Judicial Review from CUPE to CUPE: Less Is Not Always More

Abstract

Although deference to administrative decisions is well established in Canadian law since the decision of the Supreme Court of Canada in CUPE Local 963 v New Brunswick Liquor Corporation in 1979, application of the Supreme Court's standard of review analysis remains difficult. The Court's subsequent decision to render all administrative decisions subject to the same analysis - whether the decision in question is subject to appeal or ostensibly final, and whether it involves the interpretation of legislation or the exercise of discretionary power - further complicates an already complicated picture. Recourse to judicial review is popular when the courts are perceived as more progressive than governments, and the courts must be careful not to interfere with the exercise of discretionary power on the basis of hostility to the policies being pursued, or to particular policy outcomes. The perception that courts were interfering on these bases was, after all, the problem that gave rise to deference theory in the first place, albeit in the context of administrative tribunals rather than the political executive. The case for deference is different when it comes to the exercise of executive power, but it is no less strong. Indeed, courts must be aware of an additional concern that does not arise in the context of judicial review of the decisions of administrative tribunals: the importance of recognizing and respecting not only institutional roles but also political roles. Judicial review is no substitute for political accountability - no legitimate substitute, that is - however imperfect political accountability may appear. The Supreme Court of Canada's decision in CUPE v. Ontario (Minister of Labour) is troubling because it suggests that the Court is not prepared to treat Ministers with the same respect that it has shown to administrative tribunals. If this is right, then we should expect to see more judicial review where executive action is concerned. This may not trouble those who equate deference with respect, but it should: judicial review is bound to become more political as a result. To the extent it does, its legitimacy is bound to be undermined.