What is the Standard of Review for (Mixed) Constitutional Questions?

Forthcoming, University of British Columbia Law Review

19 Pages Posted: 3 Apr 2025

See all articles by Anthony Sangiuliano

Anthony Sangiuliano

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

Mark Friedman

York University - Osgoode Hall Law School

Date Written: April 02, 2025

Abstract

According to the framework for selecting the standard of review in civil appeals developed in Housen v Nikolaisen, questions of mixed fact and law are reviewed on a standard of palpable and overriding error. This framework applies to allegations that a statute is constitutionally invalid. However, in Société des casinos du Québec inc v Association des cadres de la Société des casinos du Québec, the Supreme Court held that when a statute is challenged as unconstitutional before an administrative tribunal, questions of mixed fact and law are subject to a correctness standard on judicial review as an exception to the general presumption of reasonableness. Société des casinos thus introduces a schism into public law doctrine on the standard of review for mixed constitutional questions. In this article, we expose this schism before exploring possible ways of repairing it. One proposal is to follow the lead of some provincial appellate courts and hold that Société des casinos impliedly overrules Housen such that mixed constitutional questions should be reviewed on a correctness standard. Another is to regard the claim about such questions from Société des casinos as per incuriam because it did not advert to Housen's claim to the contrary. Therefore, the approach from Housen prevails. We discuss advantages and disadvantages for each proposal, operating under the assumption that unity in standard of review doctrine is preferable to bifurcation. We ultimately remain neutral on which is superior and allow the reader to draw their own conclusions.

Keywords: Standard of review, Unity in Public Law, Mixed Questions of Fact and Law, Appellate Review, Administrative Review

Suggested Citation

Sangiuliano, Anthony and Friedman, Mark, What is the Standard of Review for (Mixed) Constitutional Questions? (April 02, 2025). Forthcoming, University of British Columbia Law Review, Available at SSRN: https://ssrn.com/abstract=5202941 or http://dx.doi.org/10.2139/ssrn.5202941

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

Mark Friedman

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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

Paper statistics

Downloads
24
Abstract Views
133
PlumX Metrics