The characterization of an administrative tribunal decision for the purposes of determining whether judicial review is warranted or, in the alternative, curial deference ought to apply.
Every jurisdiction differs in the legal threshold past which the courts of general jurisdiction will entertain an application for judicial review, or even an appeal, of lower courts or, especially, specialized administrative tribunals. Canada, in particular, has struggled to articulate a concise, understandable threshold, at times suggesting that there are multiple thresholds (such as merely unreasonable ... correctness ... reasonableness simpliciter), at other times suggesting that the ultimate threshold is whether the decision for which judicial review is being sought is patently unreasonable.
In Law Society of New Brunswick, Justice Iacobucci of Canada's Supreme Court wrote (with a slight rearranging of the wording):
"(A) patently unreasonable defect, once identified, can be explained simply and easily, leaving no real possibility of doubting that the decision is defective. A patently unreasonable decision has been described as clearly irrational or evidently not in accordance with reason.... A decision may be unreasonable without being patently unreasonable when the defect in the decision is less obvious and might only be discovered after significant searching or testing....
"A decision that is patently unreasonable is so flawed that no amount of curial deference can justify letting it stand."
Patently unreasonableness is a fantastic standard to subject judicial review and simply results in the rejection of all applications for judicial review of an administrative tribunal decision where such a standard exists. In Canada, very few decisions even of administrative tribunals are patently unreasonable unless the presiding officer was suffering from a breakdown of mental capacity at the time of his or her decision.
The patently unreasonableness (pardon the pun) of the standard for judicial review appears obvious to an objective reader of this, from paragraphs 56 and 57 of the 1997 decision of Canada's Supreme Court in Canada v Southam:
"An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination.
"The difference between unreasonable and patently unreasonable lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal’s reasons, then the tribunal’s decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable."
It was for good cause that, looking back, that same court, in 2008, bemoaned the lack of "clarity to the issue".
In real life, consider Elite Swine, in which Justice Wimmer reminded us of the glass ceiling:
"Patently unreasonable simply means clearly irrational or not in accordance with reason or good sense. Thus, to set aside the municipal council decision in this case, it must be found to be contrary to reason, all the while bearing in mind that municipal counsel decisions are to be accorded a considerable degree of deference by the courts."
French: manifestement déraisonnable.
REFERENCES: