Chapter 9 – Modern Standards of Review in Theory and Practice I. INTRODUCTION Contemporary Canadian admin law: 3 standards of review that represent 3 distinct judicial postures Correctness: low or no deference Reasonableness: some, but not great, deference Patent unreasonableness: highest deference CUPE expresses gradual reconciliation of judiciary and administrative state under banner of a common culture of justification Radical shift away from traditional judicial tendencies to regard administrative state as a lawless zone Court indicates that it will take seriously formal indicia of legislature’s entrusting certain admin actors with exclusive powers of decision, and the practical or functional justifications for granting those decision makers presumptive authority Prescribes purposive reading of enabling statutes Southam: insertion of standard of reasonableness simpliciter Recognition of administrative legitimacy implicit in extension of deference on a reasonableness standard, and in expectation of reasonableness under that standard II. BACKGROUND: STATUTORY INTERPRETATION AND SUBSTANTIVE REVIEW Positivist approach to statutory interpretation flows from presumption that statutory language contains singular and unified meaning that is stable over time Objective is to find a determinate legislative intent Smuggles into legal judgment contestable value-driven choices Those choices should be explicitly submitted for public justification May work against a meaningful conception of deference Normative approach to statutory interpretation Assumption that contested matters of statutory interpretation cannot be resolved by exclusive reference to text, or even by situating the text in its social context Also require judgments about competing values or social priorities informing alternative statutory constructions Adherence may entail attitude of strict non-deference where administrative decision is understood to place in issue important public values Other judges may view same interpretative problems as supportive of deference on review Decision makers may be uniquely positioned to work out how basic commitments of social, political and legal order inform or interact with sector specific values and policy objectives of administrative regimes III. THEORY AND PRACTICE: THE MODERN STANDARDS OF REVIEW How are we to understand review for correctness after CUPE, given that the decision calls into question a positivist approach to statutory interpretation Has notion of review for patent unreasonableness (CUPE) offered meaningful guidance about how best to discern limits of legality under this deferential standard? How does review for unreasonableness stand in relation to the other 2 standards
Chapter 9 – Modern Standards of Review in Theory and Practice I. INTRODUCTION Contemporary Canadian admin law: 3 standards of review that represent 3 distinct judicial postures Correctness: low or no deference Reasonableness: some, but not great, deference Patent unreasonableness: highest deference CUPE expresses gradual reconciliation of judiciary and administrative state under banner of a common culture of justification Radical shift away from traditional judicial tendencies to regard administrative state as a lawless zone Court indicates that it will take seriously formal indicia of legislature’s entrusting certain admin actors with exclusive powers of decision, and the practical or functional justifications for granting those decision makers presumptive authority Prescribes purposive reading of enabling statutes Southam: insertion of standard of reasonableness simpliciter Recognition of administrative legitimacy implicit in extension of deference on a reasonableness standard, and in expectation of reasonableness under that standard II. BACKGROUND: STATUTORY INTERPRETATION AND SUBSTANTIVE REVIEW Positivist approach to statutory interpretation flows from presumption that statutory language contains singular and unified meaning that is stable over time Objective is to find a determinate legislative intent Smuggles into legal judgment contestable value-driven choices Those choices should be explicitly submitted for public justification May work against a meaningful conception of deference Normative approach to statutory interpretation Assumption that contested matters of statutory interpretation cannot be resolved by exclusive reference to text, or even by situating the text in its social context Also require judgments about competing values or social priorities informing alternative statutory constructions Adherence may entail attitude of strict non-deference where administrative decision is understood to place in issue important public values Other judges may view same interpretative problems as supportive of deference on review Decision makers may be uniquely positioned to work out how basic commitments of social, political and legal order inform or interact with sector specific values and policy objectives of administrative regimes III. THEORY AND PRACTICE: THE MODERN STANDARDS OF REVIEW How are we to understand review for correctness after CUPE, given that the decision calls into question a positivist approach to statutory interpretation Has notion of review for patent unreasonableness (CUPE) offered meaningful guidance about how best to discern limits of legality under this deferential standard? How does review for unreasonableness stand in relation to the other 2 standards