Updating the Procedural Law of Judicial Review of Administrative Action

Abstract

The substantive law of judicial review of administrative action has grown in leaps and bounds in recent decades. However, the procedural law has lagged behind. On issues such as the content of the record on judicial review applications, the extent to which administrative decision-makers can participate in judicial reviews of their decisions, superior court review of federal prison decisions and tribunals’ capacity to reconsider their decisions, Canadian courts have recently come under pressure to update the procedural law to bring it into line with the substantive law. I develop a set of considerations which courts ought to keep in mind when updating the procedural law. Courts should not automatically assume that the procedural law of judicial review must move in lockstep with its substance. Wary of the dynamic relationship between procedure and substance in the common law tradition, mindful of constitutional fundamentals and sensitive to the need to develop the common law in an incremental fashion, consistent with those values that are immanent in the law, the judges should exercise caution in reshaping the procedural law of judicial review of administrative action. I apply the set of considerations to four areas of procedural law, concluding that Canadian courts have struggled with some issues – tribunal reconsideration and tribunal standing – but have done reasonably well on others – superior court jurisdiction over federal prisons and the content of the record. Indeed, the latter provides a model for the future development of the procedural law of judicial review of administrative action by Canadian courts.