Dunsmuir 10 Years Later

The context, aims, and aftermath of Dunsmuir

The Hon. Michel Bastarache CC QC

At the outset, I should express my gratitude to Professors Daly and Sirota for the invitation to contribute to this remarkable project, including such a superb array of leading lawyers, scholars, and judges. I have encountered the challenges of administrative law for most of my professional life in various capacities, but the sheer diversity of diagnoses and prescriptions, from such a wide range of contributors with such disparate views and organizing premises, has been eye-opening. By my count, there have been calls to revive the patent unreasonableness standard and to eliminate standards of review entirely; calls to greatly expand and tightly limit deference; calls to jettison presumptive categories and calls for more categorization; calls for greater attention to theory and more steely-eyed pragmatism; calls to hew more closely to Dunsmuir and to cast it aside more or less entirely; and much else besides that.

Depending on how you look at it, Dunsmuir is a decision so poor that all can agree went wrong in every conceivable direction, even if they agree on nothing else; or it may be that by synthesizing previous decisions and providing useful guideposts, it managed to secure some modest measure of progress. That ultimate reckoning is a task I will leave to others. I can only say that the contributors have been imaginative, original, astute and perceptive, and reading them all together provides invaluable insight into the subject, for which I am personally grateful and from which I think others can benefit greatly.

Obviously, I have my own views on Dunsmuir and the cases that followed it, and will share a few of them. But my focus in this response is not to defend Dunsmuir from its many critics, but to hopefully provide some insight into what we were trying to achieve, the thinking that went into it, how the unique role of a Supreme Court judge manifested itself in the decision. I intend this not as an apologia, although it may seem that way sometimes; rather, I hope that a better idea of our processes and thinking might help inform and provide some context around the many insights contained in the contributions, and be of some value to students of administrative law, of which I remain myself. I offer these observations in that spirit.

Institutional Constraints

I will begin with the paradox within which Supreme Court judges operate: that we are at once enormously powerful and tightly constrained. Acting at the apex of a system of laws, and guarded by judicial independence, there are few options categorically off the table, at least in terms of developing the common law, of which administrative law is one part. At the same time, we are subject to a broad range of effective constraints, including those imposed by precedent, the autonomy of colleagues, the cases that come before us, and the arguments as framed and argued by the parties. The degree to which a judge feels constrained by any of these factors will vary depending on the judge and the case; I can only speak of my own views, and the extent to which these considerations informed my contribution to Dunsmuir.

From my perspective, it is rarely possible for judges, even Supreme Court judges, to rewrite the law from scratch, however much we may like to do so. We are neither scholars at liberty to develop innovative solutions entirely anew, nor a law reform commission. And while we have the luxury of time that many judges in trial courts do not, we still need to decide a good many cases each year. We do not have the opportunity to focus exclusively on a particular problem or agonize over a judgment for too long, nor can we address an area of law in every conceivable respect in a single judgment. As our individual records might indicate, we are only too human.

Moreover, to the extent we can provide solutions to particular problems, we must not only attempt to find solutions that are conceptually sound, but also practically workable. We realize that it is not helpful to create overly abstract standards, however theoretically pleasing, that judges cannot apply and litigants cannot understand. Especially in an endeavour as diverse as administrative law, which touches on so many aspects of the modern state, the importance of ensuring our judgments are practical and accessible is not to be underestimated.

Perhaps most importantly, Supreme Court judges do not operate alone. We operate within a framework defined by our predecessors, by the need to obtain consensus with our contemporary colleagues, and by the knowledge that there will be subsequent judges who will soon take the reins.

Therefore, in a case like Dunsmuir, we must not only attempt to provide guidance to lower courts, but also create a workable framework that is consistent with and synthesizes the wisdom of generations of judges who came before us. To borrow from Ronald Dworkin’s terminology, we must attempt to both “justify” the system of judicial review by placing it in its best light, and make sure our solution “fits” reasonably well with our past and current practices. We can move the law, but incrementally ― we cannot knock everything down and start from scratch, however much that may be our personal preference.

And when we attempt to move the law, we must do so in a way that satisfies at least four of our colleagues. I recall experiencing this difficulty early in my Supreme Court career, when I first tried to obtain support for a less daring change in Pushpanathan. Of course, it is always possible for a Supreme Court judge to set out his or her own personal vision of the perfect solution, but that is not always the way you make real progress. (I should not be taken to be diminishing the value of a strong and principled, if lonely, judgment; my Dunsmuir co-author’s concurring reasons in CUPE, of course, identified many of the concerns that led to Dunsmuir itself.)

The difficulty, of course, is seeking to reconcile considerations that may pull in different directions in the context of a particular case that needs to be decided. An innate sense of justice and view of a theoretically sound approach to a particular issue pulls one way; the equally firmly held views of colleagues may pull in another; the gravitational force of precedent may pull in a third; and the concern with ensuring not only conceptual coherence but practical workability may pull another way still. In this reality, compromise is unavoidable.

I will confess I often found managing this task challenging, as I think most Supreme Court judges do. And it was especially challenging in a case like Dunsmuir, involving an attempt not only to craft reasons that will have some lasting impact, but which touched on such an enormous range of circumstances. As difficult and controversial as many issues that reach the Supreme Court can be, they often only affect a small subset of the population or a narrow area of the law; changes to judicial review of the scale contemplated in Dunsmuir affect a good part of the Supreme Court’s docket, hundreds if not thousands of lower court decisions every year, and at least at the margins, the day-to-day interactions between members of the public and government.

In this institutional setting, you realize your limitations pretty quickly, and do your best to work within them. I turn now to our attempt to manage this reality in Dunsmuir, and the problems we were trying to solve.

Our Objective in Dunsmuir

When Justice Lebel and I wrote the decision in Dunsmuir, we were not naïve enough to think it would be the last word on judicial review. We were not trying to resolve all of the insuperable theoretical disagreements or irreconcilable precedents in this vast legal universe, which often go to the heart of public law theory and modern governance. We were ambitious, but not that ambitious.

Instead, we were trying to bring as large a reform as we could to deal with what we saw as immediate and, we hoped, manageable problems. Those problems have been described many times, but I will say a word on some of the considerations that motivated us to think that we should try to do more than simply resolve the case before us.

First, from a practical perspective, we recognized that judges would routinely spend as much or more time addressing which of the three standards of review properly applied as they did on the legality of decisions under review. As Justice Binnie observed in his concurring reasons in Dunsmuir, the courts had become “unduly burdened with law office metaphysics” (at para 122). While there were paradigmatic cases where the standard of review would be clear, such as labour arbitrators interpreting a collective agreement, the proliferation of administrative actors and bodies and the variety of issues that may come before them often made it difficult to determine what standard should be applied. We hoped to make that process easier, at least some of the time.

Second, the distinction between reviewing for ‘reasonableness’ and ‘patent reasonableness’, in our view, had no principled foundation. As mentioned in Dunsmuir, we considered that “it would be unpalatable to require parties to accept an irrational decision simply because, on a deferential standard, the irrationality of the decision is not clear enough”, and that it was “inconsistent with the rule of law to retain an irrational decision” (at para 42).

The primary difficulty, of course, was to determine when deference should be applied. One of our goals was to try to eliminate the need to undertake a full pragmatic and functional approach in every case. To that end, we attempted to provide principled and workable “guideposts”, while recognizing that we cannot provide more certainty than that.

We did not think that we could eliminate the pragmatic and functional factors entirely, however, simply because we realized the sheer breadth and diversity of the administrative state, and the ability of governments to come up with new and inventive ways of enforcing laws, delivering services, and carrying out social policies. Thus, if the standard of review had not been clearly identified in the past in relation to the particular body and type of decision, the court would still be able to consult the newly renamed standard of review factors.

It is true that the factors were not new, and did not lead to a clear or undisputable result in every case, but we saw no reason to abandon them. We believed, like many of our colleagues before us, that the standard of review factors – the presence of a privative clause, the purpose of the tribunal or other decision maker, the nature of the question at issue and the expertise of the tribunal – were the type of considerations that properly informed the question of how our courts should determine the appropriate degree of deference. Given the nature of the case itself, our analysis was prepared with adjudicative tribunals in mind; more attention would be paid to other actors in the administrative state in another context. But our hope at the time was that new decisions could fill that void, and that the retention of the standard of review factors gave the courts the tools to do so.

Having eliminated the patent unreasonableness standard, we were left with an obvious problem: what does “reasonableness” mean? One struggles to think of a concept as integral to so many areas of the law, and as stubbornly resistant to definition, as the idea of “reasonableness”. We recognized that we were unable to resolve that quandary in a way that could apply with precision to all of the varied circumstances that the courts would face, and therefore made no attempt to do so. What we did try to do was, again, to provide some guidelines or touchstones that fit with our understanding of the term as it had been applied in this context.

With our focus being on adjudicative tribunals, we were particularly concerned with their reasoning and decision making processes, to ensure that they demonstrate justification, transparency and intelligibility. But in our view, that did not exhaust the court’s supervisory task; we believed that one also must consider the outcome, and ensure that it was defensible in respect of the facts and the law. In this way, we attempted to reconcile and provide at least some structure to the types of decisions that the courts had, throughout modern history, determined were ‘unreasonable’. Our hope was that with the two flexible foundations for reasonableness review in hand, that subsequent cases would have the tools they needed to reach justice in individual cases, and develop the law accordingly.

Our objective in Dunsmuir was to create a framework for greater clarity moving forward, which both justified the use of judicial review, fit it into the framework of the cases that came before, and provided at least some workable guidance moving forward to be filled in and supplemented by future decisions. This provides a convenient segue into my next and final topic: the post-Dunsmuir cases.


As just mentioned, our hope in Dunsmuir was to make some progress in both simplifying the standard of review analysis, and providing some workable guideposts and grounding for judicial review moving forward. It was an attempt to take stock of all the disparate and idiosyncratic decisions over the previous decades, and to synthesize it into a workable model. The success of such a project depends not only on the (always limited) abilities and foresight of authors, but also on the existence of other judges who agree with the project, both in terms of the foundational principles set out in Dunsmuir, and their application in particular cases.

Needless to say, such a consensus has been hard to achieve. I mentioned earlier that there have been cases decided since Dunsmuir that I would have decided differently, sometimes quite drastically. I will give a few examples.

In my view, in order for the Dunsmuir understanding of reasonableness to apply, there must be reasons and a rationale behind a decision. Unfortunately, this was set aside in Newfoundland and Labrador Nurses, and in Bernard v Canada (Attorney General) (2014) SCC 13. I also believe that legislative intent is still relevant, with the privative clause providing a strong suggestion that deference applies (see Dunsmuir, at para 52), and a right of appeal indicating otherwise. That is why, in my view, it is not acceptable to collapse appeal and judicial review, contrary to what was held in Mouvement laïque québécois v Saguenay (City), 2015 SCC 16. Professor Daly mentions that the leave requirement for an appeal and the differentiation between questions of law and questions of fact reveal an intention to have the question addressed by the courts. I agree.

In the Sageunay case, the court found that the presumption of deference had been rebutted; but I do not think there is or should be a legal presumption. The presumption of deference came from Alberta Teachers. As I understand Dunsmuir ― a necessary qualification, because I know my co-author signed on to the reasons in Alberta Teachers! ― we insisted on a contextual approach with general guideposts, which is inconsistent with a presumption of deference across the board. We simply said that, generally, reasonableness would apply in some circumstances (at para 54). We certainly did not say that correctness would no longer apply except in the case of four categories of decisions; the so-called correctness categories were examples of cases where correctness was obviously required. Beyond those categories, context would determine when correctness would be applied, and expertise would play a key role in those determinations. I might add that we did not say that expertise would be presumed, as some subsequent cases have held; in my opinion, deference had to be earned and justified in the context (at para 49). Deference is imperative for “processes and determinations that draw on particular expertise and experiences”, but not for all questions of law, merely because the question is raised by a decision-maker’s home statute. As Justice Slatter of the Alberta Court of Appeal put it, “these signposts were never intended to be hard and fast categories, and the standard of review analysis remains sensitive to the statutory and factual context.” Edmonton East (Capilano) Shopping Centres Limited v. Edmonton (City) 2015 ABCA 85 at para 23.

It also seems to me that some of the decisions that followed Dunsmuir were not based on a consistent principled approach, whether it be that in Dunsmuir or another; it seems clear to me that, in at least some cases, the Court wanted to expedite affairs that had dragged on for too long, and in the process, lost sight of the need for consistency (see Bernard, Canadian Human Rights Commission).

Indeed, I think there have been too many decisions that have cut against what we were trying to achieve in Dunsmuir, or at least have proceeded on an understanding of administrative law to which I do not personally subscribe. I did not expect the court to give leave soon after Dunsmuir to so many applicants; I thought it would give lower courts time to experiment so that future necessary changes could be better identified. I personally regret that the court tried to adjust the Dunsmuir approach so soon, and that it made decisions that were, in my view, inconsistent with Dunsmuir, while purporting to apply it. In my view, this created unnecessary confusion.

Suffice to say that there have been many decisions made since Dunsmuir that I would not have personally made. Differences of opinion are to be expected. I respect that. To a certain extent, this reflects the complexity of the subject, the wide variety of cases that may come before the Court, and the difficulty of creating a comprehensive solution that will suit every judge and work for every case in a field such as this. Whether the more significant departures reflect the limits and errors of the authors of Dunsmuir, a misapplication of it by subsequent judges, or a deeper disagreement with the project itself, I cannot say. The reality is that I cannot force others to follow the understanding of Dunsmuir that I would want them to follow, much less to resolve its unanswered questions and unavoidable ambiguities as I would want them resolved. And while that can be frustrating at times, it might ultimately be for the best.

That is because our common law system of judging depends on forging a consensus that persists over time, and proceeds on the assumption that the wisdom of judges collectively, acting incrementally, are better than a single judge dictating law for all time. While each individual judge is fallible and each judgment is flawed in the eyes of some, we must have faith in the collective abilities of the judiciary to work through and get us ever closer to where we should be. Like democracy as a system of government, I believe this widely dispersed, common law system is the worst possible process for judicial law making, except for all the others.

It is for this reason that while some might regret that our decision in Dunsmuir was incomplete or left important questions unanswered, I do not. I understand those who express this regret but can only say that it is not possible to produce such comprehensive and definitive answers to such monumental questions. All that we could do, in our short time on the Court, is to attempt to provide a theoretically sound and practical framework for the application of judicial review, and then to try to apply those principles in subsequent cases, to the best of our ability. I will leave it to others to judge our success in that project – the reviews appear to be mixed – and to the courts to do all that they can to improve upon that project moving forward. I have faith that they will do so to the best of their ability, as we attempted to do with ours.

The Paradox of Simplicity

Dunsmuir failed to simplify administrative law; the framework that replaces it must account for the administrative state’s complexity

In Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, the Supreme Court sought to bring clarity and (relative) simplicity to the law of judicial review of administrative decisions, which as it acknowledged with some understatement “ha[d] not been without practical and theoretical difficulties, [or] free of criticism”. [39] But subsequent decisions, digesting, developing, and departing from Dunsmuir, revealed the futility of its promise of simplifying the law of judicial review in Canada. Practical and theoretical difficulties, and criticism, still abound ― at least when it comes to review of administrative decisions on questions of law. The law on this issue, as other contributions to this symposium note, is in a parlous state. The Supreme Court’s decisions fail to provide guidance to litigants and to lower courts. They are difficult to understand, unrealistic, and appear to do something very different from what they say they do. A fundamental re-assessment, of a magnitude at least equal to that of Dunsmuir, seems to be inevitable.

In my view, one reason why Dunsmuir failed to simplify and clarify the law of judicial review once and for all is the weakness and incoherence of the justifications it provided for judicial deference to administrative decisions. In this post, I review these justifications and argue that none of them can account for the broad scope of deference that Dunsmuir and subsequent cases mandate. Any attempt to reformulate the law of judicial review in the future must acknowledge the weakness of the available explanations for deference, and can only require courts to defer to administrative decision-makers in narrow circumstances where such deference would be well and truly justified.

* * *

Dunsmuir proclaimed that “determining the applicable standard of review is accomplished by establishing legislative intent”. [30] If courts were sometimes, or often, to defer to administrative decision-makers’ interpretations of law, that was because legislatures wanted them to do so. “The existence of a privative or preclusive clause”, [52] providing that an administrative decision was not to be interfered with by the judiciary, was the indication par excellence of the enacting legislature’s desire to commit the determination of issues arising out of the operation of a statutory scheme to a tribunal rather than a court.

But Dunsmuir itself and subsequent cases undermined what the simplicity of a hypothetical regime where privative clauses trigger deference ― and their absence, logically, leads to non-deferential review. For one thing, as Dunsmuir acknowledged, to the extent that they purport to oust judicial review completely, privative clauses cannot be given their full effect, because under the constitution “neither Parliament nor any legislature can completely remove the courts’ power to review the actions and decisions of administrative bodies”. [52] But even putting this constitutional limitation to one side, under the Dunsmuir framework a privative clause is not the only signal of deference. Indeed, according to Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, even a provision creating a right of appeal on a question of law, which seems like an explicit indication that a legislature does not want courts to defer to administrative decisions, is not enough to oust a “presumption of deference”, which thus takes on a life of its own, unmoored from legislative intention.

Another reason for judicial deference to administrative decisions, according to Dunsmuir, is that “certain questions that come before administrative tribunals” ― including questions of law ― “do not lend themselves to one specific, particular result”. [47] The multiplicity of possible answers to the questions facing administrative decision-makers combined with the need to “respect … the legislative choices to leave some matters” [49] to their arbitrament to justify deference.

The problem here is that there is little reason to think that the sets of questions of law that “do not lend themselves to one specific particular results” and of questions on which deference is required under the Dunsmuir framework (or the Dunsmuir framework as modified by subsequent Supreme Court decisions) are identical. Dunsmuir called for deference “where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” [54] or related common law rules. Yet the great variety of statutes setting up administrative tribunals, and indeed of particular provisions within any one of these statutes, makes it unlikely that all of the interpretive questions to which they give rise lack definitive answers. Perhaps the suggestion is that the very legislative choice of setting up administrative tribunals to address these questions means that legislatures think that these questions lack definitive answers, but that too seems implausible. A legislature may wish to set up an administrative tribunal for any number of reasons that have nothing to do with the existence or not of clear answers to interpretive questions: cost-effectiveness, accessibility, the need to execute a law (and not just adjudicate disputes), even patronage.

Finally, Dunsmuir insisted that courts need to defer to administrative decision-makers out of “respect … for the processes and determinations that draw on particular expertise and experiences”. [49] Since then, as the dissenting opinion in Edmonton East noted, “the notion of ‘expertise’ has become a catch-all trigger for deferential review”, [82] even though “this presumption of expertise has rarely been given much explanation or content in our jurisprudence”. [83] Meanwhile, the majority opinion suggested that expertise was independent of the qualifications or functions of administrative decision-makers. The very existence of a specialized tribunal made it an expert.

Perhaps the popularity of the presumption of expertise is due to the Supreme Court’s realization that the other justifications for deference are unpersuasive. Perhaps it is a convenient means to disclaim responsibility for decisions taken elsewhere (similarly, for instance, to the Supreme Court’s insistence, starting in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101, on deference to first-instance judges’ findings of legislative fact). Other contributors to this symposium challenge the notion of administrative expertise as a foundation for deference in greater detail. Suffice it for me to say that, just like legislative intent and the impossibility of a definitive answer, expertise is often a judicial fiction and thus an unconvincing justification for deference.

All this is not to say that there are no cases in which deferential review on a reasonableness standard would not have been intended by a legislature setting up an administrative tribunal, or in which there is indeed a multiplicity or a range of plausible answers to legal questions, or in which the administrative tribunal is (more) expert (than the reviewing court). My point, rather, is that, at a minimum, these justifications do not support deference across the board when administrative decision-makers are interpreting their “home statutes”, which Dunsmuir, and especially cases like Edmonton East require. Indeed, these justifications can operate at cross-purposes, as when the legislature authorizes appeals on questions of law from the decisions of expert tribunals, or when administrative decisions are insulated by privative clauses from review of their answers to questions which do in fact “lend themselves to a specific result”. The Supreme Court’s jurisprudence suggests that all these conflicts must be resolved in favour of deference, but it does not provide any explanation for why this is the case.

* * *

The Supreme Court, presumably, can see these difficulties as plainly as its critics. They might account for at least some of the frequency with which ostensibly deferential review exhibits no sign of deference at all ― another issue that other contributions to this symposium highlight. The only way forward, in my view, is for the Court to allow its explanations to match its decisions, and abandon the pursuit, or the pretense, of across-the-board deference. If deference is ever appropriate, it can only be justified with reference to the circumstances of particular cases. This is not the place for a full exploration of the circumstances in which courts ought to defer to administrative decision-makers on questions of law, if indeed there be any. I will, however, venture a few observations.

First, it should not be presumed that deference is due to all the decisions of a particular administrative tribunal or type of tribunal, or to tribunals interpreting a type of statute. As the dissent in Edmonton East pointed out, a single tribunal may be called upon to decide different types of issues, some of which implicate its expertise or involve policy considerations, while others do not. In particular, even if deference is appropriate to tribunal decisions fleshing out the meaning of vague terms such as “just”, or “reasonable”, or “in the public interest”, it does not follow that it would be called for when the same tribunals answer questions about, say, the relationship between provisions of a statute (even their “home” statute) or two related statutes. The former type of question calls upon the tribunals’ specialized knowledge of the standards of justice or reasonableness, or the requirements of the public interest in the field they regulate. The latter is concerned with more general legal skills which courts possess no less, and often more, than tribunals.

Further, even when dealing with a type of question answers to which would normally attract deference, administrative decision-makers are sometimes so constrained by judicial precedent that their decision-making is not meaningfully different from that of a trial court striving to apply appellate authority. The decision that led to in Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v Caron, 2018 SCC 3 is a good example, as the relevant analysis concerned the scope of the jurisprudence of the Québec Court of Appeal. In similar circumstances, a trial court’s conclusions would not be entitled to any deference on appeal. Why should the administrative decision-maker’s? Assertions to the effect that judicial review and appellate review are not identical are not convincing in those cases where the nature of the decision under review is such that they practically are.

Finally, and more substantively, it is important to recall what is at stake in judicial review of administrative decisions. Proponents of deference often think of it as a means of protecting the decisions of an administrative state devoted to economic regulation in the name of social justice, or at least of enlightened technocracy. But there is much more to the administrative state economic than labour boards or arbitrators, whose decisions supply a disproportionate share of material for the Supreme Court’s administrative law decisions. The law of judicial review of administrative action applies also to the review of correctional authorities, professional licensing bodies, immigration officers, human rights tribunals, even universities and municipalities, and much else besides. People’s ability to enjoy their property or to practice their profession, their right to enter into or to remain in Canada, even their liberty (or at least the conditions of their detention, which the Supreme Court recognizes as a liberty interest) can depend on the way in which an official or a body exercising powers (purportedly) delegated by a legislature interpret the law. Is it enough to tell them, as Dunsmuir effectively does, that it is sufficient that the interpretation that causes them to lose these rights or benefits be justified, transparent, and intelligible?

* * *

Dunsmuir sought to simplify Canadian administrative law by setting out a unified analytical framework based on “the structure and characteristics of the system of judicial review as a whole”. [33] As part of this process, it set out a number of justifications that were supposed to support a wide-ranging policy of judicial deference to administrative interpretations of law. Well-intentioned as it was, the attempt did not succeed. The justifications advanced in Dunsmuir cannot justify deference in many cases where the Supreme Court said it is due. The weakness of, and occasional conflicts among, the justifications for deference advanced in Dunsmuir have fostered renewed confusion in the law of judicial review.

It is important that this confusion be eliminated. Canadian administrative law is reaching a point where it can scarcely be called law at all, such is its inability to provide guidance to those who must apply it or predict how it will be applied. Yet ― perhaps paradoxically ― the way to clarity passes not through the application of a single all-encompassing principle, but through greater attention to the circumstances of individual cases. As these circumstances vary, so must the applicable rules. It is Dunsmuir’s attempt to deny or at least avoid this complexity that is responsible for its failure.

The Merits of Dunsmuir

Rightly or Wrongly Decided (Then and Today)?

The Honourable Joseph T Robertson QC, formerly of the Federal Court of Appeal and the New Brunswick Court of Appeal

This digital symposium marks the 10th Anniversary of Dunsmuir’s release. Undoubtedly, attention will focus on whether this “transformative” decision has achieved its stated objective of simplifying the law of administrative deference. Regrettably, the Supreme Court’s post-Dunsmuir jurisprudence has generated allegations of doctrinal “incoherence” and “inconsistency”. It is also alleged that the deferential standard of review has had little impact on case outcomes that hinge on the interpretation of enabling legislation. Too often the Court is caught applying the correctness standard under the banner of reasonableness (“disguised correctness review”). While that contention falls within my terms of engagement, the others do not.

The title of this post is obviously disingenuous. The “rightness” or “wrongness” of any Supreme Court decision is largely a matter of personal judgment. Importantly, I fail to qualify as a disinterested observer, having authored Dunsmuir on behalf of the New Brunswick Court of Appeal. That decision was upheld in the result, but for reasons that bear little upon what was argued and decided in the lower court. In the circumstances, I hope to sustain reader interest by advancing the following thesis: there is an arguable case that Dunsmuir would be decided differently today when it comes to the underlying merits. I also address the procedural fairness issue in a way that others have not.

While Dunsmuir has generated more than its fair share of commentaries, few have looked to the underlying issues that motivated Mr. Dunsmuir to seek leave of the Supreme Court. Most have forgotten the central issue. The adjudicator was asked to decide whether non-unionized employees of the government were to be treated like unionized employees when it came to termination of employment. Mr. Dunsmuir was a non-unionized employee who had been terminated with severance in lieu of notice. The government consciously chose not to allege cause, as is its prerogative under common law principles.

I pause here to draw attention to what every employment lawyer knows. The underlying issue and fact pattern in Dunsmuir parallel those found in a relatively recent decision: Wilson v Atomic Energy Canada Inc., 2016 SCC 29 (“Wilson”). Better still, the same holds true in regard to Knight v Indian Head School Division No. 19, [1990] 1 SCR 653 (“Knight”) which was central to Dunsmuir’s analysis of whether Mr. Dunsmuir was owed a duty of procedural fairness.

After exhausting the government’s internal grievance procedure, Mr. Dunsmuir filed a third-party grievance that was heard by an adjudicator appointed by the labour board. A preliminary issued was raised with respect to whether, on a discharge with notice/severance, the adjudicator was “authorized” under the enabling legislation to look into the reasons underlying the government’s decision to terminate Mr. Dunsmuir’s employment. The government argued that, under the enabling legislation, it retained the right to terminate with proper notice/severance and, therefore, it was irrelevant whether the government had sufficient grounds for dismissal. In effect, the government argued that only employees who had been discharged for cause could invoke the third-party grievance procedure (save in regard to the amount of notice/severance). In response, Mr. Dunsmuir insisted that the same legislation authorized the adjudicator to look into the true reasons for his dismissal.

The adjudicator ruled that “[a] grieving employee is entitled to an adjudication as to whether a discharge purportedly with notice or with pay in lieu of notice was in fact for cause, either disciplinary or non-disciplinary.” Inexplicably, however, the adjudicator made no finding as to whether the underlying facts supported a dismissal for cause. He simply left us with the understanding that the decision to terminate Mr. Dunsmuir’s employment was not “disciplinary” but related to “work performance” and his “suitability for the positions”.

The adjudicator’s preliminary ruling provided the confidence necessary to pursue the procedural fairness issue. It was framed in terms of whether the duty owed to Mr. Dunsmuir, under the principle established in Knight, had been breached. This argument flowed easily from the facts. Not only was Mr. Dunsmuir a contract employee, he was also an “at-pleasure” appointee of the Lieutenant Governor in Council. As Clerk of the Court of Queen’s Bench, Mr. Dunsmuir easily qualified as a public office holder.

The adjudicator summarily accepted Mr. Dunsmuir’s argument that the government had failed to inform him of the reasons for its dissatisfaction with his work and to provide him with an opportunity to respond and, therefore, the duty had been breached. The adjudicator then declared Mr. Dunsmuir’s discharge void and ordered retroactive reinstatement. Finally, the adjudicator acknowledged the possibility of judicial review before increasing the notice period from four to eight months, but without offering a legal justification for the increase.

In the Supreme Court, the newly minted deferential standard of reasonableness was applied to the adjudicator’s interpretative ruling. Correlatively, the Court was unanimous in declaring his interpretation unreasonable: “The decision of the adjudicator treated the appellant, a non-unionized employee as a unionized employee.” But, as the Court quickly noted, the interpretative ruling was “inconsequential to the overall determination of the grievance.” The adjudicator simply failed to decide whether or not the government had cause for terminating Mr. Dunsmuir’s employment. This meant that the success of Mr. Dunsmuir’s appeal hinged on the application of the procedural fairness duty.

The Supreme Court made no mention of the proper review standard for procedural fairness issues and understandably so. The Court had decided to overturn its earlier ruling in Knight. No longer was Mr. Dunsmuir owed the administrative duty. To borrow directly from Dunsmuir: “where a public employee is employed under a contract of employment, regardless of his or her status as a public office holder, the applicable law governing dismissal is the law of contract, not general principles arising out of the public law.”

Surely no one quibbles with the proposition that Dunsmuir got it “right” on the standard of review issue. And for the record, the notion that the interpretative (preliminary) issue qualified as a “true jurisdictional question” never crossed the mind of anyone and properly so! That said, I acknowledge a movement from within the Court to adopt a single unifying standard of reasonableness for all issues: see Wilson, per Abella J. I also acknowledge a movement from outside the Court to have the deferential standard extended to procedural fairness issues. Paul Daly, C. Bredt and A. Melkov argue in favour while (Justice) John Evans argues for the status quo: with respect to the American debate, see Adrian Vermule v (Judge) Richard Posner.

In the space of five paragraphs, the majority of the Supreme Court concluded the adjudicator’s interpretation of the enabling legislation was “deeply flawed” (paras. 72-76). That opinion was shared by those who wrote concurring opinions. Dunsmuir’s analysis of the interpretative issue has attracted criticism for applying the correctness standard under the banner of reasonableness. Both Matthew Lewans and David Mullan insist that the Dunsmuir Court breached its own directives when applying the reasonableness standard to the adjudicator’s interpretative ruling. And indeed, Professor Mullan made the same observation in regard to the decision of the Court of Appeal. On reflection, he writes with a gentle pen and the criticism of both scholars has merit. However, Dunsmuir is not the only Supreme Court precedent to engage in disguised correctness review. There are close to twenty post-Dunsmuir decisions listed on my scratch pad that warrant the same indictment.

Disguised correctness review means that the reviewing court conducts a de novo analysis of the interpretative issue. Little or no meaningful reference is made to the reasoning of the administrative decision-maker; just the interpretative result. Instead, the reviewing court begins its analysis by turning to the template set out in Elmer Dreidger’s modern principle of statutory interpretation; the one the Supreme Court consistently applies. This leads to an unanswered question: Why does the Court pursue correctness review under the banner of reasonableness? While several plausible explanations are available, Paul Daly offers valuable insights (“The Signal and the Noise in Administrative Law”).

Professor Daly observes, for example, that in cases where the issue is perceived as one of public importance, or of significance to the law, the greater the temptation to seek out the correct or preferred answer. There is no precedential significance in cases that say the interpretative result falls within a range of reasonable outcomes. In theory, such cases should never make it through the Court’s screening process. But once the interpretative issue is recast as a question of whether non-unionized employees should receive the same treatment as unionized ones, what judge would not grant leave to appeal? The opportunity to look into power imbalances in the workplace is the kind of stuff that fits nicely within the job description of any court of last resort. [No one who made an appearance in Dunsmuir anticipated the Supreme Court’s move to a single deferential standard of review and with a revised framework for isolating the proper standard; nor did anyone anticipate that Knight would be targeted.]

Additionally, I maintain the Court’s affinity for disguised correctness review most often stems from the failure of administrative decision-makers to offer an interpretative analysis that comports with Dreidger’s template. One has to assume as much, as the Court’s references to the decision-maker’s reasons invariably focus on the interpretative result to the exclusion of anything that might have been penned in support of one interpretation over another. This leads to the inference that the Court is too often presented with an interpretive result but not much in terms of justification. Accordingly, the Court has no practical alternative than to engage in correctness review.

The fact of the matter is that Mr. Dunsmuir never pursued the interpretative issue in terms of whether the legislation only allowed for terminations with cause. It would be unbecoming to engage in “bootstrapping” with respect to the reasons that propelled the Supreme Court to distance itself from the adjudicator’s approach to the interpretative issue (termination for “disguised” cause). In its place, I offer a compromise of sorts. I maintain there is an arguable case that Dunsmuir would be decided differently today.

My thesis rests on one’s acceptance of the premise that the Dunsmuir legislation was ambiguous as to whether all terminations of employment within the civil service must be for cause. As Professor Willis so aptly stated so long ago: “the words are ambiguous enough to induce two people to spend good money in backing two opposing views as to their meaning.” Assuming ambiguity is present and in the absence of compelling evidence that might shine light on the ever-elusive intent of the legislature, then the task of the adjudicator is to settle on an interpretation that it believes is consistent with the legislation’s objectives: see Mclean v British Columbia (Securities Commission), 2013 SCC 67.

Admittedly, any interpretative argument would have to overcome the presumption against legislation that abrogates common law rights such as the right to dismiss with proper notice/severance. That hurdle, however, is not insurmountable. Indeed, Paul Daly argues that administrative decision-makers should not be bound by the interpretative principles that bind the courts, a proposition with which I respectfully disagree. Additionally, he argues that statutory ambiguity should not be the gateway to administrative deference. On that issue we are also in respectful disagreement. Nevertheless, the fact that my real-life hypothetical assumes ambiguity may be sufficient for purposes of deflecting immediate criticism.

In the face of an ambiguity, one would expect the adjudicator’s analysis to embrace a candid consideration of the competing policy arguments in support of competing interpretations. At this point, the adjudicator now has the opportunity to demonstrate the expertise which is otherwise presumed. Surely, it is the expert who is aware of the workplace realities that permeate public sector employment (in New Brunswick) and is able to communicate those realities when explaining why one interpretation should prevail over another. And surely, everyone is entitled to know why the distinction between unionized and non-unionized employees should be dissolved when it comes to termination of employment.

Some will query why any government would want to relinquish its common law right to dismiss with notice in the face of what every employment lawyer knows is an “elevated” threshold for establishing just cause. Arguably, governments must be as fiscally responsible as employers in the private sector. Perhaps the answer lies in the understanding that, as an employer, the Crown owes more to its employees than do private sector employers. Or perhaps it is because of documented abuses surrounding dismissals with notice in the civil service. Surely, these are the kind of questions the labour expert is expected to address (with the assistance of counsel). Unfortunately, that type of analysis is not found in the any of the decisions underlying Dunsmuir (nor for that matter in Wilson).

At this juncture, the legal realist will take over where Paul Daly left off. Cases such as Dunsmuir have nothing to do with deference. The underlying issue is whether the historical power imbalance in the employment relationship is one requiring reform. The rule of law is preserved so long as administrative reform hinges on statutory ambiguity. The non-expert fails to recognize the influence of those who regard the common law as an impediment to achieving justice in the work place and, correlatively, the non-expert fails to recognize that dismissals with notice are unjust dismissals. Of course, this line of reasoning is consistent with that expected of an employee advocate and antagonistic to the majority view expressed in Dunsmuir. Here is what the majority had to say: “In the context of this appeal, it must be emphasized that dismissal with reasonable notice is not unfair per se. An employee’s right to terminate the employment relationship with due notice is simply the counterpart to the employee’s right to quit with notice [para. 105].”

The notion that a dismissal with notice is an unjust dismissal brings into consideration the Court’s post-Dunsmuir decision mentioned earlier. As in Dunsmuir, the issue in Wilson was whether a non-unionized employee could be terminated without cause. Mr. Wilson, an employee of a federally regulated employer, subject to the Canada Labour Code, was dismissed with severance in lieu of notice. Like Mr. Dunsmuir, he sought to grieve the dismissal but his employer objected for the same reason advanced in Dunsmuir. However, the federal legislation differs in wording. Under s. 240(1) of the Code, a person may grieve if she or he believes the dismissal is “unjust”. Relying on earlier arbitral precedents, the adjudicator held that a dismissal with notice/severance is itself an unjust dismissal. A divided Court (5/4) upheld that interpretative result. In short, terminations can only be for cause under the federal legislation. Curiously, the majority opinion did not address Dunsmuir’s observations with respect to dismissals with notice or severance. The minority opinion did!

Parenthetically, the majority in Wilson is also guilty of disguised correctness review and understandably so. The adjudicator based its decision on the earlier arbitral jurisprudence that favoured Mr. Wilson’s interpretation. As a result, there were no reasons upon which to measure the interpretative result. Further, no attempt was made to look for reasons that might lie elsewhere in the arbitral jurisprudence as happened in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61.

If Dunsmuir were to be re-litigated, Wilson is the one case that might reasonably impact on the outcome. Admittedly, the statutory scheme in Wilson differs in material respects from the Dunsmuir scheme, and in particular with respect to the history of the legislation and, correlatively, the evidence of Parliamentary intent. In short, Wilson serves as both a shield and a sword. As a shield, it counters a view expressed in Dunsmuir that a dismissal with notice is not “unfair” or “unjust”. In summary, there is an arguable case that Dunsmuir would be decided differently on the interpretative issue.

I turn now to the procedural fairness issue which had been abandoned in the Court of Appeal but resurrected for the benefit of the Supreme Court. Having regard to the Court’s subsequent decision in Canada (Attorney General) v Mavi, 2011 SCC 30, it appears Dunsmuir’s ruling is still good law. Hopefully, supporters of Knight will acknowledge an arguable case with respect to the incompatibility of administrative and contract law principles, having due regard to the significance of the good faith doctrine, as discussed in Dunsmuir, and more recently in the Court’s now lead decision of Bhasin v Hrynew, 2014 SCC 71. I also assume commentators will draw a distinction between express and implied employment contracts.

Personally, I believe that Dunsmuir got it right when it came to overruling the impact of Knight on employees who are subject to a written contract and who are also public office holders. But I am also convinced that even if Knight were still good law, Mr. Dunsmuir could not have succeeded. The adjudicator applied the “wrong” standard. In Knight the Court held: “The content of the duty of fairness would be minimal where dismissal is at pleasure.” In fact, the adjudicator in Dunsmuir imposed an “elevated” duty. As will be explained, the elevated one too closely resembles the one applied at common law for determining sufficient or just cause in those instances where the employment is terminated because of a failure to meet work performance expectations (“incompetence). But first, I offer a rudimentary understanding of the law surrounding Knight.

At common law, at-pleasure appointees could be terminated without notice, without cause and without ever knowing why the employer terminated the appointment. The duty of procedural fairness was intended to ensure that the reasons for termination were communicated to the appointee and, in turn, the appointee had the opportunity to address those reasons before the termination took effect. In theory, the appointee would have a chance to address misinformation that might reasonably influence the decision to terminate. This is administrative law’s equivalent of the last chance doctrine.

In Knight, the director of education for the school board had entered into a three-year contract of employment that provided for the possibility of a renewal for an additional three years. However, the contract also provided for termination by ether party upon the giving of three months’ notice. The parties began negotiations for a renewal but the school board was only prepared to renew for a year due to employment issues that had arisen over the preceding years. With no agreement in sight, the school board decided to terminate the contract with timely notice. Mr. Knight’s first argument was that under the Education Act he could only be dismissed for cause! As that interpretative argument failed, the Court focused on whether Mr. Knight’s employment attracted a public law duty of fairness.

The majority (4/3) of the Knight Court so found, but went on to hold there had been no breach. As an at-pleasure appointee, Mr. Knight was well aware of the reasons why his contract was not renewed. Further, he was given the opportunity to speak at the board meeting where the motion to terminate the contract on notice was passed. In brief, the minimal standard had been met. I now turn to an abbreviated recitation of Dunsmuir’s facts, as told by the Supreme Court.

Mr. Dunsmuir’s employment relationship was “not perfect”. The probationary period was extended twice to the maximum of 12 months. He was reprimanded on three occasions during his two years with the government. Two of the reprimands are relevant to the procedural fairness issue. The second reprimand led to a one-day suspension and to notice of work performance issues, including complaints from unnamed staff, lawyers and members of the public. The third reprimand embraced three alleged incidents relating to his job performance and contained a warning that a failure to improve would result in further disciplinary action up to and including dismissal. This was followed by a few meetings the Regional Director to discuss court backlogs and organizational problems in response to undocumented complaints lodged by staff. A further meeting was scheduled to deal with work-related issues but cancelled because of the decision to terminate Mr. Dunsmuir’s tenure with the government.

Now recall that Mr. Dunsmuir had argued that the government had breached its duty of procedural fairness by failing to inform him of the reasons for its dissatisfaction with his work and to provide him with an opportunity to respond. Recall also that the adjudicator summarily accepted that submission. With great respect, that is not a “minimal” threshold or standard. In fact, it is too closely aligned to the common law standard applied in cases where the termination of employment is for cause based on the employee’s inability to perform (“incompetence”). In such cases the employer must establish progressive discipline: sufficient calls for improvement and a warning that failure may result in dismissal.

Succinctly stated, the adjudicator in Dunsmuir effectively adopted the common law standard for establishing just cause as the administrative standard for establishing a breach of the procedural fairness duty. Importantly, the common law standard is incompatible with the minimal standard adopted in Knight! Finally, even if one were to apply the Knight standard, can one reasonably conclude that Mr. Dunsmuir had no knowledge of his employer’s concerns over his performance and no notice of possible termination of employment? Personally, I think Binnie J’s concurring reasons in Dunsmuir capture the essence of the case. The adjudicator had “stretched the law too far in coming to [Mr. Dunsmuir’s] rescue.” But of course I am not a disinterested observer!

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.

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.

Law in La-La-Land

The post-truth jurisprudence of Canadian administrative law

Last month, the Supreme Court issued a decision in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, which deals with the evergreen issue of determining the standard on which a court must review the decision of an administrative tribunal. I wasn’t able to comment on this case at the time, because 240 exam papers landed in my office a couple of days thereafter, but I would like to return to it now, because in my view the majority opinion shows quite clearly what a fantastical creature Canadian administrative law has become.

Justice Karakatsanis, writing for the majority, describes the circumstances of the dispute as follows:

Alberta residents may dispute their municipal property assessment before a local assessment review board. When one Edmonton taxpayer did so, the assessment review board decided to increase the assessment the taxpayer had disputed. [1]

The question is whether the board in question had the authority to increase ― or could only decrease or refuse to change ― the assessment disputed before it. The board obviously concluded that it did, but did not explain the decision ― admittedly because the taxpayer did not deny that it had the requisite authority. It is only on a subsequent appeal to the courts that it did so. How, then, must the board’s tacit, unexplained, decision be treated? Is it entitled to judicial deference, or can the courts simply substitute their own view of the matter?

* * *

Defer, says the majority. In the Supreme Court’s administrative law jurisprudence, deference is the presumptive stance, including on questions of law such as the one at issue.

This presumption of deference on judicial review respects the principle of legislative supremacy and the choice made to delegate decision making to a tribunal, rather than the courts. A presumption of deference on judicial review also fosters access to justice to the extent the legislative choice to delegate a matter to a flexible and expert tribunal provides parties with a speedier and less expensive form of decision making. [22]

Only when the question at issue falls within one of a few exceptional categories is the “presumption of deference” rebutted. In the majority’s view, none apply here. In particular, the fact that the legislation involved specifically provides for an appeal from the administrative decision on a question of law, as was the case here, does not matter. The administrative law framework, with its presumption of reasonableness, is to be applied regardless.

As Justice Karakatsanis notes, this framework acknowledges that “[t]he presumption of reasonableness may be rebutted if the context indicates the legislature intended the standard of review to be correctness” [32]. The dissenting judges would have found that this is the case here, because the board’s expertise lies not in the interpretation of its enabling legislation, which is at issue here, but rather in property valuation, which is not. Justice Karakatsanis is unmoved by this:

Expertise arises from the specialization of functions of administrative tribunals like the Board which have a habitual familiarity with the legislative scheme they administer. … [A]s with judges, expertise is not a matter of the qualifications or experience of any particular tribunal member. Rather, expertise is something that inheres in a tribunal itself as an institution. [33]

Having concluded that she must defer to the board’s decision, Justice Karakatsanis then face the question of how to defer to a decision that is entirely unexplained. After all, as the still-leading (although perhaps increasingly from behind) case on reviewing administrative decisions,  held, “reasonableness ‘is … concerned with the existence of justification, transparency and intelligibility within the decision-making process'” [36; citing Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at [47]]. But not to worry: in that same case, the Supreme Court went on to say it is enough to consider the reasons that could have been given for the decision, even though they were not, and to defer to them. This is what Justice Karakatsanis does, for 20 paragraphs. She concludes that board’s decision was reasonable.

* * *

If this is not post-truth jurisprudence, it’s pretty close. The Oxford English Dictionary, which recently chose “post-truth” as its word of the year, says that it describes “circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief”. The Supreme Court’s vision of administrative law might not be the product of appeals to emotion, but there is certainly a great deal of personal belief unburdened by a reckoning with objective facts there.

Start with the claim that the presumption of deference is all about respecting legislative intent to grant decision-making authority to administrative tribunals rather than courts. If the Court really cared about legislative intent, wouldn’t it ask itself what the purpose of providing a statutory right of appeal on questions of law, as the legislature had done in this case, is? The majority does no such thing. It is content to affirm the irrelevance of either the text or the purpose of such provisions and holds that even if the statute says “appeal”, the courts must read “judicial review” and defer. Yet as the dissent cogently points out, the statutory text is pretty clear that the legislature wanted some questions of law (those deemed important enough by a judge) to be resolved by the courts. For all its show of deference to the legislature, the majority only cares about its own views about how administrative law should operate.

Next, consider the claim that the administrative decision-maker’s expertise entitles it to judicial deference. The majority does not discuss the expertise of the board whose decision is at issue here. It does not meaningfully respond to the dissent’s argument that the board has no particular expertise on the question before the Court. It is content to state an airy generality: the very existence of a specialized tribunal is enough to make it an expert. Why? It seems almost as if the Supreme Court is embracing that pop-psychology staple about 10,000 hours of doing something being enough to make one master it. Here’s news for the Court: that’s not true. The dissent’s take on this issue is, once again, more realistic:

an administrative decision maker is not entitled to blanket deference in all matters simply because it is an expert in some matters. An administrative decision maker is entitled to deference on the basis of expertise only if the question before it falls within the scope of its expertise, whether specific or institutional. [83]

As mentioned above, the dissent would have found that the question at issue here was not within the scope of the board’s expertise. The majority, once again, is uninterested in facts or, as the dissent also notes, in legislative intent (which in some case may well be to create a decision-maker without legal expertise), and ignores them the better to apply its beliefs about the proper relationships between courts and administrative decision-makers.

And all that for what? Not to actually defer to the supposedly expert board’s reasoning ― but to make up a reasoning that the board may or may not have come up with on its own, and defer to that. As Paul Daly put it (aptly, it goes without saying),

Karakatsanis J. points to multiple features of the elaborate statutory scheme that might be said to support the alternative interpretation and explains how each of them is nonetheless consistent with the Board’s interpretation (if one can call it that), much of which is supported by reference to a decision made by another body that “formerly” had appellate jurisdiction from the Board [44]. This, frankly, is quite bizarre. Who knows what the Board would have said if these points had been made to it? Indeed, who knows what the Board will say in future cases when these points are made to it? (Paragraph break removed)

It’s as if Justice Karakatsanis were playing chess with herself, and contriving to have one side deliberately lose to the other. This, admittedly, is not a post-truth reasoning. It is outright fiction.

* * *

As you can probably guess, I do not like any of it one bit. Perhaps this is not a very educated feeling. I have not thought about administrative law as much as prof. Daly, for instance, or many others. (I do have plans to get more serious about it, but it’s a medium- or even a long-term project.) I hope, however, that there may be some value in even an uneducated person stating the view that the emperor has no clothes, and that his proceeding any further in this state is offensive to public decency. What is more difficult for an uneducated mind is to say what dress the emperor ought to put on. Prof. Daly argues

that the only way to move the law forward within the existing framework without starting again from scratch is to apply reasonableness review across the board, with the important caveat … that the range of reasonable outcomes will be narrower in cases featuring an appeal clause.

I cannot comment on this suggestion, beyond saying that I am, in my uneducated state, extremely uneasy with deferential review of administrative decisions on questions of law. I will say, though, that I’m not at all sure that starting again from scratch is not the right thing to do, or even the only possible thing to do.

Keeping Time, Time, Time

The Supreme Court changes the meaning of the right to be tried within a reasonable time

A couple of weeks ago, the Supreme Court issued a very important, and fairly radical, decision on the “right … to be tried within a reasonable time,” which paragraph 11(b) of the Canadian Charter of Rights and Freedoms grants to “any person charged with an offence.” In R. v. Jordan, 2016 SCC 27, a divided Court overturned precedent and introduced presumptive caps on the amount of time that can elapse before a trial no longer takes place “within a reasonable time.” This decision raises significant questions about the judicial role, especially in the face of inaction by other branches of government.

Mr. Jordan, along with a number of others, had been charged with multiple drug offences. His trial concluded a little over four years later, two months of which he spent in prison, and the rest under restrictive bail conditions. The trial judge found that while Mr. Jordan was responsible for four months of that delay, the prosecution was responsible for two more, while the rest ― more than two and a half years ― “was attributable to institutional delay” [15]. However neither the trial judge nor the Court of Appeal accepted Mr. Jordan’s argument that the delay was an infringement of his rights under par. 11(b) of the Charter.  This was notably so because Mr. Jordan was facing other charges and serving a separate sentence, with conditions more or less equivalent to those of his bail, while waiting for his trial, meaning that his liberty would have been restricted even without the delay in this case.

* * *

The majority opinion, co-written by Justices Moldaver, Karakatsanis, and Brown, with whom Justices Abella and Côté concur, treats Mr. Jordan’s case as symptomatic of “a culture of delay and complacency towards it” [29]. The existing rules for the application of par. 11(b), which involved assessing the reasonableness of the delay in a given case in light of its length, causes, and impact on the accused are too complicated and vague, causing “its application [to be] highly unpredictable” [32] and subjective. A focus on the prejudice the delay causes to the accused misses some of the less tangible harms delay produces, not least those to the administration of justice as a whole, and devalues the right to a speedy trial. Finally, the existing rules are “designed not to prevent delay, but only to redress (or not redress) it” [35]. The “culture of delay” must change,

[a]nd, along with other participants in the justice system, this Court has a role to play in changing [it] and facilitating a more efficient criminal justice system, thereby protecting the right to trial within a reasonable time. [45]

The way in which the majority wants to play that role is by changing the applicable rules. As mentioned at the outset, the majority opinion introduces

ceiling[s] beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry), [46]

excluding any delay for caused or waived by the defence. The Crown can still show that exceptional circumstances outside of its control have arisen and that they explain ― and excuse ― a case taking longer than these timeframes, but unless it does so, a stay of proceedings will be the automatic consequence of such delay. Meanwhile, an accused will be able to show that delay below these ceilings is unconstitutionally unreasonable, but to do so they will need to demonstrate not only that the delay is “markedly” greater than reasonable, but also that they diligently sought to have the case heard sooner. (This test is reminiscent of that which Justice Moldaver applied in the Court’s recent decision in R. v. Vassel, 2016 SCC 26.)

The majority justified its decision by asserting that

[a] presumptive ceiling is required in order to give meaningful direction to the state on its constitutional obligations and to those who play an important role in ensuring that the trial concludes within a reasonable time: court administration, the police, Crown prosecutors, accused persons and their counsel, and judges. [50]

In the majority’s view, its approach is simpler than the existing rules, and eliminates the undue focus on prejudice to the accused. The majority acknowledges that even the ceilings it imposes are “a long time to wait for justice,” but insists that they “reflect[] the realities we currently face,” [57] ― as reflected, it seems, in “a qualitative review of nearly every reported s. 11(b) appellate decision from the past 10 years, and many decisions from trial courts” [106] ― while cautioning that the Court “may have to revisit these numbers and the considerations that inform them in the future.” [57] Ultimately, the majority hopes that its approach “will help facilitate a much-needed shift in culture,” [112] including

by reminding legislators and ministers that unreasonable delay in bringing accused persons to trial is not merely contrary to the public interest: it is constitutionally impermissible, and will be treated as such. [117]

In its conclusion, the majority adds that “[g]overnment will also need to consider whether the criminal justice system (and any initiatives aimed at reducing delay) is adequately resourced.” [140]

Applying its approach (including a transitional framework for cases already in the system prior to its ruling) to the facts of Mr. Jordan’s case, the majority finds that the delays that afflicted it were unreasonable. In the process, it castigates the Crown for not having had a plan for bringing the matter to trial expeditiously, and for doing “too little, too late” when it became aware of the problem.

* * *

The Chief Justice and Justices Cromwell, Wagner, and Gascon do not disagree with this conclusion. They too are of the view that the delay in this case was unreasonable. However, Justice Cromwell’s concurring opinion is sharply critical of the majority’s approach to par. 11(b), which it calls “both unwarranted and unwise.” [254] While it accepts that some revisions to the current framework are in order, it rejects the imposition of fixed ceilings on acceptable delays.

Drew Yewchuk summarizes the concurrence’s approach and exposes some difficulties with it in a post at ABlawg. Here I will briefly sum up Justice Cromwell’s critique of the majority opinion. Justice Cromwell argues that the majority’s approach will not be as simple to apply as the majority hopes, because “[t]he complexity inherent in determining unreasonable delay has been moved into deciding whether to ‘rebut’ the presumption that a delay is unreasonable if it exceeds the ceiling in particular cases.” [254]

As a matter of principle, the reasonableness of pre-trial delay “cannot be captured by a number; the ceilings substitute a right for ‘trial under the ceiling[s]’ … for the constitutional right to be tried within a reasonable time.” [147] Indeed,

The proposed judicially created “ceilings” largely uncouple the right to be tried within a reasonable time from the concept of reasonableness which is the core of the right. The bedrock constitutional requirement of reasonableness in each particular case is replaced with a fixed ceiling and is thus converted into a requirement to comply with a judicially legislated metric. This is inconsistent with the purpose of the right, which after all, is to guarantee trial within a reasonable time. Reducing “reasonableness” to a judicially created ceiling, which applies regardless of context, does not achieve this purpose. [263]

No foreign jurisdiction imposes numerical guidelines for speedy trials either. As for the majority’s approach to cases where trial is completed with the 18- or 30-month limit, it is “a judicially created diminishment of a constitutional right, and one for which there is no justification.” [264]

Each case must be decided separately, based on its own circumstances ― including, to some (limited) extent the prejudice to the accused, as well as society’s interest in the prosecution. The creation of definite ceilings is a legislative task, and it should be accomplished, if at all, by legislation. Besides, there is no evidence to support the majority’s approach, and it was neither put forward by any of the parties nor “the subject of adversarial debate.” [147] Nor was the majority’s assessment of the jurisprudence subject to scrutiny by the parties. The impact of its decision is unknown, but “[f]or the vast majority of cases, the ceilings are so high that they risk being meaningless,” thus “feed[ing] … rather than eliminat[ing]” [276] the culture of delay that the majority is concerned about, while for a small but significant minority, the ceilings risk proving too rigid, leading to stays being entered in the most important prosecutions.  

* * *

There are many questions to be asked about this case. They concern the constitutionality of the majority’s decision, the soundness of its approach as a matter of policy, its choice to implement this approach by judicial fiat, and the process it has followed in doing so. Since this post is already very long, I will only briefly address the first one here, and put off the other three to a separate discussion, which I hope will follow… in a reasonable time.

What I mean by the constitutionality of the majority’s decision is its consistency with the Charter’s text. The concurrence effectively argues that the constitutional text requires treating reasonableness as a standard and prohibits translating it into a bright-line rule. (Notice, though, that Justice Cromwell doesn’t quite put the point in this way: he says that the majority’s approach is inconsistent with “purpose of the right” ― consistently with the Supreme Court’s tendency to treat constitutional text as secondary, at best, to the “purposes” it is deemed to implement.) The majority, it seems to me does not make much of an effort to address this argument.

I am not sure who is right, to be honest. The idea of reasonableness does indeed normally refer to a standard, not a rule. But ― precisely for that reason ― the constitutional text that entrenches this standard calls for judicial elaboration or, as modern originalists would say, construction. In other words, the constitutional text itself does not give answers to the questions that arise in the course of adjudication. It must be supplemented by judicially-developed doctrines. The question is whether the courts can make numerical rules part of their doctrines. (And it really is only part; the majority is probably right to say that the concurrence somewhat overstates the degree to which the test a numerical one.) Or is it simply inconsistent with the meaning “reasonableness”? Again, I am not sure, but I do not think that the matter is as clear as the concurrence suggests. The fact that reasonableness requirements have not been construed in this way so far, in Canada or abroad, is significant, but hardly dispositive. It really is too bad that the majority does not address this issue.

In my view, however, the concurrence is pretty clearly right that the majority’s approach to cases that fall below its ceilings is a departure from constitution text. The text provides a right “to be tried within a reasonable time” ― not a right “to be tried within a time that is not markedly unreasonable provided that one has been diligent.” Presumably the majority introduce these additional requirements in order to incentivize defence counsel to contribute to the cultural change which it seeks. But while understandable, this motivation cannot justify an obvious inconsistency with the constitutional text.

That said, the issues of whether there can and ought to be a “ceiling” above which the burden of proof shifts to the Crown, and just what ought to happen below that ceiling, are distinct. It may be that the majority is right about the first even if it is wrong about the second.

All right. That’s quite unreasonable already ― for now.