Déjà Vu All Over Again? Reformulating Canadian Administrative Law

In the years from 2003 to 2008, a curious thing happened to Canadian administrative law: nothing. Between the landmark decisions of Dr. Q. and Ryan in 2003, which confirmed the primacy of the pragmatic and functional approach and its three standards of review (correctness, reasonableness and patent unreasonableness) and Dunsmuir in 2008, the Supreme Court of Canada said little or nothing of interest on standard of review. It avoided big questions as often as possible and minimized their importance when they proved unavoidable. Meanwhile, beneath the surface, the wider legal community was voicing increasingly loud concern about the complexity of administrative law.

History is repeating itself. I have chronicled the confusions in contemporary Canadian administrative law (see e.g. here) and have heard, from lawyers of all stripes, complaints about the current state of judicial review doctrine. Now, Justice David Stratas of the Federal Court of Appeal has posted on SSRN a paper,”The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency“, in which he predicts that a major reformulation is imminent and provides his suggestions as to the way forward:

Today, many accept that doctrinal incoherence and inconsistency plague the Canadian law of judicial review. The author attributes the incoherence and inconsistency to several fundamental questions that have not been settled in the Supreme Court’s jurisprudence. Then, referring to decided cases of the Federal Court of Appeal and other provincial courts of appeal, he suggests answers to these questions, drawing upon a vision of this area of law rooted in doctrine. The author argues that if his suggestions are implemented, the Canadian law of judicial review will achieve doctrinal clarity, consistency, unity and simplicity.

A judge posting a paper on SSRN is a first, I think, for Canada. Download it here. I hope to chime in with some suggestions of my own soon.

This content has been updated on February 18, 2016 at 09:40.