The contextual turn: Iacobucci’s legacy and the standard of review in administrative law

“The contextual turn: Iacobucci’s legacy and the standard of review in administrative law” (with Lorne Sossin) (2007) 57(2) University of Toronto Law Journal 581-606 (Cited by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190). PR. 26 pages

No judge of the Canadian Supreme Court in a generation can claim the same level of influence over the development of administrative law as Justice Frank Iacobucci. His influence is particularly visible in the context of the standard of review: the degree of scrutiny a court will employ in reviewing an administrative decision. The standard of review raises the dilemma of how courts may simultaneously respect the legislative choice to delegate certain executive decision making to expert bodies and ensure that such bodies respect the limits of their statutory authority and the broader constraints imposed by the rule of law. Courts have long been tempted to treat administrative boards and tribunals as inferior beings. Furthering the legacy of John Willis, Justice Iacobucci’s salient contribution has been to focus on the expertise of administrative agencies relative to the courts and to demand deference on the part of the courts.

Here we explore unresolved tensions in the standard of review in Canadian jurisprudence and Justice Iacobucci’s efforts to piece the puzzle together. In response to the need for great contextual analysis, Justice Iacobucci developed a third standard of review (reasonableness simpliciter). In so doing, he embraced the challenge of complexity through attention to context. He was, however, reluctant to extend this contextual approach to its natural conclusion because of a concern that such a path may provide cover for courts to show less rather than more deference to administrative decisions. We argue, whilst appreciative of his reservation, that the Supreme Court now needs to complete the contextual turn that Justice Iacobucci adroitly instigated and navigated during his tenure on the Court.

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