Can There Be Too Much Context in Administrative Law? Setting the Standard of Review in Canadian Administrative Law

47(2) UBC Law Review (Forthcoming)

53 Pages Posted: 6 Jan 2014

See all articles by Andrew James Green

Andrew James Green

University of Toronto - Faculty of Law

Date Written: January 6, 2014

Abstract

The Supreme Court of Canada has periodically altered its approach to judicial review in order to make it more coherent and easier for courts and litigants to understand. Central to judicial review is the choice of the standard of review a court is to apply in a particular case. The standard of review determines how deferential the court is to be to the executive decision-maker. The Court has shifted over time from a formal to a contextual approach to this choice and, most recently, at least partly towards a categorical approach. This most recent approach has been criticized as overly formalistic, neglecting important aspects of the context of particular decisions. This paper examines this shift in the process for choosing the standard of review from an institutional perspective. It discusses the factors that are important in selecting an approach to choosing the standard of review in a particular case. These factors include both the implications for the actual decision at issue as well as the effect on the decisions of other executive decision-makers, lower courts, individuals seeking to challenge decisions and the legislature.

Keywords: Administrative Law

Suggested Citation

Green, Andrew James, Can There Be Too Much Context in Administrative Law? Setting the Standard of Review in Canadian Administrative Law (January 6, 2014). 47(2) UBC Law Review (Forthcoming). Available at SSRN: https://ssrn.com/abstract=2375287

Andrew James Green (Contact Author)

University of Toronto - Faculty of Law ( email )

84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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