Andrew Green, “Can There Be Too Much Context in Administrative Law? Setting the Standard of Review in Canada”

Working Abstract

The Supreme Court of Canada has periodically altered its approach to judicial review in order to make it more coherent and easier for courts and litigants to understand. Central to judicial review is the choice of the standard of review a court is to apply in a particular case. The standard of review determines how deferential the court is to be to the executive decision maker. The Court has shifted over time from a formal to a contextual approach to this choice and, most recently, at least partly towards a categorical approach. This most recent approach has been criticized as overly formalistic, neglecting important aspects of the context of particular decisions. This paper examines this shift in the process for choosing the standard of review from an institutional perspective. It discusses the factors that are important in selecting an approach to choosing the standard of review in a particular case. These factors include both the implications for the actual decision at issue as well as the effect on the decisions of other executive decision makers, lower courts, individuals seeking to challenge decisions, and the legislature.

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