Sentences with phrase «standard of review analysis»
At least with the previous standard of review analysis it was clear what factors would be relied upon.
erudit.org
In other words, while Justices LeBel and Cromwell purported to apply the categorical approach, [60] the real drivers of the choice of standard of review were the much - maligned standard of review analysis factors.
The fact that the Court of Appeal provides 116 paragraphs of reasoning on this issue, and splits on why reasonableness is the applicable standard here, tells you that standard of review analysis remains anything but simple these days.
In administrative law cases, it is always necessary to ask «what the appropriate standard of review is for this question decided by this decision maker» (at para. 71, emphasis original): «The contextual standard of review analysis ensures that legislative intent is respected and the rule of law is protected when courts review decisions of administrative actors» (at para. 89).
For all its warts, Chevron at least avoids the protracted standard of review analysis, with its attendant standards, presumptions, categories, and factors which are confusing for the most learned of administrative lawyers.
There is plenty to commend this in principle: leaving particular grounds of review out of the otherwise comprehensive standard of review analysis does not make a great deal of sense.
Related blog post: The return of context in the standard of review analysis, University of Montreal
I think the majority decision in Dunsmuir provides some helpful presumptions to employ when it comes to a standard of review analysis.
The Court's rhetoric suggests the categorical approach, but a more close analysis suggests that the standard of review analysis factors, or some variant thereon, are the real motor.
The Court made changes to the first and second stages of the pragmatic and functional analysis, itself renamed the «standard of review analysis».
To employ a nondeferential standard of reasonableness is to undermine the standard of review analysis.
The influence of the standard of review analysis is discernible, however, in Justice Rothstein's determination that the question related to the home statute.
Litigants and litigators are likely to become more confused in the future than they ever were by the standard of review analysis: at least the categorical approach's predecessor comprised four fixed factors.
[26] The complexity of the commissioner's balancing exercise would also have been considered under the standard of review analysis.
Significant reliance on the standard of review analysis factors was necessary to determine the appropriate standard of review.
[98] Once again, one can perceive the lure of the standard of review analysis factors: for Justice Binnie (and, apparently, the Court) the nature of the question is critical.
The very purpose of the standard of review analysis is to determine whether a question should be answered by the reviewing court (correctness) or by the decision maker in question (reasonableness).
[25] The expertise of the decision maker and the raison d'être of the commissioner (i.e., balancing competing interests) are factors that would have been taken into account in a standard of review analysis.
Moreover, the standard of review analysis indicated that the question was one that the legislature intended the tribunal to resolve.
This passage suggests that it is to be rebutted by reference to legislative intent, which presumably means a full, four - factor standard of review analysis.
Abstract The standard of review analysis for judicial review of administrative action developed over the course of four decades by the Supreme Court of Canada had two important features.
Despite Bastarache and LeBel JJ's description of the distinction between jurisdictional and non-jurisdictional errors (and the courts approach to determining which category a given error fell into) as «formalistic» and «artificial» (at [43]-RRB-, the way this distinction has developed in Australian law in recent decades in fact shares much in common with the standard of review analysis described in Dunsmuir.
Dunsmuir called for this to happen through the increased use of precedent to determine whether an administrator's decision on a legal issue [2] should be treated deferentially or not, and though the identification of four kinds of legal questions to which the correctness standard would automatically apply [3]-- in either case, no standard of review analysis would be needed.
It then discusses the analytical framework for standard of review, and suggests how to best frame a standard of review analysis.
[1] For those interested in a standard of review analysis of Edmonton (City), please see the November 9, 2016 Slaw article, Standard of Review: The Great Passion of Canadian Law?
Correctness was the appropriate standard based on a contextual approach: «An approach to the standard of review analysis that relies exclusively on categories and eschews any role for context risks introducing the vice of formalism into the law of judicial review...» (at para. 70).
What Figure 3 also makes clear is that the standard of review analysis has not been so much simplified as reorganized, with privative clauses and the purpose of the legislative scheme relegated to tertiary (quaternary?)
Dunsmuir has stood principally for two things: first (and least controversially), the reduction of the number of standards of review from three to two (eliminating the standard of «patent unreasonableness»); and second, a purported simplification of what the Supreme Court now describes as the «Standard of Review analysis» (see Alice Woolley and Shaun Fluker, «What has Dunsmuir Taught?»
As Justice Slatter of the Alberta Court of Appeal put it, «these signposts were never intended to be hard and fast categories, and the standard of review analysis remains sensitive to the statutory and factual context.»
With both delegation and fettering arguments, the whole point is that a statutory power has not been exercised; if no power has been exercised, there is no need to conduct any standard of review analysis.
The Speaker and the Ethics Commissioner submitted that a standard of review analysis is not appropriate as the issue is not subject to judicial review.