scholarly journals De la notion de juridiction en droit administratif canadien

2005 ◽  
Vol 24 (3) ◽  
pp. 605-642
Author(s):  
Bernard Amyot
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Historical Perspective ◽  
Supreme Court Of Canada ◽  
Administrative Action ◽  
The Supreme Court

The object of this article considers the ever-evolving concept of jurisdiction in the context of judicial review of administrative action. The author examines recent jurisprudential developments from an historical perspective in an attempt to reveal those factors triggering intervention. The Supreme Court of Canada has often fashioned its tests of jurisdiction to fit the intended results. Hence, over the last decades, jurisdictional terminology has become ripe with deceptive distinctions and attempts to rationalize the various tests have in fact raised most perplexing problems.

scholarly journals Two Myths of Administrative Law

2019 ◽  
Vol 9 (1) ◽  
Author(s):  
Mark P Mancini
Keyword(s):  
Supreme Court ◽  
Decision Maker ◽  
Judicial Review ◽  
Administrative Law ◽  
Supreme Court Of Canada ◽  
Statutory Interpretation ◽  
Administrative Action ◽  
The Supreme Court ◽  
The One ◽  
Do So

In an upcoming set of cases, the Supreme Court of Canada will review its approach to the standard of review of administrative action. In this paper, the author suggests that the Court must go back to the foundation of judicial review in redesigning the standard of review, namely, the task of courts to police the legal boundaries of the administrative body. To do so, courts must authentically interpret the legislative grant of authority to the administrative decision-maker, particularly to determine the appropriate intensity of review. To that end, the author suggests that the Court should discard two myths that have pervaded modern administrative law: (1) that administrative decisionmakers should be granted deference based on purported expertise in matters of statutory interpretation; and (2) that jurisdictional questions exist separately from questions of law. The myths may impose a different standard of review than the one discernible with the ordinary tools of statutory interpretation. The author argues that these court-created devices should not exist at the expense of the constitutionally prescribed duty of the courts to exercise their policing function and engage in genuine statutory interpretation to determine the appropriate standard of judicial review in a given case.

Repeat Litigators and Agenda Setting on the Supreme Court of Canada

2002 ◽  
Vol 35 (4) ◽  
pp. 811-833 ◽  
Author(s):  
Roy B. Flemming ◽  
Glen S. Krutz
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Statistical Models ◽  
Comparative Research ◽  
The United States ◽  
Supreme Court Of Canada ◽  
High Courts ◽  
The Supreme Court ◽  
Selection Of

The expanding public policy role of high courts heightens concerns over whether societal and political inequalities affect the outcomes of litigation. However, comparative research on this question is limited. This article assesses whether status inequalities between parties and differences in the experience and resources of attorneys influence the selection of cases for judicial review in the Supreme Court of Canada. A series of statistical models reveal that governments are more likely than other parties to influence whether leave is granted but that the experience and resources of lawyers, unlike in the United States, have little impact. The decentralized, low volume and high access features of the Canadian process may explain this finding.

scholarly journals Dunsmuir’s Flaws Exposed: Recent Decisions on Standard of Review

2013 ◽  
Vol 58 (2) ◽  
pp. 483-507
Author(s):  
Paul Daly
Keyword(s):  
Functional Analysis ◽  
New Brunswick ◽  
Supreme Court ◽  
Judicial Review ◽  
External Factors ◽  
Supreme Court Of Canada ◽  
Categorical Approach ◽  
The Supreme Court ◽  
Different Types ◽  
Single Standard

In Dunsmuir v. New Brunswick, the Supreme Court of Canada attempted to clarify and simplify Canadian judicial review doctrine. I argue that the Court got it badly wrong, as evidenced by four of its recent decisions. The cases demonstrate that the new categorical approach is unworkable. A reviewing court cannot apply the categorical approach without reference to something like the much-maligned “pragmatic and functional” analysis factors. The categories regularly come into conflict, in that decisions could perfectly reasonably be assigned to more than one category. When conflict occurs, it must be resolved by reference to some factors external to the categorical approach. The new, single standard of reasonableness is similarly unworkable without reference to external factors. Different types of decision attract different degrees of deference, on the basis of factors that are external to the elegant elucidation of reasonableness offered in Dunsmuir. Clarification and simplicity have thus not been achieved.

The Courts

2007 ◽  
Vol 40 (1) ◽  
pp. 249-250
Author(s):  
Ran Hirschl
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Judicial Review ◽  
Political Institutions ◽  
Supreme Court Of Canada ◽  
Court System ◽  
University Of British Columbia ◽  
The Supreme Court

The Courts, Ian Greene, The Canadian Democratic Audit Series; Vancouver: University of British Columbia Press, 2006, pp. xvii, 182.This book is another welcome addition to the Canadian Democratic Audit Series. It sets out to assess the democratic credentials of Canada's judiciary—a most significant branch of government in post-1982 Canada. The book's approach is refreshing in several respects. Instead of the traditional focus on the well-rehearsed debate over the questionable democratic credentials of judicial review, the book attempts to evaluate the adequacy of the Canadian court system in relation to three basic tenets of democracy: participation, inclusiveness, and responsiveness. Unlike most accounts of Canadian political institutions, it pays due attention to elements of the court system beyond the Supreme Court of Canada. In so doing, Greene is able to assess more accurately whether the Canadian judiciary as a whole is living up to that set of reasonable democratic expectations.

scholarly journals What has Dunsmuir Taught?

2010 ◽  
pp. 1017
Author(s):  
Alice Woolley ◽  
Shaun Fluker
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Review Process ◽  
Functional Test ◽  
Supreme Court Of Canada ◽  
Review Analysis ◽  
The Supreme Court ◽  
Majority Judgment ◽  
Administrative Tribunal

In Dunsmuir the Supreme Court of Canada reassessed the “troubling question” of how courts should review decisions of administrative tribunals. The majority judgment of Bastarache and LeBel JJ. (writing also for McLachlin, Abella, and Fish JJ.), sought to simplify the judicial review process by reducing the standards of review from three to two, increasing reliance on precedent to determine which standard is appropriate, making explicit the significance of the nature of the question to the determination of the standard in every case, and re-labelling the “pragmatic and functional” test the “standard of review analysis.” In its recent judgment in Khosa the Supreme Court emphasized the simplifying intention of Dunsmuir, suggesting that “Dunsmuir teaches that judicial review should be less concerned with the formulation of different standards of review and more focused on substance, particularly on the nature of the issue that was before the administrative tribunal under review.”

scholarly journals The Scope and Meaning of Reasonableness Review

2015 ◽  
Author(s):  
Paul Daly
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Unified Approach ◽  
Administrative Action ◽  
The Supreme Court

This article draws attention to the post-Dunsmuir framework regarding the standard of review of administrative action and the Supreme Court of Canada’s reluctance to engage in grand theorizing about the general principles of judicial review. The article explores the uncertainty surrounding the application of the standard of reasonableness and what factors can or should be taken into consideration during its application. The article identifies four key problems — the scope of the post-Dunsmuir framework, the scope of its correctness category, the difficult relationship between the reasons given for a decision and the substantive reasonableness of the decision in question, and the emergence of difficult distinctions bedevilling the application of the reasonableness standard. Through identifying weaknesses in the current administration of reasonableness review, it is hoped that the courts, sooner rather than later, will adopt a unified approach for using the reasonableness standard of review.

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