Remedial Discretion in the Vavilov Era and the Theoretical Foundations of Judicial Review

Abstract

In Canada (Minister of Citizenship and Immigration) v Vavilov, the Supreme Court offered two guiding principles for selecting the appropriate remedy on judicial review. First, Vavilov contends the appropriate remedy should reflect the legislature’s choice to delegate matters to administrative decision-makers. Second, the Supreme Court states that the choice of remedy is multi-faceted and must pay regard to substantive reasons for deference, such as expertise and administrative efficiency. Regrettably, the Supreme Court in Vavilov did not directly state that the question of the appropriate remedy is to be guided by the culture of justification. However, in my view, the culture of justification is a strong theoretical foundation to explain the remedies that have emerged in the Vavilov era, including remitting the decision, direct substitution, indirect substitution and prospective remedies. This would have provided a more solid justification for the chosen intervention in recent cases, such as Mason v. Canada (Citizenship and Immigration), and Pepa v. Canada (Citizenship and Immigration).