Nov 19, 2014

Standard of Review in Administrative Law

Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190

Facts: Dunsmuir held a position “at pleasure” in the New Brunswick civil service as a court official. He was dismissed after being reprimanded on three occasions and given four and a half months pay in lieu of notice and told that he was not suitable for the position as opposed to being dismissed for cause. Dunsmuir grieved under the Public Service Labour Relations Act on the basis of cause, which resulted in an order for his reinstatement. This decision was subject of an application for judicial review.

Held: The adjudicator’s decision did not stand up to review on a reasonableness simpliciter standard; the adjudicator’s decision was unreasonable.


Theoretical underpinnings: The rule of law requires that all exercises of public authority find their source in law.The decision-making powers of administrative bodies have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority.

“As a matter of constitutional law, judicial review is intimately connected with the preservation of the rule of law… Courts… must be sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures”

“The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes”

When reviewing court considers the scope of a decision-making power or the jurisdiction conferred by a statute, the standard of review analysis strives to determine what authority was intended to be given to the body in relation to the subject matter; this is done within the context of courts’ constitutional duty to ensure that public authorities do not overreach their lawful powers

Therefore, the rule of law is maintained because the courts have the last word on jurisdiction, and legislative supremacy is assured because determining the applicable standard of review is accomplished by establishing legislative intent

Judicial review is constitutionally guaranteed, particularly with regard to the definition and enforcement of jurisdictional limits

Tension between the notions that all exercises of public authority must find their source in the law, AND the democratic principle of legislative supremacy - with both principles limited by the confines of the constitution as the supreme law of the land.

Two standards of review: (i) correctness and (ii) reasonableness - the choice is determined under a “standard of review analysis

Reasonableness is a collapsed version of the patent reasonableness and reasonableness simpliciter standard

“Reasonableness is concerned mostly with the existence of justification transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”

This does not pave the way for a more intrusive review by courts

Deference is both attitude of the court and a requirement of the law of judicial review… it imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law (this is an attempt to reduce judicial review, and uphold the primary purpose that administrations were created for efficiency reasons)

As important as it is that courts have a proper understanding of reasonableness review as a deferential standard, it is also without question that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law

·“Central importance to the legal system”: courts will review on a correctness standard issues that are of central importance to the legal system AND outside the decision-maker’s expertise.

The Dunsmuir gloss on the standard of review analysis: An exhaustive review is not required in every case to determine the proper standard of review – look to existing jurisprudence:

The process of judicial review involves two steps:

(1) courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question

(2) where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review

Determining the appropriate standard: the same factors that previously informed the so-called pragmatic and functional analysis are still to be considered:

(1) The presence or absence of a privative clause or right of appeal in the statute (note that these are not determinative and other factors need to be considered);

Existence of a privative or preclusive clause gives rise to a strong indication of review pursuant to the reasonableness standard

This is not determinative

(2) The purpose of the tribunal as determined by interpretation of enabling legislation;

(3) The nature of the question that is under review;

Questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness while many legal issues attract a standard of correctness (some, however, attract a more deferential standard of reasonableness)

(4) The expertise of the tribunal

Applying the correctness standard: Examples include

Constitutional questions regarding the division of powers

Determinations of true questions of jurisdiction or vires

“We neither wish nor intend to return to the jurisdiction/preliminary question doctrine… ‘Jurisdiction’ is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry… [these] questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter

Questions of law

Courts must… substitute their own view of the correct answer where the question at issue is one of general law “that is both central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise… such questions require uniform and consistent answers”

Jurisdictional lines between two or more competing specialized tribunals

i.e. external legislation issues (e.g. when two enabling statutes conflict)

Applying the new reasonableness standard: Two aspects need to be considered (i) the coherence and intelligibility of the reasons, (ii) whether or not the decision falls within a range of possible, acceptable outcomes which are defensible in respect of facts and law (see quote).

Not more intrusive: The Court stated that the move towards a single standard of reasonableness does not pave the way for more intrusive review by the courts

Counter: It removed the most deferential standard, reasonableness is not well defined, it gives the court discretion and there is no limiting principle to force the court into taking a deferential approach

It’s still the judge’s role to identify the outer boundaries of reasonable outcomes within which the administrative decision maker is free to choose (per Binnie)

Reasoning (Binnie J. concurring):

·Argues that a “variable” standard of reasonableness or spectrum of reasonableness will be required to adequately address the variable decision in the administrative process.

The privative clause should not be treated as conclusive, but it is more than just another “factor” in the pragmatism and functionality; there have to be boundaries that are set

Argued that the Court should (i) establish some presumptive rules, (ii) get the parties away from arguing about tests and back to arguing about the merits of the case.

Rebuttable presumption: the presumption should be that the standard of review is reasonableness; that a privative clause should be given effect unless the interpretation permits some reason why it should not be.

Reasonableness must necessarily incorporate both the degree of deference reflected in the distinction between patent unreasonableness and reasonableness simpliciter and an assessment of the range of options reasonably open to the decision maker in the circumstances, in light of the reasons given for the decision

As such, the bar for reasonableness should not be seen as a lowered standard to judicial intervention