Selecting a Standard of Review: What Does This Entail Post-Vavilov?

At first glance, administrative law in Canada, where courts regularly defer to administrative decision-makers’ interpretations of law and judicial review of administrative action is organised around the concept of reasonableness, is very different to administrative law in England, where courts do not defer to administrative interpretations of law and prefer to conceive of the justification for judicial oversight of administrative action in terms of grounds of review and jurisdictional error. One might think, based on this first glance, that the differences must be attributable to deep-seated disagreement about the nature of judicial power and the appropriate allocation of interpretive authority between the branches of government. One might even suspect that such disagreement must rest on long-settled historical foundations. I will argue, however, that the difference between Canadian and English administrative law is best explained by relatively recent accidents of history. Indeed, I will suggest, a prolonged period of divergence may be coming to an end, with the Transatlantic rise of reasonableness review ushering in a new era of convergence. I will develop this argument by tracing the pattern of divergence and convergence in Canadian and English administrative law from the 1970s to the present day. From the common starting point identified in Part I, the two jurisdictions diverged dramatically between the 1970s and 2000s, as I will explain in Part II. Since then, the administrative law of the two jurisdiction has converged to some extent, as outlined in Part III. One of the implications of my argument is, as I discuss in Part IV, is that further convergence in the future is possible. Moreover, a corollary of this argument is that there is room for fruitful comparisons of English and Canadian administrative law. My message, to those who fear – for whatever reason – that “there be dragons”, is that they can safely venture forward in an Anglo-Canadian comparative administrative law endeavour. A reader interested in undertaking comparative analysis might well conclude that the nature of judicial power, the appropriate allocation of interpretive authority and long-settled historical foundations are substantially similar in both jurisdictions.

This article examines the scope and meaning of reasonableness review in Canadian administrative law, revisiting themes first discussed in the author’s 2015 article. It highlights the narrow scope of correctness review, the rejection of contextual analysis, and the adoption of “thin” conceptions of the rule of law and institutional design. The article examines the structure of reasonableness review, focusing on coherent reasoning and the central role of “constraint” in managing tensions within the framework. The framework from Canada (Minister of Citizenship and Immigration) v Vavilov has achieved sociological and normative legitimacy by balancing competing values in Canadian administrative law. Five years on, Vavilov has proven to be a pragmatic, consensus-building framework — valued more for its practical success than theoretical perfection.

Foreword vii Acknowledgments ix Contributors xi David Mullan: In Appreciation 1 GRANT HUSCROFT AND MICHAEL TAGGART Academe and the Courts: Professor Mullan's Contribution 9 BEVERLEY MCLACHLIN Learning Administrative Law from David Mullan: An Appreciation of Evans, Janisch, Mullan and Risk, Administrative Law: Cases, Text, and Materials 30 H. WADE MACLAUCHLAN and PHILIP BRYDEN The Uneasy Relationship between Independence and Appointments in Canadian Administrative Law 50 LORNE SOSSIN Where Do Tribunals Fit into the Australian System of Administration and Adjudication? 81 ROBIN CREYKE Administrative Law Developments in New Zealand as Seen through Immigration Law 125 K.J. KEITH Process and Substance in Judicial Review 162 PAUL CRAIG A 'Mullanian' Approach to the Doctrine of Legitimate Expectations: Real Questions and Promising Answers 185 GENEVIEVE CARTIER Roadblocks, Restraint, and Remedies: The Idea of Progress in Administrative Law 211 JANET MCLEAN The Codification of Administrative Law in Quebec 240 DENIS LEMIEUX Globalization, 'Local' Foreign Policy, and Administrative Law 259 MICHAEL TAGGART Judicial Review from CUPE to CUPE: Less Is Not Always More 296 GRANT HUSCROFT From Despair to Deference: Same Difference? 327 HUGH CORDER The Importance of Being Contextual: Deference South of the Border 351 ALFRED C. AMAN, JR. Principle and Pragmatism: Administrative Agencies' Jurisdiction over Constitutional Issues 377 JOHN M. EVANS 'Common Public Law in the Age of Legislation': David Mullan and the Unwritten Constitution 421 MARK WALTERS David Mullan's Theory of the Rule of (Common) Law 448 DAVID DYZENHAUS The Writings of David Mullan 485

Dunsmuir v. New Brunswick, 2008 SCC 9, set out to bring a greater degree of clarity to the law surrounding substantive judicial review than had previously been the case. However, the innovations made in Dunsmuir have not been successful in achieving this objective.That administrative action be "lawful, reasonable, and procedurally fair" is a cardinal gospel principle, stricto sensu. Dunsmuir v. New Brunswick, was in this sense a capstone case in Canadian administrative law, an epochal harbinger. It developed from infancy days of the pre-existing Diceyan formalistic era, underscoring formal trifurcation of powers between the judiciary, legislature and executive, to evolve into the teen-hood of 'pragmatic and functional era'. This focused at contextualized meshing of regulation, policy objectives and practicalities. This graduated into a youthful stage during 2002 to 2008, (affectionately referred to as the dysfunctional period) characterized by weariness and frustration to finally culminate into a mature adulthood, fondly called the categorical approach era. The four-factor approach, not been entirely jettisoned though, was marginalized in favor of a categorical approach. This paper situates Dunsmuir into a historical continuum in Part-I and II to assess the degree of possible clarity afforded to the law surrounding substantive judicial review than had previously been the case. This assesses the impact of standard of review on a range of administrative decisions indicating a perceptible shift from correctness to reasonableness in areas, hitherto not accorded deferential treatment by the Supreme Court. Part III focuses on failure of Supreme Court to apply the reasonableness standard in a consistent and principled fashion, notwithstanding the promise of "principled framework that is more coherent and workable." Part IV, underscores that the "innovations made in Dunsmuir has not been successful in achieving this objective of clarity on law surrounding substantive judicial review than before" and that Court's post-Dunsmuir approach to reasonableness review is both disappointing and confusing. I have argued that this shortcomings can be remedied by articulating a contextual approach on the lines of reasoning in Baker v Canada (Minister of Citizenship and Immigration), contextualizing the values of "justifiability, transparency and intelligibility" through judicial review in a particular administrative context.

Looking at Swiss administrative law from a Quebec perspective, this paper outlines some aspects of the Swiss system that provide useful models or references for the discussion and resolution of current issues in Canadian and Quebec administrative law. These issues are identified as (1) the proliferation of independent administrative agencies, and the means to control or at least systematize the growth of such structures ; (2) the desirability and feasibility of enacting general standards of procedure for administrative action ; (3) the simplification of remedies in the field of judicial review of administrative action ; (4) the desirability and feasibility of allocating judicial review powers to a specialized court, either within or outside the Superior Court ; and (5) the desirability and form of a procedure allowing for political intervention in the decision-making process of independent agencies. In the light of these issues, the paper describes the allocation of review functions between administrative and judicial bodies in Swiss federal law. The structure and activity of the Swiss Federal Court (Tribunal fédéral), and especially of the division of the Court that deals with most administrative law cases, are outlined in some more detail. A short historical sketch leads to a discussion of the corresponding features of the law in some of the cantons, and to consideration of the special position given to social security matters in the general scheme of administrative law. The paper then focusses on administrative action itself, commenting on the most significant provisions in the Federal Administrative Procedure Act (Loi fédérale sur la procédure administrative) of 1968. Special attention is paid to the process of review within the administration, up to the level of the federal cabinet (Conseil fédéral). Corresponding provisions in the law of some of the cantons are also briefly discussed. The description of the federal review process is then completed by an outline of the procedure for judicial review of administrative action by the Federal Court (Recours de droit administrative). Finally, notice is again taken of the special position of social security as regards administrative procedure. The paper draws attention, in its concluding part, to the most interesting insights provided by Swiss law into the current problems of Canadian and Quebec administrative law. The growth of administrative tribunals has been brought under control by structural arrangements, especially in the field of social security. The introduction of general standards of procedure has brought greater uniformity and clarity, has emphasized the unity of administrative process including the review phase before administrative or judicial authorities, and has strenghtened the rule of law over government action. The existence of a single procedure to invoke judicial review eases access to the court. While in many cases review by the court is excluded, these exclusions have to be specific, and leave full opportunity for review within the administration, with adequate safeguards provided by the Administrative Procedure Act. Specialization occurs within the Federal Court, and does not involve a rigid separation between judges applying administrative law and judges applying other branches of the law, as in France or Germany. Finally, ultimate political control over certain types of decisions is admitted as a part of life in Swiss federal law, but is at the same time subjected to a quasi-judicial procedure which makes it an acknowledged source of administrative justice.

Government Accountability Sources and Materials: Australian Administrative Law is designed to accompany the third edition of the textbook Government Accountability: Australian Administrative Law. Following the accessible structure of Government Accountability, this book guides students through the real-world operation of administrative law and demonstrates how multiple doctrines and mechanisms can interact in a single situation. Extracts from primary materials – including cases and legislation – provide a clear account of the facts, issues and statutory provisions considered by the courts, and are accompanied by relevant commentary. This edition has been thoroughly updated to include recent significant cases such as Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021), Hocking v Director-General of the National Archives of Australia (2020) and MZAPC v Minister for Immigration and Border Protection (2021). Written by a team of experts, Government Accountability Sources and Materials: Australian Administrative Law is a fundamental and student-friendly introduction to administrative law in practice.

Government Accountability Sources and Materials: Australian Administrative Law is designed to accompany the third edition of the textbook Government Accountability: Australian Administrative Law. Following the accessible structure of Government Accountability, this book guides students through the real-world operation of administrative law and demonstrates how multiple doctrines and mechanisms can interact in a single situation. Extracts from primary materials – including cases and legislation – provide a clear account of the facts, issues and statutory provisions considered by the courts, and are accompanied by relevant commentary. This edition has been thoroughly updated to include recent significant cases such as Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021), Hocking v Director-General of the National Archives of Australia (2020) and MZAPC v Minister for Immigration and Border Protection (2021). Written by a team of experts, Government Accountability Sources and Materials: Australian Administrative Law is a fundamental and student-friendly introduction to administrative law in practice.

Government Accountability Sources and Materials: Australian Administrative Law is designed to accompany the third edition of the textbook Government Accountability: Australian Administrative Law. Following the accessible structure of Government Accountability, this book guides students through the real-world operation of administrative law and demonstrates how multiple doctrines and mechanisms can interact in a single situation. Extracts from primary materials – including cases and legislation – provide a clear account of the facts, issues and statutory provisions considered by the courts, and are accompanied by relevant commentary. This edition has been thoroughly updated to include recent significant cases such as Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021), Hocking v Director-General of the National Archives of Australia (2020) and MZAPC v Minister for Immigration and Border Protection (2021). Written by a team of experts, Government Accountability Sources and Materials: Australian Administrative Law is a fundamental and student-friendly introduction to administrative law in practice.

Government Accountability Sources and Materials: Australian Administrative Law is designed to accompany the third edition of the textbook Government Accountability: Australian Administrative Law. Following the accessible structure of Government Accountability, this book guides students through the real-world operation of administrative law and demonstrates how multiple doctrines and mechanisms can interact in a single situation. Extracts from primary materials – including cases and legislation – provide a clear account of the facts, issues and statutory provisions considered by the courts, and are accompanied by relevant commentary. This edition has been thoroughly updated to include recent significant cases such as Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021), Hocking v Director-General of the National Archives of Australia (2020) and MZAPC v Minister for Immigration and Border Protection (2021). Written by a team of experts, Government Accountability Sources and Materials: Australian Administrative Law is a fundamental and student-friendly introduction to administrative law in practice.

Government Accountability Sources and Materials: Australian Administrative Law is designed to accompany the third edition of the textbook Government Accountability: Australian Administrative Law. Following the accessible structure of Government Accountability, this book guides students through the real-world operation of administrative law and demonstrates how multiple doctrines and mechanisms can interact in a single situation. Extracts from primary materials – including cases and legislation – provide a clear account of the facts, issues and statutory provisions considered by the courts, and are accompanied by relevant commentary. This edition has been thoroughly updated to include recent significant cases such as Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021), Hocking v Director-General of the National Archives of Australia (2020) and MZAPC v Minister for Immigration and Border Protection (2021). Written by a team of experts, Government Accountability Sources and Materials: Australian Administrative Law is a fundamental and student-friendly introduction to administrative law in practice.

Government Accountability Sources and Materials: Australian Administrative Law is designed to accompany the third edition of the textbook Government Accountability: Australian Administrative Law. Following the accessible structure of Government Accountability, this book guides students through the real-world operation of administrative law and demonstrates how multiple doctrines and mechanisms can interact in a single situation. Extracts from primary materials – including cases and legislation – provide a clear account of the facts, issues and statutory provisions considered by the courts, and are accompanied by relevant commentary. This edition has been thoroughly updated to include recent significant cases such as Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021), Hocking v Director-General of the National Archives of Australia (2020) and MZAPC v Minister for Immigration and Border Protection (2021). Written by a team of experts, Government Accountability Sources and Materials: Australian Administrative Law is a fundamental and student-friendly introduction to administrative law in practice.

Government Accountability Sources and Materials: Australian Administrative Law is designed to accompany the third edition of the textbook Government Accountability: Australian Administrative Law. Following the accessible structure of Government Accountability, this book guides students through the real-world operation of administrative law and demonstrates how multiple doctrines and mechanisms can interact in a single situation. Extracts from primary materials – including cases and legislation – provide a clear account of the facts, issues and statutory provisions considered by the courts, and are accompanied by relevant commentary. This edition has been thoroughly updated to include recent significant cases such as Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021), Hocking v Director-General of the National Archives of Australia (2020) and MZAPC v Minister for Immigration and Border Protection (2021). Written by a team of experts, Government Accountability Sources and Materials: Australian Administrative Law is a fundamental and student-friendly introduction to administrative law in practice.

Government Accountability Sources and Materials: Australian Administrative Law is designed to accompany the third edition of the textbook Government Accountability: Australian Administrative Law. Following the accessible structure of Government Accountability, this book guides students through the real-world operation of administrative law and demonstrates how multiple doctrines and mechanisms can interact in a single situation. Extracts from primary materials – including cases and legislation – provide a clear account of the facts, issues and statutory provisions considered by the courts, and are accompanied by relevant commentary. This edition has been thoroughly updated to include recent significant cases such as Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021), Hocking v Director-General of the National Archives of Australia (2020) and MZAPC v Minister for Immigration and Border Protection (2021). Written by a team of experts, Government Accountability Sources and Materials: Australian Administrative Law is a fundamental and student-friendly introduction to administrative law in practice.

Government Accountability Sources and Materials: Australian Administrative Law is designed to accompany the third edition of the textbook Government Accountability: Australian Administrative Law. Following the accessible structure of Government Accountability, this book guides students through the real-world operation of administrative law and demonstrates how multiple doctrines and mechanisms can interact in a single situation. Extracts from primary materials – including cases and legislation – provide a clear account of the facts, issues and statutory provisions considered by the courts, and are accompanied by relevant commentary. This edition has been thoroughly updated to include recent significant cases such as Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021), Hocking v Director-General of the National Archives of Australia (2020) and MZAPC v Minister for Immigration and Border Protection (2021). Written by a team of experts, Government Accountability Sources and Materials: Australian Administrative Law is a fundamental and student-friendly introduction to administrative law in practice.

Government Accountability Sources and Materials: Australian Administrative Law is designed to accompany the third edition of the textbook Government Accountability: Australian Administrative Law. Following the accessible structure of Government Accountability, this book guides students through the real-world operation of administrative law and demonstrates how multiple doctrines and mechanisms can interact in a single situation. Extracts from primary materials – including cases and legislation – provide a clear account of the facts, issues and statutory provisions considered by the courts, and are accompanied by relevant commentary. This edition has been thoroughly updated to include recent significant cases such as Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021), Hocking v Director-General of the National Archives of Australia (2020) and MZAPC v Minister for Immigration and Border Protection (2021). Written by a team of experts, Government Accountability Sources and Materials: Australian Administrative Law is a fundamental and student-friendly introduction to administrative law in practice.