Moving Dunsmuir past Dunsmuir

Democratic accountability for privative clauses, and its consequences for the standard of review analysis

Martin Olszynski, University of Calgary

Near the end of last year, and spurred on by yet another judgment challenging adherence to the Dunsmuir framework (Garneau Community League v Edmonton (City), 2017 ABCA 374 (CanLII), I posted a blog on the University of Calgary Faculty of Law’s ABlawg proposing a reversal of Dunsmuir’s presumption of reasonableness with respect to questions of law. Building on the constitutionalization of judicial review (Crevier v Attorney General of Quebec 1981 CanLII 30 (SCC); Dunsmuir v. New Brunswick 2008 SCC 9 at paras 27 – 32), I suggested that any presumptions ought to reflect the courts’ core competency of interpreting and applying law, which is to say a presumption of correctness review. In a nod to functionalists, however, I also suggested that this presumption should be rebuttable by the presence of a privative clause – nothing more, nothing less:

Simply put, the starting point should be that the courts, by virtue of their training, independence, and impartiality, have the upper hand in the interpretation of the law. Recognizing the realities of the modern administrative state, however, this presumption can and should be rebuttable for certain questions of law by virtue of explicit legislative provisions (i.e. privative clauses and restrictive rights of appeal). Importantly, just as the Supreme Court in Crevier held that legislatures could not oust judicial review entirely, so too certain questions of law will always be subject to correctness review – these would be the current Dunsmuir correctness categories… For all other questions of law, however, the presence of a privative clause would trigger deferential review.

Without repeating the entire argument here, one of the main concerns driving my suggested approach is that the concept of “implied expertise” as a basis for deference is simply too contradictory to be sustainable in the long run. Instead, courts should defer out of respect for the explicit decisions made by legislatures in the form of privative clauses or restrictive rights of appeal, decisions for which legislatures may subsequently be held accountable. Privative clauses, I argued, are a big deal – or at least they could be, depending on the context. Using the examples of labour and employment law on the one hand and environmental law on the other, I suggested that the need for some kind of privative clause in the former context seemed fairly obvious (with its tripartite boards and relatively heavy hearing loads) but less so in the case of the latter, where it was governments’ poor record of taking environmental considerations into account that was the impetus for such laws in the first place.

The following week, Professor Leonid Sirota posted a thoughtful reply on his Double Aspect blog. I think its fair to say that he was sympathetic to my argument, but he also expressed some doubt as to whether legislative re-arrangements of the separation of powers could really be the stuff of democratic accountability:

… Professor Olszynski argues that accountability works by pointing to his own criticism of the application of a privative clause in an environmental law case, and contrasting it with the fact “that few labour or employment lawyers would argue against privative clauses in that context”. With respect, the possibility of academic criticism does not make for democratic accountability; nor does acceptance by a relevant expert community… How many voters have ever heard of privative clauses, never mind being able to articulate any thoughts on their desirability? To believe that legislatures can, let alone will, be held accountable for eliminating the courts’ role in legal interpretation unwisely, or even abusively, requires more optimism than I could ever muster.

Tough but mostly fair. Professor Sirota is right to point out that a singular – and self-serving – reference to my own academic commentary is a poor proxy for public concern.  As it turns out, however, privative clauses have actually managed to capture both attention and opposition from time to time, as my colleague Professor Shaun Fluker recently discovered in the course of his research into statutory rights of appeals. Professor Fluker cites three reports (the 1957 Franks Report to the Parliament of Great Britain on the workings of statutory tribunals, the 1965 Clement Report to the Legislative Assembly of Alberta, and the 2012 Report of the Law Reform Commission of Saskatchewan) that indicate clear skepticism – if not outright hostility – towards privative clauses. The following passage from the Clement Report is particularly relevant:

The Committee is unanimously and firmly of the view that in every case there should be a right of appeal to the Supreme Court of Alberta on a question of jurisdiction and a question of law. No legitimate reason can be put forward why a tribunal to whom the Legislature has delegated certain defined authority should be permitted with impunity to transgress the bounds of the jurisdiction that it was intended it should exercise. Similarly, there should be no excuse for a tribunal misapplying the law, or ignoring law, to which all citizens of the Province are subject, in favour of its own views as to what should be applicable to the persons that are affected by its decisions… By this stroke there would be cut away the privative clauses still remaining in some statutes whereby the Legislature seeks to protect its tribunals from the disciplines of the Rule of Law… (at 74-75).

I can’t say whether such concerns have had any measureable impact on the presence or absence of privative clauses, but I don’t know that I have to. Democratic accountability is probably rarely – if ever – a perfect mechanism; there are often numerous competing issues that affect voter behavior. Assuming – without deciding – that the foregoing reports at least render plausible the potential for democratic accountability, there are two further issues in my proposal that require sorting out.

In my original post, I suggested that the presence of a privative clause should trigger deference for certain questions of law (excluding Dunsmuir’s four correctness categories). This, however, assumes that all such clauses are the same, which of course is not the case: there are “weak” and “strong” privative clauses; there are clauses that require leave from a court subject to its discretion, and there are those that impose a test such as requiring the identification of a question of law of some importance (as was the case in Garneau, supra). I am inclined to think that such clauses should be interpreted in the normal way, with a view towards legislative intent (essentially Rothstein J.’s approach in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 (CanLII) beginning at para 69). Thus, clauses that impose an “important question of law” test would most likely trigger correctness (as suggested by the concurring judgments in Garneau). Bearing in mind Dunsmuir’s concern with both the legality and rationality of decision-making, I am also inclined to suggest that there should be a limit with respect to the extent to which privative clauses can preclude any review of administrative fact-finding whatsoever, but this proposal requires further thought.

The second issue, or challenge, would be to develop a normative framework to guide discussions, whether in the House of Commons or before a Parliamentary committee, about whether and in what form a privative clause may be appropriate in a given context. The structure of the administrative decision-maker, the nature of its workload, and the presence or absence of procedural safeguards in its decision-making are some of the factors that are likely to be useful here.

In the meantime and in conclusion, I am pleased to report that the federal government did recently introduce new environmental assessment legislation and it does not contain any privative clauses.

The Return of Correctness in Judicial Review

A rebellion against deference is taking place is Alberta, but how just is its cause?

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, [1959] SCR 121, Nicholson v Haldimand-Norfolk Regional Police Commissioners, [1979] 1 SCR 311, and Baker v Canada (Minister of Citizenship and Immigration), [1999] 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’ Association2011 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 Ltd2016 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 Pipeline2011 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.

Dunsmuir and the Constitutional Status of the Administrative State

Have the courts built the administrative state into the constitution’s architecture?

Kate Glover, Western University

I presented some of the ideas summarized here at the ‘Re-writing the Canadian Constitution’ Conference at Boston College Law School, Boston, MA, 19-20 October 2017. This piece is part of a larger project that explores the constitutional character of the administrative state, as well as the implications of that character

The contemporary administrative state in the United States is, Gillian E Metzger writes, under siege on political and judicial fronts.[i] The attack is waged in the President’s tweets, in the administration’s policies, in budget cuts, in failures to fill administrative roles, and in Supreme Court decisions. While Metzger’s descriptive account of the state of administrative justice in America does not reflect the current Canadian experience, it still raises a question worth asking in the Canadian context, namely, would there be any legal recourse in the event of a similar “siege” north of the border?

Part of the answer to this question lies in the constitutional status of the administrative state. Does the network of public actors and institutions that make up the administrative state fall within the protective scope of the constitution? Or, more specifically, does this collection of actors and institutions fall under the protective arm of the constitutional amending formula?[ii] If the administrative state is entrenched within the architecture of the constitution, then the answer is yes. And if the answer is yes, action taken to dismantle or undermine the administrative state could be deemed unconstitutional, thwarted by an absence of the multilateral consensus required under the amending formula.

What, then, is the constitutional status of the administrative state?

The law has traditionally told a story about governance in Canada that imagines the administrative state not as constitutionally necessary, but as constitutionally permissible and, ultimately, constitutionally welcome. Administrative decision-makers are, as Justice Abella explains in Rasanen v Rosemount Instruments (1994) 17 OR (3d) 267 (CA), “designed to be less cumbersome, less expensive, less formal and less delayed”. These actors are, she reasoned, “to resolve disputes in their area of specialization more expeditiously and more accessibly, but no less effectively or credibly”. They are, in other words, established and operate in service of access to justice and the rule of law, but can be created – and reformed and dismantled – at the free hand of the legislature, with few constitutional constraints.

But a study of modern public law jurisprudence in Canada reveals an alternative story of governance and public justice that leads to a different conclusion about the constitutional status of the administrative state. In this alternative account, the administrative state – not in all its particulars, but in its essence and function – is a necessary or essential feature of Canada’s constitutional architecture. It follows, as noted above, that the administrative state is entrenched within the constitution and therefore tucked under the protective arm of the amending formula.

* * *

So what is this alternative account and what does Dunsmuir have to do with it?

In short, the alternative story is told by simply noticing three turns in the public law jurisprudence. Each of these turns reflects an expanded appreciation of administrative decision-makers as part of a common justice project, and together, they support the conclusion that the administrative state is now, as a doctrinal matter, constitutionally necessary. Dunsmuir and its progeny, as it turns out, are an important part of the story. They represent the first turn in the jurisprudence that is important for the story. It is in this turn that we see the emergence of the courts’ commitment to a deferential posture when engaged in review of administrative action. Relatively speaking, this posture is new. The early eras of the administrative state witnessed the courts’ active intervention in administrative decision-making. The courts relied on an expansive category of ‘questions of jurisdiction’ to justify intrusions into administrative decision-making.[iii] The message was that administrative actors were inferior decision-makers requiring strict supervision by the judiciary in the service of the rule of law.

Today, judicial resistance to administrative power has been replaced by an attitude of deference to administrative decisions, including deference on questions of law and statutory interpretation. This deferential approach emerged incrementally as the courts grappled with the challenges of relying on reasonableness as a meaningful standard of review.[iv] The commitment to deference was rooted in respect for, in the words of Professor Mullan and invoked by Justices Bastarache and LeBel in Dunsmuir, “the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime”.[v] Ultimately, in the post-Dunsmuir world, defence is the norm. While correctness review remains available on some matters, reasonableness is the default standard whenever an administrative decision-maker is interpreting its home statute or statutes that are close to home,[vi] as well as the de facto default standard in a vast number of other contexts.

The second jurisprudential turn of note is witnessed in the expansion of administrative decision-makers’ jurisdiction over constitutional matters. The law has not always granted these actors direct access to, or responsibilities under, the constitution. However, since the later decades of the twentieth century, public law jurisprudence has been loosening the judicial grip on constitutional interpretation. Where do we see this loosening? Martin and Conway are two examples.[vii] Here, we see the Court invoking access to justice, administrative expertise, and constitutional logic to conclude that public officials who are empowered to decide questions of law are also necessarily empowered to answer related constitutional questions and to grant Charter remedies, unless such authority has been clearly revoked. Doré is another example.[viii] There, the Court counselled deference when reviewing decisions of administrative decision-makers that engage Charter values. Again, tracing the increasingly broad and central role of administrative decision-makers in carrying out constitutional analysis and duties seen in Baker, Conway, and Dunsmuir, the Court in Doré held that a deferential approach reflects the “distinct advantage that administrative bodies have in applying the Charter to a specific set of facts and in the context of their enabling legislature”. Clyde River and Chippewas of the Thames First Nation are two final examples.[ix] These cases confirm that the actions of administrative decision-makers can both trigger and fulfill the Crown’s duty to consult Indigenous peoples whose rights and interests are affected by public decisions. In effect, these cases confirm that administrative actors are drawn into treaty relationships, bear the weight of upholding the duties of the honour of the Crown, and share responsibility for pursuing the goal of reconciliation of Indigenous peoples and the Crown. Ultimately, this set of cases suggests that public decision-makers have a direct and close relationship to the constitution, bearing meaningful responsibility in upholding, fulfilling, and applying constitutional obligations and remedies. It is a relationship that would be difficult to reconcile with the notion that the administrative state is not itself central to the architecture of the constitution.

The third and final turn in the jurisprudence is seen in the shrinking limits on administrative powers and jurisdiction under section 96 of the Constitution Act, 1867. Section 96 protects the special status and core jurisdiction of the superior courts. In the early decades of the twentieth century, section 96 was interpreted broadly and strictly, precluding the transfer of any judicial power to administrative decision-makers or statutory courts.[x] This protectionist stance was hostile to the creation and expansion of the administrative state, severely limiting the dispute resolution and adjudicative powers that could be delegated to administrative decision-makers and the sectors in which they could be involved. On this model, the courts, and more specifically the superior courts, were at the centre of the legal system and were to be protected against the intrusion or usurping of power by the burgeoning administrative state.

In fairly short order, the interpretation and application of section 96 – and the limits it created for the creation of the administrative state – loosened.[xi] In the latter half of the twentieth century, the courts pivoted to a liberal and generous approach to section 96.[xii] This flexible approach authorized the administrative state to take up novel jurisdictions, with novelty measured against the conceptual categories of the nineteenth century, and to perform adjudicative roles that are either important to policy goals or integrated into a broader institutional setting.[xiii] With this shift, the courts have contributed to the conditions in which the administrative state can be nimble, sprawling, and directly responsive to the diverse social problems it is intended to address. Together with the other two jurisprudential turns chronicled here, this shift contributes to the conclusion that the administrative state can no longer fairly be conceived of as merely permitted. It is, rather, difficult to conceive of Canada’s constitutional architecture without it.

* * * * *

Dunsmuir is a case about the structural dimensions of the constitutional order; questions of standard of review always are.  And so its tenth anniversary is an opportunity to reflect not only on the particulars, but also on where Dunsmuir might fit within the grander constitutional vision. As I’ve argued here, Dunsmuir is part of a vision that sees the administrative state as a central part of the expansive set of institutions on which the country relies in the pursuit of a flourishing public life. Perhaps this shields us somewhat from a siege on the administrative state and perhaps by Dunsmuir’s next anniversary, we’ll know.

[i] Gillian E Metzger, “Foreword: 1930s Redux: The Administrative State Under Siege” (2017) 131:1 Harv L Rev 1.

[ii] On the protective function of the amending formula, see Sébastien Grammond, “The Protective Function of the Constitutional Amending Formula” (2017) 22:2 Rev Con Stud 171.

[iii] See e.g. Port Arthur Shipbuilding Co. v. Arthurs, [1969] SCR 85; Metropolitan Life Insurance Co v International Union of Operating Engineers, Local 796, [1970] SCR 425.

[iv] CUPE v New Brunswick Liquor Corporation, [1979] 2 SCR 227. See e.g. UES, Local 298 v Bibeault, [1988] 2 SCR 1048; Pezim v British Columbia (Superintendent of Brokers), [1994] 2 SCR 557; Canada (Director of Investigation and Research) v Southam Inc, [1997] 1 SCR 748; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982; Dr. Q, supra; Dunsmuir v New Brunswick, 2008 SCC 9.  

 [v] DJ Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 CHALP 59 at 93, cited in Dunsmuir, ibid at para. 49.

[vi] Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61.

[vii] Nova Scotia (Workers’ Compensation Board) v Martin, 2003 SCC 54, [2003] 2 SCR 504; Nova Scotia (Workers’ Compensation Board) v Laseur, 2003 SCC 54, [2003] 2 SCR 504; R v Conway, 2010 SCC 22, 1 SCR 765 [Conway].

 [viii] Doré v Barreau du Quebec, 2012 SCC 12.

[ix] Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 40; Chippewas of the Thames First Nation v Enbridge Pipelines Inc, 2017 SCC 41.

[x] See e.g. Toronto Corporation v York Corporation, [1938] AC 415.

[xi] See e.g. Labour Relations Board of Saskatchewan v John East Iron Works Limited, [1949] AC 134.

[xii] Procureur Général de Québec v Barreau de la Province de Québec, [1965] SCR 772; Tomko v Labour Relations Board (Nova Scotia), [1977] SCR 112; The Corporation of the City of Mississauga v The Regional Municipality of Peel et al, [1979] 2 SCR 244; Reference re Residential Tenancies Act 1979 (Ontario), [1981] 1 SCR 714.  Indeed, the case law shows that over the past several decades, on the occasions when administrative decision-makers are challenged on section 96 grounds, the vast majority are unsuccessful. See e.g. R v Morrow, 1999 ABCA 182; Campisi v Ontario, 2017 ONSC 2884; Northstar Lumber v USWA Local 1-424, BCCA; Council of Canadians v Canada (AG), [2006] OJ No 4751 (CA); Air Canada v Canada (Commissaire de la concurrence, [2003] 18 Admin LR (4th) 14 (QCCA); Spellman v Essex (Town), [2002] OMBD No 784; Cameron v Sparks; Teal Cedar Products Ltd v British Columbia (Minister of Forests), 2008 BCSC 239; Pye v Pye, 2006 BCSC 505; Saskatchewan (Workers’ Compensation Board) v Saskatchewan (Board of Inuqiry), [1998] SJ No 503 (Sask Ct QB). Contra: Halme’s Auto Service Ltd v British Columbia (Regional Waste Manager), Decision Nos. 1998-WAS-018(c) & 1998-WAS-031(a) (Environmental Appeal Board).

[xiii] Reference re Residential Tenancies Act 1979 (Ontario), [1981] 1 SCR 714; Reference re Amendments to the Residential Tenancies Act (NS), [1996] 1 SCR 186.

 

Stranger Things: A Defense of Dunsmuir

Did Dunsmuir actually do some good ― at least when it comes to judicial review of law society decisions?

Alice Woolley, University of Calgary

I love criticizing Dunsmuir v New Brunswick. Who doesn’t?  The majority judgment purports to simplify the identification of the standard of review, but sets out a test with the potential to bog a court down (precedent + the “standard of review analysis”). It suggests reasonableness as a deferential standard, yet invites courts to look not just at an administrative decision-maker’s reasons, but also at the outcome it reaches – an apparent invitation to a court to assess the substance of a case, instead of focusing on the administrative decision-maker’s analysis.  Indeed, in Dunsmuir itself the majority neither simplified its own identification of the standard of review nor genuinely deferred to what the labour arbitrator in that case had decided (as David Mullan pointed out at the time). And of course perhaps the most telling criticism arises from the case’s failure to accomplish what one would have thought was its core mandate: allowing the Supreme Court to move on from its preoccupation with, and disagreement about, what is a ultimately a secondary question in any administrative law case.  Standard of review is what the Supreme Court can’t quit. As recently as 2016 the Court split 5-4 on the appropriate standard of review in Edmonton (East) Capilano Shopping Centres Ltd.. And even in a straightforward case, the Court can still spill a remarkable amount of ink identifying the standard of review (see, e.g., Green v Law Society of Manitoba (2017)).

It thus saddens me to concede that this blog does not criticize Dunsmuir. It does not even offer praise only as cover for a nasty zinger or devastating critique. It instead reinforces the empirical studies by Gerald Heckman, Robert Danay and others (summarized by Paul Daly here) to suggest that, on the whole, the effect of Dunsmuir on judicial review of administrative decisions has been more positive than negative.

My contribution to the empirical conversation was to review Court of Appeal and Supreme Court decisions reported on CanLII involving judicial review of law society decisions (mostly through statutory rights of appeal). I reviewed 76 cases with “law /1 society” in the title and “standard /2 review” in the text, identifying the 59 decisions involving judicial review (the remaining cases were disputes to which the law society was a party). Of those, 40 cases were decided after Dunsmuir, and 19 before. I chose law society decisions because I can read those decisions and understand the issues quickly, which allows assessment of, for example, whether the law society acted badly such that the court’s interference was understandable, or whether the court was really just substituting its judgment for the law society’s. I analyzed the cases on the following grounds:

  1. Did the decision uphold or reverse the law society?
  2. Was the decision able to identify standard of review in five paragraphs or less?
  3. Was the standard identified reasonableness or correctness?
  4. Was the Court’s judgment analytically weird (for example, the Adams v LSA (2000) where the Alberta Court of Appeal applied the “error of principle or… unreasonable or demonstrably wrong” standard of review (and concluded that the decision was both “correct” and not “manifestly unreasonable”))
  5. Did the court in fact defer taking into account both the analytical methodology (i.e., focusing on the reasons of the law society rather than on the court’s own analysis of the issue in the case) and the grounds supporting the court’s interference with the law society’s decision?

My analysis suggests little difference between how willing courts are to uphold law society decisions before and after Dunsmuir. In both time periods courts upheld the law society decision more than 75% of the time (75% post-Dunsmuir; 79% pre-Dunsmuir).  Nor are judges notably more willing to use reasonableness review after Dunsmuir than they were before, at least on some of the issues raised by a case (84% pre-Dunsmuir; 90% post-Dunsmuir, including two dissenting judgments).

More significant differences arise with respect to how often the court is willing to use correctness, the length of its analysis in identifying the standard of review, and the likelihood of an odd judgment. In the pre-Dunsmuir cases the courts used correctness for at least part of the decision regularly – in 7 of the 19 cases (37%) correctness was employed in whole or in part. Conversely, in only 2 of the 40 post-Dunsmuir decisions was correctness used (5%), with one additional dissenting judgment using correctness (bringing the total to 7%).

Similarly, prior to Dunsmuir, courts regularly devoted a considerable amount of their decisions to identifying the standard of review. In the pre-Dunsmuir cases 32% of judgments spent more than 5 paragraphs identifying the standard of review, whereas subsequent to Dunsmuir only 12% did. In many of the post-Dunsmuir cases the court identifies the standard of review in a single paragraph.

Further, in almost all of the post-Dunsmuir cases the standard of review used by the court recognizably conformed to the Supreme Court’s jurisprudence. In one post-Dunsmuir case, DeMaria v LSS  (2015) the Saskatchewan Court of Appeal referenced the idea of a court needing a “palpable and overriding error” for reviewing a tribunal’s findings of fact, relying on Justice Deschamps’ concurring judgment in Dunsmuir, but the Court connected that concept to the idea of reasonableness, which seems defensible. In another British Columbia decision, Mohan v LSBC (2013), the Court did not identify the standard of review, but appeared to review for correctness a Law Society Review Panel’s assessment of a Hearing Panel decision, in circumstances where the appropriateness of a correctness standard is not obvious (the issue before the Court was the Review Panel’s assessment of the Hearing Panel’s findings of fact). The Court’s failure in that case to engage at all with its own standard of review is unusual. Mohan is the one post-Dunsmuir law society decision where, to my mind, the Court dropped the ball entirely on the standard of review analysis.

In the pre-Dunsmuir cases courts also mostly seemed to grasp the basic concepts that govern standard of review (correctness, reasonableness and (at the time) patent unreasonableness) but in 3 of the 19 judgments the court’s analysis seemed odd or off-base, which is a much higher percentage (16%) than the 2.5% (1/40) for the post-Dunsmuir decisions. In its 2000 judgment in Adams, referenced earlier, the Alberta Court of Appeal treated an error of principle, unreasonableness and being demonstrably wrong as a singular standard of review, and later upheld the law society’s decision on the basis that it was both correct and manifestly reasonable. The Court did not obviously appreciate the basic ideas of standard of review and judicial deference, or turn its mind to the level of deference it needed to exercise. In a 1999 decision, Phillon v LSA, the Alberta Court of Appeal did not identify the standard of review explicitly but upheld the law society in part “given the standard of review” – implying, I think, a reasonableness standard.  Yet the Court also overturned part of the law society decision on the basis that the law society had sanctioned a lawyer using guidelines not published until after the hearing. For that aspect of the decision the Court did not identify the standard of review it was using. That standard on that part of the decision appears to have been correctness but the court never says so. In 1993 the British Columbia Court of Appeal in McOuat v LSBC suggested that courts may only interfere with administrative decisions that fall within the decision-maker’s jurisdiction where the decision-maker has “abused its discretion”, which seems to adopt the pre-CUPE idea of radically different levels of deference based on the administrative decision-maker’s jurisdiction, rather than a post-CUPE concept of judicial review.

To my mind this comparison speaks in Dunsmuir’s favour. Some of these effects almost certainly arise from more than that decision – it is likely that less odd judgments arise post-Dunsmuir because of the Supreme Court’s repeated reiteration of the concepts of standard of review, not Dunsmuir on its own. A judge has to be pretty out of it nowadays not to know that correctness and reasonableness are the core concepts of standard of review, and to miss the need to identify the standard of review when considering an administrative decision. Nonetheless, the reduction in odd judgments is a good thing, and Dunsmuir deserves at least some of the credit for it. Further, the increased simplicity of identifying the standard of review is great. In almost all law society cases reasonableness should be the standard – so why belabor the identification of it? That simplification was something Dunsmuir explicitly sought to accomplish, and these cases suggest that it has done so. Dunsmuir also does not seem to have made courts any more willing to interfere in law society decision-making – courts, at least when it comes to law societies, are respectful of and deferential to administrative authority, and Dunsmuir has made them no less so.

Indeed, perhaps the thing that strikes me most about reading these judgments is how sound the courts’ instincts are in reviewing law society decisions. That is not to say that I agree with the result in every case here. In several cases I disagree strongly with the law society’s decision (e.g., Groia v LSUC), so I’m unlikely to agree with the outcome of the court decision that upholds it. But disagreement with the result does not suggest that the Court was wrong to defer. My observation is that, generally speaking, these cases show courts understanding what their role ought to be, and fulfilling it.

Generally speaking, courts focus on law society reasons, not the substantive issue in the case. Of the 42 post-Dunsmuir judgments, I assessed 75% as focused on the law society’s reasons and analysis, even where the court overturned that decision. In those cases courts did not seem interested in making their own decision and then weighing the law society’s against it. They looked instead at what the law society did, and whether it could be defended as reasonable. And where courts were not reasons-focused, that lack of focus was often understandable. In Trinity Western University v LSBC (2016), for example, the process and substance of the Law Society’s decision was fundamentally flawed such that the Court’s independent assessment of the legal and constitutional issues was understandable (even inevitable). Similarly, in Merchant v LSS (2014), the Court engaged in a detailed review of the issues, but it did so in significant part because of the intensity and detail of the arguments made by the lawyer challenging the decision – there was really no way for the Court to both defer and respond to the lawyer’s case.  Certainly sometimes the courts focused more on the substance of the issue before the court than on the law society’s reasoning. In Law Society of Newfoundland and Labrador v Regular (2011) for example, while I am persuaded by the Court’s reasoning, I do not think it acted deferentially in substituting its reasoning about conflicts of interest for the Law Society’s, especially given it reached the same result in the end. Overall, however, the cases did not bear out the concern that Dunsmuir encourages courts to focus on the justifiability of the outcome rather than on the administrative decision-maker’s reasons.

Further, and this is true of both pre- and post-Dunsmuir cases, most of the time I think courts interfered with law society decisions to about the right extent, substantively speaking. They did not tend to second-guess law society decisions about whether a lawyer has committed misconduct, or about the appropriateness of the penalty. They recognized that the law society was in the best position to decide those matters, and they let the law society’s decision and assessment stand. At the same time, however, courts appropriately checked law society over-reach. The Courts overturned decisions where the law society:

  1. Failed to take into account or even consider a lawyer’s exculpatory explanation for misconduct in assessing the appropriate penalty, or failed to consider joint submissions from the law society and the lawyer on penalty (Guttman v LSM (2010); Hamilton v LSBC (2006); McLean v LSS (2012); Rault v LSS (2009));
  2. Improperly assessed a delay as prejudicial for only one charge, even though the witness now unavailable was material to both charges (Stinchcombe v LSA (2002));
  3. Refused to compensate a client for funds paid to a lawyer on the basis that a lawyer who was suspended did not receive money in his capacity as a “lawyer” (Singh v LSA (2000));
  4. Applied sentencing guidelines that had not been in force at the time of the lawyer’s hearing (Phillon v LSA (1999));
  5. Had a review panel which did not apply the level of deference review panels of that law society are supposed to apply (LSUC v Abbott (2017); Vlug v LSBC (2017);
  6. Did not try to make a correct decision, but only tried to make a reasonable one (TWU v LSBC (2016) – although the Court also took the position that the law society denying accreditation to TWU would be an unreasonable violation of s. 2(a), which is more contestable);
  7. Had a review panel which incorrectly stated that a hearing panel had not made a credibility assessment of a witness, and then proceeded to assess the witness’s credibility without having heard the witness (Mohan v LSBC (2013));
  8. Imposed a condition that a lawyer provide a psychological assessment of her fitness to practice, when her competence was not at issue (Ritchot v LSM (2010));
  9. Charged the lawyer with having committed an act intentionally, but then convicted the lawyer on the basis of negligence (Merchant v LSS (2009)).

Of course one does have to remember that it is the court who gets to tell the story in cases like this, with the result that it is perhaps unsurprising that the court tends to look like it is doing the job well. At the same time, however, I chose law society decisions because I am somewhat less likely to be fooled by persuasive judicial writing in this area than I would be in, say, environmental law, where I know nothing. And based on such expertise as I have, it seems to me that the courts mostly have it right in terms of their willingness to interfere with law society decisions. This is the case even where I do not agree with the underlying law society decision such as Histed v LSM (2006) or Groia v LSUC (2016) (with the caveat that the dissent in Groia makes a persuasive case for correctness review and overturning the Law Society’s decision). But the point is that whether a law society reached the same decision I would have on the evidence is not a basis for judicial review, and the courts understand that.

What broader insights follow from this analysis? None, except cautiously and with significant caveats. Law societies have features that set them apart from other administrative decision-makers: the decisions reviewed are quasi-adjudicative; they have extensive procedural protections for the lawyer; many (most?) lawyers are represented by counsel at the law society hearing; most law societies have statutory rights of appeal that take them to appellate courts for judicial review in the first instance, which increases the likelihood of informed judges; the decision-makers are mainly lawyers who are less likely to make bad legal errors; their policy choices rarely come before the court on judicial review. These factors may enhance the likelihood that a court will do judicial review of law society decisions better than they do judicial review generally. On the other hand, courts have concurrent jurisdiction over lawyer conduct through the inherent jurisdiction of the court, and can reasonably be viewed as equally expert to law societies on what constitutes appropriate lawyer conduct. That could have made the court more willing to interfere – no matter how expert the law society, the court would see itself as just as expert. Certainly it was not obvious to me before I read these cases that I was going to find what I did – I expected courts to be much more willing to interfere in law society decisions than they turned out to be.

With that caution and those caveats in mind, I would offer up two tentative conclusions from this review. One is that, as noted before, the effect of Dunsmuir is largely positive or, at worst, not negative. The other, however, is to suggest that the Supreme Court might want to calm down on its standard of review jurisprudence. These cases suggest that appellate courts understand what they are supposed to be doing in judicial review, and they are doing it. Constant tinkering with judicial review by the Supreme Court does not seem to be necessary, and risks unsettling the good work the lower courts, at least in these cases, are doing.

The True Legacy of Dunsmuir ― Disguised Correctness Review?

Why isn’t judicial review as deferential as courts say it should be?

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.

The Privilege of Public Employment

Is Dunsmuir’s treatment of public employees consistent with the principles it articulated?

Matthew Lewans, University of Alberta

The desire to clarify the parameters of judicial review looms large in Dunsmuir v New Brunswick. In their opening paragraph, Bastarache and LeBel JJ propose to reassess the law of judicial review, because it “has been marked by ebbs and flows of deference, confounding tests and new words for old problems, but no solutions that provide real guidance”. Fifty paragraphs later, they set out a simplified standard of review analysis. So at least from a methodological perspective, one might propose to assess whether and to what extent the decision renders the practice of judicial review more efficient. However, I want to evaluate Dunsmuir’s theoretical foundation as opposed to exploring whether it provides a more efficient framework for judicial review.

In order to do develop this theoretical critique, it is worth comparing Dunsmuir with other paradigmatic cases in the pantheon Canadian public law like Roncarelli v Duplessis (1959) and Nicholson v Haldimand-Norfolk Police Commissioners (1978). These cases are regarded as paradigmatic, because they articulate and defend fundamental principles of fair treatment and substantive review in an attempt to verify the legality of administrative law. This 20th century renaissance resulted in doctrinal reforms that echo Charles Reich’s argument that various forms of government largesse should not be considered mere “privileges” which can be revoked arbitrarily by state actors, but relevant material interests (which he provocatively dubbed “new property”) which warrant constitutional constraints on administrative action. Thus, in Roncarelli Rand J rejected the notion that the plaintiff’s liquor license was a mere privilege to be enjoyed at the pleasure of the Premier, but “a matter of vital importance” which was essential to Frank Roncarelli’s economic livelihood. A similar line of reasoning can be detected in celebrated decisions from other jurisdictions during the same period, most dramatically in Goldberg v Kelly (1970) when the United States Supreme Court held that welfare recipients were entitled to procedural due process under the 14th Amendment prior to the termination of their benefits.

Unsurprisingly, apex courts extended this same right to procedural fairness to public employees. Thus, in Ridge v Baldwin (1964) Lord Reid declared that the decision of the watch committee to dismiss chief constable Charles Ridge was “not a thing to be done lightly”, because it deprived him of his economic livelihood, damaged his professional reputation, and jeopardized his pension benefits as he was nearing the end of a 33-year career in the public service. Therefore, in Lord Reid’s opinion Ridge retained a legally protected interest in maintaining his employment, one which demanded a modicum of natural justice as in cases concerning property rights or the revocation of someone’s professional status. Therefore, he concluded that the governing principles were not to be drawn from the common law regarding “master and servant” nor cases regarding “offices at pleasure”, which would have enabled the watch committee to dismiss Ridge for any reason or no reason at all. Instead, he held that the decision was governed by “an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation.”

Fifteen years later, Laskin CJ cited Ridge as authority for the proposition that a probationary officer was entitled to a hearing at common law. Because the consequences of the decision to terminate Arthur Nicholson’s employment were “serious”, Laskin CJ held that “the old common law rule, deriving much of its force from Crown law, that a person engaged as an officer holder at pleasure may be put out without reason or prior notice ought itself to be re-examined.” In 1980, William Wade lauded Ridge v Baldwin in his Hamlyn Lectures as a constitutional fundamental, saying that “the courts once again accept, as they had always done except in their period of amnesia, that part of their duty was to require public authorities to respect certain basic rules of fairness in exercising power over the citizen.”  

While the majority opinion in Dunsmuir pays tribute to fundamental principles, that commitment evaporates when it applies them to the facts at hand. When Bastarache and LeBel JJ declare that “[t]he function of judicial review is…to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes”, they echo the principle of legality as articulated in cases like Roncarelli, Goldberg v Kelly, Ridge v Baldwin, and Nicholson. It is this same commitment to fairness which led the Adjudicator to conclude that Dunsmuir, like Ridge and Nicholson, was entitled to a pre-termination hearing of some sort; and it was this same commitment to reasonable justification that led the Adjudicator to conclude that s 100.1(2) of the Public Service Labour Relations Act, which provided non-unionized public employees the right to file a “grievance with respect to discharge, suspension or financial penalty”, entitled him to inquire into the employer’s reasons for the dismissal.

Despite that affirmation, the majority opinion concludes that “in the specific context of dismissal from public employment, disputes should be viewed through the lens of contract law rather than public law.” More surprisingly, the Court held that even though the Adjudicator’s decision was entitled to deference, the decision was unreasonable because the adjudicator had interpreted the PSLRA as allowing him “to inquire into the reasons for discharge where the employer had the right not to provide or even have such reasons”. Therefore the Adjudicator’s decision, in the Court’s estimation, “was fundamentally inconsistent with the employment contract and, thus, fatally flawed.”

In short, the juxtaposition between the statements of principle at the outset of decision and the application of those principles to the facts makes Dunsmuir a peculiar case from a theoretical perspective. Despite affirming the role of fairness and reasonableness as safeguards against arbitrary administrative decisions, the decision resurrects the notion that public employment (at least for those who are not Crown ministers or judges) is a privilege which can be terminated for any reason or no reason at all so long as employees are provided with reasonable notice. To rephrase the famous analogy in Lord Greene’s opinion in Associated Provincial Picture Houses, Ltd v Wednesbury, the upshot seems to be that a public school board really can dismiss a red-haired school teacher just because she has red hair, so long as it supplies her with pro forma reasons for her dismissal and adequate severance. But to require a public employer to afford some sort of pre-termination hearing well… that’s just unreasonable.

Theorizing Administrative Law

Does Dunsmuir Have a Philosophy?

Mark Walters, McGill University

Canadian judges occasionally pause to reflect upon larger theoretical ideas that are normally only implicit in the reasons that they give. Dunsmuir was one of those occasions. Writing together for the majority of the Supreme Court of Canada, Justices Michel Bastarache and Louis LeBel prefaced their analysis of the issues in the case with a general statement about the constitutional foundations of judicial review in administrative law. Re-reading those passages today, they strike me as having a distinctively Diceyan tone. The two principles that Bastarache and LeBel JJ. identify at the foundation of judicial review, the rule of law and legislative supremacy, are the same principles that Dicey identified as the animating principles of constitutional law, and the responsibility that they ascribe to judges for resolving the “underlying tension” between the rule of law and legislative sovereignty tracks Dicey’s views of ordinary courts and administrative power closely (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, para. 27). In reading these passages I could not help imagining someone—Harry Arthurs came to mind—declaring that the Dunsmuir judgment began its life “with the dead hand of Dicey lying frozen on its neck” (my imaginary Arthurs would of course be borrowing this famous line from William Robson, “The Report of the Committee on Ministers’ Powers” (1932) 3:3 Political Quarterly 346, 351).

The paragraphs on theory in Dunsmuir contrast sharply with another judicial excursus on administrative law theory that is perhaps somewhat forgotten today. I have in mind Justice Bertha Wilson’s discussion of the rule of law in National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324. At that time, Wilson J. had been worried that recent waving of the rule-of-law banner by some of her judicial colleagues signalled a weakening in their resolve to honour the spirit of the 1979 CUPE decision and its deferential approach to administrative decisions (Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227). The story of administrative law in the common law tradition had been, she said, a tale of escape from Dicey and his dreaded followers (especially the dark lord, Lord Hewart) who employed the conceptual formalism of the rule of law and the associated idea of jurisdiction against administrative discretion to advance conservative ideas contrary to the modern welfare state. Wilson J. feared the return of rule-of-law conceptualism and expressed her preference for the “pragmatic and functional” approach to administrative powers which had begun to emerge in Canadian cases a few years before.

As it happened, the language of “pragmatic and functional” would reign supreme in Canada for some twenty years, defining the essence of administrative law for a generation of lawyers and law students. And then, just as quickly as it entered judicial discourse, it was gone. Its demise brings us back to Dunsmuir, for of course it was here that “pragmatic and functional” was unceremoniously dropped, its “name” deemed by Bastarache and LeBel JJ. as “unimportant” (para. 63).

But was there something more at stake than just a name? Comparing the theoretical excursuses from National Corn Growers and Dunsmuir helps us to see the outlines of the philosophical debates that lie just under the surface of judicial reasons in administrative law. The pragmatic and functional approach seemed to draw inspiration from what Martin Loughlin has called the “functionalist style in public law”, an eclectic approach to law that emerged amongst the first wave of anti-Diceyans in the 1930s combining faith in the transformative potential of the state with an instrumentalist and realist understanding of law that was deeply suspicious of the common law and its conceptual paraphernalia, especially the rule of law (see e.g., John Willis, “Three Approaches to Administrative Law: The Judicial, The Conceptual, and the Functional” (1935) 1 U.T.L.J. 53). Functionalists wanted to clear away the old common law clutter that obstructed social policy experts and technocrats in government who were building a new and better society. As Ivor Jennings put it: “The “rule of law” is a rule of action for Whigs and may be ignored by others” (W. Ivor Jennings, The Law and the Constitution (1933), 256).

Perhaps, then, the rejection of “pragmatic and functional” in Dunsmuir was the rejection of a set of ideas and not just a name. There is arguably some evidence in Dunsmuir of a return to the sort of positivist or formalist understanding of law often associated with Dicey. The rule of law means, according to Bastarache and LeBel JJ., that public power is authorized by law, and the judicial review of statutory power involves simply defining the boundaries of jurisdiction by reference to the intent of the authorizing lawmaker (paras. 28, 29). As a rule about the formal statutory authorization for power the rule of law is thus simply and disappointingly rule by law. Many scholars think that Dicey’s rule of law was formalist and positivist in this very sense (e.g. Paul Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ [1997] Public Law 467). The worry of Wilson and Arthurs (and the old functionalists too) is that a formalist rule of law is an empty and aimless rule waiting to be filled with judicial bias.

But if this theory of legality informs Dunsmuir, why would Bastarache and LeBel JJ. say that there is a “tension” between the rule of law and legislative sovereignty? If rule of law means legal authorization by legislation, there could never be tension between the two. And why would they describe the judicial job of upholding the rule of law as upholding not just “law” but “legality”, “reasonableness”, and “fairness” in administrative decision-making (para. 28)? Why would they say that defining the “jurisdiction” of a decision-maker involves a “standard of review analysis”, which was their new name for the old “pragmatic and functional” analysis (para. 29)? And, finally, why would they cite with approval the case of Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, in which Justice Claire L’Heureux‑Dubé stated that administrative discretion must always be exercised in accordance with the boundaries imposed by statute and by the principles of the rule of law and the fundamental values of Canadian society?

The answer to these questions lies, I think, in appreciating the false dichotomy between formalism and functionalism. Dunsmuir and the many cases preceding and following it are best understood as part of an on-going interpretive project that seeks to fold together in a coherent way substantive values of legality within the complex arrangements for governance that have been created to address the realties of the modern (and post-modern) state. Formalism and functionalism both suffer from the mistaken view that law is merely a command issued by a lawmaker to others, a linear communication from state to subject; the two schools of thought differ only in terms of how judges should respond to the domains of administrative discretion created by these commands. My own view, however, is that law is better understood as a more circular discourse in which rules emanating from legislatures and administrators are interpreted in ways that can be justified in light of a unified and coherent vision of normative order that honours deeper values of political morality, including, of course, the value of legality and its unrelenting insistence that respecting equal human dignity means rejecting arbitrary power.

In the end, I think it is fair to say that the Dunsmuir theoretical excursus is Diceyan—but not in the formalist Diceyan image constructed by the functionalists. Dicey made some mistakes and the punishment for his sins seems to be that his name is forever associated with that flawed ‘Diceyan’ understanding of public law. However, some of the most difficult and underappreciated passages in his famous book, Law of the Constitution, come in the course of an attempt to explain how judges may resolve the tension between the rule of law and parliamentary sovereignty—passages which make little sense unless we assume that the “spirit of legality” that he says shapes all legal meaning is a substantive ideal that justifies and legitimates the exercise of governmental powers (A.V. Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (London: Macmillan & Co., 1915), ch. 13). Because Dicey himself did not develop a theory of administrative discretion beyond these basic points, he cannot give us concrete answers on how administrative law, properly interpreted, should look today. However, if we step back from the details of Dunsmuir and think about the general approach taken by Bastarache and LeBel JJ., we can detect a classic interpretive effort to see how the formal and substantive values of legality and sovereignty may be reconciled in a principled and coherent yet also a pragmatic and functional way consistent with a ‘Diceyan’ spirit of legality. One could say that this is just ordinary legal reasoning. Perhaps. But because it is ordinary it is also the best kind of legal reasoning. If all that resulted from Dunsmuir was a deeper commitment to an administrative world in which the exercise of power must meet standards of “justification, transparency and intelligibility” to be lawful, then the decision should be counted as a great success.