The Struggle for Deference in Canada

Mark Elliott and Hanna Wilberg eds., The Scope and Intensity of Substantive Review: Traversing Taggart's Rainbow (Hart, Oxford, 2015) (Forthcoming)

29 Pages Posted: 17 May 2015

See all articles by Paul Daly

Paul Daly

University of Ottawa - Common Law Section

Date Written: May 2, 2015

Abstract

In the common law tradition, courts are at the apex of the interpretive hierarchy. Traditionally, their role has been to answer legal questions authoritatively. A deferential approach to judicial review requires judges, however, to be satisfied by an answer that is merely reasonable, even on questions of law. This requires common law judges to pull against the current of tradition, a difficult task.

Since the 1970s, the Supreme Court of Canada has attempted to chart a deferential course to judicial review of interpretations of law. It has repeatedly been buffeted by traditionalist storms pushing it towards a more interventionist course. The concept of jurisdictional error, with its teaching that on some matters an administrative decision-maker must be correct or face judicial intervention, has usually been at the eye of the storm. This is the story I will tell.

Other jurisdictions may find useful lessons in Canada’s deferential journey. The story reveals the reasons why deference ought to be accorded to administrative decision-makers’ interpretations of legal provisions; it provides tools to counter interventionism. Yet it also reveals how difficult it is to convince courts to adopt a deferential approach; it warns of the serious commitment that is necessary to maintain deference. In short, the story of deference in Canadian administrative law is one of an apparently never-ending struggle.

Suggested Citation

Daly, Paul, The Struggle for Deference in Canada (May 2, 2015). Mark Elliott and Hanna Wilberg eds., The Scope and Intensity of Substantive Review: Traversing Taggart's Rainbow (Hart, Oxford, 2015) (Forthcoming), Available at SSRN: https://ssrn.com/abstract=2601799

Paul Daly (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
422
Abstract Views
1,775
Rank
130,972
PlumX Metrics