Process, Substance, and Judicial Review's (A)symmetry

Abstract

This article addresses an apparent asymmetry in the law of judicial review of administrative action. While procedural review is explicitly concerned with the rights of people who find themselves subject to public administrative power, rights do not figure in the prevailing account of substantive review. Instead, courts have treated substantive review as an opportunity to promote the rule of law and give effect to legislative intent. The author argues that the asymmetry is merely apparent, and that especially following Canada (Minister of Citizenship and Immigration) v Vavilov, substantive review is best understood as a rights-oriented enterprise. More specifically, substantive review vindicates a right to justification according to law held by the legal subject of an administrative decision. This account makes the legal subject visible within the law of substantive review and allows us to see the law of judicial review more generally as an integrated domain concerned with administrative law rights.

Note on expert review: This article went through double-blind expert review, in compliance with the Alberta Law Review's typical peer review process. The other articles in this issue were subject to single-blind expert review.