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Standard of Review by Mind Map: Standard of Review
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Standard of Review

.... and the Charter

The Orthodox Approach:

SOR analysis will continue to be relevant when considering Qs of jurisdiction, fact and application of law to facts.

The Mixed Approach

Administrative Law Approach

Is a s. 24(1) Remedy available to the Tribunal? CONWAY TEST

Can Tribunal Look at Constitutionality of its own statute Through Charter Lens? MARTIN TEST

Guiding Principle (Sleight)

Admin agencies must act consistent with the Charter "and its values" when exercising statutory functions

Accepted Goals of the Analysis:

The ATA

Administrative Tribunals Act

Reasons for Reform

Reasons for Reform: Improve quality & timeliness of decisions More opportunity & earlier chances for informal review & reconsideration. Move away from crt like process to ADR. Greater certainty and finality. Restructure tribunals w view to workloads. Expertise.

Overview

Overarching statute that: (1) harmonizes procedural fairness rules generally in BC and; (2) places limits on JR opportunities.  Applies to provincially created tribunals in BC BUT not every section applies to every tribunalà“menu” type statute.

Central themes

ATA is built around 5 notions: Independent process Institutional design & powers of tribunals. Dispute resolution. Charter & Human Rights Jurisdiction SoR (Post-Dunsmuir--> patent unreasonableness alive in BC --Khosa)

Important Provisions

Canada v. Khosa

How to determine the Standard of Review

The Watershed (CUPE)

Analytical Structure (Pushpanathan)

Pre-Dunsmuir Caselaw

New Test (Dunsmuir)

....and discretionary decisions

What is discretion?

History: abuse of discretion doctrine

The new approach: Baker v. Canada

Recent Law: Public Mobile Inc. v. A.G. (Canada) [Globalive]

The ATA and Discretion