Substantive Review in Appellate Courts since Dunsmuir

In Dunsmuir v. New Brunswick, the Supreme Court re-examined its approach to judicial review of administrative decisions to develop a more coherent and-workable framework. It merged the deferential standards of reasonableness simpliciter and patent unreasonableness into a single reasonableness standard and emphasized the importance of precedent in determining the standard applicable to a specific category of decision makers. The author makes a preliminary assessment of Dunsmuir\u27s impact on judicial review through an analysis of recent Canadian appellate decisions. He concludes that, white Dunsmuir simplifies the standard of review analysis by encouraging courts\u27 reliance on satisfactory precedents and guidelines to determine the appropriate standard, there is a risk that courts may uncritically adhere to inappropriate precedents or carry out unduly intrusive review by inappropriately characterizing as jurisdictional the questions before them. Substantive review retains its complexity, which now resides at the stage of courts\u27 application of the merged reasonableness standard

Some Initial Thoughts on Wilson v. Atomic Energy of Canada Ltd and Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd

Administrative law focusses on the way in which, and the extent to which, courts should oversee the exercise of administrative authority. The law on substantive review of administrative decision-making has changed drastically over the last several decades, particularly around choice of standard of review. In the words of the Honorable John M Evans, courts have returned to this issue “with almost monotonous regularity over the last 30 years”. Two Supreme Court of Canada decisions from 2016, Wilson v Atomic Energy of Canada Ltd and Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, have regenerated discussion about standard of review in relation to questions of law. No less an authority than the Honourable Justice David Stratas has suggested that the Court may be “about to embark on one of its once-a-decade, wholesale revisions to the law of judicial review”. To assess how Wilson and Capilano relate to the Supreme Court’s last wholesale revision of the law on substantive review in Dunsmuir v New Brunswick, this article: a) considers Justice Abella’s suggestion in Wilson that a separate standard of correctness review is no longer needed; b) assesses the trend, developing pre-Capilano and implicitly accepted by the majority in that decision, of limiting correctness review to the four categories of legal questions identified in Dunsmuir; and c) discusses the difficulties of applying the Dunsmuir understanding of reasonableness where there are only two possible interpretations of the legislative provision in dispute (Wilson and Capilano), or where the administrative decision-maker has not provided reasons on an issue under review (Capilano)

Substantive Review in Appellate Courts since Dunsmuir

In Dunsmuir v. New Brunswick, the Supreme Court re-examined its approach to judicial review of administrative decisions to develop a more coherent and-workable framework. It merged the deferential standards of reasonableness simpliciter and patent unreasonableness into a single reasonableness standard and emphasized the importance of precedent in determining the standard applicable to a specific category of decision makers. The author makes a preliminary assessment of Dunsmuir\u27s impact on judicial review through an analysis of recent Canadian appellate decisions. He concludes that, white Dunsmuir simplifies the standard of review analysis by encouraging courts\u27 reliance on satisfactory precedents and guidelines to determine the appropriate standard, there is a risk that courts may uncritically adhere to inappropriate precedents or carry out unduly intrusive review by inappropriately characterizing as jurisdictional the questions before them. Substantive review retains its complexity, which now resides at the stage of courts\u27 application of the merged reasonableness standard

The Clarity of Reasonableness Since Dunsmuir: Mission (Mostly) Accomplished

This project develops an interpretive account of the single reasonableness standard as it has evolved in the Canadian Supreme Court case law since its introduction in New Brunswick (Board of Management) v. Dunsmuir. My analyses show, contrary to the bulk of the academic commentary, that reasonableness is a clear and coherent standard of review. Specifically I show that in the eyes of the Court, interference owing to unreasonableness is required only when decisions are not justified in the context of the legal framework. Unjustified decisions demand interference because they are arbitrary in the sense that the powers of the state are exerted without regard for the accepted system of rules, meaning they undermine the rule of law. Once a justification has been confirmed to exist, however, all grounds for interference owing to unreasonableness have been extinguished because interference with a justified decision undermines the foundational democratic principle

Developments in Administrative Law: The 2007-2008 Term - The Impact of Dunsmuir

The 2007-2008 term was a landmark year in Canadian administrative law. The Supreme Court of Canada decision in Dunsmuir v. New Brunswick (2008 SCC 9) affected dramatically the approach to determining the applicable standard of review in administrative law. The Dunsmuir decision caused a fervour of discussion among practitioners, judges, academics and all those involved in the administrative justice community. It essentially eclipsed all other administrative law cases decided in the 2007-2008 Supreme Court term. This article discusses findings from an examination of cases that have been decided by lower courts, between the decision date and the end of 2007-2008 Supreme Court term, as a measure of Dunsmuir\u27s impact with respect to the standard of review jurisprudence. Dunsmuir picked up on Justice Lebel\u27s earlier critiques of the current state of the law and was used as a platform for improving the methodology for substantive review of administrative action. Although Dunsmuir purports to make a significant change to the way that the standard of review analysis is undertaken, many of the modifications simply codify existing legal principles. As well, in some respects, Dunsmuir clarifies the standard of review methodology; however, the new approach has significant ambiguities which are being experienced by lower courts. In short, although Dunsmuir has taken the standard of review jurisprudence to a certain point, there are many pressing questions still to be answered.With respect to procedural fairness, Dunsmuir has also had a significant impact - it has reversed the holding in Knight v. Indian Head School Division No. 19 ([1990] 1 S.C.R. 653) that procedural fairness is always owed in the dismissal of public servants, holding instead that common law principles of contract may govern the employment relationship between public officeholders and the Crown

Can Pragmatism Function in Administrative Law?

This article draws out the ways in which Justice Rothstein grappled with complexity in administrative law. It argues that Justice Rothstein took a pragmatic approach to complexity in administrative law. Specifically, he sought to articulate a framework for judicial review that was workable for administrative decision-makers, litigants, their lawyers and reviewing courts. In addition, he looked to past experience with judicial review, evidenced in judicial precedent, rather than focusing on abstract theoretical norms

Presumptive Deference and the Role of Expertise on Questions of Law in Canadian Administrative Law

Administrators in Canada are presumptively accorded deference on questions of law. This deference is grounded largely in expertise, a pragmatic justification for deference. This thesis examines the relationship of expertise to other practical justifications for deference and to legislative intent. This thesis questions (i) whether assumptions about administrative expertise are grounded in administrative realities; (ii) whether deference to expertise has a meaningful nexus with legislative intent; and (iii) whether heavy reliance on expertise leaves meaningful room for judicial review on questions of law within reasonableness. I conclude that the doctrine of deference relies too heavily on presumptions about the expertise of administrators on questions of law. Deference of this nature risks allowing administrators to deviate from legislative policy, privileging administration over democracy. Where the courts apply reasonableness, expertise also risks becoming a presumptive explanation for why a decision is reasonable

Struggling Towards Coherence in Canadian Administrative Law? Recent Cases on Standard of Review and Reasonableness

Although the Supreme Court of Canada’s seminal decision in Dunsmuir v. New Brunswick has now been cited more than 10,000 times by Canadian courts and administrative tribunals, many of its key features remain obscure. In this article, the author analyzes recent cases decided under the Dunsmuir framework with a view to determining where Canadian courts might usefully go next. The author’s argument is that the two important principles said to underlie the Dunsmuir framework—the rule of law and democracy—can provide guidance to courts in simplifying and clarifying judicial review of administrative action. In Part I, the author explains how the relationship between Dunsmuir’s categorical approach and the contextual approach that it replaced is uncertain and causes significant confusion, and explores the potential utility of the two underlying principles in simplifying the law. The application of the reasonableness standard of review is the focus of Part II, in which the author criticizes the general approach to reasonableness review in Canada, but suggests that the rule of law and democracy may assist in clarifying the law, by setting the boundaries of the “range” of reasonable outcomes and structuring the analytical framework for identifying unreasonable administrative decisions. Finally, the author draws the strands of Parts I and II together by arguing for the adoption of a unified, context-sensitive reasonableness standard, underpinned by the rule of law and democracy, with the aim of providing clarity and simplicity to Canadian administrative law in a manner faithful to the Supreme Court of Canada’s decision in Dunsmuir

The Complexity of Coherence: Justice LeBel’s Administrative Law

Justice LeBel carved out a distinctive approach to Administrative Law, one characterized by the search for analytic coherence in a field defined by its diversity. Beginning with concurring judgements in Chamberlain (2002) and CUPE v. City of Toronto (2003), Justice LeBel took issue with the prevailing approach to the standard of review (both its methodology and application) on the grounds of coherence, predictability and workability. In Dunsmuir (2008), Justice LeBel was able to pursue the simplicity, transparency and coherence he believed necessary to reinvigorate Canadian Administrative Law. This study explores the evolution of Justice LeBel\u27s vision of Administrative Law, and suggests that Justice LeBel may have achieved greater analytic clarity at the risk of glossing over the very contextual resonance he so ardently championed