David Mullan, Queen’s University
With apologies to Van Morrison, [i]n the Days Before Rock ‘N’ Roll[1] (also known as Dunsmuir), Sopinka J[2] asserted (temporarily[3]) that patent unreasonableness review required an initial determination as to whether the tribunal under review had erred. If it had, the next inquiry was whether it had done so in a patently unreasonable manner. This gave rise to the alarming spectre of a lawyer having to try to explain to a disappointed client that, while the court had accepted that the decision-maker had erred, it was not such a bad error as to be awful. More fundamentally, this approach to determining whether to quash a decision was scarcely respectful of the Supreme Court’s more general admonitions of the need for deference when the patent unreasonableness or even the reasonableness standard of review was in play. After all, judges, being who they are, were always going to find it difficult to rule credibly that a decision that was just plain wrong must, nonetheless, in a world of deferential review, still stand.
In my view, there is an equivalent and perhaps more insidious example of this kind of approach in the post-Dunsmuir world of the Twist, a by-product of Rock ‘N’ Roll. This is the recurring phenomenon of reviewing courts (including, perhaps most egregiously, the Supreme Court of Canada) solemnly pronouncing the entitlement of a decision-maker and the decision itself to the benefit of deferential, reasonableness review on questions of law and then conducting that review on what is palpably a correctness standard. I call this “disguised correctness.”[4]
In its purest form, reasonableness review of determinations of law should start with the tribunal’s reasons for decision. The court should focus primarily on those reasons but also, though secondarily, on alternative accounts of the relevant question of law and critiques of the position taken by the tribunal.[5] Within that framework, in the words of Dunsmuir, the court determines whether the challenged ruling “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.” Too frequently, however, the starting point is not the tribunal’s reasons but the arguments on the merits of the question of law or statutory interpretation advanced by the parties with the reasons either ignored or mentioned only in passing. Consequently, the professed commitment to deference gets submerged in a thorough-going re-examination of the relevant question of law.
What explains this phenomenon? Some might argue that it amounts to intellectual dishonesty and reveals a highly sceptical attitude to the whole notion of deference to the judgment of governmental decision-makers. I believe this is too simplistic an account. Certainly, there are deference sceptics among the judiciary at all levels. That scepticism may be general or situational depending on the nature of the issue and the perceived calibre and qualifications of the relevant decision-maker. In a judicial review regime where correctness is only occasionally the indicated standard, and reasonableness the default across the whole spectrum of decision-makers, it is not surprising that judges might pay only lip service to precedents that require them in virtually every context to be deferential. Putting it another way, with so predominant a standard, it is was almost inevitable that the assessment of reasonableness would become increasingly a highly contextualized inquiry and, in some instances, little or no different from correctness review. This is exemplified by the contention that the intensity of reasonableness review expands or contracts depending on the extent of possibly reasonable answers or outcomes, a position that has at one extreme questions of law to which there is only one correct and therefore only one reasonable answer. It is also reflected in occasional flirtations with United States-style, Chevron review, the first stage of which requires the reviewing court to ask whether the legislature intended there to be only one correct answer to the interpretation of a statutory provision. An affirmative answer to this inquiry pre-empts deference.
More generally, where the terrain is statutory interpretation, judges find it difficult to defer to decision-makers, particularly those who lack legal qualifications. They are so schooled in the modern principles of statutory interpretation as to have an almost overwhelming compulsion at least on occasion to apply those principles in a way that is incompatible with any notion of deference. Indeed, at the policy level, this finds expression in arguments that the presumption of reasonableness review where a decision-maker is interpreting a home or frequently encountered statute should not extend beyond adjudicative bodies. As the principles of Dunsmuir have evolved, has the Supreme Court come to expect too much of deferential, reasonableness review?
My ideal world where courts actually pay “respectful” attention to the reasons of decision-makers runs into another reality spawned by the terminology of Dunsmuir and the extension of reasonableness review to all manner of statutory and prerogative decision-makers. Not all decision-makers give reasons for their decisions. Some provide reasons that are cryptic, do not address the issue on which review is being sought, or are simply poor. Enter Dyzenhaus and Dunsmuir. It is not just reasons that must be examined but “outcomes” and also the reasons “which could be offered in support of a decision.” These situations challenge deferential reasonableness review particularly to the extent that they require speculation as to the reasons that might have underpinned the outcome or that could have been advanced had the decision-maker thought about it. Framing the conduct of judicial review (including the evidential and scope of advocacy dilemmas) in such cases within a posture of deference is one of the principal challenges for modern Canadian judicial review.
In the meantime, I urge greater attention to what truly deferential review requires when decision-makers have provided comprehensible reasons. In the words of Hudson Janisch, deference is something that must be earned, not presumed. Where the tribunal’s reasons meet that standard, they should be the starting point for determining whether the decision passes the reasonableness test. While this will not eliminate disguised correctness, it should help.
[1] Enlightenment (Polydor, 1990), Track 7.
[2] In Canada (Attorney General) v. Public Service Association of Canada, [1993] 1 SCR 941, at 963-64.
[3] He subsequently recanted in his concurring judgment in CAIMAW, Local 14 v. Paccar of Canada Ltd., [1989] 2 SCR 983, at 1018.
[4] One of the earliest, if not the earliest example is Canada (Canadian Human Rights Commission) v. Canada (Attorney General) (also known as Mowat), 2011 SCC 53, [2011] 3 SCR 471, at paras. 32-64 (per LeBel and Cromwell JJ., delivering the judgment of the Court). Simply inserting “reasonably” and “unreasonably” at various points of the statutory interpretation exercise does not rescue such decisions from this criticism!
[5] Though the reasons are short, Dunsmuir, at paras. 72-76, provides a good example.
Double Aspect 
Dunsmuir was written about five years after the judgment resulting from my initial courtroom advocacy as a self-represented litigant with a judicial review petition heard in December 2002. The lawyers who lost to me initially and then prevailed on appeal had of course a lot to say about the standards of review. If I had transcripts from those two hearings I expect they’d reveal, among other things, that the standards of review debate was beyond me. But in the years since, I’ve come to the conclusion it’s really all sophistry.
On the one hand the courts claim a noble common law legacy of defending the citizenry against the potentially arbitrary rule of governments and on the other hand they accord nearly absolute deference to a vast array of tribunals whose adjudicators generally need no formal qualifications and aren’t held to any discernible standards of conduct. Is this still sustainable? I don’t think so.
My trajectory of litigation eventually led me to the Canadian Judicial Council which, in dealing with complaints, functions as a tribunal though all the Council members are superior court chief and associate chief judges. The response to my second filing of a complaint was a letter – http://www.uncharted.ca/images/users/ssigurdur/20120803_letter_from_cjc.pdf – written by the Executive Director (who is not a Council member, but merely an employee).
He cited as his own authority what was then section 2.2 of the CJC’s Complaints Procedures. The key terms in that provision were “clearly irrational” and “an obvious abuse of the complaints process”. Prior to 2003, when the Council’s by-laws were split into two regulatory instruments, there had been no provision like that. In fact I’ve claimed, and still do, that the Judges Act contains nothing that allows the CJC to sub-delegate it’s adjudicative role.
My claim has seemingly had no impact to date, but I note that the new Chief Justice / CJC Chair has very recently publicly acknowledged that there is a problem with the CJC.
Had the Executive Director in 2012 not explicitly cited that section 2.2 it’s possible that I would not have proceeded to figure out that the CJC had chosen to contravene it’s own enabling legislation. That’s the sort of inquiry that self-represented litigants are not expected to undertake, but I had already had considerable experience with a similar kind of inquiry, that I recently spoke about again in a comment responding to a post on the blog slaw.ca – http://www.slaw.ca/2018/02/07/two-improvements-our-courts-can-implement-for-self-represented-litigants/ . The legal term of consequence in that instance had been “prima facie case”.
Lawyers, including judges, delight in making use of terms they know will confound the average person. But it’s a game they should have stopped playing once it was apparent that the Internet and associated technologies would empower ordinary citizens.