n Acta Juridica - Deference : is it useful outside Canada? : the constitutional context

Volume 2006, Issue 1
  • ISSN : 0065-1346
  • E-ISSN: 1996-2088



Judicial deference to the decisions and actions of statutory and prerogative authorities is a key principle of Canadian judicial review law. In its current incarnation, it frequently requires reviewing courts to exercise restraint. In those instances, the reviewing court should scrutinize the decision or action under attack not from the perspective of whether the statutory or prerogative authority made a correct decision but rather by inquiring whether the decision or action was unreasonable or patently unreasonable.

In determining whether it is an occasion for one of the two deferential standards of review, the court evaluates the situation based on a list of so-called 'pragmatic and functional factors' that the Supreme Court of Canada has established and refined over an almost twenty year period. Initially, these pragmatic and functional factors were developed in a series of judgments involving applications for judicial review for error of law of privative-clause protected decisions by adjudicative tribunals. Over time, the reach of this analysis expanded dramatically. It rapidly reached review for questions of fact as well as mixed fact and law. The Court then came to accept that it should also be used even in situations where the route to the reviewing court was not by way of common law or general statutory judicial review but statutory appeal. Later, the Court specified that it was an approach that the courts must deploy for review for abuse of discretion irrespective of whether the respondent was an adjudicative tribunal or a Minister of the Crown. At that point, McLachlin CJ was able to accept in that the pragmatic and functional approach 'provided an overarching or unifying theory for review of the substantive decisions of all manner of statutory and prerogative decision-makers'. Indeed, on occasion, the Court has been prepared to be deferential to statutory authority determination of constitutional questions including the application of the Canadian Charter of Rights and Freedoms.

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