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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