Deference and reasonableness since Dunsmuir
The author addresses two perennial problems in Canadian administrative law: the choice of a standard of review and the inconsistent application of the reasonableness standard. With these problems in mind, the Supreme Court of Canada in Dunsmuir set out to establish a 'principled framework that...
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ftunivalberta:oai:era.library.ualberta.ca:aaed932d-9d9d-4450-ac4e-de63e178e829 2023-05-15T17:22:38+02:00 Deference and reasonableness since Dunsmuir Lewans, Matthew 2012 https://era.library.ualberta.ca/items/aaed932d-9d9d-4450-ac4e-de63e178e829 https://doi.org/10.7939/R3QR4P52Z English eng https://era.library.ualberta.ca/items/aaed932d-9d9d-4450-ac4e-de63e178e829 doi:10.7939/R3QR4P52Z © 2012 M. Lewans and the Queen's Law Journal. Archived with permission. Canadian Law Article (Published) 2012 ftunivalberta https://doi.org/10.7939/R3QR4P52Z 2022-08-22T20:13:00Z The author addresses two perennial problems in Canadian administrative law: the choice of a standard of review and the inconsistent application of the reasonableness standard. With these problems in mind, the Supreme Court of Canada in Dunsmuir set out to establish a 'principled framework that is more coherent and workable\". The patent unreasonableness standard was eliminated, leaving the options of review as correctness and reasonableness, and the Court laid out some categories of issues that would properly be reviewed on each standard. Nevertheless, the author argues that the majority judgment failed to deliver a frameworkfor judicial review that addresses these two problems in a coherent manner. In four recent Supreme Court decisions-Alberta Teachers', Halifax, Dore and Nor-Manthe author detects a movement toward Binnie J's concurring suggestion in Dunsmuir that there should be a presumption of judicial deference, which would generally require judges to review administrative decisions on a standard of reasonableness rather than correctness. He goes on to illustrate that while this may be a promising development, it does not resolve the inconsistent application of the reasonableness standard. By contrasting the Court's decisions in Alberta Teachers' and Newfoundland Nurses' with those in Figliola and Mowat, the author demronstrates that the Court currently uses drastically different approaches to reasonableness review. Taking inspiration from the methodology used in Baker, which identified the variables that would determine the degree ofproceduralfairness owed in a specific case, the author suggests a more contextual approach to reasonableness review. This would, in his view, allow meaningful engagement with the particularities of each case while respecting the values of \"justification, transparency and intelligibility\" advanced in Dunsmuir. Other/Unknown Material Newfoundland University of Alberta: Era - Education and Research Archive Canada Manthe ENVELOPE(-99.350,-99.350,-74.783,-74.783) |
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University of Alberta: Era - Education and Research Archive |
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ftunivalberta |
language |
English |
topic |
Canadian Law |
spellingShingle |
Canadian Law Lewans, Matthew Deference and reasonableness since Dunsmuir |
topic_facet |
Canadian Law |
description |
The author addresses two perennial problems in Canadian administrative law: the choice of a standard of review and the inconsistent application of the reasonableness standard. With these problems in mind, the Supreme Court of Canada in Dunsmuir set out to establish a 'principled framework that is more coherent and workable\". The patent unreasonableness standard was eliminated, leaving the options of review as correctness and reasonableness, and the Court laid out some categories of issues that would properly be reviewed on each standard. Nevertheless, the author argues that the majority judgment failed to deliver a frameworkfor judicial review that addresses these two problems in a coherent manner. In four recent Supreme Court decisions-Alberta Teachers', Halifax, Dore and Nor-Manthe author detects a movement toward Binnie J's concurring suggestion in Dunsmuir that there should be a presumption of judicial deference, which would generally require judges to review administrative decisions on a standard of reasonableness rather than correctness. He goes on to illustrate that while this may be a promising development, it does not resolve the inconsistent application of the reasonableness standard. By contrasting the Court's decisions in Alberta Teachers' and Newfoundland Nurses' with those in Figliola and Mowat, the author demronstrates that the Court currently uses drastically different approaches to reasonableness review. Taking inspiration from the methodology used in Baker, which identified the variables that would determine the degree ofproceduralfairness owed in a specific case, the author suggests a more contextual approach to reasonableness review. This would, in his view, allow meaningful engagement with the particularities of each case while respecting the values of \"justification, transparency and intelligibility\" advanced in Dunsmuir. |
format |
Other/Unknown Material |
author |
Lewans, Matthew |
author_facet |
Lewans, Matthew |
author_sort |
Lewans, Matthew |
title |
Deference and reasonableness since Dunsmuir |
title_short |
Deference and reasonableness since Dunsmuir |
title_full |
Deference and reasonableness since Dunsmuir |
title_fullStr |
Deference and reasonableness since Dunsmuir |
title_full_unstemmed |
Deference and reasonableness since Dunsmuir |
title_sort |
deference and reasonableness since dunsmuir |
publishDate |
2012 |
url |
https://era.library.ualberta.ca/items/aaed932d-9d9d-4450-ac4e-de63e178e829 https://doi.org/10.7939/R3QR4P52Z |
long_lat |
ENVELOPE(-99.350,-99.350,-74.783,-74.783) |
geographic |
Canada Manthe |
geographic_facet |
Canada Manthe |
genre |
Newfoundland |
genre_facet |
Newfoundland |
op_relation |
https://era.library.ualberta.ca/items/aaed932d-9d9d-4450-ac4e-de63e178e829 doi:10.7939/R3QR4P52Z |
op_rights |
© 2012 M. Lewans and the Queen's Law Journal. Archived with permission. |
op_doi |
https://doi.org/10.7939/R3QR4P52Z |
_version_ |
1766109418301161472 |