Sentences with phrase «in judicial deference»

[8] I have discussed this issue in more detail in Peter A. Gall, «Problems with a Faith Based Approach to Judicial Review» in Judicial Deference to Administrative Tribunals in Canada: Its History and Future (Markham, ON: LexisNexis, 2014)[Gall, «Faith Based»] at 219 - 223.

Not exact matches

In the past, the Senate deferred to the president's choice of justices, as well as other federal judicial officers, but since the Nixon administration that deference has declined and appointments have been seen as more political, particularly following the Senate Judiciary Committee's hearings on the appointment of Clarence Thomas.

A 2007 article in the Administrative Law Review noted how some federal agencies» usage of signing statements may not withstand legal challenges under common law standards of judicial deference to agency action.

In his companion essay for this forum, James Ryan maintains that Scalia's defense of judicial deference is fraudulent.

But the 2011 effort had a handicap this one does not — it was a judicial review, in which judges must give deference to the tribunal.

And we beg leave to add with all due deference that no decision of any court of the United States can under any circumstances, in our opinion, agreeable to the Constitution, be liable to a reversion or even suspension by the legislature itself, in whom no judicial power of any kind appears to be vested but the important one relative to impeachments.»

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.

It is, in effect, the expression of judicial deference to the executive's responsibility... [more]

Recognizing the critical importance of judicial tenure, both in substance and appearance, Congress provided special protections for administrative law judges, even as it afforded due deference to the constitutional powers of executive agencies to render final agency decisions.

The decision is important for examining the level of deference by the judiciary in applying judicial review where matters extend into public policy relating to the precautionary principle in environmental law.

Courts on judicial review do view expertise as a valid doctrinal reason for deference, and are willing to put aside their own interpretation of a statute in favour of a decision - maker's.

Dunsmuir acknowledges the nature of the question as the most important factor in selecting the appropriate level of deference in substantive judicial review; endorsing what has been the reality for years despite claims that relative expertise is the most influential factor.

The majority opinion justifies the need to merge reasonableness simpliciter with patent unreasonableness on now familiar grounds that: (i) the two standards are impossible to distinguish in application, despite good intentions in selecting a «middle ground» standard where pragmatic factors point both for and against judicial deference; and (ii) patent unreasonableness contemplates judicial endorsement of an «unreasonable» administrative decision.

Dunsmuir affirms the Supreme Court's continued reluctance to apply judicial deference as originally contemplated by Dickson J. in his 1979 CUPE Local 963 v. New Brunswick Liquor Board judgment and later followed by Wilson J. in her National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 SCR 1324 dissent.

PDF Version: Some Thoughts on the Presumption of Deference under the Dunsmuir Framework in Substantive Judicial Review

Then in 2011 Justice Rothstein, this time writing for the majority in Alberta (Information and Privacy Commissioner) v Alberta Teachers» Association, 2011 SCC 61, wrote that the principle of judicial deference asserted in Dunsmuir had evolved to the point where there is a presumption the standard of review is reasonableness where a statutory decision - maker applies and interprets its home statute (at para 39).

Her divergence from the majority in both decisions rested on the view that judicial deference is based upon the principle of relative expertise or experience in a particular area, and thus this bare assertion of a presumption of deference simply because a statutory decision - maker is interpreting its home statute pays too little attention to whether the statutory decision - maker actually has sufficient expertise or experience to justify deference to its determination of a legal question (See Alliance Pipeline at para 80 and Alberta Teachers» Association at paras 82 — 89).

The respondent in judicial review who seeks to defend the statutory decision will usually assert that reasonableness be applied as the standard of review, such that the reviewing court affords deference to the decision and making it less likely the court will interfere with the decision.

Judicial deference in such instances is itself a principle of modern statutory interpretation.

In a stunning act of judicial deference this keen use of the broad discretion to award costs has allowed a personal injury claimant to recovery the legal costs of a claim despite dismissal of the action.

I conclude with some thoughts on the developing presumption of deference in substantive judicial review post-Dunsmuir.

It is, in effect, the expression of judicial deference to the executive's responsibility for international relations.

Professor Sunstein cites a few examples of judicial deference over the past century, such as the per curiam decision in Massachussetts Board of Retirement v. Murgia, 427 U.S. 307 (1976), in which the United States Supreme Court upheld a state law setting a mandatory retirement age of 50 for police officers, deferring to the legitimate interest identified in the state's pleadings.

Philip Rosen believes that this practice reflects a prosecutorial bias on the part of the Department of Justice, resulting in a «deference to judicial determinations of guilt and an insufficiently rigorous questioning of the foundations of criminal convictions.»

In this case, Justice Blair observed that underlying the proposed class action was an «almost entirely foreign - related factual matrix» and he found that Justice Perell's determination that he should exercise judicial restraint and decline jurisdiction was both well - founded and entitled to deference.

Professor Aditya Bamzai has a fascinating piece in the Yale Law Journal entitled «The Origins of Judicial Deference to Executive Interpretation ``:...

At the time the doctrine of judicial deference was first developed by the Court in the late 1970s and 1980s, the courts in the labour relations area, in particular, had a poor record of interfering with the sensible development of labour relations policy by labour relations boards and arbitrators under collective bargaining statutes.

[1] To the extent that this would result in deference becoming a nearly irrefutable presumption in every judicial review analysis, [2] I fear that the rule of law component of judicial review will take a back seat to the deference side of the equation, contrary to the balance that was intended to be struck in Dunsmuir.

The other consideration which often results in a restrained approach to judicial review is the belief that deference to first level decision - makers will facilitate access to justice.

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.

In my respectful view, by over-emphasizing the importance of deference in recent years, the Supreme Court has sometimes lost sight of the rule of law principle — the important role of the courts — in judicial revieIn my respectful view, by over-emphasizing the importance of deference in recent years, the Supreme Court has sometimes lost sight of the rule of law principle — the important role of the courts — in judicial reviein recent years, the Supreme Court has sometimes lost sight of the rule of law principle — the important role of the courts — in judicial reviein judicial review.

The Alberta Court of Appeal gave us a surprising new exception to the presumption of deference owed to statutory tribunals by ruling in Capilano, ABCA that the statutory right of appeal set out in section 470 of the Municipal Government Act demonstrates a legislative intent for an intrusive judicial role into municipal property tax assessment and therefore is an indication that the standard of review should be correctness (see Where Are We Going on Standard of Review in Alberta?

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 about the way in which a court treats an administrative decision, primarily on judicial review but also in other contexts, where the legitimacy of the decision is in question.

For example, Madam Justice Deschamps wrote a concurring opinion in Alberta Teachers» Association on the view that judicial deference is based upon the principle of relative expertise or experience in a particular area, and thus a bare assertion of a presumption of deference simply because a statutory decision - maker is interpreting its home statute pays too little attention to whether the statutory decision - maker actually has sufficient expertise or experience to justify deference to its determination of a legal question (Alberta Teachers» Association at paras 82 — 89).

In the initial judicial review hearing Justice Rooke concluded the applicable standard to review the Board's decision was correctness on the basis that the Board's determination that it could increase assessed property value was a true question of jurisdiction — one of the established exceptions to the presumption of deference owed by a reviewing court to a statutory tribunal interpreting its home legislation (see Edmonton East (Capilano) Shopping Centres Limited v Edmonton (City), 2013 ABQB 526 (CanLII) at paras 18 - 31).

In 2015 the Alberta Court of Appeal issued two decisions which suggested the Court is attempting to curtail the presumption of deference in the judicial review (or statutory appeal) of statutory tribunal decisions in this province: see Edmonton (East) Capilano Shopping Centres Ltd v Edmonton (City), 2015 ABCA 85 (CanLII)(Capilano, ABCA) which I commented on in Where Are We Going on Standard of Review in AlbertIn 2015 the Alberta Court of Appeal issued two decisions which suggested the Court is attempting to curtail the presumption of deference in the judicial review (or statutory appeal) of statutory tribunal decisions in this province: see Edmonton (East) Capilano Shopping Centres Ltd v Edmonton (City), 2015 ABCA 85 (CanLII)(Capilano, ABCA) which I commented on in Where Are We Going on Standard of Review in Albertin the judicial review (or statutory appeal) of statutory tribunal decisions in this province: see Edmonton (East) Capilano Shopping Centres Ltd v Edmonton (City), 2015 ABCA 85 (CanLII)(Capilano, ABCA) which I commented on in Where Are We Going on Standard of Review in Albertin this province: see Edmonton (East) Capilano Shopping Centres Ltd v Edmonton (City), 2015 ABCA 85 (CanLII)(Capilano, ABCA) which I commented on in Where Are We Going on Standard of Review in Albertin Where Are We Going on Standard of Review in Albertin Alberta?

For this reason, Justice Rothstein provides a very sharp and pointed dissent, emphasizing the importance of judicial deference to the legislature, even in constitutional matters,

Judicial dialogue demonstrates that the courts still express considerable deference to the executive and the legislature in how policy decisions are made, and this deference is a central component to respect of the judicial function in a deJudicial dialogue demonstrates that the courts still express considerable deference to the executive and the legislature in how policy decisions are made, and this deference is a central component to respect of the judicial function in a dejudicial function in a democracy.

[1] The first was Deference in Name Only: Judicial Review of Ontario's Information and Privacy Commissioner, (1998) 20 Adv. Q. 304, followed by Judicial Deference and Ontario's Information and Privacy Commissioner: In Search of Reasonableness, (1994) 28 Adv. Q. in Name Only: Judicial Review of Ontario's Information and Privacy Commissioner, (1998) 20 Adv. Q. 304, followed by Judicial Deference and Ontario's Information and Privacy Commissioner: In Search of Reasonableness, (1994) 28 Adv. Q. In Search of Reasonableness, (1994) 28 Adv. Q. 1.

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.

Recent judicial experience suggests that wide application of the protean concept of proportionality would require the development of additional doctrinal tools (such as deference) in order to ensure that the proportionality test is applied with appropriate intensity across the wide spectrum of administrative law cases, ranging from fundamental rights on one end to purely economic interests at the other extreme.

In that post, I suggested that our views on deference in judicial review are a function of our deeper beliefs on such principles as democracy and the Rule of Law, as well as on the institutional competence of the various branches of government, and that a coherent set of such beliefs could produce superficially inconsistent views about the degree of deference appropriate in various sorts of judicial revieIn that post, I suggested that our views on deference in judicial review are a function of our deeper beliefs on such principles as democracy and the Rule of Law, as well as on the institutional competence of the various branches of government, and that a coherent set of such beliefs could produce superficially inconsistent views about the degree of deference appropriate in various sorts of judicial reviein judicial review are a function of our deeper beliefs on such principles as democracy and the Rule of Law, as well as on the institutional competence of the various branches of government, and that a coherent set of such beliefs could produce superficially inconsistent views about the degree of deference appropriate in various sorts of judicial reviein various sorts of judicial review.

Alternative account: The Supreme Court affirmed that the Scottish Parliament is subject to judicial review, subject to such considerations, including considerations of deference on institutional and democratic grounds, as are fitting in respect of an elected legislative body.

She has co-authored practice notes on the «Prevent Duty» on public bodies in relation to terrorism (see article here); the status of Strasbourg case law; human rights and statutory construction; judicial deference and the margin of appreciation; civil contingencies and emergency powers; dealing with human rights challenges; and terrorism law.

In the first significant judicial review of a decision of the BC Health Professions Review Board (the «HPRB»), the BC Supreme Court found that a registrar investigating a complaint and exercising a summary dismissal power under s. 32 (3) of the Health Professions Act (the «Act») was entitled to deference as to adequacy of the investigation in Moore v. College of Physicians and Surgeons of British Columbia, 2013 BCSC 208In the first significant judicial review of a decision of the BC Health Professions Review Board (the «HPRB»), the BC Supreme Court found that a registrar investigating a complaint and exercising a summary dismissal power under s. 32 (3) of the Health Professions Act (the «Act») was entitled to deference as to adequacy of the investigation in Moore v. College of Physicians and Surgeons of British Columbia, 2013 BCSC 208in Moore v. College of Physicians and Surgeons of British Columbia, 2013 BCSC 2081.

It is odd, therefore, to find on Judicial Power's list of 50 «problematic» cases Liversidge v Anderson — which is criticised by the editors of the list as showing «excessive deference to the executive's wide discretionary powers in wartime» and for «giving no effect to a statutory provision requiring the Home Secretary to have reasonable grounds for a detention decision».

The biggest argument for a more narrow interpretation of the Carter declaration is judicial deference to Parliament to craft a constitutionally compliant mechanism, in particular because there are competing values of great importance.

There is evidence on both sides of this question, but in recent years we have observed moments of great deference as well as moments of judicial constraint of executive behaviour in wartime.