The Dawn of Vavilov, The Twilight of Doré: Remedial Paths in Judicial Review of Rights-Affecting Administrative Decisions and The Unification of Canadian Public Law
Bibliographic record
Abstract
This article examines Canada’s position on the debate among comparative administrative law theorists about whether a court should apply the principle of proportionality to adjudicate allegations that an administrative agency has unjustifiably infringed human rights. On first impression, it would appear that decades ago, the Supreme Court of Canada affirmed the use of proportionality on judicial review of administrative decisions that allegedly limit rights that are explicitly protected under the Canadian Charter of Rights and Freedoms. It would then appear to be an open question whether or not the Supreme Court should “unify” Canadian public law by extending proportionality to cases where it is alleged that a decision has negatively impacted individual interests that do not enjoy constitutional protection. I argue that this framing of the debate from a Canadian perspective wrongly assumes that, by applying proportionality to adjudicate alleged infringements of Charter rights, the Supreme Court has applied it to all cases where an administrative decision has allegedly infringed human rights. In reality, the Supreme Court has applied proportionality only to cases where a person seeks a constitutional remedy for a violation of her Charter rights, not to cases where a person seeks an administrative law remedy traditionally available at common law for a negative impact on her human rights that are protected at common law. I argue that only more recent Supreme Court decisions can be interpreted as “unifying” Canadian public law by applying proportionality where a person seeks a common law remedy. Moreover, these conclusions suggest that the older legal doctrines the Supreme Court has developed applying proportionality where a person seeks a constitutional remedy should be substantially reformed.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.023 | 0.062 |
| Meta-epidemiology (narrow) | 0.000 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.003 | 0.002 |
| Science and technology studies | 0.019 | 0.041 |
| Scholarly communication | 0.020 | 0.011 |
| Open science | 0.003 | 0.005 |
| Research integrity | 0.011 | 0.011 |
| Insufficient payload (model declined to judge) | 0.006 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".