New Paper: The Scope and Meaning of Reasonableness Review After Vavilov

Along with Professors Gerard Kennedy (Alberta) and Mark Mancini (TRU), I am organizing a one-day conference in Edmonton on June 19 to mark the fifth anniversary of the Vavilov decision.

My contribution for the conference is “The Scope and Meaning of Reasonableness Review after Vavilov“:

This paper, written for the fifth anniversary of the Supreme Court of Canada’s seminal decision in Vavilov, revisits themes discussed in my 2015 article on “The Scope and Meaning of Reasonableness Review”. As in my 2015 paper, I will discuss the scope and meaning of reasonableness review. First, I tackle the scope of reasonableness review, highlighting the narrow scope of the correctness categories and the contested (though now resolved) role of context in selecting the standard of review before making an overall assessment of how the exceptions to reasonableness review based, respectively, on institutional design and the rule of law have functioned. Second, I address the meaning of reasonableness review. To begin with, I describe the general structure of reasonableness review in Vavilov: its general principles, the requirement to provide coherent reasons; the requirement to respect legal and factual constraints; and the tensions within reasonableness review. I then turn to the concept of ‘constraint’, which is central to Vavilovian reasonableness review, and assess the extent to which it successfully mediates the tensions within the framework. My analysis of the scope and meaning of reasonableness review allows me to assess the sociological and normative legitimacy of the Vavilov framework. These are, in my view, quite robust, which augurs well for the long-term durability of the framework. Vavilov has achieved acceptance in the legal community because the majority reasons skilfully navigate the fault lines in Canadian administrative law – form/substance, judicial supremacy/administrative supremacy and authority/reason. And Vavilov is a normatively attractive framework as well as it balances fundamental administrative law values.

Download it here!

As a taster, here is the introduction…

In 2015, I wrote an article in the Alberta Law Review entitled “The Scope and Meaning of Reasonableness Review”.[1] On the opening page, I asked, “To what does the standard of reasonableness apply and, when it does, what does it mean?” and lamented: “Unfortunately, we have had little concrete guidance from the Supreme Court of Canada in recent years”. There was uncertainty about the scope and meaning of reasonableness review, which I attributed to the fact that the Supreme Court was “not at present given to broad theorizing about the general principles of judicial review”.[2] With what seems like prescience in hindsight, I warned that the current period might represent the “calm before the storm”.[3]

Sure enough, a storm soon arrived, in the form of Vavilov.[4] It was not, though, a violent storm that razed everything in its path to the ground. Rather, it was like the mild thunderstorms familiar to those who live in Ottawa: increasingly oppressive heat followed by a short, sharp blast of wind, rain, lightning and thunder before a relieving, cool, damp period.

A decade on, five years after the Supreme Court thundered into the arena to clarify and simplify the law of judicial review, is an appropriate point at which to ask the question anew and to assess the concrete guidance the judges have provided.

As in my 2015 paper, I will discuss the scope and meaning of reasonableness review. First, I tackle the scope of reasonableness review, highlighting the narrow scope of the correctness categories and the contested (though now resolved) role of context in selecting the standard of review before making an overall assessment of how the exceptions to reasonableness review based, respectively, on institutional design and the rule of law have functioned. In general, my discussion is quite upbeat: although there are some incoherences in the Vavilov framework on the scope of reasonableness review, the framework is functioning satisfactorily.

Second, I address the meaning of reasonableness review. To begin with, I describe the general structure of reasonableness review in Vavilov: its general principles, the requirement to provide coherent reasons; the requirement to respect legal and factual constraints; and the tensions within reasonableness review. I then turn to the concept of ‘constraint’, which is central to Vavilovian reasonableness review, and assess the extent to which it successfully mediates the tensions within the framework. In particular, I am interested in whether, as Justices Abella and Karakatsanis charged in their concurrence in Vavilov, the majority reasons represent “a eulogy for deference”.[5] Again, I am quite upbeat, finding that Vavilov at the very least provides an appropriate structure within which to debate the proper application of the reasonableness standard, as it effectively delineates the respective roles of administrative decision-makers and reviewing courts, responding effectively to the concerns of the concurring judges.

Interestingly, if my diagnosis in 2015 was accurate, my prescription – more theory! – was not. In fact, it was the “retreat from theory” in Vavilov[6] that has ushered in a period of stability in Canadian administrative law. My sense is that Vavilov has broad acceptance in the legal community, much more so than its predecessor frameworks ever had. At the risk of putting too fine a point on it, Vavilov has ‘sociological legitimacy’. In other work, I have observed that Vavilov straddles three fault lines in Canadian administrative law: form/substance; judicial supremacy/administrative supremacy; and authority/reason.

By form, I mean the development of conceptual categories, into which decisions must be placed without regard to whether the achievement of the substantive ends intended by the development of the categories is actually furthered by placing a particular decision in a category. By substance, I mean paying attention to the eccentricities of the individual decision and the statutory provisions pursuant to which it was made.

…

[By judicial supremacy versus administrative supremacy, I mean that some] judges are hostile to administrative discretion, others much more open to it. Some seek to cut discretion down to the bare minimum, others are comfortable with deferring to the views of administrative decision-makers, especially those who can plausibly claim to be expert in their field of regulation.

…

The last fault line is between reason and authority. Professor Dyzenhaus has described this as the distinction between “deference as submission” and “deference as respect”.^[7] Some judges accord deference and apply deferential standards because there is some authoritative basis to do so. Others, though, require a reasoned basis to defer in the first place and to uphold a decision.[8]

By favouring form and substance, judicial supremacy and administrative supremacy, and authority and reason in different parts of the judgment, the majority in Vavilov succeeded in giving something to everyone. Hence its acceptability in the legal community. Below, I will add the observation that the Vavilov framework contains within it the resources with which to critique applications of the framework and thereby further safeguards its sociological legitimacy. There is no need to step outside the Vavilov framework and appeal to external principles or values because all of the tools of critique are already available within the framework.

Furthermore, when the Vavilov framework is observed from an external perspective, it has ‘normative legitimacy’ as well. The creation of normatively acceptable administrative law doctrine involves balancing the values of individual self-realization, good administration, electoral legitimacy and decisional autonomy.[9] I do not intend to belabor the point here, but Vavilov certainly strikes a balance between those values: reasonableness review puts the individual at the centre of the justification exercise; good administration is promoted by insisting on demonstrated expertise in exchange for deference; electoral legitimacy is furthered by insistence on the importance of legislative intent in identifying the standard of review and applying the reasonableness standard; and decisional autonomy is achieved by clear lines of delineation between the roles of courts and administrative decision-makers. With these characteristics, Vavilov’s normative legitimacy is secured: at the very least, it is difficult to say that the Vavilov framework is illegitimate. Therefore, its normative legitimacy reinforces its sociological legitimacy, helping to explain why the framework has proved more durable heretofore than its predecessors.

[1] “The Scope and Meaning of Reasonableness Review” (2015) 52 Alberta Law Review 799.

[2] Ibid., at p. 827.

[3] Ibid., at p. 827.

[4] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653.

[5] Vavilov, at para. 203.

[6] Megan Pfiffer, “What’s the Problem With Substantive Review?” (2024) 69 McGill Law Journal 325, at p. 352.

[7] “The Politics of Deference: Judicial Review and Democracy” in Michael Taggart, ed, The Province of Administrative Law (Oxford: Hart, 1997) 279.

[8] Paul Daly, A Culture of Justification: Vavilov and the Future of Administrative Law (University of British Columbia Press, Vancouver, 2023), chapter 2.

[9] Paul Daly, Understanding Administrative Law in the Common Law World (Oxford University Press, Oxford, 2021).

This content has been updated on June 5, 2025 at 14:54.