CANDOUR IN JUDICIAL REVIEW PROCEEDINGS IN CANADA

Abstract

To date, Canada knows no ‘duty of candour’ in judicial review proceedings. Such a duty, requiring individuals and government alike to make full and timely disclosure of relevant material, has long existed in other jurisdictions. In this paper, I discuss the potential recognition of a duty of candour in Canadian administrative law. Indeed, I will argue that a principle of candour is already immanent in the Canadian law of judicial review of administrative action. This principle has various manifestations, which I will describe. Building on these manifestations, I will conclude by suggesting that the principle should be recognized by the courts, who should feel comfortable imposing disclosure requirements on administrative decision-makers in judicial review proceedings.

In Part I, I introduce the duty of candour. In Part II, I explain why candour matters by describing how judicial review operates on the basis of a limited record. In Part III, I outline some barriers to the production of a complete record (i.e., a record that would permit a reviewing court to determine whether the decision in question satisfies the standards of administrative law) before, in Part IV describing why the resultant situation is problematic. In Part V, however, I outline the ways in which Canadian courts have managed or circumvented these barriers. These judicial strategies lead me to consider that a principle of candour is already immanent in Canadian law, and I conclude by suggesting that this be made explicit.