March 3, 2008.
On that day the Supreme Court of Canada announced a Christian burial to what may have been the most kookoo-bird of all law; the standard of judicial review that existed since the infamous Dr. Q./Ryan duet of 2003 and beyond.
For five years we’ve had that nonsense on the books, telling us there’s three levels of judicial review depending on some kind of artificial judge-concocted 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 five years, administrative tribunals, already safely protected by appellate courts that don’t want to have anything to do with them, have been further insulated by the impossible standards for judicial review.
Indeed, since the "patent unreasonableness: standard was given birth in the 1979 Supreme Court decision in CUPE v. New Brunswick Liquor, administrative law in Canada has been yearning for something lucid.
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 had a fire-sale and gives us a numerically 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?
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 privative clauses. 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 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 called deference and it’s a distasteful 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 our own situation, 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 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 good things about poorly written Supreme Court of Canada decisions.
The first is to watch all the big city administrative law lawyers and professors come out and tell the press how clever the decision was, all hoping to brown-nose a justice or two; good for a warm handshake at the next wine and cheese.
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.
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: the beacon of reasonableness in regards to the standard of judicial review in Canada.
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