The Standard of Review for Questions of Procedural Fairness

In 2014, the Supreme Court of Canada affirmed in Mission Institution v Khela that the standard of review for administrative procedures is correctness. Despite the seeming finality of the decision, case law has demonstrated tensions and ambiguities on the matter. Tracing the origins of this standard, the author demonstrates that this recent call for correctness conflicts with previous calls for deference and with other aspects of contemporary administrative law doctrines. In addressing these conflicting decisions, the author argues that applying the correctness standard to all procedural questions is undesirable as a matter of principle and would lead to unnecessary confusion. The appropriate degree of scrutiny that courts should apply to agencies' procedural choices will vary according to a number of factors, including legislative wording, the general or statute-specific nature of the procedural protections invoked and the type of decision-making process at issue. The author argues that courts can better take these factors into account by subjecting agencies' procedural choices to a robust form of reasonableness review.