Of Unicorns and Leprechauns: Applying the Threatened Species Taxonomy to Administrative Law

A colleague & I were recently discussing the ever-shrinking categories of questions in administrative law that might attract a correctness standard (see paras. 58-61 of Dunsmuir and paras. 25-26 of McLean). I suggested that true questions of jurisdiction could be likened to unicorns and general questions of law of central importance to the legal system as a whole might be more in the nature of leprechauns. She suggested a better parallel might be found in the International Union for the Conservation of Nature’s threatened species taxonomy. In her view, true questions of jurisdiction are “extinct in the wild” whereas general questions of law of central importance to the legal system as a whole are “critically endangered”. How would you classify them? Or do you have a better analogy?

Are you aware of any recent or ongoing work to review the post-Dunsmuir case law regarding the manner in which these exceptions have been utilized? Or do you know of any comprehensive efforts to review the existing jurisprudence to determine whether more decisions are being found “unreasonable” post-Dunsmuir? If so, please let me know!

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  1. It’s not a taxonomy, but I like to simplify the whole standard of review question with Oliver Wendell Holmes’s “puke” test. (He was applied the test to determining whether legislation is unconstitutional, but I think it applies to administrative law.) If the decision taken as a whole makes a reasonable person want to puke, you’re going to get review.

  2. Recent decision where administrative decision maker was reviewed on correctness as being “jurisdictional”.

    Isaac v. BC