Judicial Remedies for the 21st Century

This paper makes the case for a nuanced remedial judicial toolkit which is equipped to meet the challenges posed by 21st century judicial review. It does so primarily with reference to the decision of the Supreme Court of Canada in Attorney General (Ontario) v G [2020] SCC 38, where a majority of the Court purported to restate its approach to remedies in judicial review. Ultimately, the paper argues that judges, operating in certain contexts, and regulated by certain conditions, ought to enjoy a principled level of remedial discretion.

The paper is in three parts. Part I provides a brief overview of the development of the Court’s remedial jurisprudence. Part II critically analyses the decision in G. And finally, Part III will argue that, while there are considerable issues with some of the majority’s conclusions in G, a flexible, yet principled, approach to remedies is desirable in meeting the challenges posed by judicial review in the 21st century.