Shaun Fluker, University of Calgary
My initial reaction to Dunsmuir was Much Ado About Nothing. Grand statements by the Supreme Court that the decision would recalibrate substantive judicial review had many scurrying to decipher its ramifications for administrative law, but I could not figure out what all the fuss was about. For me, Dunsmuir (or at least the majority judgment) was little more than an acknowledgement by the Court of shifts that were already well underway in the jurisprudence by 2008 and thus it was hardly a landmark decision in Canadian administrative law. A decade of Dunsmuir has shown that I underestimated the Court’s recalibration intentions, but I remain convinced that Dunsmuir does not belong alongside the heavyweights of Roncarelli v Duplessis,  SCR 121, Nicholson v Haldimand-Norfolk Regional Police Commissioners,  1 SCR 311, and Baker v Canada (Minister of Citizenship and Immigration),  2 SCR 817. These landmarks engage with the separation of powers and grapple with how the principle of legality informs executive and administrative decision-making. Dunsmuir falls well short of this mark.
Dunsmuir stands today as authority for a presumption of judicial deference to statutory decision-makers. This presumption was most forcefully articulated in Dunsmuir by Justice Binnie in his concurring opinion (at para 146). The presumption subsequently gained more traction with the Court in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, where Justice Rothstein wrote that the principle of judicial deference reinforced with Dunsmuir had evolved into a presumption that the standard of review is the deferential reasonableness where a statutory tribunal applies and interprets its home statute (at para 39). The Court more recently endorsed the strength of this presumption in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47. The obvious problem with this presumption is its potential reach: Just about every statutory decision in some way applies or interprets a home statute.
Context matters in administrative law, and is not so easily dismissed. The bare assertion of a presumption of deference risks overlooking the context or subtle wrinkles that arise in the exercise of statutory power. Even at the current height of its reign, the presumption of deference still faces regular challenges from those seeking a return to a more contextual review of statutory authority. Madam Justice Deschamps wrote a series of concurring opinions in Dunsmuir (at paras 158-173) Alberta Teachers’ Association (at paras 78-89) and Smith v Alliance Pipeline, 2011 SCC 7 (at paras 78-111) taking issue with the bare assertion of deference because it pays too little attention to nuances such as the precise nature of the question or the demonstrated expertise of the statutory decision-maker to determine a legal question. More recently in their Capilano dissent, Justices Côté and Brown cautioned that grounding tribunal expertise merely in its institutional setting risks making the presumption of deference irrefutable (at para 85): “Courts must not infer from the mere creation of an administrative tribunal that it necessarily possesses greater relative expertise in all matters it decides, especially on questions of law.”
Correctness is making a comeback, and the rebellion seems to have started in the rogue Province of Alberta. The Alberta Court of Appeal began its reasoning in Capilano, 2015 ABCA 85 with a shot across the bow (at para 11): “The day may come when it is possible to write a judgment like this without a lengthy discussion of the standard of review. Today is not that day.” The Court of Appeal made short work of deference in its 2015 Capilano decision and surprisingly pointed to the presence of a statutory right of appeal to the courts as a new exception to the presumption of deference (at para 24), all of which led me to ask “Where are we going on standard of review in Alberta?” The Alberta Court of Appeal has since not been shy about its mission to curb the presumption. In Stewart v Elk Valley Coal Corporation, 2015 ABCA 225 the Court of Appeal drew upon the legal realism of Oliver Wendell Holmes (at para 48) and played its Constitution card (at para 54) to trump the legislative branch and assert correctness review over the interpretation by a human rights tribunal of a provision in its home legislation. More recently in Garneau Community League v Edmonton (City), 2017 ABCA 374 the Alberta Court of Appeal doubled down on correctness review for a statutory tribunal interpreting its home statute where the legislature provides for a right of appeal to the Court on questions of law and, even after being reversed by the Supreme Court in the Capilano proceedings, boldly asserts the concept of deference has been reduced to mere rhetoric (at paras 93, 94).
Unfortunately for the rebellion, it has chosen a very unprincipled foundation upon which to confront the Supreme Court and construct its case for the return of correctness in judicial review. The terrain of statutory right of appeal provisions is largely devoid of principle, both in terms of why a legislature chooses to provide for a statutory right of appeal or how the courts exercise their discretion to grant leave to appeal under these provisions. The same type of tribunal in various provinces can be subject to a right of appeal in one jurisdiction but not another; sometimes an appeal lies only with leave of the court and sometimes not. Alberta courts, in particular, are also all over the map in how they determine whether a question of law emanating from a statutory decision is of sufficient importance to warrant appellate review under a statutory right of appeal. See Seeking leave to appeal a statutory tribunal decision: What principles apply? and A closer look at leave to appeal requirements under the Municipal Government Act (Alberta).
However, there is a new hope lurking about the jurisprudence: One which could bring peace to substantive judicial review. It requires a return to a more robust contextual approach, but also calls for a meaningful restatement of the separation of powers between the legislative and judicial branches of modern government. A coherent framework for substantive judicial review must also be constructed from an intelligible and transparent methodology for identifying those questions of law which are of real significance to a community or society as a whole – not just to the legal system – and for which superior courts get the last word. The decision which embarks down this path will mark the return of correctness in judicial review.