Sentences with phrase «deference by decision makers»

At present, a distinction is often drawn between restrictions imposed by European legislation, for example on habitat protection, and that offered by domestic law; European requirements are often shown greater deference by decision makers, and by the courts when discretion to quash (in judicial and statutory review cases) is considered.

Not exact matches

The recent history of judicial review in Canada has been marked by ebbs and flows of deference, confounding tests and new words for old problems, but no solutions that provide real guidance for litigants, counsel, administrative decision makers or judicial review judges.

Here, I aim to: (1) demonstrate that expertise writ large does not provide a sound justification for deference on questions of law, unless incorporated into the decision - maker's enabling statute and (2) relatedly, argue that deference is not prescribed by extralegal justifications such as expertise, but only by statutory language, which determines the leeway a court should afford to a decision - maker.

Under the correctness standard the reviewing court affords no deference to the statutory decision - maker and effectively conducts a de novo assessment by answering the issue or issues itself (Dunsmuir at para 50).

Stating that administrative decision - makers such as the FOIP Commissioner are entitled to alter precedents or completely depart from an earlier interpretation of legislation — as Justice Manderscheid states here (at para 84)-- was perhaps tenable in a legal system that did not employ a strong presumption of deference to substantive legal findings made by these persons.

For example, the SCC clarified that the «expertise» of tribunals (that warrants deference by courts) does not depend on «the qualifications or experience of any particular tribunal member», but arises at an institutional level, where decision - makers «can be presumed to hold relative expertise...» (Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47 at para. 33).

In Dunsmuir, the Supreme Court set out to do two things: first, to simplify the standards of judicial review by eliminating the patent unreasonableness standard, and second, to strike a balance between upholding the rule of law — that is, ensuring that administrative decision makers adhere to the law as written by legislatures — and according sufficient deference to the administrative decision maker to allow them to provide substantive «meat» to the legislative bones.

Then in McLean v British Columbia (Securities Commission), 2013 SCC 67 (CanLII), Justice Moldaver reinforced the presumption of deference by asserting the onus lies on an applicant in judicial review to establish the statutory interpretation given by a decision - maker to its home statute is unreasonable (McLean at paras 40, 41).

Deference is imperative for «processes and determinations that draw on particular expertise and experiences», but not for all questions of law, merely because the question is raised by a decision - maker's home statute.