Judicial Review of Discretionary Power in Canadian Administrative Law

Overview

Discretionary power lies at the heart of the modern administrative state. Parliaments and provincial legislatures cannot anticipate every factual contingency that arises in public governance. Consequently, statutory frameworks routinely delegate broad decision-making authority to ministers, specialized agencies, administrative tribunals, and municipal bodies, allowing them to balance competing policy objectives, evaluate technical evidence, and tailor outcomes to individual circumstances.

However, the grant of discretion is never unchecked. In Canadian and Quebec public law, no administrative official possesses unlimited or arbitrary authority. Every statutory power is constrained by the constitutional principle of the rule of law, the specific objectives of the enabling statute, and fundamental human rights. Judicial review of discretionary power maintains this delicate equilibrium, ensuring that public bodies exercise delegated authority within lawful boundaries without permitting reviewing courts to usurp administrative functions.

This study examines the legal principles governing the judicial review of discretionary power. It traces the conceptual transition from historic common law grounds of abuse of discretion to the modern unified standard of reasonableness established in Vavilov. It analyzes substantive limits such as improper purpose, irrelevant considerations, and fettering, alongside the constitutional framework governing discretionary decisions that affect rights under the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms.

Learning Objectives

• Distinguish discretionary administrative power from bound power across the statutory spectrum.
• Identify the substantive legal boundaries of discretion, including improper purpose, irrelevant considerations, and fettering through administrative policies.
• Apply the modern Vavilov reasonableness standard and the Doré Charter proportionality framework to review discretionary administrative choices.

The Nature and Spectrum of Discretionary Power

Defining Discretion: Choice Within Legal Boundaries

Statutory discretion exists whenever the legal system grants an administrative decision-maker the freedom to choose among several possible courses of action or inaction. In Baker v. Canada (Minister of Citizenship and Immigration) (1999), the Supreme Court adopted the classic formulation of Professor Kenneth Culp Davis: an administrative official possesses discretionary power whenever the effective limits on their authority leave them free to choose among various permissible modes of action.

Discretion recognizes that public administration requires specialized evaluation, policy judgment, and contextual flexibility. Rather than dictating a mechanical, uniform result, the legislature entrusts the administrative official with the responsibility of assessing competing interests and selecting the most appropriate solution. In statutory interpretation, the existence of discretion is determined using the modern contextual and purposive approach: the statutory text is read in grammatical context, in harmony with the legislative scheme and the overarching statutory objective.

Statutory language provides strong textual indicators of discretion. The federal Interpretation Act, s. 11, and Quebec Interpretation Act, s. 51, distinguish permissive and imperative language. However, the statutory context remains decisive: “may” does not authorize arbitrary refusal where the scheme requires action once its conditions are met.

Discretionary Power Versus Bound Power

To assess the scope of judicial review, administrative law contrasts discretionary authority with bound power. This distinction defines both the legal obligations of the decision-maker and the remedial powers of the reviewing court:

Under a bound power, the legislature leaves no latitude or subjective choice to the administrative body. Once the factual preconditions established by statute are satisfied, the official has an enforceable legal duty to perform a specific act. For example, if an applicant satisfies all statutory conditions for obtaining an ordinary certificate of birth or a standard building permit under unambiguous zoning regulations, the issuing registrar has no discretion to refuse. The registrar's duty is ministerial and non-discretionary. If the official refuses to act, mandamus may be available once its conditions are met; it does not follow automatically from a refusal. A duty to decide may coexist with discretion about the result.

Conversely, under a discretionary power, the presence of factual prerequisites does not mechanically dictate the ultimate outcome. Even where the statutory preconditions are met, the official possesses authority to weigh competing factors, balance public interests, and decide whether to grant relief, impose conditions, or decline the application. Because the choice belongs to the designated statutory body, a reviewing court will not substitute its own opinion for that of the official.

The Spectrum: Structured Discretion to Broad Policy Mandates

Discretion is not an undifferentiated, uniform concept; it operates along a broad continuum:

At one end of the spectrum lies structured discretion. In these regimes, the legislature confers choice but simultaneously erects statutory guideposts, enumerating specific mandatory criteria, factors, or conditions that the decision-maker must consider. For example, environmental licensing statutes often require the minister to evaluate environmental impact assessments, indigenous consultation reports, and municipal land-use plans before granting an authorization. The discretion is genuine, but its exercise is channelled and constrained by legislative criteria.

In the middle of the spectrum lie statutes employing subjective statutory standards. The legislature authorizes the administrative official to act if "in the opinion of the director," "where the commissioner is satisfied," or "if the board deems it advisable." Such formulations confer broader evaluative leeway, requiring the court to verify that the official's opinion was formed rationally and in good faith.

At the far end of the spectrum lies broad, open-ended discretion, often referred to as a highly discretionary power. Here, the legislature provides no itemized criteria, directing the official only by reference to general standards such as "the public interest," "public convenience and necessity," or "humanitarian and compassionate considerations." While such powers grant significant latitude, they remain subject to external legal constraints rooted in the purpose of the statute and the rule of law.

Constitutional Foundations and Substantive Limits

The Principle of the Rule of Law and Roncarelli v. Duplessis

The rule of law constrains the exercise of public power even where the enabling text gives a broad choice. The classic illustration is Roncarelli v. Duplessis, [1959] SCR 121. The Premier of Quebec caused the Liquor Commission to cancel a restaurateur’s permit because he had posted bail for fellow Jehovah’s Witnesses. The case concerned the historical liquor-licensing regime and Duplessis’s civil liability, not today’s licensing statute.

Rand J. explained that broad discretion must be exercised for the purposes for which it was conferred. Religious hostility and punishment for lawful assistance to others were foreign to those purposes. The decision remains an essential illustration of statutory purpose, good faith and the rule of law; it does not make every disputed policy choice unconstitutional. See Roncarelli, pp. 140–143; the passage at p. 140 is reproduced in the official judgment in Entreprises Sibeca, 2004 SCC 61, para. 21.

Statutory Purpose as an Inflexible Boundary

Every statutory grant of discretion is granted for a legislative purpose. That purpose forms an outer boundary that the decision-maker cannot cross. The legislature enacts statutes to achieve identifiable public policy goals, whether regulating highway transportation, protecting public health, conserving natural resources, or administering immigration controls.

When an administrative official exercises delegated choice, that choice must advance, or at least remain compatible with, the statutory purpose. An administrator cannot use a power granted for one purpose to accomplish an entirely different, unauthorized objective, even if the administrator subjectively believes that the secondary objective serves the general public welfare.

Determining the authentic statutory purpose requires thorough legislative interpretation. Courts examine the title, preamble, overall structure, and legislative history of the statute. Any administrative choice that subverts the statutory objective or pursues an alien goal constitutes an unlawful exercise of power subject to judicial invalidation.

Bad Faith and Malice in Public Administration

Public authority must be exercised in good faith. Bad faith includes intentional dishonesty, malice, corruption or the use of public power to punish a political opponent. In Quebec public law, it can also encompass conduct so seriously reckless or disconnected from the statutory mandate that good faith cannot reasonably be inferred; proof of personal intent to harm is not invariably necessary. Ordinary error or negligence is insufficient. See Finney v. Barreau du Québec, 2004 SCC 36, paras. 39–40, in its civil-liability and statutory-immunity setting.

The person alleging bad faith bears the burden of proving it, which may be discharged by inferences from the circumstances. The ordinary civil standard is a balance of probabilities, not a separate heightened standard. A finding supports judicial intervention; annulment and other relief remain governed by the applicable procedure and remedial rules. It does not automatically establish all the conditions for a damages award.

Traditional Grounds of Abuse of Discretion

Improper Purpose and Unauthorized Objectives

Historically, common law courts structured the review of discretionary action around the concept of abuse of discretion. The first major category of abuse is improper purpose, historically known in civil law and French public law as détournement de pouvoir.

An improper purpose occurs when an authority uses a power conferred for one specific public policy objective to pursue an extraneous objective not contemplated by the enabling statute. Even where the decision appears regular on its face, courts look beneath administrative forms to uncover the true underlying objective.

In Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 SCR 231, the majority invalidated municipal resolutions excluding Shell from municipal business because of its operations in apartheid South Africa. On its interpretation of the Vancouver Charter then in force, the resolutions pursued a purpose outside the city’s statutory mandate. This is a historical illustration of unauthorized purpose, not a categorical present-day prohibition on municipal ethical procurement: the powers and purposes of the applicable legislation must be examined. See Shell, majority reasons, pp. 272–280.

Irrelevant Considerations and Failure to Consider Relevant Factors

A valid exercise of discretion requires the decision-maker to base their judgment on facts and considerations that are legally relevant to the statutory mandate:

Taking into account irrelevant considerations can support a finding that an administrative decision is unreasonable, but does not automatically invalidate it. An irrelevant consideration is an extraneous factor that lies outside the scope of what the legislature intended the official to consider. Its significance to the actual decision must be assessed; the source recognizes that a decision may remain valid where it is not principally based on the irrelevant factors. In Roncarelli, the applicant's religious affiliations and bail activities were completely irrelevant to the statutory objectives of liquor regulation and public order in licensed establishments, and the cancellation pursued an unauthorized punitive purpose. The inquiry must address whether the extraneous factors undermine the decision's justification in its legal and factual context, with relief assessed separately (JurisClasseur, fasc. 12, paras. 22–30).

Conversely, a decision-maker cannot disregard factors that the statutory scheme expressly or implicitly requires. In Baker, the refusal concerned an exemption on humanitarian and compassionate grounds, not a refugee claim. The children’s best interests required serious attention and substantial weight without invariably determining the outcome. The unincorporated Convention on the Rights of the Child informed interpretation rather than directly creating a right to an exemption. See Baker, paras. 69–75.

Fettering Discretion: Rigid Policies and Administrative Guidelines

To promote institutional consistency, transparency, and efficiency across thousands of decentralized decisions, administrative agencies frequently publish policy manuals, operating directives, and administrative guidelines. These instruments are lawful and beneficial provided they structure discretion without eliminating it.

Fettering discretion occurs when a decision-maker treats non-binding administrative guidelines as mandatory, inflexible rules of law. The administrative law rule against fettering requires that every official entrusted with discretion maintain an open mind and remain willing to evaluate the exceptional merits of each individual case.

The leading principles governing policy guidelines were articulated in Maple Lodge Farms Ltd. v. Government of Canada (1982) and Thamotharem v. Canada (Minister of Citizenship and Immigration) (2007):

• An administrative agency may validly adopt non-binding policies to guide the exercise of statutory discretion, provided the guidelines are consistent with the enabling statute;
• The decision-maker may look to the policy for guidance and apply it in routine cases;
• The decision-maker must never apply the policy blindly or mechanically. They must consider whether the individual applicant presents exceptional circumstances warranting a departure from the policy;
• If an official refuses to consider arguments for an exemption on the basis that "the manual does not permit it," the official unlawfully fetters their statutory discretion.

Acting Under Dictation and Surrendering Authority

The legislature delegates discretion to a specific, named administrative official or body because of that entity's statutory position, institutional expertise, or operational responsibility. The Latin maxim delegatus non potest delegare expresses the principle that delegated authority cannot be transferred without legal authorization, which may be express or implied from the statutory scheme. Lawful delegation and ordinary departmental administration must be distinguished from surrender to an unauthorized outsider.

Acting under dictation occurs when the designated decision-maker surrenders their independent statutory judgment and decides a matter pursuant to the instruction, command, or order of an outside body or political superior. In Roncarelli, the liquor commission manager surrendered his statutory authority by acting under the direct order of the Premier. The manager failed to exercise the discretion assigned to the Commission. The historical label of jurisdictional error does not create a separate correctness category under Vavilov.

Similarly, an administrative tribunal cannot allow government ministers, department officials, or private interest groups to dictate how it resolves an individual dispute. While an agency may receive high-level policy directions from government where the enabling legislation expressly permits policy directives, it must make the final adjudicative determination independently.

Worked example: municipal permit refusal based on extraneous policy considerations

Factual Scenario

In this hypothetical, assume that the applicable statute and by-law impose a duty to issue the permit once every condition is met, with no residual discretion. A municipal council passes a resolution refusing to issue a commercial occupancy permit to an enterprise seeking to operate an authorized retail recycling depot. The municipal zoning by-law explicitly lists recycling depots as a permitted commercial use within the industrial zone. During council deliberations, elected officials openly state on the record that while the depot meets all technical zoning criteria, the permit is denied because council members want to encourage high-end commercial tech offices in the sector and dislodge low-margin recycling businesses to enhance municipal property tax assessments. The enterprise applies to the Superior Court for judicial review.

Worked example: rigid application of an administrative guideline without individual assessment

Factual Scenario

This fictional example uses invented statutory and policy wording, not an actual Quebec benefits threshold. A provincial welfare board administers an exceptional emergency relief fund designed to provide discretionary financial assistance to individuals facing catastrophic life crises. The enabling statute provides: "The director may grant emergency financial aid to any person in exceptional hardship where necessary to prevent severe distress." The board adopts internal administrative guidelines stating: "Emergency aid shall never be granted to individuals who own an automobile valued at more than $5,000."

An applicant suffering from advanced, severe physical disability owns an adapted specialized minivan equipped with a wheelchair lift, valued at $7,000. Without the vehicle, the applicant cannot travel to daily hospital medical treatments. The applicant applies for emergency assistance to cover sudden heating repairs during a severe winter. The administrative officer denies the application in a one-sentence letter: "Pursuant to departmental policy, your vehicle value exceeds $5,000; therefore, emergency aid is denied." The applicant seeks judicial review.

Modern Standard of Review: From Abuse of Discretion to Reasonableness

The Evolution from Common Law Grounds to Baker and Dunsmuir

For decades, Canadian courts reviewed discretionary decisions using a bifurcated approach. Adjudicative legal determinations were reviewed under administrative law standards of review, whereas discretionary choices were reviewed through the historic categories of abuse of discretion or the demanding English common law standard of Wednesbury unreasonableness, which permitted judicial intervention only if a decision was so absurd that no sensible authority could have made it.

This dual structure was dismantled in Baker v. Canada. Writing for the majority, Justice L'Heureux-Dubé brought discretionary decisions into the pragmatic and functional approach. In that historical framework, the applicable standard was selected contextually from the three standards then recognized: correctness, reasonableness simpliciter and patent unreasonableness. Highly discretionary decisions generally called for considerable deference (paras. 52–56).

In Dunsmuir v. New Brunswick (2008), the Supreme Court simplified the Canadian standard of review framework into two standards: correctness and reasonableness. The Court confirmed that discretionary decisions, which inherently involve policy choices and administrative balancing, fall squarely within the realm of reasonableness review.

Reasonableness Review under the Vavilov Framework

The Supreme Court fundamentally consolidated and clarified Canadian administrative law in Canada (Minister of Citizenship and Immigration) v. Vavilov (2019). The Court established a presumption of reasonableness for review of administrative merits, subject to legislated standards, questions within a statutory appeal, and the correctness categories required by the rule of law. Procedural fairness is a separate inquiry. See Vavilov, paras. 23–24, 36–37 and 53–57.

The traditional grounds remain useful indicators of illegality within modern reasonableness review. Their classification, particularly fettering, has not been expressed uniformly in every judgment. The practical question is whether the decision-maker exercised the authority actually conferred, within the governing legal and factual constraints; changing the label does not authorize an improper purpose or a rigid refusal to exercise discretion.

Vavilov establishes a culture of justification. Where reasons are required, review starts with them, read in context; it does not allow the court to invent a missing rationale. Where formal reasons are not required, the record and decision-making context inform review (paras. 77–81, 96–98, 136–138). A reasonable discretionary decision requires:

• Internal rationality and coherence: An intelligible chain of logical reasoning that connects the facts, statutory criteria, and ultimate disposition;
• Justification in light of legal and factual constraints: The decision-maker must operate within the real-world constraints governing the matter, including the enabling statute, statutory purpose, evidence on record, past administrative practice, and the submissions of the parties;
• Responsiveness to substantial arguments: The official must demonstrate genuine engagement with the core claims and evidence presented by the affected individual.

Reliance on irrelevant considerations, disregard of central evidence or rigid application of a guideline can reveal a serious failure of justification. Review concerns shortcomings central to the decision, not every minor misstep. A finding of unreasonableness and the availability and form of relief must be considered separately (Vavilov, paras. 100 and 139–142).

Discretionary Decisions Engaging Charter Rights: The Doré Proportionality Test

Under Doré v. Barreau du Québec, 2012 SCC 12, discretionary administrative choices limiting Charter protections are reviewed for reasonableness through proportionality. This differs from deciding whether the enabling legislation itself infringes the Charter, which is a constitutional-validity question reviewed for correctness. See Doré, paras. 35–39 and 55–58.

The inquiry identifies the relevant right or Charter value, the statutory objectives and the limitation, then examines whether the decision reflects proportionate balancing of those interests. It must consider reasonable alternatives that would better protect the Charter interest while achieving the statutory objectives, and weigh the severity of the limit against the statutory benefits. This is searching review, not a demand for the court’s preferred outcome. See Loyola, paras. 39–42, and Trinity Western, paras. 79–82.

In Commission scolaire francophone des Territoires du Nord-Ouest, 2023 SCC 31, paras. 64–73, the Court confirmed that relevant Charter values can require consideration even without infringement of the claimant’s Charter right. This does not create an independent substantive right from every asserted value. Conversely, constitutional questions about whether the Charter applies, the scope of a right and the governing constitutional framework require correctness in the circumstances addressed in York Region District School Board, 2024 SCC 22, paras. 62–71. Distinguish those questions from the Doré balance; not every Charter issue attracts the same standard.

For the Quebec Charter, identify the particular right, its scope and the applicable statutory justification and remedy provisions, including sections 9.1, 49 and 52 where relevant. Do not automatically equate its field of application or every discrimination claim with a Canadian Charter Doré challenge. See the Quebec Charter.

Justiciability and Remedial Principles

Non-Justiciable Executive Power and the Royal Prerogative

Justiciability concerns whether a dispute can be resolved by applying legal standards. A political subject or a prerogative source does not by itself exclude judicial review. Courts can determine whether the asserted prerogative exists, whether statute has displaced it, its legal limits and its compliance with constitutional norms.

Some decisions, such as the conferral of honours examined in Black v. Canada (Prime Minister) (2001), 54 OR (3d) 215 (CA), may lack a judicially manageable merits issue. That does not establish categorical immunity for all diplomacy, treaties or military decisions. Operation Dismantle v. The Queen, [1985] 1 SCR 441, recognized constitutional review of Cabinet action; the claim failed because the alleged causal link to the threatened harm could not be established.

In Canada (Prime Minister) v. Khadr, 2010 SCC 3, paras. 34–39 and 46–47, the Court reviewed foreign-affairs conduct for Charter compliance but chose declaratory relief rather than directing a particular diplomatic step. The existence of a legal issue and the appropriate remedy are distinct inquiries.

Judicial Deference and the Rule Against Substituting Discretion

The fundamental principle governing remedies in the review of discretionary power is that courts must respect the legislative allocation of authority. Parliament or the National Assembly chose to entrust the administrative body, not the superior court, with discretionary decision-making power.

Consequently, when a reviewing court concludes that an administrative decision is tainted by unreasonableness or abuse of discretion, the court does not substitute its own choice for that of the administrator. A judge sitting in judicial review cannot declare: "Because the minister acted unreasonably, I will now exercise the discretion myself and grant the licence."

Ordinarily, the court quashes the unlawful decision and remits the matter for a lawful redetermination. Remittal is not automatic: an inevitable outcome, delay, fairness, urgency and the efficient use of public resources may justify another disposition. This does not confer a general power to re-exercise administrative discretion. Mandamus can compel performance of a public duty, including a duty to decide, without dictating a discretionary result. An order directing a particular outcome requires the relevant legal conditions to be established. See Vavilov, paras. 139–142, and C.C.P., art. 529(3).

Practice Checklist

Statutory Authorization and Nature of the Power

• Locate the precise enabling statutory provision conferring authority.
• Determine whether the power is bound or discretionary by examining statutory phrasing ("may" versus "shall"), legislative scheme, and statutory context.
• Classify the degree of discretion along the spectrum: structured criteria, subjective evaluative standards, or broad open-ended policy mandates.
• Verify whether the decision-maker possesses statutory power to issue binding regulations or merely non-binding administrative guidelines.

Substantive Boundaries and Abuse of Discretion

• Identify the core purpose of the enabling legislation through modern statutory interpretation (Rizzo & Rizzo Shoes, para. 21).
• Determine whether the decision-maker pursued an unauthorized, collateral, or improper purpose (Shell Canada).
• Examine whether the administrator considered irrelevant factors, personal biases, or extraneous political pressures (Roncarelli).
• Check whether the official failed to consider mandatory statutory factors or relevant evidence (Baker).
• Investigate potential bad faith, personal malice, or corruption, ensuring that cogent evidence is available before pleading fraud or bad faith.

Policies, Guidelines, and Fettering

• Determine whether the decision-maker relied on an administrative policy, manual, or guideline.
• Verify whether the guideline is consistent with the enabling statute (Thamotharem, Maple Lodge Farms).
• Assess whether the administrator treated the guideline as an inflexible rule, refusing to consider exceptions or unique facts (unlawful fettering).
• Verify that the designated statutory official made the final determination independently, without acting under dictation from external superiors or political actors.

Reasonableness and the Vavilov Framework

• Identify the route and any legislated standard, statutory appeal or correctness exception before applying presumptive reasonableness to the discretionary merits.
• Where reasons are required, read them in context for coherence and justification; otherwise examine the record and decision-making context.
• Assess whether the decision conforms to legal and factual constraints, including the record, statutory text, and relevant jurisprudence.
• Check whether the reasons genuinely responded to the applicant's central arguments and substantial evidence.

Charter Considerations under Doré

• Identify the applicable Charter, the right or relevant value limited, and distinguish constitutional questions requiring correctness from the Doré balance.
• Assess whether the decision-maker identified the statutory objectives and conducted a proportionate balancing of those objectives against the affected Charter rights.
• Evaluate whether the measure interferes with the Charter right no more than is reasonably necessary.

Remedies and Litigation Strategy

• Check whether an internal administrative appeal or statutory appeal route is available before initiating judicial review.
• Seek the appropriate remedy: judicial annulment (certiorari) and remittal for reconsideration.
• Distinguish mandamus to compel a decision from an order dictating its result; check every remedial condition and whether remittal is appropriate.