The Constitutional Foundations of Judicial Review in Canada

Acting for the intervener Canadian Telecommunications Association, I filed a factum in the upcoming Yatar appeal at the Supreme Court of Canada this morning. Here is an extract about the constitutional foundations of judicial review. The factum will be available here in due course, along with all the others.

It is useful to set out some basic propositions about the constitutional foundations of judicial review in Canada. First, in Crevier v. Attorney General of Quebec,[1] this Honourable Court located the constitutional basis of judicial review in Canadian administrative law in the judicature provisions of the Constitution Act, 1867, such as ss. 96 and 101. In Dunsmuir, this Honourable Court cited Crevier for the proposition thatthe courts have a “constitutional duty to ensure that public authorities do not overreach their lawful powers”, a duty grounded in the judicature provisions.[2] And, in Vavilov, this Honourable Court again used the language of “constitutional duty” to explain that courts must apply the reasonableness standard “to ensure that administrative bodies have acted within the scope of their lawful authority”.[3] Lawfulness in this context means judicially enforced compliance with constitutional, statutory and common law limits (be they factual or legal in nature), with the superior courts thereby upholding the rule of law.[4]

Second, the holding in Crevier was that a statute insulating an administrative decision-maker from judicial review of jurisdictional matters “must be struck down as unconstitutional by reason of having the effect of constituting the tribunal a s. 96 court”.[5] This means that full privative clauses that immunize administrative decision-makers from review are unconstitutional.[6] But this holding was based on a broader principle, as Laskin CJ explained in Crevier: “[i]t cannot be left to a provincial statutory tribunal, in the face of s. 96, to determine the limits of its own jurisdiction without appeal or review”.[7] This broader principle means that any limitation on the ability of the superior courts to determine the bounds of an administrative decision-maker’s powers – whether those rest on interpretations of law or findings of fact – must be closely scrutinized.

Third, judicial review is a core power of the superior courts[8] – a “cornerstone” of our administrative law[9] – and cannot be performed by statutory bodies.[10] To permit an administrative decision-maker to determine the limits of its own powers is therefore to usurp a core function of the superior courts. These limits can be dependent on findings of fact (especially so-called jurisdictional facts)[11] or factually suffused determinations,[12] not simply interpretations of law.

Fourth, it has long been understood that this core power is designed “to see whether a limited jurisdiction has exceeded its bounds and has not acted in conformity with the law”.[13] This has often involved close scrutiny of factual matters[14] and affidavit evidence.[15] Indeed, even before this Honourable Court recognized the constitutional basis of judicial review in Canada, the ability to quash administrative decisions was considered to be fundamental: “[it] cannot be taken away without express words in the statute”.[16]

Fifth, historically, the availability of the prerogative writs of certiorari and prohibition – the primary means of controlling administrative decision-makers – was “unaffected by the existence of methods of appeal”.[17] Where tribunals were created with “limited rights of appeal” and “strong privative clauses”, the superior courts “generally followed the approach established in the seventeenth and eighteenth centuries, using the prerogative writs to review decisions regardless of privative clauses”.[18]

Sixth, in Vavilov, this Honourable Court emphasized the importance of simplicity and clarity in the law of judicial review.[19] Limiting judicial oversight to questions of “law” would require courts to rely on the inherently nebulous distinction between “law” and “fact”,[20] invite artful pleading[21] and encourage intellectual gymnastics (such as treating some kinds of factual error as ‘errors of law’[22]). None of this would further simplicity or clarity.

Judicial review has, of course, ebbed and flowed from 1867 to Crevier to now. The prerogative writs have been displaced by general principles of reasonableness and procedural fairness,[23] and most recently Vavilov displaced Dunsmuir as the framework for judicial review. But the core power of the superior courts – to ensure the lawfulness of administrative action – remains constant, on legal and factual matters alike: “Fine distinctions between ‘law’ and ‘fact’ risk preventing the courts from exercising [their] core competencies”.[24] The means of ensuring lawfulness have evolved over time but the end has remained the same: to keep limited jurisdictions within the factual and legal bounds of their authority.

[1] [1981] 2 SCR 220 [“Crevier”].

[2] Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [“Dunsmuir”], at para. 29, citing Crevier at p. 234.

[3] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653 [“Vavilov”], at para. 67.

[4] Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 SCR 326, at p. 360.

[5] Crevier, at p. 234.

[6] See e.g. Vavilov, at para. 24.

[7] Crevier,at p. 238.

[8] MacMillan Bloedel Ltd. v. Simpson, [1995] 4 SCR 725, at para. 34.

[9] Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 SCR 326, at p. 360.

[10] Séminaire de Chicoutimi v. La Cité de Chicoutimi, [1973] SCR 681.

[11] See generally Paul Daly, “Facticity: Judicial Review of Factual Error in Comparative Perspective” in Peter Cane et al eds., Oxford Handbook of Comparative Administrative Law (OUP, 2021), 901 [“Daly, “Facticity””], at pp. 905-907.

[12] See e.g. Northern Regional Health Authority v. Horrocks, 2021 SCC 42, at paras. 7-9.

[13] Boston v. Lelievre, 1864 CarswellQue 4, at para. 15.

[14] See e.g. Hespeler v. Shaw (1858), 16 UCQB 104, at paras. 8-9; Paul Daly, “Some Features of Pre-Confederation Judicial Review in Canada”, Administrative Law Matters, 23 August 2023.

[15] See e.g. Ex Parte Weade (1856), 8 NBR 307.

[16] Boston v. Lelievre, at paras. 13-14.

[17] Chantal Stebbings, Legal Foundations of Tribunals in Nineteenth Century England (CUP, 2007), at p. 269.

[18] Honourable Justice Malcolm Rowe and Michael Collins, “The History of Administrative Law” (2019), 34 Can. J. Admin. L. & Prac. 87, at p. 128.

[19] Paul Daly, A Culture of Justification: Vavilov and the Future of Administrative Law (UBC Press, 2023), pp. 95, 119, 152-153.

[20] Paul Daly, A Theory of Deference in Administrative Law: Basis, Application and Scope (CUP, 2012), pp. 238-243; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 SCR 748, at para. 35.

[21] Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, at para. 29.

[22] See e.g. E. v. Home Secretary, [2004] EWCA Civ 49.

[23] Paul Daly, Culture of Justification, pp. 17-25.

[24] Paul Daly, “Vavilov on the Road” (2022), 35 Can. J. Admin. L. & Prac. 1, at p. 20; see also Daly, Culture of Justification, at pp. 225-226.

This content has been updated on August 29, 2023 at 13:49.