Updating the Adjectival Law of Judicial Review of Administrative Action

I recently gave a talk to a group of clerks and judges at the Federal Court of Canada on the subject of updating the adjectival law of judicial review of administrative action. Here is the abstract:

The substantive law of judicial review of administrative action has grown in leaps and bounds in recent decades. However, the adjectival 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 adjectival law to bring it into line with the substantive law. I develop an analytical framework which courts ought to apply when updating the adjectival law. Courts should not automatically assume that the adjectival 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 adjectival law of judicial review of administrative action. I apply the analytical framework to four areas of adjectival 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 adjectival law of judicial review of administrative action by Canadian courts.

You can listen in the embedded player above or at this link. The audio might be a bit choppy (I edited it myself!), especially around the 5-6 minute mark where there were some technological difficulties, but the talk as a whole should be comprehensible.

The underlying paper is a work in progress. If you are interested in seeing a copy, please let me know.

This content has been updated on April 4, 2022 at 17:58.