Justifying True Questions of Jurisdiction

2015
Volume 46, No 2
Thomas Liption

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Abstract

In 2011, in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, a majority of the Supreme Court questioned the continued viable of the true question of jurisdiction exception to reasonableness review announced by the Court in Dunsmuir v New Brunswick. This article seeks to provide a conceptual and constitutional justification for true questions of jurisdiction as an exception to reasonableness review, albeit in a narrowed form. The exception’s promulgation and adjudication sub-categories are explained and defined. A test for each sub-category is articulated and applied. Finally, the article argues that claimants’ rights in the administrative state will be best protected when the narrowly redefined true question of jurisdiction exception complements properly applied reasonableness review. Only then can substantive judicial review steer between the extremes of unwarranted judicial interference in the administrative state and unchecked administrative power.

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