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36 U. Toronto L.J. 343 (1986)
Judicial Review of Administrative Interpretations of Law: How Much Formalism Can We Reasonably Bear

handle is hein.journals/utlj36 and id is 347 raw text is: ADMINISTRATIVE INTERPRETATIONS OF LAW: HOW MUCH FORMALISM CAN WE REASONABLY BEAR? Introduction Over fifty years ago D.M. Gordon, writing about a problem which many administrative lawyers have taken to calling simply jurisdiction,' de- scribed his work as 'an attempt to ventilate one of the worst corners of the Augean stable. In the intervening period great amounts of professional, judicial, and scholarly energy2 (not to mention client resources) have been expended on this same problem; but it is doubtful whether the stable has been ventilated to any significant degree. The problen, at its most narrow, is to devise a workable test of jurisdiction.' In a slightly different guise, it is to distinguish between questions of law and questions of fact. Thus stated, it is an intractable doctrinal game;3 but it is at this level that most energy has been concentrated. More broadly formulated, the challenge is to go behind the doctrinal debate to question conventions and assumptions relating to both the interpretation of statutes and judicial review. Ultimately the discussion must come to terms with the 'rule of law' and the separation of powers. That is the challenge of this article: to raise the question of how statutory interpretation should proceed in the modern administrative * Faculty of Law, Dalhousie University I The relation of facts to jurisdiction (1929) 45 Law Q.R. 459, at 46o 2 Gordon himself made numerous further contributions: The observance of law as a condition ofjurisdiction (1931) 47 Law Q.R. 386 and 557; Administrative tribunals and the courts (1933) 49 Law Q.R. 94 and 419; Excess of jurisdiction in sentencing and awarding relief (1939) 55 Law Q.R. 521; Tith redemption Commission v. Gwynne (1944) 6o Law Q.R. 25o; Conditional or contingent jurisdiction of tribunals (196o) 1 U.B.C.L.R. 185; Jurisdictional facts: An answer (1966) 82 Law Q.R. 515; What did the Anisminic case decide? (1971) 34 Mod. L.R. 1. For a review of other scholarly contributions, see infra note 74. 3 The intractability of the problem is reflected in the metaphors chosen by commentators like Weiler (a 'slippery slope') The slippery slope ofjudicial intervention: The Supreme Court of Canada and labour relations 1950-1970 (1971) 9 Osgoode Hall L.J. 1; or Craig ('like steering a course between Scylla and Charybdis') Administrative Law (1983) 299. For my part I have worked my way through a series of metaphors - e.g., 'a siren song': Some problems with judicial review of administrative inconsistency (1984) 8 Dalhousie L.J. 435, at 473 - but I find that the more time one spends thinking about the problem of jurisdiction, the less elegant becomes the metaphor. I currently favour likening thinking about jurisdiction to attempting to extract oneself from fly-paper; once you get started with the exercise it is virtually impossible to break free. (1986), 36 UNIVERSITY OF TORONTO LAW JOURNAL 343 H. Wade MacLauchlan* JUDICIAL REVIEW OF

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