How important are the groundbreaking cases in administrative law?
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Published:2022-10-18
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Volume:
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ISSN:0042-0220
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Container-title:University of Toronto Law Journal
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language:en
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Short-container-title:University of Toronto Law Journal
Affiliation:
1. Professor and Metcalf Chair in Environmental Law, Faculty of Law, University of Toronto, Canada
Abstract
The story of Canadian administrative law could be seen as a move toward deference driven by some fundamental decisions of the Supreme Court of Canada. Debates about this move centre on the proper role for reviewing courts as well as the politics lying behind administrative law decisions. Most recently, the 2019 Supreme Court decision in Vavilov raised concerns that it licenses judges to undertake more intrusive review. Key to this story is the assumption that these groundbreaking decisions of the Supreme Court influence how lower court judges decide challenges in the administrative law context. Prior empirical studies have found that the 2008 Supreme Court decision in Dunsmuir increased the use of the reasonableness standard of review as well as the rate at which judges affirm administrative decisions. However, it can be difficult to empirically account for the variety of contexts and decision makers involved. This article uses decisions of the Federal Court to examine whether Dunsmuir and Vavilov changed how judges decide. It finds that, while the use of reasonableness has dramatically increased, the rate at which judges affirm administrative decisions has not changed over time. The article discusses these results and what they imply about the influence of these groundbreaking Supreme Court decisions.
Publisher
University of Toronto Press Inc. (UTPress)
Subject
Law,Sociology and Political Science