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.

Si l’histoire de la norme m’était contée

Évolution et circonvolutions du principe de déférence au Canada

Martine Valois, Université de Montréal

L’arrêt Dunsmuir marque la fin d’un long et sinueux parcours pour introduire un principe de déférence à l’égard des questions de droit tranchées par les autorités administratives. Dans son jugement, la Cour suprême du Canada consacre l’assise constitutionnelle du contrôle judiciaire qui vise à assurer non seulement la légalité et l’équité du processus administratif, mais également, la rationalité de la décision[1]. C’est donc par un curieux revirement de circonstances que la quête ardue pour l’application d’un mode d’emploi uniforme visant à freiner les ambitions interventionnistes des cours de justice a eu pour effet de légitimer le contrôle judiciaire du mérite des décisions administratives.

Mon ambition dans ce texte est de reconstituer les jalons du développement de la doctrine des normes de contrôle judiciaire dans un but bien précis. J’espère démontrer qu’en imposant un principe de retenue judiciaire à l’égard des conclusions de droit tirées par les autorités administratives, la Cour suprême du Canada a inscrit le contrôle du mérite des décisions administratives dans le droit administratif canadien. Lentement, mais sûrement, le pouvoir de surveillance et de contrôle de la légalité des actes de l’administration s’est transformé en pouvoir de surveillance et de contrôle du bien-fondé des décisions administratives.

Le contrôle judiciaire vise, depuis des siècles, la révision des décisions des tribunaux d’instance inférieure rendues en l’absence de compétence. Historiquement, le bref de certiorari est émis pour permettre aux cours royales d’examiner les dossiers des tribunaux inférieurs afin de s’assurer que ceux-ci demeurent à l’intérieur des limites de leur compétence[2]. Les limites au contrôle judiciaire existent depuis longtemps, car celui-ci s’attache à la compétence des tribunaux inférieurs, et non à la justesse de leurs décisions. Ainsi, en 1642, Sir Robert Heath écrivait dans Commins v. Masssam :

Suppose that the Commissioners do anything without or against their Commission, without doubt this is reformable and examinable here : But […] this Court cannot take notice whether their decrees are just or not: We are alone to examine their Jurisdiction of the case, not their Justice[3]. (En italique dans le texte).

Pour mettre en œuvre le contrôle judiciaire, il était nécessaire de démontrer une erreur de droit apparente à la lecture du dossier[4]. Au 13e siècle

questions of ‘scope of review’ and the ‘face of the record’ rule had arisen even before the writ of error was clearly distinguished from certiorari. They reappeared in the seventeenth-century growth of certiorari, and have caused trouble down to our day.

En droit canadien, l’erreur de droit apparente à la lecture du dossier donne ouverture au certiorari lorsqu’il n’y a pas de clause privative protégeant la décision du tribunal[5]. Concernant les interprétations juridiques des tribunaux, la jurisprudence établit une distinction entre les questions de droit qui touchent à la compétence, et les autres. Lorsque le tribunal interprète une disposition de sa loi constitutive qui lui donne compétence, la question de droit est dite « juridictionnelle »; l’intervention de la cour de révision est justifiée s’il y a désaccord avec l’interprétation du tribunal[6]. On reconnaît toutefois au tribunal administratif le droit à l’erreur lorsque celle-ci se situe à l’intérieur de sa compétence[7]. Le tribunal a « le privilège de se tromper dans les limites de sa compétence »[8]. En présence d’une clause privative, les questions de fait et de preuve, de même que la simple erreur de droit, sans incidence ou « coloration juridictionnelle » échappent ainsi au contrôle judiciaire[9]. Comme le rappelle le juge Estey, en matière de contrôle judiciaire, le rôle de la cour « n’est pas le même que celui d’une cour qui siège en appel », cette dernière ayant plus de latitude pour intervenir à l’égard de la décision du tribunal[10].

Dans deux jugements rendus en 1975 et 1979 respectivement, le juge Dickson remet en cause l’attitude interventionniste des cours de justice qui ont tendance à qualifier trop rapidement l’interprétation des termes de la loi constitutive par un tribunal comme étant une question de droit touchant à la compétence. La norme de la décision « manifestement déraisonnable » fait alors son entrée dans la jurisprudence canadienne[11].

En 1988, le juge Beetz prend le relais et impose aux cours de révision d’entreprendre une analyse dite « pragmatique et fonctionnelle » qui servira à déterminer si la question de droit tranchée par le tribunal est juridictionnelle[12]. Si, au terme de cette analyse, il est déterminé que la question relève de la compétence du tribunal, la simple erreur de droit ne donnera pas ouverture au contrôle judiciaire, car seule l’interprétation manifestement déraisonnable a pour effet d’entraîner un excès de compétence [13]. Par ailleurs, lorsque la question porte sur l’interprétation d’une disposition de la loi constitutive qui limite la compétence du tribunal, une simple erreur « fait perdre compétence et donne ouverture au contrôle judiciaire »[14].

En 1997, dans Southam, la Cour suprême crée la norme de la décision raisonnable simpliciter pour les affaires où la révision judiciaire s’exerce au moyen d’un appel de plein droit[15]. La consécration de l’ouverture du contrôle judiciaire au bien-fondé de la décision administrative est donnée par l’arrêt Baker qui établit que l’analyse pragmatique et fonctionnelle sert également à déterminer le degré de contrôle judiciaire des décisions hautement discrétionnaires rendues par une autorité administrative[16]. Enfin, en 2003, la Cour suprême décide que les normes de contrôle judiciaire s’appliquent même dans le cadre d’un appel de plein droit de la décision administrative[17].

À la suite de près d’une décennie de détours hasardeux pour imposer une démarche cohérente sur le choix de la norme de contrôle judiciaire, Dunsmuir relègue la norme raisonnable simpliciter aux oubliettes. Désormais, l’intensité du contrôle judiciaire de la décision administrative variera selon la nature de la question tranchée soumise à l’examen, mais aucune n’échappera au contrôle judiciaire. La révision du processus administratif sera assujettie soit à la norme correcte, soit à la norme raisonnable, mais la décision finale, elle, sera toujours soumise à la norme de la décision raisonnable, puisque c’est à cette étape ultime que le droit se mélange aux faits.

L’appel est devenu un contrôle judiciaire et le contrôle judiciaire est devenu un appel. And so the story goes…round and round in circles..


[1] Dunsmuir c. Nouveau‑Brunswick, [2008] 1 R.C.S. 190, paragr. 28.

[2] Groenvelt v. Burwell, (1699), 91 E.R. 1202.

[3] Edith G. HENDERSON, Foundations of English Administrative Law, Cambridge, Harvard University Press, 1963, p. 146.

[4] Id., p. 149. Douglas Aircraft Co. of Canada c. McConnell, [1980] 1 R.C.S. 245, p. 268, 275.

[5] Yellow Cab Ltd. c. Board of Industrial Relations et autres, [1980] 2 R.C.S. 761. La Cour trouve appui sur ce point dans le jugement de la Cour d’appel du Royaume-Uni dans R. v. Northumberland Compensation Appeal Tribunal; Ex p. Shaw, [1951] 1 K.B. 711.

[6] Bell c. Ontario Human Rights Commission, [1971] R.C.S. 756.

[7] Douglas Aircraft, supra, p. 277: « Un excès de compétence fondamental résultant d’une mauvaise interprétation de la loi constitutive est susceptible de révision en tant qu’excès de compétence puisqu’on ne peut étendre ou restreindre la compétence du conseil par une erreur dans l’interprétation de cette loi ».

[8] Douglas Aircraft, supra, p. 277.

[9] Douglais Aircarft, supra, p. 275; Syndicat des professeurs du collège de Lévis-Lauzon c. CEGEP de Lévis-Lauzon, [1985] 1 R.C.S. 596, p. 602; Syndicat des employés de production du Québec c. CCRT, [1984] 2 R.C.S. 412, 420.

[10] Douglais Aircarft, supra, p. 293. Voir également Harelkin c. Université de Regina, [1979] 2 R.C.S. 561.

[11] Union internationale des employés des services, local no 333 c. Nipawin District Staff Nurses Association, [1975] 1 R.C.S. 382 et Syndicat canadien de la Fonction publique, section locale 963 c. Société des alcools du Nouveau‑Brunswick, [1979] 2 R.C.S. 227

[12] U.E.S., Local 298 c. Bibeault, [1988] 2 RCS 1048.

[13] Id., paragr. 116, alinéa 1.

[14] Id., paragr. 116, alinéa 2.

[15] Canada (Directeur des enquêtes et recherches) c. Southam Inc., [1997] 1 R.C.S. 748.

[16] Baker c. Canada (Ministre de la Citoyenneté et de l’Immigration), [1999] 2 R.C.S. 817.

[17] Barreau du NouveauBrunswick c. Ryan, [2003] 1 R.C.S. 247.

RIP Reasonableness?

Does the Supreme Court’s latest administrative law decision mean it is no longer committed to deference to tribunals?

Last week, the Supreme Court issued its decision in Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v Caron, 2018 SCC 3, which may, or may not, be another sign that the Court’s love affair with deference to administrative decision-makers is coming to an end ― in practice if not yet in theory. I address the majority’s approach to deference in this post. Time permitting, I will, in a subsequent one, argue that if Justice Abella’s opinion is anything to go by, any hopes ― or fears ― that the end of deference would mean a return to judicial enforcement of the actual law are unwarranted.

Caron concerns the relationship between Québec’s workers’ compensation statute and its anti-discrimination law, colloquially known as the Québec Charter (and, I suspect, the relationship between similar statutes in other Canadian jurisdictions too, since this legislation tends to be fairly similar). The question was whether, in the context of an injured employee’s endeavour to return to work, the the duty to accommodate, long understood to be part of anti-discrimination law in the employment context, imposed obligations on an employer beyond those created by the workers’ compensation scheme. The administrative tribunal responsible for the application of the workers’ compensation legislation decided that it did not. The majority of the Supreme Court (as well as the courts below) disagreed.

When courts review a decision made by an administrative tribunal, they must begin by determining the “standard of review”. As Justice Stratas put it in his précis of Canadian administrative law, “how ‘fussy’ should the court be”? (33) Should the court insist that the tribunal’s decision be correct, or is it enough for the decision to be reasonable? Justice Abella, writing for a five-judge majority, is confident that “[t]his case is in classic reasonableness territory” because the tribunal “is interpreting the scope and application of its home statute”. [4] Classic, because under the framework articulated in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, judges are indeed generally required to defer administrative decision-makers interpreting their enabling legislation. However, the concurring opinion, written by Justice Rowe (with the agreement of Justice Côté) disagrees, endorsing the Québec Court of Appeal’s view that the issue of whether the tribunal had to apply the Québec Charter both goes to the determining the bounds of the tribunal’s jurisdiction and is of central importance to the legal system as a whole ― both factors which Dunsmuir said triggered correctness review.

I have no firm opinion on which of these views is right under the current law. Suffice it to say that Justice Abella’s is at least plausible. After all, Dunsmuir said courts should defer to a tribunal’s interpretation not only of its “home” statute, but also to that of “statutes closely connected to its function, with which it will have particular familiarity”. [54] Arguably, the Québec Charter‘s anti-discrimination provisions are “closely connected” to the function of a workers’ compensation tribunal. It is too bad, however, that Justice Abella neither acknowledges nor engages with the concurrence’s view.

Be that as it may, the disagreement between majority and concurrence turns out to be quite irrelevant. Having declared in favour of reasonableness, Justice Abella never once shows a sign of actually deferring to the tribunal’s reasoning. Of course, even on a reasonableness standard, courts will sometimes overturn tribunals’ decisions. However, as defined in Dunsmuir ― which Justice Abella doesn’t actually cite ―

reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. … Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of decision makers. [47], [49]

There is no “due consideration”, or any consideration, of the tribunal’s determination in Justice Abella’s reasons. She is uninterested in whether it justified its decision in a transparent and intelligible way. In fact, she does not even bother summarizing the tribunal’s opinion, as Justice Rowe does (and as is customary), let alone paying it any attention. Justice Abella proceeds with her own analysis of the applicable law, and never pauses to show why the tribunal’s different conclusion was not just mistaken but unreasonable. There is, in reality, no difference between the pretended “reasonableness” analysis like Justice Abella’s and avowedly non-deferential review like that undertaken by Justice Rowe. Justice Stratas calls this sort of thing “disguised correctness review”, but calling the disguise in this case flimsy is already giving it too much credit.

Now, one might ask just what proper reasonableness review, as described in Dunsmuir, would have involved in Caron. The administrative tribunal’s reasons on the point in issue (at [61]-[91]) are fastidious, but they consist in an analysis of the relevant judicial decisions. In effect, the tribunal functions as a lower court, and not as a specialized, expert decision-maker bringing a unique policy-informed perspective or “field sensitivity” to the issue before it. Even if one accepts that such factors can justify judicial deference to tribunals, it is not obvious why the Supreme Court would or should defer to a decision where they are absent.

So Justice Abella could have said that no deference is due when a tribunal’s expertise is not in play. Such a position would be defensible. Indeed, it would arguably be more consistent with the original Dunsmuir framework, which as I see was intended to be a flexible one, than the Supreme Court’s post-Dunsmuir decisions that elevated deference into dogma, notably Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293. In that case, the majority attributed expertise and pretended to defer to reasons not actually given by a tribunal that hadn’t even addressed the issue that the Supreme Court was deciding. I described that process as a judge “playing chess with herself, and contriving to have one side deliberately lose to the other”. But, as with Edmonton East, it seems to me that a position cannot be defensible unless it is actually defended. Justice Abella, to repeat, could have defended the position I have just outlined ― but she doesn’t, and we are left to wonder why exactly she approached Caron as she did (and not as she said she did).

Unexplained departures from previous pronouncements on standard of review are becoming a trend in the Supreme Court’s administrative law jurisprudence. This trend previously manifested itself in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54  and Association of Justice Counsel v. Canada (Attorney General), 2017 SCC 55. As I noted here, in neither of these cases did the Court adopt the approach to judicial review which its precedents seemed to dictate ― an approach that called for deference to adjudicative or discretionary administrative decisions involving the Canadian Charter of Rights and Freedoms. The Court simply undertook its own constitutional analysis, without explaining whether the previous framework was still good law, and if not, why, or to what extent.

This trend, if that’s what it is, is disturbing. As I wrote in my comment on Ktunaxa and Justice Counsel, I would be very happy to see the Supreme Court nix its deferential review of administrative decisions involving the Charter. I am inclined to think that getting rid of deference on most, perhaps on all, questions of law would be a good thing too. But if that’s what the Supreme Court wants to do, it must tell us, instead of saying one thing (or nothing at all) and doing another, which makes it possible for the seemingly disfavoured approaches to be used again, without litigants being able to predict when or why they will be. As I previously argued, the Court’s behaviour is problematic from the standpoint of the Rule of Law, because it makes the law unstable and obscures the fact of legal change, and fails the “justification, transparency, and intelligibility” test articulated in Dunsmuir, by which judicial decisions, no less (and perhaps more) than administrative ones, should be assessed.

Between Ktunaxa, Justice Counsel, and now Caron, it is tempting to conclude that the Court is growing disenchanted with deference to administrative decision-makers’ decisions on questions of law. Yet perhaps such a conclusion would be premature. We cannot know, with the court systematically failing to explain itself and even individual judges changing tack, unpredictably, from case to case. In Caron, that the Supreme Court actually engages in correctness review is clear enough, but why it does so, whether it still thinks that there is a place for reasonableness review, and if so, in what circumstances, is anybody’s guess. This uncertainty is problematic. If deference is indeed dead, the Supreme Court should ensure that it stays so, and doesn’t come back to eat the brains of Canadian lawyers and judges.

The Dunsmuir Decade

Announcing a joint Administrative Law Matters/Double Aspect blogging symposium on the 10th anniversary of Dunsmuir

(This post is co-written with Paul Daly)

It may be hard to believe that March 7, 2018 marks the 10th anniversary of the Supreme Court of Canada’s decision in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, where the Court reformulated Canadian administrative law.

Dunsmuir is — by some distance — the most cited decision of any Canadian court and, for Canadians and Canadaphiles, synonymous with Canadian administrative law.

For most listeners, “Dunsmuir” will represent something more profound. It might evoke a sense of hope, for in 2008, onlookers hoped that the Court had finally settled some great questions about deference, the administrative state and the Canadian Constitution. But it might also evoke a sense of despair, for in the years since 2008, it has become clear that many questions remained unsettled, about the scope of deference the nature of judicial review, and the role of judges in administrative law cases.

For these reasons, March 7, 2018 is a date worth observing.

Paul Daly and I propose to mark the anniversary in a novel way. In the weeks leading up to March 7, Paul and I will publish on Administrative Law Matters and Double Aspect a series of short blog posts written by leading members of the Canadian legal community. The list of confirmed contributors and indicative topics appears below (though is, of course, subject to change).

On March 7, we will publish a post by Justice David Stratas of the Federal Court of Appeal summarizing the contributions and the current state of play in relation to Dunsmuir, and, in addition, contributions by Louis LeBel and Michel Bastarache, the authors of the majority reasons in Dunsmuir, reflecting on the case and contemporary reactions to it.

These contributions will subsequently be published in the Canadian Journal of Administrative Law & Practice, the overall goal being to enrich discussion of Canadian administrative law and to blend new and old forms of legal writing. Contributors will be encouraged to edit their contributions in light of comments received from blog readers and other discussants on social media ― so don’t be shy!

The Background to Dunsmuir/Le contexte de Dunsmuir

Sheila Wildeman (Dalhousie)
Martine Valois (Montréal)
Lorne Sossin (Osgoode Hall)
Clarence Bennett (Stewart McKelvey LLP)

The Philosophy of Dunsmuir/La philosophie de Dunsmuir

Matthew Lewans (Alberta)
Mark Walters (McGill)
Mary Liston (UBC)

Correctness Review/La norme de la décision correcte

Lauren Wihak (McDougall Gauley LLP)
Suzanne Comtois (Sherbrooke)
Shaun Fluker (Calgary)
Gerald Heckman (Robson Hall)

Reasonableness Review/La norme de la decision raisonnable

David Mullan (Queen’s)
Eddie Clarke (Wellington)
Peter Gall (Gall Legge Grant Zwack LLP)
Alice Woolley (Calgary)

Dunsmuir and Fairness/Dunsmuir et l’équité procédurale

Kate Glover (Western)
Laverne Jacobs (Windsor)
Nicholas Lambert (Moncton)

Dunsmuir and the Constitution/Dunsmuir et la constitution

Audrey Macklin (Toronto)
Evan Fox-Decent & Alexander Pless (McGill & Justice Canada)

Indigenous Peoples and Dunsmuir/Les peoples autochtones et Dunsmuir

Naoimi Metallic (Dalhousie)
Janna Promislow (Thompson Rivers)

Teaching Dunsmuir/Enseigner Dunsmuir

Craig Forcese (Ottawa)

Judicial Perspectives/Regards de la magistrature

John Evans (Goldblatt Partners LLP)
Joseph Robertson (UNB) “How Would Dunsmuir be Decided Today?”

Comparative Perspectives/Regards comparatifs

Dean Knight (Wellington)
Jeff Pojanowski (Notre Dame)
Janina Boughey (UNSW)

The Effects of Dunsmuir/Les effets de Dunsmuir

Diana Ginn & Will Lahey (Dalhousie)
Paul Daly (Cambridge)
Robert Danay (Justice Canada)

Moving on from Dunsmuir/Faut-il passer à autre chose?

Leonid Sirota (AUT)
Martin Olszynski (Calgary)

Summary/Résumé

Louis LeBel (Laval)
Michel Bastarache (Caza Saikaley LLP)
David Stratas (Federal Court of Appeal