The Analytical Structure of Reasonableness Review
Mindful that Canadian administrative law may be in for one of its periodic paradigm shifts, and of a talk entitled “The Analytical Structure of Reasonableness Review” that I gave to the law clerks of the Federal Court and Federal Court of Appeal last month, I thought it would be opportune to post some thoughts on the structure of reasonableness review.
What I have put on SSRN is nothing original, but an extract from A Theory of Deference in Administrative Law: Basis, Application and Scope (Cambridge University Press, 2012) which still represents my thinking on the matter (though I have also written an extended treatment of unreasonable interpretations of law):
To describe an administrative decision as unreasonable tells us nothing of why the decision is unreasonable and provides no basis for judicial intervention. In this paper — an unedited extract from chapter 4 of A Theory of Deference in Administrative Law — I explain the reason and structure of reasonableness, or, in other words, the analytical structure of reasonableness review.
The case law is (almost) resolutely opaque. Mysterious references by reviewing courts to multiple factors, judgment, and balancing are commonplace. Nonetheless, from a comparative analysis of American, Canadian and English decisions, certain indicia or badges of unreasonableness can be identified, for instance, illogicality, disproportionality, inconsistency with statute, and unexplained changes in policy.
But establishing the presence of indicia or an indicium of unreasonableness will not automatically justify a reviewing court in quashing the impugned decision. The decision-maker may be able to explain how the decision is in fact justifiable, despite the presence of indicia of unreasonableness. However, once indicia of unreasonableness are identified, an onus, which might be described as a burden of justification, is then placed on the delegated decision-maker to demonstrate that the decision is not unreasonable, but justifiable. The burden is not placed on the decision-maker in a literal sense, in the way that the burden of proof might be shifted during a criminal or civil trial. Instead, the question for the reviewing court will be whether sufficient justification exists in the record, by reference to the cogency of the decision-maker’s reasons and reasoning and/or whether there was sufficient evidence before the decision-maker.
Flowing underneath the reason and structure of unreasonableness are other sources of inspiration, such as the principles of good administration and the rule of law, from which the indicia of unreasonableness can be drawn. There is a deep normative well in which judges can find inspiration in developing the analytical structure of reasonableness review.
Download it here.
This content has been updated on March 6, 2016 at 17:54.