Dunsmuir's flaws exposed: recent decisions on standard of review.

AuthorDaly, Paul
PositionCanada

In Dunsmuir v. New Brunswick, the Supreme Court of Canada attempted to clarify and simplify Canadian judicial review doctrine. I argue that the Court got it badly wrong, as evidenced by four of its recent decisions.

The cases demonstrate that the new categorical approach is unworkable. A reviewing court cannot apply the categorical approach without reference to something like the much-maligned "pragmatic and functional" analysis factors. The categories regularly come into conflict, in that decisions could perfectly reasonably be assigned to more than one category. When conflict occurs, it must be resolved by reference to some factors external to the categorical approach.

The new, single standard of reasonableness is similarly unworkable without reference to external factors. Different types of decision attract different degrees of deference, on the basis of factors that are external to the elegant elucidation of reasonableness offered in Dunsmuir.

Clarification and simplicity have thus not been achieved.

Dans Dunsmuir c. Nouveau-Brunswick, la Cour supreme du Canada a tente de clarifier et simplifier la doctrine canadienne du controle judiciaire. J'avance que la Cour s'est trempee dans son analyse, comme le prouvent quatre de ses recentes decisions.

Ces affaires demontrent que la nouvelle approche de categorisation ne fonctionne pas. Une cour de revision ne peut pas appliquer cette approche sans se referer a des outils semblables aux facteurs tant decries de l'analyse pragmatique et fonctionnelle. Les categories entrent en conflit regulierement, dans la mesure ou des decisions peuvent raisonnablement etre assignees a plus d'une categorie. Quand un conflit se presente, il doit etre resolu en se referant a des facteurs externes a l'approche de categorisation.

Le nouveau standard de la decision raisonnable est egalement impraticable sans reference a des facteurs externes. Differents types de decisions attirent differents degres de deference, bases sur des facteurs externes a l'elegante elucidation de la norme de la decision raisonnable offerte par Dunsmuir.

Clarte et simplicite n'ont donc pas ete atteintes.

Introduction I. Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association II. Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals III. Canada (Canadian Human Rights Commission) v. Canada (Attorney General) IV. Catalyst Paper Corp. v. North Cowichan (District) Conclusion Introduction

Judicial review aims to ensure that administrative action is lawful, reasonable, and procedurally fair. (1) Achieving these goals requires the development and application of doctrine, which is often complex in its design. Complexity results from the inherently technical nature of the discipline, which involves the application of general principles to substantive areas of law that differ greatly in their contours and content, combined with the need for doctrine to conform to normative commitments (such as the principles of good administration and the rule of law). (2) Sitting atop the Canadian judicial hierarchy, the Supreme Court of Canada bears the additional responsibility of developing clear and coherent doctrine, thus providing a set of tools that lower courts can confidently apply to the complex (and not-so-complex) cases that come before them.

In its decision in Dunsmuir v. New Brunswick, (3) the Court attempted to clarify and simplify Canadian judicial review doctrine. (4) I will argue in this paper that the Court got it badly wrong, as evidenced by four of its subsequent decisions. Clarification and simplicity have not been achieved. Indeed, one might playfully suggest that the Court's decisions fail to meet the standards of justification, transparency, and intelligibility that the Court has deemed central to the conception of reasonableness in Canadian law.

Before Dunsmuir, the standard of review of administrative action was determined by application of the "pragmatic and functional" analysis. (5) During the first stage of the analysis, reviewing courts were charged with examining four factors: whether there was a privative, or conversely an appeal, clause in the decision maker's home statute; (6) whether the decision

maker was relatively more expert than the reviewing court in respect of the decision under review; what the purpose of the statutory scheme and of the particular provision or provisions at issue was; and what the nature of the question in dispute was. (7) The goal was to capture legislative intent and, particularly, the degree of deference the legislature intended that reviewing courts should accord in respect of the decision under review.

The second stage was the selection and application of the standard of review. Depending on the degree of deference indicated by the examination of the four factors, one of the following standards was applied by the reviewing court: the highly interventionist standard of correctness, the moderately deferential standard of reasonableness simpliciter, or the highly deferential standard of patent unreasonableness. (8)

Both stages of the pragmatic and functional analysis were much criticized. The first stage was said to require an overly lengthy analysis of Che statutory scheme, which distracted from the merits of the challenge to the decision under review. (9) Of the second stage, it was said that the distinctions between the three standards were unclear and that the standards could be difficult to apply in practice. (10) Thus, in Dunsmuir, the Court announced that it was time to reassess Canadian judicial review doctrine. (11)

The Court made changes to the first and second stages of the pragmatic and functional analysis, itself renamed the "standard of review analysis". (12) As to the second stage, the Court merged the standards of reasonableness simpliciter and patent unreasonableness. It sought not just to reduce the number of standards of review but also to clarify the meaning of reasonableness. Reasonableness, the Court explained, is concerned with "justification, transparency and intelligibility within the decision-making process," and also with whether the decision falls within a range of acceptable and rational solutions. (13).

As to the first stage, the Court held that an exhaustive review of the standard of review factors would not always be necessary and could be omitted altogether where previous decisions had clearly established the appropriate standard of review. (14) In Smith v. Alliance Pipeline Ltd., Justice Fish explained the effect of Dunsmuir as the identification of a series of nonexhaustive categories. Decisions falling into these categories are subject to review for either correctness or reasonableness. Correctness applies to (1) constitutional issues; (2) questions of general law "both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise"; (3) the "drawing of jurisdictional lines between two or more competing specialized tribunals"; and (4) "true question[s] of jurisdiction or vires." Reasonableness is "normally the governing standard where the question: (1) relates to the interpretation of the tribunal's ... home ... statute or 'statutes closely connected to its function, with which it will have particular familiarity'; ... (2) raises issues of fact, discretion or policy; or (3) involves inextricably intertwined legal and factual issues." (15)

The four-factor approach has thus been marginalized in favour of a categorical approach. The former has not been entirely jettisoned, however; the Court has continued to mention the factors," (16) but they are now to be treated as "guideposts" (17) rather than as a road map. In short, it is clear that the categorical approach now drives the analysis. (18)

I have argued elsewhere that the Court's reform efforts were flawed in principle. (19) In the present article, I focus closely on four of the Court's recent decisions, which demonstrate the flaws with the Dunsmuir approach.

As to the first stage of the analysis, the cases demonstrate that the categorical approach is unworkable and that a reviewing court cannot in fact apply the categorical approach without reference to the much-maligned four factors (or some variant thereon). The categories regularly come into conflict, in that decisions could reasonably be assigned to more than one category. When conflict occurs, it must be resolved by reference to some factor or factors external to the categorical approach. As to the second stage, the single standard of reasonableness is similarly impractical. It is not enough to say that "[r]easonableness is a single standard that takes its colour from the context." (20) Different types of decisions attract different degrees of deference, and they do so on the basis of a factor or factors external to the elegant elucidation of reasonableness offered in Dunsmuir.

I will address each of the four recent cases in turn. I start with the two that exemplify the flaws of the first stage of the analysis and conclude with the two that, in addition to illustrating problems with the first stage, demonstrate the flaws of the second stage.

  1. Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association (21)

    In this case, the Court artfully avoided creating a conflict between classifying the relevant issue as a jurisdictional question or an interpretation of a home statute, which prevented the flaws of the categorical approach from being fully exposed. Nevertheless, the decision demonstrates that application of the categorical approach still requires reference to external factors.

    In 2005, several individuals complained to Alberta's information and privacy commissioner that their data had been disclosed contrary to the provisions of the Personal Information Protection Act (PIPA). The commissioner commenced an investigation into the complaints. (22) At the time, subsection 50(5) of the PIPA...

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