Central Themes

1. Judicial Review: Recent DevelopmentsProf. Evan Fox-DecentMcGill UniversityFaculty of LawFebruary 15, 2011

2. Central Themes Pre-Dunsmuir (SCC, 2008): Pragmatic & Functional Approach Dunsmuir: Judicial Review Revamped Review of Discretion: from Baker to Khosa Procedural Fairness: Challenges of the No-Fly List

3. Pragmatic & Functional (P & F) Approach The Point: Overcoming jurisdictional review pre-CUPE “mere” errors of law vs. jurisdictional error The P & F Method: application of four contextual factors to determine the standard of review

4. P & F Contextual Factors Privative clause / statutory right of appeal Relative expertise Purpose of statute and provision within statutory scheme Nature of the question (law, fact, mixed fact and law)  • Standard of Review: • correctness • reasonableness simpliciter • patent unreasonableness

5. Dunsmuir (SCC, 2008) : Judicial Review Revamped THE PROBLEM: P & F approach indeterminate Exhaustive application of P & F not always necessary Costly to litigants Time-consuming for courts Distinction between standards unprincipled THE DUNSMUIR SOLUTION: Streamline method for determining standard of review Streamline the standards of review: just correctness and reasonableness

6. Dunsmuir: Standard of Review Analysis Consider past jurisprudence Apply standard-of-review presumptive rules: Reasonableness if: fact, or law and fact; policy or discretion; law AND a privative clause AND a specialized regime in which the decision maker has expertise (e.g., labour relations). Correctness if: constitutional; jurisdictional wrangling; central importance to the legal system; “true” question of jurisdiction. Apply P & F factors for an “overall evaluation” (Khosa)

7. Review of Discretion: from Baker to Khosa Baker (SCC, 1999): Framework for review: Terms and bounds of statute (nominate grounds of review) Principles of the rule of law Principles of administrative law Charter principles Fundamental values of Canadian society Relevant legal context for determining scope of discretion: Objectives of the Act International law Ministerial guidelines Take home message: decision-makers must be ‘alert, and sensitive’ to children’s best interests

8. Review of Discretion con’t: from Baker to Khosa Khosa(SCC, 2009): Framework for review: Terms of statute (nominate grounds of review) Relevant legal context for determining scope of discretion: The nature of a grant of discretionary power Take home message: courts must not reweigh the weight primary decision-makers give to relevant factors Question: Can judicial review hold decision-makers accountable if they can assign no weight to relevant factors that contradict the evidence they rely on?

9. Procedural Fairness: Challenges of the No-Fly List Procedural Fairness: applies if an important interest is at stake Impartial and independent decision-maker Decision made in light of all the relevant facts and law Right to know and reply to the case against Specified Persons (No-Fly) List: Maintained by the Ministry of Transport No notice prior to boarding Office of Reconsideration: no statutory basis per se Limited disclosure of grounds for security reasons Question: Can this program be made consistent with the requirements of procedural fairness?