Canadian judicial review of administrative action is structured around two poles: substantive review and procedural review. On matters of substance, the administrative decision maker is generally accorded deference by the reviewing court. On matters of procedural fairness, the court accords no deference, and determines the “correct” process. The author argues that this distinction is indefensible and instead suggests that the current approach to procedural review should be replaced by the framework for substantive review.
The article begins by outlining the current status of the two poles of procedural and substantive judicial review. In doing so the author rejects the idea that institutional review represents a third pole, separate from procedural review. He then considers the different role that legislative intent plays in the two standards of review. Through the lens of the Supreme Court of Canada’s decision in Canada (Citizenship and Immigration) v Khosa, the author argues that the reasons supporting legislative intent’s heightened role in substantive review apply also to procedural review, therefore justifying the application of the reasonableness standard at both poles, in appropriate circumstances.
Evidence of the impending fusion of review is further demonstrated by reviewing two recent appellate court decisions where the reasonableness standard has been applied to traditional procedural issues. The author concludes that the universal application of the framework for substantive review is not only logistically desirable, but better respects the democratic principle as articulated through legislative intent.