The Unfortunate Triumph of Form over Substance in Canadian Administrative Law

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Osgoode Hall Law Journal, ISSN: 0030-6185, Vol: 50, Issue: 2, Page: 317-357

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Daly, Paul
Judicial review of administrative acts; Canada. Supreme Court; Canada; Judicial review of administrative acts; Canada. Supreme Court; Canada; Administrative Law
article description
The standard of review analysis for judicial review of administrative action developed by the Supreme Court of Canada before Dunsmuir v New Brunswick had two important features. First, it provided a bulwark against interventionist judges, thereby protecting the autonomy of administrative decision makers and promoting deference. Second, it was substantive, rather than formal, and moved the focus of judicial review away from abstract concepts and towards the eccentricities of statutory schemes. However, in its more recent forays into the general principles of judicial review, the Court has threatened to reverse its deferential and substantive course by following a formalistic, categorical approach. In this article I describe the Court’s efforts to reshape the law of judicial review of administrative action, critique these efforts as favouring a formalistic approach to judicial review, and suggest that in its haste to simplify the law of judicial review, the Court has jeopardized the due deference that should be accorded to administrative decision makers: It has erroneously favoured form over substance.