Monday, March 3, 2008, the 68th day of the year 2008 in the Gregorian calendar.

On that day the Supreme Court of Canada announced a Christian burial to what may have been the most kookoo-bird of all law; a standard of judicial review that existed since, in Canada, anyway, an infamous duet of cases known only to lawyers or those many that hit the glass ceiling it presented to challenging a bad lower court or tribunal decision: the Dr. Q./Ryan duet of 2003 decisions and beyond.

For several years, Canada had the judicial conundrum on the books which one judge politely described as having "practical and theoretical difficulties".

The Reader's Digest version is that were three levels of judicial review depending on some kind of mysterious, necessarily artificial judge-assessed recipe which purportedly required an assessment of the board and their decision from which review was being sought.

If you got past that first analysis – and few ever did – you were faced with the Mad Hatter himself, aka Dr. Q.:

"Where the balancing of the (relevant) factors above suggests considerable deference, the patent unreasonableness standard will be appropriate.

"Where little or no deference is called for, a correctness standard will suffice. If the balancing of factors suggests a standard of deference somewhere in the middle, the reasonableness simpliciter standard will apply."

For years, administrative tribunals, already safely protected by appellate courts that don’t want to have much to do with them, claiming curial deference, have been further insulated by the seemingly impossible standards for judicial review of a bad or suspect lower court or tribunal ruling.

judicial reviewIndeed, since the patent unreasonableness standard was given birth in the 1979 Supreme Court decision in CUPE v. New Brunswick Liquor, litigants caught in the complex web of administrative law in Canada have been yearning for something lucid; anything, really, as loing as there is an avenue to challenge a bad ruling up the chain of command.

Then - poof! – Dunsmuir; a unanimous 9-0 decision; to boot, co-written by judges Bastarache and Lebel.

In a brutally long decision, Canada’s highest court nonetheless delivered a better standard of judicial review.

In surprising self-serving language, the Court announced, as if we needed to be reminded, that:

"The time has arrived to re-examine the Canadian approach to judicial review of administrative decisions and develop a principled framework that is more coherent and workable."

It is not all good news in that the Court was not able to melt it all down to a single standard. And the legalese ... well, read Dunsmuir for yourself (URL is below).

If you find a definition of "reasonableness" in it, despite the promise of one, send me an email.

It's not there.

What we do know is that now, the only two standards remaining are: correctness and reasonableness.

What does it all mean to the litigant?

In Dunsmuir, the Court wrote about:

"The operation of three standards of review has not been without practical and theoretical difficulties, neither has it been free of criticism.  One major problem lies in distinguishing between the patent unreasonableness standard and the reasonableness simpliciter standard.... (A)ny actual difference between them in terms of their operation appears to be illusory."

In most cases, boards and other administrative tribunals have out-and-out privative clauses. In a perfect world, that stinks and is just plain wrong but it’s hard to argue with the legislature.

So, in accordance with Dunsmuir, the board or administrative tribunal decision still has to be reasonable; reasonableness being the new standard for most cases.

The court said that a privative clause is a strong suggestion that the standard is reasonableness, and not the higher standard of correctness.

"The existence of a privative or preclusive clause gives rise to a strong indication of review pursuant to the reasonableness standard.  This conclusion is appropriate because a privative clause is evidence of Parliament or a legislature’s intent that an administrative decision maker be given greater deference and that interference by reviewing courts be minimized."

Secondly, the Court will be very respectful of the tribunal decision - this is that little legal fly-swatter called curial deference and it’s a regrettable glass ceiling.

"Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of decision makers. (D)eference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system."

In words only an appellate court such as Canada’s could use, the Court very roughly delivers us from evil by giving us a contorted direction on how to analyse a judicial review situation, a bad or suspect tribunal ruling. Assuming only that you have a law degree and a pot of coffee handy:

"The analysis must be contextual.  As mentioned above, it is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal.  In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case."

In the result, the roadmap, and hopefully access to judicial review has become simpler. We are no longer stuck with three complicated and unnecessarily deferential standards. Now we just have two standards complicated and unnecessarily deferential standards: correctness and reasonableness.

And there are two predicable reactions to a poorly written Supreme Court of Canada decision. The first is to watch all the big city administrative law lawyers and professors come out and tell the press how clever the decision is.

But by far the best thing is the knowledge that the good ‘ol Canadian judges corps who must now live with the good intentions of Dunsmuir will waste little time in making sense of it and melting it down to palpable language.

Gradually, as has always happened in the past, it will be done respectfully and carefully, but from St. John’s to Victoria, Canadian judges will fill in the blanks and with that, we can hope that Dunsmuir will become what Dunsmuir can become: a beacon of reasonableness in regards to the standard of judicial review in Canada.

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