vavilov itself, MacMillan Bloedel , and Crevier. Here, I outline how Vavilov extends MacMillan Bloedel and Crevier by using the Rule of Law principle to limit the range of options available to a legislature in setting the relationship between courts and administrative actors. Finally, Part III explores the specific doctrinal features of this Rule of Law principle in the context of the relationship between legislatures, the administrative state, and the courts, particularly as it relates to the standard of review. I bring together the first batch of cases addressed in Part I and the second batch of cases addressed in Part II to show how the general principle of the Rule of Law, in conjunction with s.96, can create specific doctrinal requirements on legislatures in the design of administrative actors: (1) there must be judicial review of administrative action; and (2) on constitutional questions, legislatures cannot weaken the intensity of judicial review of administrative action (ie, by mandating a reasonableness standard).. In this section, I note some ambiguities and counter-arguments that may limit the persuasiveness of my position, and some related extensions, particularly to the case of Doré.

Keywords: administrative law; judicial review; Rule of Law

JEL Classification: K40

Suggested Citation

Mancini, Mark, The Rule of Law in Judicial Review Today (May 31, 2022). Forgotten Foundations Symposium, Supreme Court Law Review v 105, Available at SSRN: https://ssrn.com/abstract=3986771

Mark Mancini (Contact Author)

University of British Columbia (UBC), Faculty of Law ( email )

1822 East Mall
Vancouver, British Columbia V6T 1Z1
Canada

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