The Rise of Facts in Public Law

Forthcoming in Anne Carter and Joe Tomlinson eds., Facts in Public Law Adjudication (Hart Publishing, 2023)

Ottawa Faculty of Law Working Paper No. 2022-27

17 Pages Posted: 4 Dec 2022

See all articles by Paul Daly

Paul Daly

University of Ottawa - Common Law Section

Kseniya Kudischeva

Government of Canada - Department of Justice

Date Written: October 25, 2022

Abstract

In Commonwealth jurisdictions, judges have traditionally been reluctant to grapple with factual issues in public law cases. Since the latter half of the twentieth century, however, Commonwealth courts have taken on an unmistakably larger role in making factual assessments in public law proceedings.

In this Chapter, we identify four distinct strands to this larger role: factual assessments in judicial review of administrative action; factual assessments in judicial review of legislation; factual assessments in the context of systemic challenges to the legality of regulatory regimes; and factual assessments as part of constitutional causes of action.

We describe each of these in turn, attempting to explain briefly why each strand has developed, highlighting practical and principled difficulties that each has given rise to, and the solutions courts have relied upon to alleviate or eliminate these difficulties. Our thesis is that developments in judicial review have caused judges to engage increasingly in factual assessments, causing practical and principled difficulties which, in turn, have provoked judicial responses designed to alleviate or eliminate the difficulties.

Our posture in this Chapter is descriptive and analytical, rather than normative. We take no firm view on the seriousness of the practical and principled difficulties we have identified or of the appropriateness of the judicial responses we have noted. There is, however, no doubt that factual assessments now play an increasingly important role in public law adjudication and that with this role comes practical and principled difficulties which call for judicial responses.

Suggested Citation

Daly, Paul and Kudischeva, Kseniya, The Rise of Facts in Public Law (October 25, 2022). Forthcoming in Anne Carter and Joe Tomlinson eds., Facts in Public Law Adjudication (Hart Publishing, 2023), Ottawa Faculty of Law Working Paper No. 2022-27, Available at SSRN: https://ssrn.com/abstract=4258448

Paul Daly (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

Kseniya Kudischeva

Government of Canada - Department of Justice

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