Sentences with phrase «presumption of deference»

Under this analysis, there is no need for an abstracted notion of expertise justifying a lawerly presumption of deference; nor is there a need for the labels of «reasonableness» or «correctness.»

The problem with the current presumption of deference is that it is based on expertise which may or may not be represented in statute.

Professor Olszynski's recent post succinctly describes how this decision has led to the accepted view that a Minister should not be considered in the same light as an adjudicative tribunal and thus should not enjoy the same presumption of deference when interpreting a «home» statute.

They provide sound guideposts as to when the presumption of deference can be rebutted.

The presumption of deference, which could run against statutory language, should be abandoned.

In Edmonton East, the Court listed a number of justifications for a presumption of deference, including «access to justice» and expertise.

But in the post-Dunsmuir world, courts do not investigate expertise empirically before determining whether the presumption of deference applies.

Yet as Professor (now Premier) MacLachlan says, if expertise is to support a presumption of deference, interrogation of a decision - maker's expertise can not be avoided indefinitely.

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

It may be that employing a presumption of deference risks overlooking important context or the subtle wrinkles that may arise in the exercise of public power by statutory officials.

Their dissenting opinions in Capilano and in Atomic Energy are both directed at dismantling the presumption of deference articulated by the Court since Dunsmuir.

The dissent finds the statutory scheme of the Municipal Government Act and the Board's lack of relative expertise in statutory interpretation rebuts the presumption of deference in this case.

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).

The dissenting opinion in Capilano written by Justices Côté and Brown departs from the majority by holding that the presumption of deference is rebutted in this case.

Concern for the rule of law is leading some Supreme Court Justices to push back against the presumption of deference and return to more of a «functional and pragmatic» approach to standard of review.

The presumption of deference came from Alberta Teachers.

-- we insisted on a contextual approach with general guideposts, which is inconsistent with a presumption of deference across the board.

In the Sageunay case, the court found that the presumption of deference had been rebutted; but I do not think there is or should be a legal presumption.

Context matters in administrative law, and the bare assertion of a presumption of deference — the reasonableness standard of review — risks overlooking the context or subtle complications that arise in the exercise of statutory power.