Deference and reasonableness since Dunsmuir
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Lewans, M. (2012). Deference and reasonableness since Dunsmuir. Queen’s Law Journal, 38(1), 59-98. Retrieved from http://heinonline.org/HOL/Page?handle=hein.journals/queen38&div=5&g_sent=1&collection=journals
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http://heinonline.org/HOL/Page?handle=hein.journals/queen38&div=5&g_sent=1&collection=journals
Abstract
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.
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http://purl.org/coar/resource_type/c_6501 http://purl.org/coar/version/c_970fb48d4fbd8a85
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© 2012 M. Lewans and the Queen's Law Journal. Archived with permission.
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en