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.

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.

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.

Party Capability Theory and Appellate Success in the Supreme Court of Canada, 1949–1992

1993 ◽  
Vol 26 (3) ◽  
pp. 523-540 ◽  
Author(s):  
Peter McCormick
Keyword(s):  
United States ◽  
Supreme Court ◽  
Data Base ◽  
Supreme Court Of Canada ◽  
Canadian Charter ◽  
The Supreme Court ◽  
Different Types ◽  
Party Capability ◽  
Appeal Courts ◽  
Different Levels

AbstractNow that the advent of the Canadian Charter of Rights and Freedoms has made the fact of judicial power so obvious, it is important to develop the conceptual vocabulary for describing and assessing this power. One such concept that has been applied to the study of United States and British appeal courts is the notion of “party capability theory,” which suggests that different types of litigant will enjoy different levels of success, as both appellant and respondent. Using a data base derived from all reported decisions of the Supreme Court of Canada between 1949 and 1992, this article applies party capability theory to the performance of Canada's highest court, and compares the findings with similar studies of American and British courts.

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.”

Canada: From Privy Council to Supreme Court

2021 ◽  
pp. 183-228
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Direct Result ◽  
Supreme Court Of Canada ◽  
Privy Council ◽  
Canadian History ◽  
British North America ◽  
Court Of Appeals ◽  
The Supreme Court

This chapter assesses the emergence of judicial review in Canada. Canadian judicial review emerged as a direct result of federalism and separation of powers umpiring by the Judicial Committee of the Privy Council (JCPC), which was Canada’s highest court from the adoption of the British North America Act in 1867 until Canada ended appeals to the JCPC in 1949. There was also, as Ran Hirschl would argue, an element of elite hegemonic entrenchment by imperial British colonial elites in the retention of the JCPC as the highest court of appeals in Canada from the creation of the Supreme Court of Canada in 1875 until Canada abolished appeals to the JCPC in 1949. Some Canadian elites tried and failed to end JCPC judicial review in Canadian cases in 1875. Canadian judicial review from 1867 to 1982 was exclusively concerned with federalism and separation of powers judicial umpiring because Canada had no constitutional Bill of Rights until 1982. There are thus two founding moments in the judicial review of legislation in Canadian history: firstly, the period from 1867 to 1982 when Canadian federalism and separation of powers law took shape as a result of federalism and separation of powers umpiring; and, secondly, the period from 1982 to the present, when the Supreme Court of Canada began vigorously enforcing the Canadian Charter of Rights and Freedoms. The emergence of judicial review from 1982 down to the present day is partly a rights from wrongs phenomenon, and it is partly the result of constitutional borrowing from the United States’s Warren Court.

scholarly journals Cour suprême, Cour d'arbitrage ou Cour constitutionnelle ?

2005 ◽  
Vol 26 (1) ◽  
pp. 205-216
Author(s):  
Francis Delpérée
Keyword(s):  
Comparative Analysis ◽  
Supreme Court ◽  
Constitutional Court ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
American Model ◽  
Different Types ◽  
German Model ◽  
Federal Constitutional

The comparative analysis of political societies can provide some models for those who are concerned with the reform of an institution. Three comparative models are presented here in the context of the discussion about the role and organization of the Supreme Court of Canada : the American model of a Supreme Court, the Belgian model of an Arbitration Court, and the German model of a Federal Constitutional Court. The different types of jurisdiction of these Courts as well as the different modes of designation of their members are discussed.

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