68 U.N.B.L.J. 68 (2017)
The Signal and the Noise in Administrative Law

handle is hein.journals/unblj68 and id is 74 raw text is: 




THE SIGNAL AND THE NOISE IN ADMINISTRATIVE LAW


                                    Paul  Daly*


The  signal is the truth. The noise is what distracts us from the truth. This is a book
about the signal and the noise.

Nate Silver, The Signal and the Noise: The Art and Science of Prediction (London: Penguin, 2013).


                                    Introduction

There   has  been  an   unfortunate  trend  in  recent  Supreme   Court   of  Canada
administrative law cases.1

         While   academics,  practitioners and  lower-court  judges  try to establish
coherent  frameworks   to understand  the general  principles of judicial review, the
Court has been  resolving cases one by one without, with respect, any serious attempt
to explain how   they fit into its existing body of administrative law jurisprudence.
The  institutional context in which the Court operates, explained in Part I, no doubt
influences the Court's resolution of individual cases in this way.
Whatever   the background  institutional context, confusion has been  the unfortunate
result, as I explain in Part II. How should lawyers  read these cases: as attempts to
resolve one-off issues of substantive law  (workers' compensation   law, immigration
law, discrimination law and so on) or as continual refinements to an already complex
body  of administrative law doctrine?

         I argue that it is now  necessary to distinguish between   signal and noise,
between  those cases that do modify  administrative law doctrine and those cases that
simply  deal with a particular substantive area of law. In Part III, I set out criteria
which  will help Canadian administrative lawyers to distinguish signal from noise.

     This confusion  seems to me,  however,  to be unnecessary. As  I suggest in Part
IV,  the  Court  could  take  up  judicial and   academic  proposals   for a  unified

* Senior Lecturer in Public Law, University of Cambridge; Derek Bowett Fellow in Law, Queens'
College, Cambridge; Research Associate, Centre de recherche en droit public. A previous version was
delivered as the Keynote Address to the Law Society of Upper Canada's 24h Annual Immigration Law
Summit, November 23, 2016 and to the Administrative Law Section, Prince Edward Island branch, of the
Canadian Bar Association on December 14, 2016. Thanks, with the usual disclaimer, to participants at
both events and the anonymous reviewers for their penetrating comments and insights. Some of the
material in this article appeared originally on my blog, Administrative Law Matters.
' My focus here is on the period from 2008 to the present day. I have read all of the Supreme Court of
Canada's administrative law output since Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190
[Dunsmuir] and a significant proportion of the post-Dunsmuir case law produced by the lower courts. I
appreciate that some of my comments may seem impressionistic. The concerned reader can rest assured
that I opine from a solid knowledge base.

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