The Witty and Incisive Post

As BKN notes, both of the Supreme Court of Canada cases released last week involved that dog's breakfast of administrative law, the "standard of review."

Most law revolves around conflicting imperatives. In administrative law, there is the principle that the ordinary courts should make sure that every body with legal power over the subject keeps within those powers (its "jurisdiction"). The New Dealers left us the competing principle that the expertise of specialized boards and tribunals should be respected (given "deference"). These two ideas -- each of which sounds reasonable -- are sort of at war with each other.

Canadian law tries to resolve the dilemma by deciding on one of at least three "standards of review" that should be applied to the decision of the tribunal by the reviewing court. Some things the inferior tribunal must be right about. Others it can be wrong, as long as it is reasonable. And still others, it can be unreasonable about as long as it is not "patently unreasonable."

This way of resolving the genuine dilemma is patently unreasonable itself. But what is even worse is how you decide which of the standards of review gets to be applied. I'm not going to get into it, but pretty much any administrative lawyer will agree that the whole thing is a mess.

That's bad, but not all that unusual. There are many messes in law. But what is really bad is that the Court calls its multi-factor approach to determining standard of review the "pragmatic and functional approach". And lawyers -- who are all sycophantic courtiers when it comes to legal argument -- follow along, even though they would to a soul agree that "scholastic and dysfunctional" fits better.

Undeserved self-praise in labelling is not unique to the Red Nine. Management consultants, commercial advertisers and politicians are more ubiquitous. Still, the judges are alone in that we expect them to delineate the limits of their own power. In Schmittian terms, they decide on the exception. So it is particularly obnoxious coming from them.