Renovate or rebuild: What shall we do with standard of review?

  • December 01, 2017
  • Jonathan M. Coady

In its latest volume, the University of New Brunswick Law Journal has focused on scholarship confronting issues in administrative and constitutional law. It will likely come as no surprise that standard of review is one of those issues. With timely contributions from Justice David Stratas, Paul Daly, Matthew Lewans and others, volume 68 is required reading for lawyers, academics, and judges working in these areas. And for those attempting to navigate the labyrinth that is standard of review, the contributions from Professor Daly and Professor Lewans deserve special attention.

Professor Daly, in an effortless review of the latest case law from the Supreme Court of Canada, distinguishes the true signals in administrative law from all of the surrounding noise. Cases answering questions in other substantive areas of the law, such as immigration and human rights, are contrasted with cases refining the doctrine of administrative law. In the end, a unified standard of review for reasonableness is recommended. According to Professor Daly, this single standard would allow the court to send substantive signals across the legal spectrum without generating doctrinal noise in the field of administrative law.

Professor Lewans, for his part, traces the history of standard of review and recommends that administrative decision-makers be held to a standard of reasoned justification. Drawing support from a meticulous review of the recent cases from the Supreme Court of Canada, Professor Lewans rejects the categorization of administrative questions and returns focus to the purpose of judicial review: ensuring the legality of a delegated decision. According to Professor Lewans, by prioritizing the explanations provided by administrative decision-makers, the court can avoid monopolizing the legal outcomes and return to ensuring that decision-makers exercise their statutory authority in reasonably justifiable ways.

Despite its relative youth, administrative law has been the site of almost constant construction. And while the question of whether to renovate or rebuild remains unanswered by the Supreme Court of Canada, the University of New Brunswick Law Journal has – at the very least – provided our highest court with two valuable blueprints.

The University of New Brunswick Law Journal is accessible online through WestlawNext Canada, Quicklaw, and HeinOnline.

Jonathan M. Coady is a partner with Stewart McKelvey in Charlottetown