Reasonably Unified: The Hidden Convergence of Standards of Review in the Wake of Baker

Abstract

In the aftermath of Baker v Canada (Minister of Citizenship and Immigration) in 1999, many scholars saw the potential for the fusion of process and substance in Canadian judicial review. As it transpired, Canadian administrative law doctrine hardened into a bifurcated approach, with procedural matters being reviewed on a correctness standard, and substantive review typically attracting reasonableness. This article argues that the formal standard of review (correctness) does not match the actual practice of procedural review, which in fact is extremely similar to the judicial method employed in conducting substantive review. The potential fusion signalled by Baker has thus not been as comprehensively abandoned as the standard of review jurisprudence might suggest. This article argues that such a fusion would be beneficial in terms of clarity for potential litigants and in terms of enhancing judicial fidelity to the rule of law.