Deference and the Administrative-Legislative Paradox in Judicial Review

Presented by the CBA Alberta Administrative Law North Section

There is a perception that many jurists most inclined to advocate deference to the administrative state are least deferential to the legislature on constitutional grounds. At the same time, many jurists least inclined to defer to the executive/administrative state on administrative law grounds have been most deferential to the legislature on constitutional law grounds. This is somewhat counterintuitive. If one truly had faith in the judiciary as an essential player to vindicate rights in our constitutional order, one might think that deference is warranted equally to both the executive/administrative state and the legislature. Yet this appears not to be case. Post-Vavilov case law indicates that this “administrative-legislative paradox” (the “paradox”) appears alive and well. This presentation explores why, by: a) exploring this paradox from a descriptive level and adding caveats to it; and b) exploring four complementary hypotheses as to why the paradox may exist, based on: i) an emphasis on purpose instead of text legal interpretation; ii) the desire to seek internal or external coherence throughout public law; iii) the extent to which different conceptions of the separation of powers explains the paradox; and iv) insights from critical legal studies. These hypotheses as explanations for the paradox are complementary and not in mutual contradiction

SPEAKER

Gerard Kennedy (Assistant Professor, University of Alberta Faculty of Law)

MEETING DETAILS

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MEETING PRICE

Full Subscribers: No charge | Webcast subscribers: $30.00 | On-Demand Subscribers: $30.00 | Non-Section Subscribers: $30.00 | CBA Law Student Members: No charge

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