Developments in Administrative Law: The 2008-2009 Term Contemplating Legislative (Im)Precision

Abstract

This article examines two key administrative law decisions of the 2008-2009 Supreme Court of Canada term. Canada (Citizenship and Immigration) v. Khosa 2009 SCC 12 [Khosa] and Canada (Privacy Commissioner) v. Blood Tribe Department of Health 2008 SCC 44 [Blood Tribe]. Following on the footsteps of Dunsmuir, the landmark decision of 2008 that eliminated the patent unreasonableness standard, members of the Supreme Court of Canada in Khosa debated the proper interpretation of judicial review legislation. Specifically, the central issue in Khosa was whether subsection 18.1 (4)(d) of the Federal Courts Act provides a legislated standard of review that is equivalent to patent unreasonableness. While on one level, the debate of the Court focused on how to recognize and interpret legislated standards of review, its underlying theoretical premise engaged fundamental questions about deference, expertise, rule of law and how judicial review of administrative action may be appropriately placed within the broader spectrum of curial oversight.

The second decision, Blood Tribe, addressed the ability of the federal Privacy Commissioner to pierce solicitor-client privilege in order to examine documents during a routine investigation. Here, the Court determined that such power must be explicitly given in an administrative actor’s enabling statute. In this regard, this article argues that the Court's analysis in Blood Tribe shows hesitancy to embrace the very notion of contextualized judicial review that it proposes to follow in Khosa and more generally.

Keywords: Judicial review of administrative action-Canada, standard of review, deference, expertise, solicitor client privilege, administrative agencies