Benny Chan, a student at McGill University Faculty of Law, has won the 2016 Paul Smith Memorial Award. The award, offered by the Administrative Law Section, honours the Section’s former chair, Paul Smith, a dedicated member of the CBA who was dedicated to supporting youth in all aspects of life, but especially in education. It is presented annually for the best scholarly paper submitted to the Section on a subject relating to Canadian administrative law.
Chan, who recently completed his third year of the BCL/LLB program at McGill, holds a BA in philosophy from the University of Toronto, and an MA in religion and ethics from Yale. He will be articling at Borden Ladner Gervais in Toronto.
Chan’s essay, titled Inter-Institutional Comity and Deference as Respect, examines the conceptual foundations of the duty to give reasons in Canadian common law.
Here is an abstract:
My paper contends that the common law duty of judges to look to implied or hypothetical reasons of administrative decision-makers finds stronger conceptual grounding in an institutional approach to judicial review than in David Dyzenhaus’s “deference as respect.” I begin with an overview of how the Supreme Court’s holding in Newfoundland Nurses, Alberta Teachers’ Association, and Agraira that judges should look to reasons not offered has pushed the notion of deference as respect to its conceptual breaking point. After discussing recent work on institutional approaches to judicial review, I go on to articulate an institutional division of labour whereby judges are permitted to build on the justificatory foundations laid by administrative decision-makers where the latter have demonstrated a sufficient contextual sensitivity to the pertinent issues. I conclude by considering how this approach is already implicitly though fragmentarily operative in recent judicial review cases.
Read the winning paper