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THE ADVOCATE V O L . 7 5 P A R T 3 M A Y 2 0 1 7 367 the Chief Justice align on the side of the philosophical role of the “rule of law” and the courts’ role in preserving such. The headnote of the decision concisely articulates the majority’s philosophical position: The standard of review in this case is reasonableness. Unless the jurisprudence has already settled the applicable standard of review, the reviewing court should begin by considering whether the issue involves the interpretation by an administrative body of its own statute or statutes closely connected to its function. If so, the standard of review is presumed to be reasonableness. This presumption of deference on judicial review respects the principle of legislative supremacy and the choice made to delegate decision making to a tribunal, rather than the courts. A presumption of deference on judicial review also fosters access to justice to the extent the legislative choice to delegate a matter to a flexible and expert tribunal provides parties with a speedier and less expensive form of decision making.26 The dissenting justices prefer a standard that pulls back the jurisprudence in favour of judicial expertise and a standard of correctness, stating: The “overall aim” of the standard of review analysis has always been “to discern legislative intent, keeping in mind the constitutional role of the courts in maintaining the rule of law”.27 In practice this means that justice reform in relation to administrative decision making will continue at a snail’s pace. Administrative decisions will most assuredly continue to be judicially reviewed based on outcomes, and until further guidance is forthcoming from the Supreme Court of Canada regarding the philosophical place of administrative tribunals in justice reform, the appropriate standard of review will continue to be the prevailing fight. ENDNOTES 1. 1996 3 SCR 854 Cooper. 2. Ibid at para 10. 3. 2016 SCC 47 Capilano. 4. Douglas/Kwantlen Faculty Assn v Douglas College, 1990 3 SCR 570; Cuddy Chicks Ltd v Ontario (Labour Relations Board), 1991 2 SCR 5; Tétreault- Gadoury v Canada (Employment and Immigration Commission), 1991 2 SCR 22. 5. Cooper, supra note 1 at para 10. 6. 1985 2 SCR 455. 7. Cooper, supra note 1 at para 10. 8. Ibid at paras 10–11. 9. Ibid at paras 60, 62. 10. Ibid at para 73. 11. See Nova Scotia (Workers’ Compensation Board) v Martin; Nova Scotia (Workers’ Compensation Board) v Laseur, 2003 SCC 54 at paras 29, 47; Paul v British Columbia (Forest Appeals Commission), 2003 SCC 55 at para 36. 12. See ibid. 13. 2008 SCC 9 Dunsmuir. 14. Ibid at para 30. 15. Ibid at para 27. 16. Ibid at para 32. 17. Ibid at paras 122–123 emphasis in original. 18. Ibid at para 133. 19. Ibid at para 48; Wilson v Atomic Energy of Canada Ltd, 2016 SCC 29 at paras 21–23 Wilson. 20. Wilson, ibid. 21. Ibid at para 25. 22. Ibid at paras 27–30. 23. Ibid at paras 70, 72, 74–82. 24. Capilano, supra note 3. 25. Ibid. 26. Ibid at headnote. 27. Ibid at para 65 citations omitted. t t t t t


May Advocate 2017
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