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May Advocate 2017

366 V O L . 7 5 P A R T 3 M A Y 2 0 1 7 THE ADVOCATE lished a new “functional” approach that leans in the direction of deference to administrative tribunals in certain circumstances but continues to provide significant latitude for judicial review of such decisions. Justice Binnie, in his concurring reasons, expressed the view that the majority decision changed little and the new “reference to ‘functional’ can simply be taken to mean that generally speaking courts have the last word on what they consider the correct decision on legal matters (because deciding legal issues is their ‘function’), while administrators should generally have the last word within their function, which is to decide administrative matters. … the court ought generally to respect the exercise of the administrative discretion”.17 Justice Binnie appeared to support judicial intervention but suggested that what really is desired is that “ people who feel victimized or unjustly dealt with by the apparatus of government, and who have no recourse to an administrative appeal, should have access to an independent judge through a procedure that is quick and relatively inexpensive”.18 Ultimately, the majority decision leaned in favour of more (although qualified) deference to administrative tribunals.19 However, the decision has not had the result in the lower courts that was anticipated. In Wilson v. Atomic Energy of Canada Ltd.,20 Abella J. in obiter commented that “the aim of Dunsmuir was to simplify judicial review. But collapsing three standards of review into two has not proven to be the runway to simplicity the Court had hoped it would be”.21 Justice Abella goes on to acknowledge that an argument can be made that the court’s blurring of the line between correctness and reasonableness in individual cases is what is complicating the law.22 This “blurring” of the line is a reflection of the discomfort of the court with the philosophical conundrum between deference to the more accessible and simplified administrative tribunals and the rule of law sacredly interpreted and upheld by the judiciary. THE PHILOSOPHICAL CONUNDRUM CONTINUES While the obiter comments and the result in Wilson lean heavily toward deference to the administrative decision maker, the multiple (four) written decisions in the case highlight the philosophical divide between the members of the court.23 The divide continues in the court’s most recent decision regarding standard of review in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd.,24 but the sides appear to be coming together on either side of the divide.25 A majority of five align on the side of deference and a liberal interpretation of reasonableness, and the strong dissent of four judges including


May Advocate 2017
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