THE PRIVATIVE CLAUSE IN CANADIAN ADMINISTRATIVE LAW, 1944-1985: A DOCTRINAL EXAMINATION
AbstractThis article undertakes an analysis of Canadian case law relating to the interpretation of "no certiorari" provisions. The statutory focus is modern trade union legislation. It has been within that contest that the jurisprudence has developed. The author's thesis is that, against a background of initial hostility towards the legislative schemes involved in such statutes, courts at first ignored the effect of privative clauses. As that subjective reaction waned, preclusive provisions flowered for a time, if somewhat timidly. Within the last few years or so, however, and notwithstanding present day judicial deference towards specialized administrative agencies, legislative attempts to limit or remove judicial review have, it is argued, again been rendered substantially worthless. The impact of section 96 of the Constitution Act, 1867, examined briefly in the article, has given that development an added impetus.
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