The Supreme Court of Canada’s Administrative Law ‘Trilogy’: Some Further Reading

As regular readers know, the Supreme Court of Canada reserved judgment in its administrative law ‘trilogy‘ last December. The Court normally delivers its decisions within about six months but sometimes, as with the trilogy, takes longer.

While we are waiting, I thought it might be useful to flag two recent papers which have appeared in recent issues of the Canadian Journal of Administrative Law & Practice. Of course, the CJALP published the Administrative Law Matters/Double Aspect Dunsmuir Decade” symposium as a special issue; these two papers would have been worthy inclusions in that collection.

First, Jerry DeMarco, “Seeking Simplicity in Canada’s Complex World of Judicial Review” (2019) 32 CJALP 67. A prepublication version is here. And here is a taste:

It is well known that there are many different types of disputes that come beforetribunals every dayand, as noted above, there are hundreds of tribunals set up to resolve them. However, it is not just that there are many tribunals in Canada; there are many tribunal models as well. When a statute establishing a tribunal is being drafted, numerous design questions need to be addressed. According to my theoretical calculationsset out below, there are over 1000 possiblescenarios in respect of the nature of the tribunalproceedings and the types of questions they deal with (fact, law, or mixed). In theory, any of these scenarioscan come up before a court on appeal or on judicial reviewand the court must decide how to approach its role vis-à-vis the tribunal decision being challenged.

Second, Alexander Pless, “The Standard of Review as Public Reason” (2019) 32 CJALP 219. Here is the abstract:

This paper proposes a novel approach to judicial review. The central feature of this approach is that there would be no standard of review analysis to determine the applicable standard of review. The primary aim of this model is to articulate a justification for deference that is accessible and acceptable to the lay person. The requirements of transparency and justifiability to the subject are what John Rawls and others call ‘‘public reason.” The basic idea is to make judicial review an exercise of public reason that presents an intelligible and persuasive justification to the individual immediately subject to state power. Reviewing courts would state clearly the decision they would have taken were they the first-instance decisionmaker. If they disagree with the decision-maker, then determining whether they intervene or not depends on the nature of their disagreement. Relying on the wisdom of the pragmatic and functional factors, a reviewing court would look to the reasons the legislature entrusted the decision to an administrative decision-maker, and would then proceed to determine whether judicial intervention, if warranted, would undermine legislative choice in a manner that must be justified transparently to the affected party.

This content has been updated on October 18, 2019 at 02:09.