Page 45

May Advocate 2017

THE ADVOCATE VOL.V O L . 75 7 5 PART P A R T 3 3 MAY M A Y 2 2017 0 1 7 363 MAKING THE CASE FOR REVISITING STANDARD OF REVIEW: EDMONTON (CITY) v. EDMONTON EAST (CAPILANO) SHOPPING CENTRES LTD. By Kathryn L. Kickbush* Ajust, speedy and inexpensive resolution of every proceeding on its merits is the holy grail of dispute resolution. The cost and length of civil trials have increased exponentially in the last decade. This is also true of administrative decision making, and the concomitant judicial review of such decision making. The call for civil justice reform in both contexts continues to be loud and consistent in the academic literature. As Chief Justice Lamer remarked in Cooper v. Canada (Human Rights Commission),1 “the rise of the administrative state has been marked by the creation of institutions other than the courts”.2 As the number and range of administrative tribunals have expanded, they have become an integral part of civil justice reform. If these tribunals are to continue to be a part of providing the “just, speedy and inexpensive resolution” of disputes, these tribunals must have room to simplify processes and make reasonable determinations without excessive review by the courts. A complex and unpredictable test for standard of review invites reviewing courts to wade into the merits of tribunal decisions and virtually ensures that unsuccessful parties will apply for judicial review or appeal tribunal decisions in hopes of a better outcome. The result is not more accessible, less expensive decision making; it is simply an added step to an already burdened system. The Supreme Court of Canada’s split decision in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd.3 is indicative of the struggle that court is having with this issue. * Although the author is employed by the Ministry of Justice and the Attorney General of British Columbia, the opinions expressed in this article are the author’s own and not those of her employer.


May Advocate 2017
To see the actual publication please follow the link above