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The Supreme Court of Canada has attempted several times to reform the way it approaches the issue of curial deference in judicial review. Each attempt however, has been in vain. This paper argues that the cause of this failure of each reform of the deference test proposed by the Supreme Court is not necessarily one of content, but instead one of structure. Each of the reforms retained a ‘multifactorial approach’ to the deference test, involving the weighing of several factors leading to a prescribed level of deference. Through critical analysis of the approach, and the postulation of an alternative, this paper argues that the multifactorial approach is what thwarts the Court’s intentions, and that it needs to abandon it should it wish to achieve clarity and coherence within judicial review.

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Inaug., dies, --Heidelberg. / Lebenslauf. "Schrifttum": p. 77-80.

Thèse--Université de Paris. / Appendices: I. Documents d'ordre générale (catalogue) II. Cas de juridiction contentieuse. III. Notices biographiques. IV. Pièces justificatives. "Sources": p. [5]-46.

This thesis surveys the last three decades of Canadian jurisprudence on the standards of review applicable to judicial review of substantive administrative decisions, with a focus on the guidance that is or is not forthcoming on the significance and practical application of reasonableness (deferential) review. My argument is that the doctrinal developments I survey trace out a burgeoning understanding of the purposes of substantive review which is at the same time a particular understanding of administrative state legitimacy. I refer to an account of legitimacy, or the legitimacy proper to law, that conceives of law as an aspirational project aimed at fostering relationships of reciprocity as between legal subjects and legal authorities. On this account (advanced in the work of David Dyzenhaus, and others), common law administrative law principles of procedural fairness and substantive reasonableness function as co-ordinate mechanisms for grounding administrative decision-making in a “culture of justification”.

The Supreme Court of Canada has attempted several times to reform the way it approaches the issue of curial deference in judicial review. Each attempt however, has been in vain. This paper argues that the cause of this failure of each reform of the deference test proposed by the Supreme Court is not necessarily one of content, but instead one of structure. Each of the reforms retained a ‘multifactorial approach’ to the deference test, involving the weighing of several factors leading to a prescribed level of deference. Through critical analysis of the approach, and the postulation of an alternative, this paper argues that the multifactorial approach is what thwarts the Court’s intentions, and that it needs to abandon it should it wish to achieve clarity and coherence within judicial review.

This thesis surveys the last three decades of Canadian jurisprudence on the standards of review applicable to judicial review of substantive administrative decisions, with a focus on the guidance that is or is not forthcoming on the significance and practical application of reasonableness (deferential) review. My argument is that the doctrinal developments I survey trace out a burgeoning understanding of the purposes of substantive review which is at the same time a particular understanding of administrative state legitimacy. I refer to an account of legitimacy, or the legitimacy proper to law, that conceives of law as an aspirational project aimed at fostering relationships of reciprocity as between legal subjects and legal authorities. On this account (advanced in the work of David Dyzenhaus, and others), common law administrative law principles of procedural fairness and substantive reasonableness function as co-ordinate mechanisms for grounding administrative decision-making in a “culture of justification”.