IDENTIFYING THE REVIEW STANDARD: ADMINISTRATIVE DEFERENCE IN A NUTSHELL.

• Author: Robertson, Joseph T.
• Position: Canada - Forum: Issues in Administrative and Constitutional Law

Overview

The volume of Supreme Court jurisprudence dealing with the review of decisions rendered by administrative decision-makers and the application of the deference doctrine is overwhelming. While Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corporation (1) and Dunsmuir v New Brunswick (2) are often regarded as lead decisions, there are close to 200 precedents, spanning six decades, underscoring the doctrine's evolution. Most were rendered over the last 35 years and most proved not to be of long-term precedential significance. They simply demonstrate the proper application of the deference doctrine, as it stood at the time the case was decided, while affirming the Court's error-correcting role. (3) Regrettably, the doctrine has been unable to escape criticism.

Professor Paul Daly writes of the Court's struggle to achieve "coherence" in Canadian administrative law. Justice David Stratas, writing in his personal capacity, has concluded that: "Doctrinal incoherence and inconsistency plague the Canadian law of judicial review." (4) Prior to those observations, it was David Mullan who isolated fifteen issues that remained outstanding following the release of Dunsmuir, (5) Such commentaries suggest that the prospect of accurately distilling the tenets of the deference doctrine into a nutshell format is misguided. Thankfully, the administrative lawyer, in search of go-to answers, knows of the risks inherent in any presentation that oversimplifies the law.

Neither the volume of litigation nor academic commentary surrounding administrative deference detracts from the need for an analytical framework that enables reviewing courts to address two essential questions. The first is whether the decision is owed deference on the review standard of reasonableness. Otherwise, the correctness standard applies. Second, assuming the deferential standard applies, there is an obvious need to know how reviewing courts are to assess the reasonableness of an administrative decision.

Due to time restraints, this presentation focuses on only the first question. Admittedly, the task of providing a go-to answer for the second question is riddled with difficulty from both a practical and theoretical perspective. In particular, the application of the deferential standard of review to decisions that involve the interpretation of the decision-maker's enabling legislation has been largely ignored. However, it was agreed that today's presentation would focus on standard of review issues.

This presentation draws a bright-line distinction drawn between the decisions of specialized tribunals (e.g., labour boards) and those made by other statutory delegates (e.g., Ministers and officers of the Crown). Admittedly, when it comes to those falling within the residual category, the analysis is as argumentative as it is descriptive. Regardless, the distinction is important if only because it draws attention to what some regard as a design flaw in the deference doctrine. This topic warrants separate consideration and is addressed in the latter portion of my presentation.

Stripped to its essentials, my underlying thesis is neither complicated nor controversial. Dunsmuir left us with a two-step framework for identifying the proper review standard. The first embraces the categorical approach. The second is labeled the contextual approach or what is often referred to as contextualism. Dunsmuir anticipated the categorical approach could prove "unfruitful" and, therefore, reviewing courts would have to move to the contextual one. However, the post-Dunsmuir jurisprudence reveals that contextualism is no more. The Supreme Court has consistently applied the categorical approach and expressly rejected the contextual one.

In short, under the categorical approach, the deferential standard of review applies unless the issue at hand falls within of the four correctness categories first identified in Dunsmuir. Moreover, as the correctness categories are narrow in scope, there is little room for the application of the non-deferential standard of review. Better still, it matters not whether the administrative decision-maker is a specialized tribunal. So too have other statutory delegates have been brought under the deference umbrella. Nor does it matter that the statutory delegate lacks relative expertise with respect to the issue at hand (e.g., statutory interpretation). This is deference in a nutshell, at least when it comes to identifying the proper review standard.

The Demise of Contextualism

Recall that prior to Dunsmuir, the analytical framework for isolating the proper standard of review was labeled the "pragmatic and functional approach" as articulated in Pushpanathan v Canada (Minister of Citizenship and Immigration). (6) Also, recall that the object of the exercise was to isolate the intent of the legislature or Parliament as to whether the tribunal decision would be owed deference. The framework involved consideration of four contextual factors: (1) the presence or absence of a privative clause in the tribunal's home statute; (2) the purpose of the statute; (3) the expertise of the tribunal; and (4) the nature of the issue. Finally, recall that the law provided for two deferential standards of review as a result of the Supreme Court's decision in Canada (Director of Investigation and Research, Competition Act) v Southam Inc (7) (patent unreasonableness and reasonableness simpliciter).

Only the legal historian ever asks why the Court felt compelled to promote two distinct deferential standards of review. What really mattered was how the reviewing court would justify its decision to select one of the deferential standards over the other, once the correctness standard had been eliminated from the mix. And for nearly a decade, reviewing courts went about their business imagining that a valid distinction could be drawn between the two deferential standards.

Dunsmuir dispensed with the pragmatic and functional label and replaced it with another: "standard of review analysis." Substantively, however, nothing changed with respect to the essential elements of the deference doctrine, save for the all-important reduction in the number of deferential standards of review. Thankfully, Dunsmuir left us with only one: reasonableness. It also left us with a simplified analytical framework for identifying the proper review standard. And for the record, Dunsmuir did not abandon the understanding that the search for the proper review standard was a search for legislative intent. (8) The abandonment occurred post-Dunsmuir.

Dunsmuir was the Court's response to the doctrinal uncertainties that had accumulated over the years. Bastarache and LeBel JJ, writing for the majority of five, consolidated the doctrine's tenets under one umbrella. It is a two-step framework for assessing whether a tribunal decision is owed deference:

First, 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. Second, 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. (9) In short, the first step relieves reviewing courts of the obligation to conduct an exhaustive review under the second step. Fortunately, Dunsmuir provides us with a list of issues for which the proper review standard had already been identified in the earlier Supreme Court jurisprudence. In fact, there are two lists. One contains questions/issues for which the deferential standard of review applies. The other sets out those questions/issues for which correctness is automatically the proper review standard. The person in search of the proper review standard simply looks to the two lists to see where the issue at hand falls. This is labeled the categorical approach.

The Dunsmuir list for review on the standard of reasonableness embraces questions of fact, mixed law and fact, and decisions involving the application of policy or the exercise of discretion. We are also told that deference will "usually" result where a tribunal is interpreting its home statute or those statutes closely connected to the tribunal's functions and with which it will have particular familiarity. Parenthetically, the Court would subsequently replace the word "usually" with the word "presumptively. (10)

As to the other list, Dunsmuir established that correctness is automatically the proper review standard for the following: constitutional questions; questions of general law that are of central importance to the legal system as a whole and outside the tribunal's field of expertise; questions regarding the jurisdictional lines between two or more competing specialized tribunals; and, finally, true questions of jurisdiction.

Note, that although Dunsmuir made no specific reference to the correctness standard applying to alleged breaches of the fairness duty (e.g., bias), the Supreme Court has yet to declare otherwise; a matter discussed below. (11) Note also, that under the first step, the Supreme Court has on occasion turned to earlier case law, involving the same tribunal and home statute, in order to isolate the proper review standard with respect to a particular issue. (12) The Court of Appeal of New Brunswick has done likewise. In this way, reviewing courts are relieved of the obligation to conduct an exhaustive review required under the second step of the standard of review analysis.

For example, historically, the Court of Appeal has reviewed the decisions of the Appeals Tribunal of the Workplace Health, Safety and Compensation Commission, involving a question of law, on the standard of correctness. (13) Invariably, the question of law involves the interpretation of the applicable legislation. The justification for not according deference to this specialized tribunal is embedded in the reality that...