My modest contribution is a chapter entitled "The Struggle for Deference in Canada". I am pleased to reproduce a heavily edited version of the text here. I've left out the discussion of CUPE, a case with which most readers will be familiar:
In the common law tradition, courts are at the apex of the interpretive hierarchy. Traditionally, their role has been to answer legal questions authoritatively. When inferior bodies, including administrative decision-makers,[i] commit jurisdictional errors the superior courts will intervene to correct them.
A deferential approach to judicial review requires judges, however, to be satisfied by an answer that is merely reasonable, even on questions of law.[ii] Deferring to administrative decision-makers’ interpretations of law requires judges to pull against the current of tradition. [iii] Intervention is justifiable only in extreme cases, not in ordinary ones. Administrative autonomy must be respected, tradition put to one side. A deferential approach requires judges to no longer think as lawyers traditionally have thought.
Since the 1970s, the Supreme Court of Canada has attempted to chart a deferential course to judicial review of interpretations of law. It has repeatedly been buffeted by traditionalist storms pushing it towards a more interventionist course. The concept of jurisdictional error, with its teaching that on some matters an administrative decision-maker must be correct or face judicial intervention, has usually been at the eye of the storm.[iv]
Deference before there was Deference: 1949-1979[v]
Deference can take several forms, one of which is the creation of exclusive spheres of authority.[vi] During judicial review’s twilight years, administrative decision-makers were free to make errors within jurisdiction. They had the ‘right to be wrong’.[vii] Twilight evokes darkness and in cases decided before the modern law of judicial review began to take shape courts were indeed unwilling to shine a light on certain areas of administrative decision-making.
However, jurisdictional limits were policed by the courts, sometimes jealously.[viii] In addition to its strong position on errors of law, the Supreme Court of Canada took an aggressive stance against erroneous findings of jurisdictional fact.[ix] Although the distinction between jurisdictional and non-jurisdictional error accorded deference within limits, it became clear that those limits would be so strictly policed by reviewing courts that deference was largely illusory. No real space was carved out for administrative decision-makers, whose autonomy ultimately depended on the good grace of the judges. Underneath the technical language of jurisdiction and error of law ran a current of hostility to administrative bodies.
And that technical language was capable of manipulation to achieve the end of undermining administrative decision-makers. The distinction between jurisdictional and non-jurisdictional errors of law and fact was “sufficiently vague – some would say meaningless – to offer a means of review of any erroneous finding of fact or law”.[x] Accordingly, a broad conception of jurisdictional error allowed reviewing courts to reduce the autonomy of administrative decision-makers and keep them within closely confined boundaries. Often, the Court would be “utterly submerged by a mistaken zeal to ‘correct’ the agency’s decision”.[xi] Commenting later on Anisminic and Metropolitan Life, Wilson J suggested that they reflected a failure to appreciate “(1) that [administrative decision-makers’] decisions are crafted by those with specialized knowledge of the subject matter before them; and (2) that there is value in limiting the extent to which their decisions may be frustrated through an expansive judicial review”.[xii]
A discussion of CUPE follows…
Where the legislature had created a specialized, expert tribunal and protected its decisions by way of a privative clause, courts could intervene only in extreme cases:
The composition and institutional structure of the agencies, together with the expertise and the wide range of procedural tools available to them, apparently persuaded the courts that these bodies had indeed been given the primary statutory responsibility for implementing and elaborating the legislative mandate within their area of regulation.[xiii]
This was the case in many fields other than labour law, which dominated the Court’s development of a deferential approach.
A New Approach: 1979-1998
Despite the eloquence of Dickson J’s formulation, the concept of jurisdictional error remained afloat. Dickson J’s decision in CUPE left the jurisdictional door ajar, though with a warning not to go through it. All Dickson J had done was to urge caution on the part of reviewing courts, an attitudinal shift. It remained true that “[n]o satisfactory test has ever been formulated for distinguishing findings which go to jurisdiction from findings which go to the merits”.[xiv] Where a question could be dressed in jurisdictional garb, intervention by a reviewing court would remain justifiable. And given the hold exerted over the lawyerly mind by traditionalist conceptions of jurisdictional error and the rule of law, the attitudinal shift urged by Dickson J would be insufficient to withstand interventionist tides.[xv]
It was necessary to formulate a test for determining whether or not a question was jurisdictional in nature. In Union des employés de service, local 298 v Bibeault,[xvi] Beetz J found a solution in the Court’s growing acceptance of the relative institutional competence of administrative decision-makers. The formal and substantive reasons for deference provided a way to answer the key question of legislative intent: did the legislature intend that the decision-maker, or the reviewing court, should take the decision at issue? To answer this question, Beetz J held, a reviewing court should look at “the wording of the enactment conferring jurisdiction on the administrative tribunal…the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal”.[xvii] Formal and substantive reasons for deference would be revealed by this analysis.
This “pragmatic and functional” analysis reached its logical conclusion in Pushpanathan v Canada (Minister of Citizenship and Immigration).[xviii] Bastarache J outlined a multi-factor test designed to require justification for judicial intervention in terms of legislative intent, “a bold judicial venture designed to infuse jurisdiction with meaningful normative content”.[xix] Only those questions the legislature intended to reserve to the courts should be treated as “jurisdictional”, to be determined by reference to four factors: the presence or absence of a privative clause or right of appeal;[xx] the relative expertise of the decision-maker; the purpose of the statutory framework; and the nature of the question at issue.
Jurisdictional error as a stand-alone concept was gutted.[xxi] “Jurisdiction” became “simply descriptive of a provision for which the proper standard of review is correctness, based upon the outcome of the pragmatic and functional analysis”:
In other words, “jurisdictional error” is simply an error on an issue with respect to which, according to the outcome of the pragmatic and functional analysis, the tribunal must make a correct interpretation and to which no deference will be shown.[xxii]
To say that a statutory provision was “jurisdictional” and required judicial review on a standard of “correctness” was simply to say that, on an application of the pragmatic and functional analysis, the question was one for the courts, not for the administrative decision-maker. Moreover, the “nature of the question” was just one factor amongst several. Categorizing a question as “legal” would not be sufficient to justify judicial intervention. Deference on questions of law seemed firmly anchored and sheltered by a multi-factor test from the rip-tide of jurisdictional error.
Interventionism Prevails on Jurisdictional and Legal Questions: 1998-2008
Despite the apparent triumph of the pragmatic and functional analysis, interventionist tides continued to drag judges back towards more familiar shores: “The temptation for judges to slip into old ways of thinking in which the formal concept of jurisdiction is an active legal norm rather than a passive legal outcome has sometimes been overwhelming”.[xxiii] Questions that would traditionally have been seen as jurisdictional had an almost magical capacity to attract judicial intervention, the multi-factor test notwithstanding; “jurisdictional error began to resurface but in a shadowy form”.[xxiv] Indeed, when the Court revised the judicial review framework in Dunsmuir v New Brunswick, “true” jurisdictional questions were said to attract a standard of review of correctness,[xxv] a tacit admission of the persistence of the concept of jurisdictional error standing alone.[xxvi]
The reader will not be surprised to learn that appeals often attracted the application of the correctness standard of review, at least for “pure questions of law”,[xxvii] especially where these had “significant precedential value”.[xxviii] Thus in Pushpanathan v Canada (Minister of Citizenship and Immigration), which would otherwise represent the apotheosis of the pragmatic and functional analysis, a question of international law was held to require the application of a standard of correctness.[xxix] Unsurprisingly, in Dunsmuir, the Court retained a category of questions of general law of central importance to the legal system which were to be answered by courts.[xxx]
The Battle for Reasonableness: 2008-
Implementing deference proved very difficult. The failure to do so satisfactorily led to reformulation of judicial review doctrine in Dunsmuir v New Brunswick,[xxxi] which in turn set the scene for the modern equivalent of previous battles for deference. Today the question is whether a revised conception of reasonableness will withstand the traditional interventionist forces of jurisdictional error and error of law.
The first storm involved the Court’s reference in Dunsmuir to “justification, intelligibility and transparency” as hallmarks of reasonableness. Lower courts began to pick apart fully reasoned decisions on the basis that the reasons given were lacked rigour and coherence. Interventionism was embraced.[xxxii] However, in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),[xxxiii] and a series of other decisions,[xxxiv] the Court clamped down. It noted how in Dunsmuir it had also counselled courts to have regard to reasons “which could be offered in support of a decision”.[xxxv] Accordingly, Dunsmuir’s reference to “justification, intelligibility and transparency” was not an invitation to reviewing courts to conduct a “line-by-line treasure hunt for error” in which it would pick apart the reasons offered to support a decision.[xxxvi] Subsequently, the Court specified that the question for the reviewing court, when examining the reasoning of an administrative decision-maker, was simply whether the court could “clearly understand” the reasons given.[xxxvii] That what the Court doubtless intended as a fresh breeze turned into perilously strong winds is further evidence of the power of interventionism.[xxxviii]
The second storm is potentially much more damaging. It involves the second prong of the reasonableness standard in Dunsmuir: that decisions must fall within a “range of possible, acceptable outcomes”. In determining the outer limits of the “range” it appears that the reasonableness of administrative interpretations of law is adjudged by reference to judicial principles of statutory interpretation, such that little separates modern reasonableness review from prior interventionist approaches.
Yet a willingness to assert judicial supremacy by using the principles of statutory interpretation to set the limits of the “range” of acceptable interpretive outcomes, or by identifying “clear” statutory provisions further underlines the power of traditionalist thinking. The very purpose of the principles of statutory interpretation is to help judges to find the best answers to legal questions. They are not designed to identify ambiguity; they are designed to resolve it. This approach requires courts to insist on the application of judicially crafted principles of interpretation to circumscribe the authority of administrative decision-makers, holding non-lawyers to legal standards and moving them to adopt an interpretive mindset that is not necessarily their own. Administrative decision-makers are taught by reviewing courts that it is better to think like lawyers, even if the legislature’s goal of empowering administrative decision-makers in the first place was to avoid having decisions made by people who think like lawyers.[xxxix]
In addition, declaring that “clear” provisions must be enforced by reviewing courts is very much like saying that “jurisdictional” provisions must be enforced by reviewing courts. The distinction between “clear” and “unclear” statutory provisions threatens to prove just as tenuous and malleable as the distinction between jurisdictional and non-jurisdictional error.[xl] Both distinctions have their origins deep in traditionalist waters.
The emergence of deference in Canadian administrative law was contingent on several factors. That the emergence of deference may well have been an accident of history would explain much of the doctrinal “ebb and flow” that Canadian administrative law has experienced over the past forty years.[l] An attitude championed by a cadre of true believers in deference must inevitably struggle for dominance with traditionalist common law thinking. It remains necessary “to provide antidotes to the propensity of courts to see themselves as experts on many issues of regulatory law and to downplay the capacities of tribunals in relation to those same questions”.[li] It is questionable whether the emerging presumption of reasonableness review will provide the necessary antidotes. For interventionist judges will more readily find clear answers to questions of statutory interpretation or narrowly confine the range of permissible decisions and they will no longer have to couch these conclusions in terms of “the general context and operation of a statute before applying it”.[lii] Requiring a cursory nod to the presumption of reasonableness review, unaccompanied by an appreciation of the relative institutional competence of the decision-maker, is unlikely to cause judges to go against the common law’s traditional flow.[liii]
The problem may well be what David Dyzenhaus termed the “paradox of the recognition of rationality”: “To recognise rationality is at the same time to claim a judicial role in supervising the administrative process to ensure that it meets standards of rationality, even if a sincere attempt is made to conceive those differently”.[liv] There is no doubting the sincerity of Canadian judges, past and present. But there is no doubting either that they have struggled to swim against the current. Given deference’s apparently unending struggle against tides of tradition and interventionism the closing words of F Scott Fitzgerald’s The Great Gatsby seem apt: So we beat on, boats against the current, borne back ceaselessly into the past.
[i] By “administrative decision-makers” I simply mean any body subject to the law of judicial review of administrative action, a purely functional definition which I trust serves the purposes of the present essay.
[ii] “[A] rational basis for a holding of law means that a reasonableness test rather than a rightness test of administrative determination is applied”. Hudson N Janisch, “Towards a More General Theory of Judicial Review in Administrative Law” (1989)53 Sask LR 327, 336.
[iii] See e.g. H Wade MacLauchlan, “Judicial Review of Administrative Interpretations of Law: How Much Formalism Can We Reasonably Bear?” (1986) 36 UTLJ 343, 367. And perhaps also the current of legal practice which emphasizes the primacy of lawyerly tools of analysis in the search for the best answers to legal questions (Luc Tremblay, « La norme de retenue judiciaire et les « erreurs de droit » en droit administratif : une erreur de droit? Au-delà du fondationalisme et du scepticisme » (1996), 52 Revue du Barreau 141) and the differing perspectives that judges and administrators bring to bear on the task of interpreting statutes (Roderick A Macdonald, “On the Administration of Statutes” (1987) 12 Queen’s LJ 488, 494-504).
[iv] As has been explained:
It is apparent that the execution of the legislative will may require the grant of power to a Minister or administrative agency. Herein lies the modern conceptual justification for non-constitutional review. It was designed to ensure that the sovereign will of Parliament was not transgressed by those to whom such grants of power were made. If authority had been delegated to a Minister to perform certain tasks upon certain conditions, the courts’ function was, in the event of challenge, to check that only those tasks were performed and only where the conditions were present. If there were defects on either level, the challenged decision would be declared null.
Paul P Craig, “Dicey: Unitary, Self-Correcting Democracy and Public Law” (1990) 106 LQR 105, 113. The “conditions” to which Craig refers may include but are not limited to errors of law. My focus in this essay will be on errors of law rather than errors of fact, a subject that has exercised the Court much less (though see Bell v Ontario Human Rights Commission  SCR 756, overruled in Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10,  1 SCR 364).
[v] The Supreme Court of Canada only became the final authority on matters of Canadian law shortly after 1949, when appeals to the Privy Council were abolished with prospective effect.
[vi] Murray Hunt, “Sovereignty’s Blight”, in Nicholas Bamforth and Peter Leyland eds., Public Law in a Multi-Layered Constitution (Hart, Oxford, 2003), 337, 346-347.
[viii] See e.g. Toronto Newspaper Guild v Globe Printing  2 SCR 18 (decision of the Ontario Labour Relations Board quashed for failure to take into account a relevant factor (whether individuals had resigned from a union between the application for certification and the certification hearing)); Labour Relations Board v Canada Safeway Ltd  2 SCR 46 (decision of the British Columbia Labour Relations Board upheld because it was correct (50, per Kerwin J though compare 54-55, per Rand J, upholding the Board because “its judgment can be said to be consonant with a rational appreciation of the situation presented…”)); The Queen v Leong Ba Chai  2 SCR 10 (writ of mandamus issued against a refusal to admit to Canada a child born out of wedlock because the child was in fact legitimate under the law of the child’s place of birth). There was also a series of cases in the 1950s in which exercises of discretion were struck down for improperly interfering with individuals’ rights of religion and freedom of association. See e.g. Smith and Rhuland Ltd. v The Queen  2 SCR 95 (refusal to certify a bargaining group because an official was a communist was an invalid exercise of discretion). In another line of cases, however, exercises of discretion which were characterized as “administrative” were beyond review as long as exercised in accordance with statutory requirements. See e.g. Calgary Power Ltd. and Halmrast v Copithorne  SCR 24; Moore v Minister of Manpower and Immigration  SCR 839.
[ix] Bell v Ontario Human Rights Commission  SCR 756 (order of prohibition granted against a board of inquiry from holding a public hearing into an allegation of racial discrimination by a landlord against a potential tenant on the basis that the premises was not a “self-contained dwelling unit” as required by the relevant statutory provisions).
[x] Peter W Hogg, “The Supreme Court of Canada and Administrative Law, 1949-1971” (1973) 11 Osgoode Hall LJ 187, 205. See similarly Paul C Weiler, “The ‘Slippery Slope’ of Judicial Intervention: the Supreme Court and Canadian Labour Relations 1950-1970” (1971) 9 Osgoode Hall LJ 1, 79.
[xi] Peter W Hogg, “The Supreme Court of Canada and Administrative Law, 1949-1971” (1973) 11 Osgoode Hall LJ 187, 205.
[xii] National Corn Growers Association v Canada (Import Tribunal)  2 SCR 1324, 1335. See Philip Bryden, “Justice Wilson’s Administrative Law Legacy: The National Corn Growers Decision and Judicial Review of Administrative Decision-Making” (2008) 41 Sup Ct LR (2d) 225.
[xiii] John M Evans, “Developments in Administrative Law: the 1984-85 Term” (1986) 8 SCLR (2d) 1, 27.
[xiv] S.A. de Smith et al, Judicial Review of Administrative Action 5th ed. (Sweet and Maxwell: London, 1995), 255. See similarly Louis Jaffe, “Judicial Review: Constitutional and Jurisdictional Fact” (1957), 70 Harv LR 953, 959. Indeed, citing Professor Craig, the Supreme Court of Canada recognized this in Blanchard v Control Data Canada Ltd  2 SCR 476, 491:
It is clear that all the “X” conditions can to some extent be categorized as prerequisites to the exercise of the “Y” powers. In my view, there is no logical reason for distinguishing between condition X1 and condition X2 and concluding that one is preliminary and the other is not. Thus, if all the “X” conditions are said to be preliminary, the administrative tribunal has lost the capacity to err: it can only exercise the power conferred on it by the law if it is right in its interpretation of what is meant by X1, X2 and X3. Ultimately, the distinction between an appeal and judicial review is somewhat fine. This distinction becomes non-existent if we also adopt the theory that the administrative tribunal cannot err as to the content of powers Y1, Y2 and Y3, since it is then exercising a power that the law does not confer on it.
[xv] As was said by one commentator after CUPE: “[T]his doctrinal approach to jurisdiction is inherently incapable of providing rational stopping points on the slippery slope towards judicial over-intervention. What is missing is any coherent theory of deference supporting functional reasons why courts should defer to administrative competence and expertise”. Hudson N Janisch, “Bora Laskin and Administrative Law: An Unfinished Journey” (1985) 35 UTLJ 557, 568.
[xvi]  2 SCR 1048.
[xvii]  2 SCR 1048, 1088.
[xviii]  1 SCR 982. In my view, Pushpanathan represents the logical conclusion of the pragmatic and functional analysis because it sidelines the concept of jurisdictional error as completely as possible. Two other very significant cases deserve a mention. In Domtar Inc v Quebec (Commission d’appel en matière de lésions professionnelles)  2 SCR 756, the Court stated that a conflict between two tribunals on the appropriate interpretation of a statutory provision is not an independent basis for judicial review. Both interpretations could co-exist, as long as both were reasonable. Less dramatically, in British Columbia Telephone Co. v Shaw Cable Systems (BC) Ltd  2 SCR 739, the Court performed an analysis of the constitutive legislation of two tribunals that had issued contradictory decisions in order to determine which ought to prevail, rather than undertake an independent analysis.
[xix] Mark D Walters, “Jurisdiction, Functionalism, and Constitutionalism in Canadian Administrative Law” in Christopher Forsyth, Mark Elliott, Swati Jhaveri, Michael Ramsden and Anne Scully-Hill eds., Effective Judicial Review: a Cornerstone of Good Governance (Oxford University Press, Oxford, 2010), 300, 307.
[xx] As for privative clauses, it soon became clear that truly privative language was not the only means of indicating a legislative intent to vest power in administrative decision-makers: “[a]lthough their preclusive effect may be less obvious than that of the true privative clause, other forms of clauses purporting to restrict review may also have privative effect”. United Brotherhood of Carpenters and Joiners of America, Local 579 v Bradco Construction  2 SCR 316, 333, per Sopinka J. See also Pasiechnyk v Saskatchewan (Workers’ Compensation Board)  2 SCR 890, 905.
[xxi] It still retained some vitality, in the sense that administrative decision-makers had to operate within boundaries set ultimately by reviewing courts, but these boundaries were largely to be marked out by reasonableness.
[xxii]  1 SCR 982, .
[xxiii] Mark D Walters, “Jurisdiction, Functionalism, and Constitutionalism in Canadian Administrative Law” in Christopher Forsyth, Mark Elliott, Swati Jhaveri, Michael Ramsden and Anne Scully-Hill eds., Effective Judicial Review: a Cornerstone of Good Governance (Oxford University Press, Oxford, 2010), 300, 307.
[xxiv] David J Mullan, “The McLachlin Court and the Public Law Standard of Review: a Major Irritant Soothed or a Significant Ongoing Problem?” in David A Wright and Adam M Dodek eds, Public Law at the McLachlin Court: the First Decade (Irwin Law, Toronto, 2011), 97.
[xxv] 2008 SCC 9,  1 SCR 190, : “Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires”. Courts were warned to take a “robust view” of jurisdiction and Dickson J’s admonition not to treat as jurisdictional questions which may be doubtfully so was recalled (ibid).
[xxvi] The Court has since suggested that it will cast the category off altogether (see Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association 2011 SCC 61,  3 SCR 654, ; McLean v British Columbia (Securities Commission), 2013 SCC 67, ) but has not yet undone Dunsmuir’s jurisprudential knot.
[xxvii] Canada (Deputy Minister of National Revenue) v Mattel Canada Inc 2001 SCC 36,  2 SCR 100, . See also Harvard College v Canada (Commissioner of Patents) 2002 SCC 76,  4 SCR 45, ; Canada (Commissioner of Competition) v Superior Propane Inc, 2001 FCA 104,  3 FC 185, ; Monsanto Canada Inc. v Ontario (Superintendent of Financial Services) 2004 SCC 54,  3 SCR 152, .
[xxviii] Harvard College v Canada (Commissioner of Patents) 2002 SCC 76,  4 SCR 45, .
[xxix]  1 SCR 982.
[xxx] 2008 SCC 9,  1 SCR 190, .
[xxxi] 2008 SCC 9,  1 SCR 190.
[xxxii] See e.g. Public Service Alliance of Canada v Canada Post Corp 2010 FCA 56.
[xxxiii] 2011 SCC 62,  3 SCR 708.
[xxxiv] See e.g. Public Service Alliance of Canada v Canada Post Corp 2011 SCC 57,  3 SCR 572 (adopting the dissenting reasons of Evans JA: 2010 FCA 56); Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd 2013 SCC 34.
[xxxv] 2008 SCC 9,  1 SCR 190, , citing David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M Taggart, ed, The Province of Administrative Law (Hart, 1997), 279, 286.
[xxxvi] Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd 2013 SCC 34, .
[xxxvii] Agraira v Canada (Public Safety and Emergency Preparedness) 2013 SCC 36, .
[xxxviii] A similar issue arose in National Corn Growers Association v Canada (Import Tribunal)  2 SCR 1324. Gonthier J, for a majority of the Court, took the view that a determination of whether the decision-maker’s conclusions were reasonable required reference to the reasons given by the decision-maker: “I do not understand how a conclusion can be reached as to the reasonableness of a tribunal’s interpretation of its enabling statute without considering the reasoning underlying it” (1383). Wilson J took a different view:
I note that my colleague has not simply considered whether the Tribunal’s interpretation of s. 42 of the Act is patently unreasonable. He has also considered whether the Tribunal may refer to the text of the General Agreement on Tariffs and Trade (GATT) when interpreting its constitutive legislation, whether there is anything in Canada’s international obligations that should have prevented the Tribunal from finding as it did (including the question whether the Tribunal could take notice of potential imports), and whether there was evidence to support a finding of material injury. With respect, it seems to me that it is not open to this Court to consider these additional issues (1348).
The debate was relatively less significant, in my view, because Gonthier J did not set out to circumscribe the power of the decision-maker to refer to, for example, international treaties. Gonthier J’s conclusion was that reference to these provisions might influence the reviewing court’s determination of the reasonableness of a decision, rather than resolve it conclusively, and thus did not undermine deference. He did not, contrary to Wilson J’s charge, “engage in the very kind of meticulous analysis of the Tribunal’s reasoning that CUPE made clear courts should not conduct” (1349). An interpretation of law is not a brute fact; it can only be understood in context, which, when the impugned interpretation has been produced by an administrative decision-maker, is one provided by the reasons given for the interpretation.
[xxxix] See also Harry W Arthurs, “Rethinking Administrative Law: a Slightly Dicey Business” (1979) 17 Osgoode Hall LJ 1, 20: “It is through the use of [common law] presumptions and interpretative rules, some of which are explicitly hostile to Parliament’s intention, that judicial revision of legislation takes place”.
[xl] Paul Daly, “Deference on Questions of Law” (2011) 74 MLR 694.
[xli] It has been said that Canada’s judicial review jurisprudence has been “inextricably linked to the labour law field”. David J Mullan, “Developments in Administrative Law: the 1983-84 Term” (1985) 7 SCLR (2d) 1, 8.
[xlii] See e.g. “Foreword” in John Willis ed., Canadian Boards at Work (Macmillan: Toronto, 1941), 71; “The McRuer Report: Lawyers’ Values and Civil Servants’ Values” (1968) 18 UTLJ 351.
[xliii] Paul C Weiler, “The ‘Slippery Slope’ of Judicial Intervention: the Supreme Court and Canadian Labour Relations 1950-1970” (1971) 9 Osgoode Hall LJ 1.
[xliv] Peter W Hogg, “The Supreme Court of Canada and Administrative Law, 1949-1971” (1973) 11 Osgoode Hall LJ 187.
[xlv] Harry W Arthurs, “Rethinking Administrative Law: a Slightly Dicey Business” (1979) 17 Osgoode Hall LJ 1.
[xlvi] “Certiorari to Labour Boards: The Apparent Futility of Privative Clauses” (1952) 30 Can BR 986
[xlvii] Hudson N Janisch, “Bora Laskin and Administrative Law: An Unfinished Journey” (1985) 35 UTLJ 557, 559.
[xlviii] Mark D Walters, “Jurisdiction, Functionalism, and Constitutionalism in Canadian Administrative Law” in Christopher Forsyth, Mark Elliott, Swati Jhaveri, Michael Ramsden and Anne Scully-Hill eds., Effective Judicial Review: a Cornerstone of Good Governance (Oxford University Press, Oxford, 2010), 300, 304.
[xlix] David J Mullan, “Willis v McRuer: a Long-Overdue Reply with the Possibility of a Penalty Shoot-out” (2005) 55 UTLJ 535, 557.
[l] Claire L’Heureux-Dubé, “The ‘Ebb’ and ‘Flow’ of Administrative Law on the ‘General Question of Law’”, in Michael Taggart ed., The Province of Administrative Law (Hart, Oxford, 1997), 308.
[li] David J Mullan, “Establishing the Standard of Review: the Struggle for Complexity?” (2004) 17 CJALP 59, 72. As has been said:
Judicial attitudes are likely to prove more important than words in shaping this area of the law, although when the legal principles that courts are to apply do not reflect their substantive concerns, confusion is always likely to arise.
John M Evans, “Developments in Administrative Law: the 1984-85 Term” (1986) 8 SCLR (2d) 1, 41.
[lii] Harry W Arthurs, “Rethinking Administrative Law: a Slightly Dicey Business” (1979) 17 Osgoode Hall LJ 1, 18.
[liii] I have argued that the categorical approach in fact requires reviewing courts to have regard to multiple factors in order to determine into which category a decision falls. Paul Daly, “The Unfortunate Triumph of Form over Substance in Canadian Administrative Law” (2012) 50 Osgoode Hall LJ 317. But a thoroughgoing presumption of reasonableness would render this initial step unnecessary. Reviewing courts would instead dive straight into the application of reasonableness without any appreciation of the waters into which they are venturing.
[liv] David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in Michael Taggart ed., The Province of Administrative Law (Hart, Oxford, 1997), 279, 289. A modest attempt to address the paradox is made in Paul Daly, “Unreasonable Interpretations of Law” (2014) Sup Ct LR (2d) (forthcoming).