New Words for Old Problems: The Dunsmuir Era

Abstract

Just over a decade ago, with the introduction of a unified approach to substantive review, the Supreme Court of Canada significantly modified administrative law. More recently, the law on substantive review has been transformed once again through Dunsmuir v. New Brunswick, with some further elaboration in Canada (Minister of Citizenship and Immigration) v. Khosa. This article examines the latest changes in the jurisprudence. By way of background, Part I provides a brief overview of the unified approach inaugurated by Pushpanathan v. Canada (Minister of Citizenship and Immigration) and Baker v. Canada (Minister of Citizenship and Immigration). Part II describes the new framework for appeals and judicial review set out in Dunsmuir, as well as the amplification provided by Khosa. Part III considers the extent to which the majority of the court in Dunsmuir explicitly saw itself as charting a new path. Part IV suggests that at least two features of the new approach actually reflect a partial, nuanced return to aspects of the pre-Pushpanathan and Baker jurisprudence. Part V raises the question of whether, besides reworking the law on substantive review, Dunsmuir may also signal a closer link between substantive and procedural review.

Keywords: Dunsmuir, jurisprudence, substantive review, procedural review, administrative law