This article argues that the Supreme Court of Canada’s recent opinion in Canada (Minister of Citizenship and Immigration) v Vavilov—the biggest administrative law case in a decade—pays insufficient attention to the constitutional dimensions of the case. Vavilov represents, therefore, a missed opportunity to engage deeply with issues of structural and administrative constitutionalism, issues that arise in countless public law cases, including in Toronto (City) v Ontario (Attorney General). This article argues that when Vavilov’s constitutional dimensions are brought to the surface, they reveal neglected possibilities in the Toronto (City) appeal and map some of the legal terrain on which the case could be received and should be analyzed. This article presents this argument in three parts. First, it provides an overview of Vavilov, pointing to some of its key legal developments and implications for administrative law. This part considers whether the majority reasons in Vavilov promote a thin approach to constitutionalist reasoning in administrative cases. Second, it considers two additional matters of constitutional structure that are at stake (but insufficiently addressed) in Vavilov: (a) the consequences of an inconsistency between legislation and unwritten constitutional principles; and (b) the significance of institutional design to understanding the role, relationships, and reform of public actors. Each of these matters is also at stake in Toronto (City) and this part shows why it is important to look to Vavilov when resolving them. This article concludes with a discussion of a third matter of constitutional structure and administrative constitutionalism that is implicated (but neglected) in Vavilov, and is of relevance to Toronto (City): the place and status of the administrative state within the Canadian constitutional order. Vavilov was a perfect opportunity to engage with decades of administrative law developments in order to address some of that neglect, but unfortunately, the opportunity was missed.
Glover Berger, Kate.
"The Missing Constitutionalism of Canada v Vavilov."
Journal of Law and Social Policy