Reasonableness Review and the Interdependence of Process and Substance after Vavilov
DOI:
https://doi.org/10.29173/alr2845Abstract
This article examines the shared conceptual foundations and practical features of the law of substantive judicial review set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, and the law of procedural review established in Baker v. Canada (Minister of Citizenship and Immigration). The article begins by exploring conflicting notions of legality: one based in legislative authority that prioritizes correctness and tends to separate process from substance, and the other based in a culture of justification that recognizes the interdependency between process and substance. It concludes that the latter –– the “reason oriented” approach –– is the theoretical foundation underpinning both the Vavilov and Baker frameworks. Accordingly, it finds that these two frameworks are highly similar in terms of the contextual factors they prescribe, and that they both rely heavily on the relationship between the procedure used to reach a decision and its substantive outcome. The article concludes by suggesting that reasonableness is already the standard of review both applicable and applied to procedural matters.
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