Deference and judicial review: a necessary step in the transformation of governance in Canada

Whether it relates to contract, property or administrative action, governance through law, it is said, involves creating mechanisms by which social actors seeking to achieve coordinate action can work together to accommodate their own legitimacy, diversity of objectives, values and interests [1] .

In countries of common law tradition, such as Canada, Judicial review is an integral part of governance in the administrative state; it influences, oversees and reviews all administrative bodies, including tribunals, the “so called” adjudicative branch of government. [2]

Taking into account the traditionally problematic relationship between judicial review and other parts of the administrative justice system, I will consider how the Supreme Court of Canada, through the policy of deference central to the law of judicial review in Canada, acknowledges the transformation of the role of the administrative state to reinterpret its own role in this new model of governance.

The text is divided in three sections. The first section provides an overview of the Canadian law of judicial review emphasizing deference. Using a Canadian example, section two illustrates the new dynamics of interaction between courts and tribunals resulting from the policy of deference. Section three assesses the contribution of the Canadian policy of deference to the emergence of a new model of governance in the sphere of adjudication.

Note: This paper is concerned with administrative adjudication solely, e.g. tribunals whose function is to review initial decisions originating from officials who belong to the executive. Issues concerning the application of the policy of deference to rule-making and broad discretionary powers by non adjudicative bodies will not be addressed .