Correctness, Reasonableness and the Scope and Limits of Judicial Review: Administrative Law in 2024

I am giving a couple of ‘year in review’ talks in the coming weeks, to the CLEBC Administrative Law Conference in Vancouver on November 21, and the Canadian Bar Association’s Administrative Law, and Labour and Employment Law Conference in Ottawa on November 29.

I’ve posted the CLEBC version of the paper to SSRN, “Correctness, Reasonableness and the Scope and Limits of Judicial Review: Administrative Law in 2024“. This version is slightly chunkier, as another speaker (Horsman JA) will be addressing the Charter values issue in her contribution.

Between now and the conferences, I expect to update the paper to take account of the Supreme Court’s decisions (to be released this Friday) in the Auer and Transalta cases on standard of review of regulations.

For now, here is the introduction to the paper:

We are coming up on the fifth anniversary of the Supreme Court of Canada’s landmark decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653. At the five-year mark after the release of the predecessor to Vavilov (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190), Professor Mullan wrote an article about the issues left unresolved – the top 15!

No such article could be written today. The issues left unresolved by Vavilov are comparatively few. I identified five subsequent to the decision: internal standard of review, arbitration appeals, procedural fairness, Charter review and the extent to which reasonableness review is constitutionally entrenched. I later added the standard of review for regulations to the list.

Of these six, the Supreme Court has squarely dealt with procedural fairness (Law Society of Saskatchewan v. Abrametz, 2022 SCC 29); will imminently deal with the standard of review for regulations; and has decided cases addressing Charter review and the constitutional foundations of judicial review. It has only avoided resolving one of the outstanding issues – arbitration appeals – and has not offered any guidance on internal standard of review (though here it must be pointed out that the Supreme Court has never addressed this issue).

Accordingly, at the five-year mark, the question is more how faithful the Supreme Court has been to the Vavilov framework than how it needs to clarify or tweak the framework. In the last 12 months, the Court has made a number of significant decisions applying the Vavilov framework and addressing unresolved issues. Most of the focus of this ‘year in review’ paper will be on those.

In Part I, I will address reasonableness review, focusing on the decision in the Mandate Letters case and also addressing the most recent entry in the ‘Charter values’ ledger. In Part II, I will focus on correctness review, with two Charter case from the labour and employment field forming the core of my analysis. In Part III, I address some recent case law on justiciability, a pair of recent cases on the public-private divide in Canadian administrative law and a pair of others on what constitutes a ‘decision’ subject to judicial review. In Part IV, I turn my attention to constitutional issues, on the one hand the scope of the core constitutional minimum of judicial review post-Vavilov, on the other the scope of application of the Charter. And in Part V, I consider a number of regulatory issues that have arisen recently: discriminatory regulations and regulatory conduct (meetings with regulators, counsel in regulatory investigations and the desirability of transparency).

Download it here.

This content has been updated on November 6, 2024 at 21:37.