Reconceiving discretion
Subtitle: from discretion as power to discretion as dialogue
By: by Geneviève Cartier.
Published: 2004
Language: eng
Number of pages: 342
Subjects: University of Toronto. -- Faculty of Law -- Dissertations.; Administrative discretion -- Canada.; Judicial discretion -- Canada.; Judicial review of administrative acts -- Canada.
Description: This thesis articulates, and contrasts, the two conceptions of discretion that inform the case law on administrative discretion in Canadian law: discretion "as power" and discretion "as dialogue". I suggest that the latter conception provides the best explanation for the progressive trend which developed in the law of discretion over the last twenty-five years, whereby courts devised procedural and substantive constraints on the exercise of discretion while endorsing a posture of deference towards that kind of decision-making power. Moreover, I argue that the normative foundations for that conception of discretion can be found in a combination a relational theory exemplified in writings by J. Nedelsky, a democratic theory of the kind expressed by H. Richardson, and a vulnerability theory, articulated by J. Handler and L. Sossin. I argue further that a view of discretion as dialogue is justified under an attractive understanding of the rule of law and consequently contributes to the recognition of the legitimacy of the administrative state. Finally, my conception of discretion as dialogue favours the realisation of the legitimate projects of the welfare state while at the same time recognising a role for the rule of law in government.
Notes: Adviser: David Dyzenhaus.

Thesis (S.J.D.)--University of Toronto, 2004.

Includes bibliographical rererences.

Electronic version licensed for access by U. of T. users.

Source: Dissertation Abstracts International, Volume: 65-10, Section: A, page: 3963.