New Paper: Struggling Towards Coherence in Canadian Administrative Law? Recent Cases on Standard of Review and Reasonableness

I have a new paper on Canadian administrative law, to be published shortly in the McGill Law Journal, entitled “Struggling Towards Coherence in Canadian Administrative Law? Recent Cases on Standard of Review and Reasonableness“. It is likely to be topical, in view of recent developments: the discussion in Wilson and the extra-judicial plea by Justice David Stratas for “doctrinal coherence and consistency” in judicial review of administrative action.

Notably, I argue for the adoption of an across-the-board reasonableness standard, explain how we can prevent it becoming an acontextual mush and describe how judges should conduct reasonableness review. Here is the abstract:

Although the Supreme Court of Canada’s seminal decision in Dunsmuir v. New Brunswick has now been cited more than 10,000 times by Canadian courts and administrative tribunals, many of its key features remain obscure.

In this paper, the author analyzes recent cases decided under the Dunsmuir framework with a view to determining where Canadian courts might usefully go next. The author’s argument is that the two important principles said to underlie the Dunsmuir framework – the rule of law and democracy – can provide guidance to courts in simplifying and clarifying judicial review of administrative action.

In Part I, the author explains how the relationship between Dunsmuir’s categorical approach and the contextual approach that it replaced is uncertain and causes significant confusion, but also points towards the potential utility of the two underlying principles in simplifying the law.

Application of the reasonableness standard of review is the focus of Part II, in which the author criticizes the general approach to reasonableness review in Canada, but suggests that the rule of law and democracy may assist in clarifying the law, by setting the boundaries of the “range” of reasonable outcomes and structuring the analytical framework for identifying unreasonable administrative decisions.

Finally, the author draws the strands of Parts I and II together by arguing for the adoption of a unified, context-sensitive reasonableness standard which is underpinned by the rule of law and democracy, providing clarity and simplicity to Canadian administrative law in a manner faithful to the Supreme Court of Canada’s decision in Dunsmuir.

Download it here. The final version is not due until the McGill editors return to duty on September 1, so comments are very welcome.

This content has been updated on August 10, 2016 at 14:43.