Lord Tom Bingham described that process in his seminal work, The Rule of Law (2010): . This means that the applicable standard is to be determined with reference to the nature of the question and to this Courts jurisprudence on appellate standards of review. When in any such suit a judgment is given in favour of the Commonwealth or of a State and against any person, the Commonwealth or the State, as the case may be, may enforce the judgment against that person by process of extent, or by such execution, attachment, or other process as could be had in a suit between subject and subject. The jurisdiction of the High Court may be exercised by a Justice sitting in Chambers in the cases following: (a) Applications relating to the conduct of a cause or matter; (b) Applications relating to the custody management or preservation of property, or to the sale of property and the disposition of the purchase money; (c) Applications for orders or directions as to any matter which by this Act or by Rules of Court is made subject to the direction of a Justice sitting in Chambers; (d) Any other applications which by this or any Act or by Rules of Court are authorized to be made to a Justice sitting in Chambers. IV. . We add that a de novo interpretation of a statute, conducted as a prelude to deferential review, necessarily omits a vital piece of the interpretive puzzle: the perspective of the front-line, specialized administrative body that routinely applies the statutory scheme in question (Dyzenhaus, The Politics of Deference: Judicial Review and Democracy, at p. 304; Paul Daly, Deference on Questions of Law (2011), 74 Mod. 221; Knight v. Indian Head School Division No. By what measure is the comparative value of lives to be measured? x\ks_/7t:UvRgdRoK%9/@rm!{egE?wq~Zn/^eo=lX,/|_Y*uvbUfU:fE.uQ 0?],]Vv#zBMV|ay=={/wrX*U}_]YW}-_C6o^y}EEja.usV_e&T+'QdMW*XfW8+WK{!]B,} wzfk?cPog7i4e7bywTYYE7bltkwF4-tLlPCnKc;/4u3u5`t\yJG Y xJSlvfFZFLK[p6*svHY7#Ny;is\jyfgZ/uW7V[ British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) The Registrars decision concerned Mr. Vavilov, who was born in Canada and whose parents were later revealed to be undercover Russian spies. But nevertheless this is clear, that the prisoners put to death a weak and unoffending boy upon the chance of preserving their own lives by feeding upon his flesh and blood after he was killed, and with the certainty of depriving him of any possible chance of survival. 631, or even Housen, which, as this Court acknowledged, was initially applied by appeal courts with varying degrees of enthusiasm (H.L. So firmly entrenched was this principle that in cases like Bell Canada v. Bell Aliant Regional Communications, 2009 SCC 40 (CanLII), [2009] 2 S.C.R. 654, at para. "The holding will call into question many other regulations that protect consumers with respect to credit cards, bank accounts, mortgage loans, debt collection, credit reports, and identity theft," tweeted Chris Peterson, a former enforcement attorney at the CFPB who is 53-54; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3S.C.R. 47. . 401; Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., 2001 SCC 36, [2001] 2 S.C.R. The High Court may, in any cause pending in the Court and at any stage of the proceedings: (a) order the examination of a person upon oath orally or on interrogatories before the Court, an officer of the Court or another person at any place within Australia; or. overruling precedent damages the publics conception of the judicial role, and undermines the respect in which the public holds the courts and its faith in them. 1. The diverse pool of decision-makers in the administrative system responds to the diversity of issues that it must resolve. 87, per Rothstein J., concurring in the result. Declining to remit a matter to the decision maker may be appropriate where it becomes evident that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose. The rule receives ample support from legislation of states and expert opinion. According to the principle of utility, we should always do whatever will produce the greatest amount of happiness and whatever is necessary to prevent the greatest amount of unhappiness. 23-25, per Binnie J. for the majority, compared to paras. But if you were to donate all of your spare income each month, then even more people would get what they desperately need and you would produce even more happiness. This months government beat smoking campaign. 220; Bell Canada v. Canada (Attorney General), 2019 SCC 66, [2019] 4 S.C.R. . [264] The majority leaves unaddressed the most significant rejection of this Courts jurisprudence in its reasons its decision to change the entire conceptual basis for judicial review by excluding specialization, expertise and other institutional advantages from the analysis. 91, 1983; Nos. 467-70. [pp. [72] We are not persuaded that the Court should recognize a distinct correctness category for legal questions on which there is persistent discord within an administrative body. includes the Australian Capital Territory and the Northern Territory. Further, a reviewing court is not restricted to the four corners of the written reasons delivered by the decision-maker and should, if faced with a gap in the reasons, look to the record to see if it sheds light on the decision (Williams Lake, at para. L.R. With regard to the substantial question in the casewhether the prisoners in killing Parker were guilty of murderthe law is that where a private person acting upon his own judgment takes the life of a fellow creature, his act can only be justified on the ground of self-defenceself-defence against the acts of the person whose life is taken. Lord Bacon, Bac. PartVIExclusive and invested jurisdiction, 38 Matters in which jurisdiction of High Court exclusive. [14] On the one hand, courts must recognize the legitimacy and authority of administrative decision makers within their proper spheres and adopt an appropriate posture of respect. After their second son was born, the family moved to France, and later to the United States. 10. Instead, for approaching a century, it has let our deference regime work side-by-side with both the APA and the many statutes delegating rulemaking power to agencies. 45, 1934; No. 49 Contravention of order to constitute contempt. 587; British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, [2017] 2 S.C.R. As a result, it is no longer necessary for courts to engage in a contextual inquiry in order to identify the appropriate standard. These considerations apply here. 35; Mouvement laque, at para. 36-46; Bell Canada v. 7262591 Canada Ltd., 2018 FCA 174, 428 D.L.R. If you keep straight, you will hit the worker and kill him, but if you swerve left into oncoming traffic, you will collide with a school bus and kill at least five children. In the field of labour relations, for example, Parliament explicitly rejected a court-based system to resolve workplace disputes in favour of a Labour Board, staffed with representatives from management and labour alongside an independent member (Bora Laskin, Collective Bargaining in Ontario: A New Legislative Approach (1943), 21 Can. 54 and 88. (K.G. 601, at para. [135] Many administrative decision makers are entrusted with an extraordinary degree of power over the lives of ordinary people, including the most vulnerable among us. That they had no fresh water, except such rain as they from time to time caught in their oilskin capes. 288, 289 and 291. We would uphold the decision of the Federal Court of Appeal to quash the Registrars decision and would not remit the matter to the Registrar for redetermination. Dicey developed his philosophy at the end of the 19th century to encourage the House of Lords to restrain the government from implementing ameliorative social and welfare reforms administered by new regulatory agencies. 229 and 240), enable an unconstrained expansion of correctness review (at para. 67. The prisoner Stephens agreed to the act, but Brooks dissented from it. or the interveners the National Academy of Arbitrators, the Ontario LabourManagement Arbitrators Association and Confrence des arbitres du Qubec. Indeed, much of the Courts jurisprudence, such as cases concerning general questions of law of central importance to the legal system as a whole or those relating to jurisdictional boundaries between two or more administrative bodies, will continue to apply essentially without modification. Solicitors for the intervener Advocates for the Rule of Law:McCarthy Ttrault, Vancouver. 26 and 28; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. Nicholas McHaffie, for the intervener the First Nations Child & Family Caring Society of Canada. Other administrative processes license renewals, zoning permit issuances and tax reassessments, for example bear even less resemblance to the traditional judicial model. A measure of government (which is but a particular kind of action, performed by a particular person or persons) may be said to be conformable to or dictated by the principle of utility, when in like manner the tendency which it has to augment the happiness of the community is greater than any which it has to diminish it. X. (1) Legislated Standards of Review. The prisoner Dudley offered a prayer asking forgiveness for them all if either of them should be tempted to commit a rash act, and that their souls might be saved. (e) specifying any affidavits to be filed following the giving of a notice under subsection78B(1) and prescribing the persons by whom and times within which the affidavits are to be filed. [315] The first issue is the applicable standard of review. 26, both quoting E.Driedger, Construction of Statutes (2nd ed. s. 79 s. 80 am. Although the Registrar knew her interpretation was novel, she failed to provide a rationale for her expanded interpretation. Q. In the era of what was known as the pragmatic and functional approach, which was first set out in Bibeault, a decision makers expertise relative to that of the reviewing court was one of the key contextual factors said to indicate legislative intent with respect to the standard of review, but the decision maker was not presumed to have relative expertise. Setting the Standard of Review in Canadian Administrative Law (2014), 47U.B.C. [136] Where the duty of procedural fairness or the legislative scheme mandates that reasons be given to the affected party but none have been given, this failure will generally require the decision to be set aside and the matter remitted to the decision maker: see, e.g., Congrgation des tmoins de Jhovah de St-Jrme-Lafontaine, at para. Even so, a court should generally pause before definitively pronouncing upon the interpretation of a provision entrusted to an administrative decision maker. 141, per Rowe J., dissenting, but not on this point). (b) for disbursements incurred by the AGS in the course of providing those services. Thus much for pleasure and pain, happiness and unhappiness, in general. J. Hugh Faulkner, Secretary of State of Canada, House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Broadcasting, Films and Assistance to the Arts, Respecting Bill C-20, An Act respecting citizenship, No. 7. However, in 2013, he was issued a certificate of Canadian citizenship. 333 v. Nipawin District Staff Nurses Association, 1973 CanLII 191 (SCC), [1975] 1 S.C.R. What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision makers place. In cases involving such questions, the rule of law requires courts to provide a greater degree of legal certainty than reasonableness review allows. (a) an order that the proceedings are, or part of the proceedings is, to take place in a closed hearing; (b) an order that a person is, or persons included in a specified class of persons are, to be excluded from the whole or part of the proceedings; (c) an order prohibiting or restricting the disclosure of information with respect to the whole or part of the proceedings; (d) an order prohibiting or restricting the publication of a report of or relating to the whole or part of the proceedings; (e) an order for the purpose of ensuring that no person without the approval of the court has access, whether before, during or after the hearing of the proceedings, to any indictment, affidavit, exhibit or other document used in the proceedings or to the records of the court relating to the proceedings; or. Similarly, in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, [2004] 2 S.C.R. (c) the Supreme Court of a State or Territory; without examination or commitment for trial. (b) the person would, apart from this subsection, be breaching legal professional privilege or any other duty of confidence in so doing; the person is taken, for all purposes, not to have breached legal professional privilege or the duty of confidence in so providing the information or producing the document or record. In every possible case, the principle of utility tells us to choose the course of action that will produce the greatest amount of happiness. 3123): 15May 1979 (, Part1 (ss. It appears that the analyst misunderstood Mr. Vavilovs arguments on this point. 80, 1950; No. Toronto: Irwin Law, 2016. The Registrars letter did not offer any analysis or interpretation of s. 3(2)(a) of the Citizenship Act. Dyzenhaus, David. (c) The High Court may grant special leave to appeal to the High Court from any decision of any Court or Judge of a State notwithstanding that the law of the State may prohibit any appeal from such Court or Judge. (1) The AGS may provide legal services and related services to or for the following: (b) a person suing or being sued on behalf of the Commonwealth; (d) a body established by an Act or regulations or by a law of a Territory; (e) an officer of, or a person employed by: (ii) a body established by an Act or regulations or by a law of a Territory; (f) a person holding office under an Act or a law of a Territory; (h) a company in which the Commonwealth has a controlling interest (including a company in which the Commonwealth has a controlling interest through one or more interposed Commonwealth authorities or Commonwealth companies); (i) a person who has at any time been a person referred to in paragraph(c), (e), (f) or (g). 135 (per Rothstein J., concurring in the result); Bernard, at pp. [275] This Court, in fact, has been clear that criticism of a judgment is not sufficient to justify overruling it (Fraser, at para. If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. 1966 No. E. A Reasonable Decision Is One That Is Both Based on an Internally Coherent Reasoning and Justified in Light of the Legal and Factual Constraints That Bear on the Decision. 50. [131] Whether a particular decision is consistent with the administrative bodys past decisions is also a constraint that the reviewing court should consider when determining whether an administrative decision is reasonable. (iii) an employee in the service of a person referred to in subparagraph (i). 72-76. S187), 21 Apr 1980 (see s. 2 and Gazette 1980, No. Would it be wrong not to do so. As Stratas J.A. 9. 45 Defence in causes removed to High Court. 2. However, this Court has subsequently identified a number of other justifications for applying the reasonableness standard, some of which have taken on influential roles in the standard of review analysis at various times. 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