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New issue is now available online! University of Toronto Law Journal Volume 69, No. 1, Winter 2019 UTLJ Online: http://bit.ly/utlj691 Focus Feature Dunsmuir focus feature: Introduction Robert Danay Read it at UTLJ online >>> <http://bit.ly/utlj691a> http://bit.ly/utlj691a A house divided: The Supreme Court of Canada’s recent jurisprudence on the standard of review Robert Danay In this article, the author examines the Supreme Court of Canada’s administrative law jurisprudence in 2016–18 to measure the level of deference that the Court afforded to administrative decision makers and to assess where the law may be headed next. The Court’s voting patterns indicate that its members have become increasingly polarized, moving away from the high level of unanimity that has historically prevailed in this area. Led by Justice Suzanne Côté, a minority of justices have frequently dissented or concurred in order to disagree on either the identification or the application of the standard of review. These justices have taken a more interventionist approach, voting to apply the correctness standard and to overturn administrative decisions at higher rates than the rest of the Court. This quantitative polarization reflects doctrinal disagreements on basic questions such as the extent to which administrative decision makers should be presumed to have expertise relative to the courts in interpreting their enabling statutes, whether there is any room in the standard of review analysis for either the concept of jurisdiction or a contextual inquiry, whether legislative supremacy or the rule of law should take precedence, and whether the standard of review analysis should be replaced with a single reasonableness standard. Looking ahead to the Court’s forthcoming reconsideration of Dunsmuir v New Brunswick, which approach prevails may be determined by Justice Michael Moldaver, whose voting pattern on the issue has been inconsistent, and the Court’s newest member, Justice Sheilah Martin, whose views on the standard of review analysis are not known. Read it at UTLJ online >>> <http://bit.ly/utlj691b> http://bit.ly/utlj691b Dunsmuir’s Disconnect Matthew Lewans Over the past ten years, Dunsmuir v New Brunswick has become a focal point in scholarly and judicial discourse regarding the law of judicial review. But, despite its influential status, the author argues that the reasoning in Dunsmuir cannot be easily reconciled with paradigmatic cases in Canadian administrative law, which regard transparency, fairness, and reasoned justification as essential rule-of-law safeguards against arbitrary governmental action. By juxtaposing Dunsmuir with a principled understanding of these paradigmatic cases, the author concludes that the reasoning in Dunsmuir serves to undermine, rather than reinforce, the fundamental principles which might otherwise ensure the legitimacy of administrative law. Read it at UTLJ online >>> <http://bit.ly/utlj691c> http://bit.ly/utlj691c Dunsmuir and the scope of admissible evidence on judicial review: Principled limitations or path dependency? Benjamin Oliphant, Lauren J Wihak On its tenth anniversary, a great deal can be said about the decision in Dunsmuir v New Brunswick and the way that it and its progeny have impacted how courts approach judicial review in Canada. The grounds upon which decisions may be quashed have expanded, and reviewing courts now must consider the facts and circumstances underlying a decision under review as well as their impact on the Charter interests of a party challenging a decision. Nevertheless, the rules governing evidence admissible on judicial review have not been changed in any meaningful way since the nineteenth century. Those rules, generally speaking, still limit the admissibility of so-called ‘extrinsic’ evidence to situations involving alleged ‘jurisdictional errors’ or a breach of the duty of fairness. While perhaps not as exciting as other current issues in administrative law, it is one of tremendous practical significance to parties seeking to challenge the decisions of public authorities. The rigid evidentiary rules can mean that parties are not practically able to make the arguments that they would otherwise be entitled to make on review, and the task of the reviewing court can be frustrated. Operating from the thesis that the rules of evidence on judicial review should move in tandem with changes to the substantive law of judicial review, the authors propose a general rule permitting parties to adduce evidence necessary to the arguments they are permitted to make, subject to the courts’ discretion to exclude such evidence where there is a meaningful opportunity or expectation that the evidence be put before the decision maker at first instance. The issue of ‘what is the record’ is increasingly a live one on judicial review, particularly when non-adjudicative or policy decisions are under review. This is unlikely to change when the Supreme Court of Canada revisits Dunsmuir, unless the rules of evidence are modified in tandem. Read it at UTLJ online >>> <http://bit.ly/utlj691d> http://bit.ly/utlj691d Articles Group RESPs: The intersection of government support for education savings and securities regulation Gail E Henderson Tax incentives encourage Canadian families to save for their children’s post-secondary education. In recent years, the federal government has created and enhanced incentives aimed specifically at low- to middle-income families. To access these incentives, families must open a ‘registered education savings plan’ (RESP). Approximately one-quarter of RESPs are invested in group plan RESPs. Group plan providers are regulated by securities laws. Group RESPs have a unique and complicated structure, which generates a high number of consumer complaints, particularly about the high, upfront fees. Group plan providers also have a long history of non-compliance with securities laws, including selling group plans to investors for whom they are not suitable. The combination of high, upfront fees and the lack of suitability is particularly harmful to low-income investors. A bad experience with a group RESP may lead the investor to avoid education savings altogether, thereby undermining the government’s policy goals in establishing incentives for low-income families and, ultimately, affecting the future path that may be taken by the potential beneficiaries of such savings. This article examines government incentives for education savings, the terms of group plans and their history of non-compliance, and puts forward three possible avenues for reform, including decoupling incentives aimed specifically at low- and middle-income families from having to open a RESP. Read it at UTLJ online >>> <http://bit.ly/utlj691e> http://bit.ly/utlj691e How the prison is a black box in punishment theory Lisa Kerr The field of punishment theory promises to deal with the question of whether state punishment can be justified and on what grounds. In this field, punishment is rarely conceptualized as imprisonment. Even in the more practical subfield of sentencing theory, the realities of prison conditions rarely appear. Legal actors borrow the vocabulary of punishment and sentencing theory, proceeding as if theories speak to and justify the practice of imposing custodial sanctions and imprisonment generally. This article tries to explain how the fields of punishment and sentencing theory largely avoid the prison. The question, in a sense, is how a field can evade what is ostensibly its own subject matter. What this critique means is that sentencing authorities and other legal actors should turn away from punishment theory – or should look well beyond its boundaries – when they are thinking through the legitimacy and severity of the custodial sanctions they are imposing and administering. Read it at UTLJ online >>> <http://bit.ly/utlj691f> http://bit.ly/utlj691f The concept of a linguistic community Érik Labelle Eastaugh The concept of a ‘linguistic community’ plays a critical role in Canadian language rights law, appearing explicitly in both the Constitution and in statutory law as well as featuring prominently in the case law. Despite its ubiquity, however, this concept has never been explicitly defined, nor has it been subjected to sustained analysis by the courts or in legal scholarship. This is problematic, as the term can be interpreted in divergent ways, and the choice one makes in this respect has the potential to substantially alter the content of various constitutional and statutory provisions. Reduced to its simplest form, the problem is that the word ‘community’ can be interpreted in one of two ways: (a) as designating a collective entity of some kind or (b) as nothing more than a shorthand for labelling a certain class of individuals based on their linguistic competency and geographic location. This article examines which of these options ought to be preferred when construing references to a ‘linguistic community’ in constitutional or statutory provisions or in the relevant case law. Part ii of the article examines the concept of a community from a philosophical perspective and outlines a theoretical framework for distinguishing between cases where a collection of people should be viewed as a mere aggregate of individuals and those where it should be conceptualized as a collective entity with interests distinct from its individual members. Part iii then explores how this framework can be used to better understand the somewhat murky conceptual foundations of the leading language rights cases. I argue that these foundations can be explicated or completed by combining the concept of a ‘community’ developed in Part ii with ideas drawn from the social scientific research on the relationship between language, culture, and identity. Read it at UTLJ online >>> <http://bit.ly/utlj691g> http://bit.ly/utlj691g Review Essay The Legitimacy of Civil Freedom Florian Rödl Force and Freedom by Arthur Ripstein provides a comprehensive account of the modern legal system on a Kantian basis, reaching from private law to public international law. The legal system is presented as a coherent whole, solely based on the idea of equal freedom. Ripstein’s fundamental claim is twofold: first, the Kantian foundation is hermeneutically superior to alternative approaches to understanding the normative structure of the legal system; second, the modern legal system, due to its foundation in equal freedom, resides in reason and is thus normatively superior to alternative ideas of social ordering. Such a great work is typically subject to a wide range of objections. Some of them are raised in contributions to Freedom and Force, edited by Sari Kisilevsky and Martin Stone. This review essay attempts to explain Ripstein’s basic line of thought in Force and Freedom and to defend his account against some mistaken, but nevertheless illuminating, arguments from his critics in Freedom and Force. It then raises two further concerns, one internal, regarding the idea of justice in contractual exchange, and one external, regarding the cogency of a Kantian legitimation for the modern welfare state. Read it at UTLJ online >>> <http://bit.ly/utlj691h> http://bit.ly/utlj691h Founded in 1935, UTLJ is the oldest university law journal in Canada. UTLJ publishes the work of internationally known scholars, not only in law but also in a broad range of disciplines relating to law, such as economics, political science, philosophy, sociology, and history. UTLJ is available in print and online. 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