Vavilov and the Culture of Justification in Contemporary Administrative Law

Although this year’s Osgoode Constitutional Cases Conference was cancelled due to the COVID-19 pandemic, the annual issue of the Supreme Court Law Review containing papers from the Conference is going ahead. My paper is entitled “Vavilov and the Culture of Justification in Contemporary Administrative Law“. Here is the abstract:

The Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 represents a response to a pair of problems which have plagued Canadian administrative lawyers for decades: selecting the standard of review and applying the reasonableness standard. More broadly, however, the articulation of reasonableness review in Vavilov fits into a much larger picture of the seemingly inexorable rise – in Canada and elsewhere in the common law world – of a “culture of justification” in administrative law. Despite the culture of justification’s contemporary status, and a significant amount of scholarship on its benefits, what it actually consists of remains somewhat obscure. Adopting a descriptive and analytical approach, I seek to describe and analyze the culture of justification in contemporary administrative law, with particular reference to the majority reasons in Vavilov.

I suggest in Part I that the four strands of reasonableness review woven together by the majority in Vavilov – reasoned decision-making, responsiveness, demonstrated expertise and contextualism – provide an account of the culture of justification. In Part II, I expand on the discussion of Vavilov, a case concerned with substantive review – the assessment of the reasonableness of administrative decisions – and describe how the culture of justification has permeated other areas of administrative law, such as procedural fairness, justiciability and standing. I then venture, in Part III, to explain why the culture of justification has risen to such prominence in contemporary administrative law. Focusing on endogenous rather than exogenous factors I identify the development of general principles of administrative law and the expanded record of administrative decision-making as likely contributors, hypothesizing that expansive reason-giving and record generation have caused more exacting standards of reasonableness and fairness. Finally, in Part IV, I assess the future prospects of the culture of justification. Noting that a culture of authority had crept into substantive review in Canadian administrative law in the years leading up to Vavilov, I suggest that the majority’s approach represents a repudiation of claims to authority based on political legitimacy, expediency and technocratic expertise.

Finally, having bracketed normative questions at the outset, I return to address them in the Conclusion, arguing that there are good normative reasons to support a culture of justification in administrative law, grounded in the rule of law and democracy, two of the unwritten principles of the Canadian constitutional order.

Download it here.

I may have one last opportunity to tinker with the text before it goes to press so comments are very welcome!

This content has been updated on June 4, 2020 at 00:44.