Administrative Law in 2016 Part II – An Additional Case

In addition to the cases noted in Part I of my annual paper, the following very recent decision by the Supreme Court of Canada also deserves comment.

Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Limited 2016 SCC 47

On 4 November 2016, a sharply divided five-to-four Supreme Court of Canada issued its decision in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Limited. The majority’s decision was written by Justice Karakatsanis and concurred in by Justices Abella, Cromwell, Wagner and Gascon. The minority’s decision was written by Justices Côté and Brown and concurred in by Chief Justice McLachlin and Justice Moldaver. The majority and the minority differ fundamentally on (a) the standard of review applicable where a statute specifically provides a right of appeal to the courts; (b) whether the four “correctness” categories in Dunsmuir are descriptive or exhaustive; (c) whether the presumption that reasonableness is the applicable standard of review when the statutory
delegate is interpreting its home statue can be rebutted; (d) whether context is relevant to standards of review analysis, (e) what constitutes “expertise” ; and (f) the concept of “a true jurisdictional question”.

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