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.