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The Unfortunate Triumph Of Form Over Substance In Canadian Administrative Law, Paul Daly

Osgoode Hall Law Journal

The standard of review analysis for judicial review of administrative action developed by the Supreme Court of Canada before Dunsmuir v New Brunswick had two important features. First, it provided a bulwark against interventionist judges, thereby protecting the autonomy of administrative decision makers and promoting deference. Second, it was substantive, rather than formal, and moved the focus of judicial review away from abstract concepts and towards the eccentricities of statutory schemes. However, in its more recent forays into the general principles of judicial review, the Court has threatened to reverse its deferential and substantive course by following a formalistic, categorical …