Deference as informed respect: <i>Vavilov’s</i> implications for procedural review of legislative functions

This article articulates a theoretical and doctrinal basis to support the idea that Canadian courts should abandon their complete abstinence from reviewing the procedural fairness of delegated legislation (known as the ‘legislative exception’). While this is a longstanding demand, Canadian courts have been slow in embracing it until now. Vavilov, a Supreme Court of Canada case decided in 2019, opens the door for the substantive review of delegated legislation, and, hopefully, this will become a consolidated feature in the Canadian system soon. For a Vavilovian robust reasonableness review to be meaningful, however, procedural guarantees need to be in place. To support this claim, we argue that Vavilov builds on David Dyzenhaus’s influential concept of ‘deference as respect’ but rearticulates it as ‘deference as informed respect.’ This means that a deferential stance requires courts to have enough information in order to determine if a decision is justified. Procedural guarantees will provide information and assist courts in conducting a meaningful substantive review. Eliminating the legislative exception in this way will allow courts to address a significant gap in, and increase the coherence of, Canadian administrative law jurisprudence.