Thoughts of a Supreme Court Justice on Deference in Judicial Review

At a recent Administrative Law conference organized in November by the Continuing Legal Education Society of British Columbia, Supreme Court of Canada Justice Louis LeBel made a presentation entitled Some Properly Deferential Thoughts on Deference:

"An understanding of the reasons for and operation of deference in judicial review proceedings is important for both theoretical and practical reasons. At the level of theory, exploring the notion of deference provides insight into the purpose of judicial review and its constitutional roots. The concept of deference assists us in defining the relationship between courts and other decision making bodies. As I will explain, deference is central to understanding the situation of the various decision makers in our constitutional model, both judicial and non-judicial. Our legal system, which I would describe as one of legal pluralism, is one that is only possible if judges adhere to a proper conception of deference and its role in judicial review".

"In this regard, exploring the notion of deference also has practical relevance. Courts must understand their duties when performing deferential review; administrative decision makers must know what actions will be respected by courts and what exercises of power will be scrutinized; and counsel must be aware, when bringing judicial review applications, of the aspects of a decision or its process that demand judicial attention".

In his presentation, Justice LeBel explains the Supreme Court of Canada’s evolving view of the role of administrative bodies (regulators, municipalities, boards, tribunals) and its approach on how to achieve a balance between the need for both judicial review of administrative action and restraint in its exercise.