Two Myths of Administrative Law

In an upcoming set of cases, the Supreme Court of Canada will review its approach to the standard of review of administrative action. In this paper, the author suggests that the Court must go back to the foundation of judicial review in redesigning the standard of review: the task of courts to police the legal boundaries of the administrative state, on any standard of review. To do so, courts must authentically interpret the legislative grant of authority, particularly to determine the appropriate intensity of review. To that end, the author suggests that the Court should discard two myths of administrative law: (1) that administrative decision-makers have expertise in matters of statutory interpretation; and (2) that jurisdictional questions exist. The myths may impose a different standard of review than the one discernible with the ordinary tools of statutory interpretation. These court-created devices should not exist at the expense of the constitutionally prescribed duty of the courts to interpret statutes to determine the standard of review.