Document Type

Article

Publication Date

2017

Keywords

Wilson v Atomic Energy of Canada Ltd, Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, Administrative Decision Making, Judicial Review, Correctness, Reasonableness

Abstract

Administrative law focusses on the way in which, and the extent to which, courts should oversee the exercise of administrative authority. The law on substantive review of administrative decision-making has changed drastically over the last several decades, particularly around choice of standard of review. In the words of the Honorable John M Evans, courts have returned to this issue “with almost monotonous regularity over the last 30 years”. Two Supreme Court of Canada decisions from 2016, Wilson v Atomic Energy of Canada Ltd and Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, have regenerated discussion about standard of review in relation to questions of law. No less an authority than the Honourable Justice David Stratas has suggested that the Court may be “about to embark on one of its once-a-decade, wholesale revisions to the law of judicial review”. To assess how Wilson and Capilano relate to the Supreme Court’s last wholesale revision of the law on substantive review in Dunsmuir v New Brunswick, this article: a) considers Justice Abella’s suggestion in Wilson that a separate standard of correctness review is no longer needed; b) assesses the trend, developing pre-Capilano and implicitly accepted by the majority in that decision, of limiting correctness review to the four categories of legal questions identified in Dunsmuir; and c) discusses the difficulties of applying the Dunsmuir understanding of reasonableness where there are only two possible interpretations of the legislative provision in dispute (Wilson and Capilano), or where the administrative decision-maker has not provided reasons on an issue under review (Capilano).

Publication Abbreviation

UNBLJ

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