Jurisdictional review: an error of jurisdiction or jurisprudence?
University of British Columbia
Master of Laws - LLM
During the past decade we have witnessed a vast growth in the volume and variety of discretionary powers, designed to achieve an array of social, economic and other objectives, conferred by government onto numerous administrative authorities. The potential width of these powers and the consequent possibility that they will be misused by the administrative decision maker necessitates that there exist some mechanism for ensuring that they are not so employed. This in turn raises the question of how such regulation of administrative decision making is to be best effected. Administrative law scholarship has for the most part presumed the courts to be the best mechanism. It has been characterised by an apparently insoluble debate over whether the courts should adopt an activist stance when reviewing exercises of discretion or whether they should rather exert restraint and defer to the expertise of the decision maker. The focus of this debate, and of judicial decisions, is on defining the ambit of a decision maker's power, or jurisdiction, as conferred in the empowering statute. It is asserted in this thesis that it is because courts and academic writers are concentrating on discerning conclusively these jurisdictional limits that this debate continues unresolved. It is argued that an alternative perspective of administrative law and the role of the courts in the administrative process is consequently demanded. The current framework of discussion is critiqued throughout the thesis, and the concept of jurisdiction is critically examined from both a theoretical and practical perspective. It is asserted that the theoretical assumptions from which it is derived are misconceived and that the impact of adhering to such a concept on the administrative process is considerable. Consequently it is concluded that as a basis of review jurisdiction should be discarded. Once this is achieved it is contended that it may be possible to construct better ways of dealing with administrative discretionary powers that focus not on the role of the courts in correcting perceived mistakes in the decision making process but rather on promoting good decision making. That is ensuring that decisions which best implement the stipulated objectives of a particular power are achieved, without the need for the largely negative intervention of outside agencies.
Law, Peter A. Allard School of