The Signal and the Noise in Administrative Law
Forthcoming, University of New Brunswick Law Journal
15 Pages Posted: 25 Nov 2016 Last revised: 28 Apr 2017
Date Written: November 22, 2016
There has been an unfortunate trend in recent Supreme Court of Canada administrative law cases.
While academics, practitioners and lower-court judges try to establish coherent frameworks to understand the general principles of judicial review, the Court has been resolving cases one by one without, with respect, any serious attempt to explain how they fit into its existing body of jurisprudence. The institutional context in which the Court operates, explained in Part I, no doubt influences the Court’s resolution of individual cases in this way.
Whatever the background institutional context, confusion is the result, as I explain in Part II. How should lawyers read these cases: as attempts to resolve one-off issues of substantive law (workers’ compensation law, immigration law, discrimination law and so on) or as continual refinements to an already complex body of administrative law doctrine?
I argue in this paper that it is now necessary to distinguish between signal and noise, between those cases that do modify administrative law doctrine and those cases that simply deal with a particular substantive area of law. In Part III, I set out criteria which will help Canadian administrative lawyers to distinguish signal from noise.
This confusion seems to me, however, to be unnecessary. As I suggest in Part IV, the Court could take up judicial and academic proposals for a unified reasonableness standard that would allow it to resolve individual cases without creating uncertainty about whether it has also modified administrative law doctrine. Adopting this approach would obviate the need to distinguish signal from noise, because they would both fade into the comforting hum of reasonableness review.
Keywords: judicial review, stare decisis, obiter, Canada, administrative law
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