Mike Madden (Dalhousie University) has posted Conquering the Common Law Hydra: A Consolidated Guide to Standards of Appellate and Judicial Review on SSRN. Here is the abstract:
Just as Hercules eventually conquered the Hydra by using a firebrand to cauterize the beast’s neck stumps immediately after he severed each of its heads, this work will (much less heroically) endeavor to conquer the common law equivalent of the Hydra by describing and explaining the application of the only two remaining standards of appellate and judicial review in Canada: reasonableness and correctness. Part II summarizes the various policy concerns that animate the interventionist and deferentialist perspectives toward judicial and appellate review throughout the Western world, in order to frame the ensuing discussion of the law in Canada. Part III discusses the nature of the two standards of review that apply in Canada, by defining certain key terms and by conducting an in-depth exegesis of recent Supreme Court of Canada (SCC) case law. Part IV explains which standard of review applies to the various grounds of appellate and judicial review, including reviews on questions of fact, questions of law, questions of mixed fact and law, and questions of “discretion.” I will also examine the standards of review currently in use within Nova Scotia for different grounds of review, in an effort to demonstrate their functional conformity to the reasonableness/correctness standards set down by the SCC. Ultimately, even though the SCC has not said as much in a single decision yet, I will conclude that there are only two standards of review in Canada – reasonableness and correctness – and that the law is now quite clear as to which standard applies to each of the various possible grounds of review.