Monday, 3 March 2014

Year in Review: the 6-Minute Administrative Lawyer

The Law Society of Upper Canada (to the uninitiated, that's the Ontario Bar Association) is holding its annual 6-Minute Administrative Lawyer conference next month. I'm doing the 'Year in Review' presentation. Here's the abstract:

I will discuss the leading Supreme Court of Canada (“the Court”) decisions of the one-year period bookended by the Six-Minute Administrative Lawyer conferences of 2013 and 2014. I have chosen those I consider of greatest importance and interest; and I have added an important case from the Quebec Court of Appeal. Yet again, questions about the standard of review analysis abound. For something apparently simplified in Dunsmuir v. New Brunswick, it provokes a great many questions. This year, questions about the scope and meaning of the framework established in Dunsmuir and subsequent cases were most prominent.  
I will proceed case-by-case rather than thematically, but I should draw your attention at the outset to five themes which recur. The first is the uncertain scope of the post-Dunsmuir framework: does it apply to ministerial interpretations of law; what about regulations issued by a minister or cabinet? The second is the continued failure of the Supreme Court of Canada to provide criteria to identify questions to which a standard of correctness applies. The third is the ability of decision-makers to bolster their decisions after judicial review proceedings have been commenced. The fourth is the revival and development of troublesome distinctions, between “law” and “policy”, “clear” and “unclear” statutory provisions, and “implied” and “express” components of decisions. The fifth is the unstable nature of a single reasonableness standard that has two distinct aspects, a process aspect and a substance aspect.
And if there is one unifying ‘meta’ theme it is the Court’s reluctance to engage in grand theorizing about the post-Dunsmuir framework. Yet without some grand theorizing, it is likely that questions about administrative-law doctrine will continue to abound.

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