A PRACTITIONER'S INNOVATIVE RESPONSE TO ABELLA'S CALL TO REFORM JUDICIAL REVIEW.

• Author: Reid, Twila
• Position: Canadian Supreme Court Justice Rosalie Silberman Abella

Introduction

A decade ago, the Supreme Court of Canada significantly changed the law on substantive review of administrative decision-making in Canada. (1) The standards of reasonableness simpliciter and patent unreasonableness were collapsed into one standard of reasonableness. Three standards of review became two: reasonableness and correctness. The goal of Dunsmuir in reducing the standards from three to two was to simplify the standard of review analysis and reduce the time and resources spent on judicial review. There is broad consensus that this objective has not been achieved. As noted by Paul Daly, "Dunsmuir is cited roughly one hundred times a month, twenty-five times a week, five times a (working) day." (2) From Southam's (3) three to Dunsmuir's two, reducing the standards of review has done nothing to remedy the problems litigants experience with administrative law generally, and judicial review in particular.

The only remaining judge on the Supreme Court of Canada who partook in Dunsmuir is Justice Abella, and she has urged for revision. In Wilson v Atomic Energy of Canada Ltd, (4) Justice Abella explained that Dunsmuir "sought to provide 'a principled framework that is more coherent and workable'" (5) but "collapsing three into two has not proven to be the runway to simplicity the Court had hoped it would be."6

Chief Justice McLachlin (as she then was) made the following remarks on her time on the bench and the development of administrative law:

I lived through the Southam era of three standards of review--correctness, reasonableness, and patent unreasonability, and saw it narrowed to two standards in Dunsmuir. In recent years, I have seen this solidify into a presumption of deference toward the decisions of tribunals interpreting their home statutes. The next focus may be exploration of reasonableness itself. (7) She advocated for "a generous and flexible approach" to the reasonableness standard, with the "presumption of reasonableness reflect[ing] the deference that is due to the person or body which the legislature has appointed as decision-maker." (8) The correctness standard ought to be utilized for "rare questions of statutory interpretation where there can and must be only one answer". (9) Many commentators agree, suggesting the path to reform must lead to one standard of review: reasonableness. (10)

Ultimately, it was hoped that changes to the standard of review would improve administrative law's ability to deliver access to justice. However, the problems with standard of review are only one indicator of judicial review's infirmities. Judicial review, as it is currently formulated, is a barrier to access to justice. It is not an effective remedy for administrative law litigants. This paper provides a case study to illustrate how resources are tied up in procedural wrangling rather than giving litigants the means to have their disputes determined on the merits. Enormous amount of resources are still spent debating the standard of review. The practice of remitting the matter to the first instance decision-maker following a successful judicial review unnecessarily increases the resources required to conclude the matter. The parties are taken from point A and returned to point A, having invested significant time, energy, and money.

Ten years after Dunsmuir, the Supreme Court of Canada has declared its intent to revisit this seminal decision. The Supreme Court has granted leave to appeal in three cases, and, remarkably, they have told us why: "The Court is of the view that these appeals provided an opportunity to consider the nature and scope of judicial review of administrative action, as addressed in Dunsmuir v New Brunswick ... and subsequent cases." (11) The Court has specifically invited the parties to devote a substantial part of their submissions to the question of standard of review.

This paper explains why judicial review, as an important component of administrative law, is broken, and why modification of the standard of review is not the solution. Specifically, the authors describe the inherent problems with having only one standard of reasonableness. First, Dunsmuir's expansion of the reasonableness standard has done nothing to simplify judicial review. Dunsmuir has not achieved the desired clarity in interpreting reasonableness; many courts simply do not engage in a standard of review analysis. Second, one standard of reasonableness ignores legislative intent, which should be the cornerstone of judicial review. Third, one standard of reasonableness does not further the rule of law. The rule of law should, at its core, make the law predictable. Reasonableness, by its very nature, does nothing to promote predictability because implicit in the notion of reasonableness is that there can be more than one reasonable outcome. Fourthly, reform to judicial review must respect the constitutional role of judges. One standard of review ignores both the presence (or absence) of a privative clause, and the legitimate constitutional reason as to why the courts established the correctness standard in the first place--namely, that judges have a critical constitutional role in deciding issues of law. Finally, the most recent decisions of the Supreme Court illustrate that in their efforts to come closer to one standard of reasonableness, what they are practically doing is undertaking a correctness analysis vaguely disguised as reasonableness.

Ultimately, this paper agrees with Justice Abella and Chief Justice McLachlin (as she then was) that judicial review needs reform. However, given the judiciary's constitutionally-protected role in determining questions of law, the confusion in applying reasonableness, and the current epidemic of access to justice in judicial review generally, one standard of reasonableness is not a workable fix. The authors instead offer an innovative alternative by examining the already established process for overturning decisions: appeals. This paper suggests a return to standards that have been proven workable and understandable: "palpable and overriding error" for questions of fact and "error" for issues of law. These standards maintain the principles underlying Dunsmuir and put an end to the turmoil facing tribunals, courtrooms and classrooms. Appeals using these standards promote the rule of law, respect legislative intent, and protect the constitutional role of judges by granting deference to issues of fact but not to issues of law.

In Dunsmuir, Justice Binnie (as he then was) articulated that "[e]very hour of a lawyer's preparation and court time devoted to unproductive 'lawyer's talk' poses a significant cost to the applicant." (12) The standard of review for Mr. David Dunsmuir himself was the least important issue. (13) Access to justice means access to a hearing on the merits. Eliminating the standard of review promotes access to justice by reducing arguments over process and, consequently, hearing the merits of a dispute more quickly.

Judicial Review in Its Current Form is a Barrier to Access to Justice: A Case Study

The problems with administrative law are not limited to the standard of review. The complexity surrounding the standard of review is only one symptom of administrative law's affliction. Judicial review as a remedy has failed to achieve its intended objective --to offer faster and simpler avenues of redress to persons whose interests are affected.

The following case study demonstrates some inefficiencies of the current administrative system. The practical reality of many administrative law hearings is that they are more time and resource-intensive than any ordinary court trial. Justice Cromwell identified access to justice as the most important issue facing the legal system and called the system "too complex, too slow, and too expensive. It is too often incapable of producing just outcomes that are proportional to the problems brought to it or reflective of the people it is meant to serve." (14)

NARL Refining Limited Partnership ("NARL") operates a refinery in Newfoundland and Labrador. In December 2015, two employees exercised their statutory right to refuse work they believed to be unsafe. Specifically, they refused to be present for a scheduled shift during which no specific task had yet been assigned to them. One employee refused to work on the basis that he was not adequately trained. The other employee refused to work on the basis that his co-worker was not adequately trained.

This led to an investigation by the Occupational Health and Safety Division ("OHS"). About six months later, OHS issued four directives. The first directive involved training pursuant to a process management code of practice. NARL had a fundamental disagreement with the applicability of the process management code. The directives themselves indicated to NARL that they could appeal to the Assistant Deputy Minister ("ADM"). NARL filed an appeal to the ADM. In September 2016, the ADM dismissed the appeal and indicated that NARL could appeal further to the Labour Relations Board (the "Board"). In October 2016, NARL filed an appeal to the Board.

The Board has no rules of procedure which govern appeals of OHS directives. There was thus a procedural debate before the Board about what the proper process should be. The Board had previously considered an appeal concerning an occupational health and safety issue, and that matter had proceeded on the basis of a trial de novo. As a result, NARL expected a trial de novo. However, despite its earlier decision, the Board decided it was proper to proceed with a review of the matter on the record before the ADM. OHS attended the hearing but made no submissions. At the conclusion of the hearing in May 2017, the Board simply declared that it did not have jurisdiction over the dispute. As of May 2018, the Board has still not released its reasons for that decision.

NARL accepted the finding that the Board lacked jurisdiction and...