Simon's Legal Resources

Discretion

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COMMENT

'Discretion' operates in many areas of law but essentially it refers to a delegated authority's (be it a judge, an adjudicator or some other form of public authority) range of decision-making within the delegation. Commonly, such delegation will be created when a statute states that the delegatee 'may' do something - this contrasted with the stronger 'shall' (which itself can have both 'mandatory' or 'directory' forms) [see Statutory Interpretation - "Shall"].

The next natural inquiry is what limits the law places on the discretion-holder (the 'delegatee') when they act. This has been recently stated in an appellate standard of review context in Sinclair-Desgagné v. Canada (Chief Electoral Officer) (SCC, 2026):

[34] .... An exercise of judicial discretion is generally entitled to deference unless tainted by a legal error (considered an error in principle), a palpable and overriding factual error (viewed as a material misapprehension of the evidence), or a failure to exercise discretion judicially (such as acting arbitrarily or conduct that is so clearly wrong as to be an injustice) (Canada (Transportation Safety Board) v. Carroll-Byrne, 2022 SCC 48, [2022] 3 S.C.R. 515, at para. 41; R. v. J.W., 2025 SCC 16, at para. 50).

Some factors which are relevant to this inquiry are whether the decision is 'lawful', within the delegatee's jurisdiction and whether the delegatee 'fetters' (improperly limits) their discretion.

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CASES

General
Discretion - Characterized
Discretion - Examples

Fettering
VAVILOV - Discretion - Fettering
Discretion - Fettering

Judicial Discretion
Discretion - Judicial

Jurisdiction
VAVILOV - Discretion - Jurisdiction
Discretion - Jurisdiction

Consistent with the Law
Discretion - Consistent with the Law
Discretion - Consistent with the Law (Okanagan)

Standard of Review
Discretion - Standard of Review (SOR)

Other
Judicial Review - Discretion
Discretion - Breadth of Statutory Discretionary Authority
Discretion - Evidence
Discretion - Constitutional