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May Advocate 2017

THE ADVOCATE V O L . 7 5 P A R T 3 M A Y 2 0 1 7 365 the Commission. That will always be so, however, and in the present situation I am of the view that the reality would in fact be different. It is likely that in a case such as the one presently before us the decision of the Commission on the validity of a provision of the Act under the Charter would be the subject of judicial review proceedings in the Federal Court.9 The dissent written by McLachlin J. (as she then was) argued strongly for maintaining tribunal jurisdiction to determine Charter consistency. In her discussion of whether tribunals empowered to consider questions of law are de facto empowered to consider legal inconsistencies with the Charter, McLachlin J. posited that “the answer, I venture to suggest, is that this is the result which best achieves the economical and effective resolution of human rights disputes and best serves the values entrenched in the Canadian Human Rights Act and the Charter”.10 In 2003 the court was finally united on this issue, overturning Cooper and returning to the “policy” adopted by McLachlin J. in her dissent in Cooper.11 In so doing, the court emphasized the need for accessibility of the Constitution to ordinary people resolving disputes through the administrative tribunal process.12 McLachlin J.’s dissenting decision in Cooper leans in favour of the economical and accessible system of tribunal decision making. STANDARD OF REVIEW In 2008 the court in Dunsmuir v. New Brunswick13 undertook the daunting task of simplifying and clarifying the law on the appropriate standard of review to be applied by courts when conducting a judicial review of an administrative decision. Bastarache and LeBel JJ., writing for the majority, reasserted the role of judicial review as the mechanism whereby the rule of law is upheld and legislative supremacy is maintained.14 Like Lamer C.J.C. in Cooper, the majority in Dunsmuir began by reiterating that: As a matter of constitutional law, judicial review is intimately connected with the preservation of the rule of law. It is essentially that constitutional foundation which explains the purpose of judicial review and guides its function and operation. Judicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers. Courts, while exercising their constitutional functions of judicial review, must be sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures.15 The majority acknowledged that despite the “clear, stable constitutional foundations of the system of judicial review, the operation of judicial review in Canada has been in a constant state of evolution”.16 The majority estab-


May Advocate 2017
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