Deference and Coherence in Administrative Law: Rethinking Statutory Interpretation

ROBERT YALDEN

ABSTRACT

Canadian administrative law rests on a structure that is archaic and unstable. Courts have failed to reconcile concern to protect individual liberty with respect for the will of a democratically elected legislature, because they have been unable to shake off the influence of Dicey's vision of the Rule of Law and Maxwell's theory of statutory interpretation. Debates about interpretation within constitutional law highlight weaknesses in Maxwell's theory and make clear the need for an approach to administrative law that is not shaped by tensions present in Dicey's work. The author proposes that courts adopt a new approach: one that distinguishes the process of ascertaining the coherence of an administrative body's interpretive practice from the exercise of evaluating the normative and political acceptability of the values that inform that interpretive practice. He suggests that, instead of using veiled and unstructured interpretive techniques to determine the scope of delegated power, courts should apply a coherence test. The author concludes that debates about policies and norms should take place in the political arena and in litigation involving the Canadian Charter of Rights and Freedoms.

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Citation: (1988) 46(1) U.T. Fac. L. Rev. 136.
Copyright © 1988. University of Toronto Faculty of Law Review.
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