Struggling towards coherence in Canadian administrative law? Recent cases on standard of review and reasonableness.

• Author: Daly, Paul

Although the Supreme Court of Canada's seminal decision in Dunsmuir v. New Brunswick has now beer cited more than 10,000 times by Canadian courts and administrative tribunals, many of its key features remain obscure. In this article, the author analyzes recent cases decided under the Dunsmuir framework with a view to determining where Canadian courts might usefully go next. The author's argument is that the two important principles said to underlie the Dunsmuir framework--the rule of law and democracy--can provide guidance to courts in simplifying and clarifying judicial review of administrative action. In Part I, the author explains how the relationship between Dunsmuir's categorical approach and the contextual approach that it replaced if uncertain and causes significant confusion, and explores the potential utility of the two underlying principles in simplifying the law. The application of the reasonable ness standard of review is the focus of Part II, in which the author criticizes the general approach to reasonable ness review in Canada, but suggests that the rule of law and democracy may assist in clarifying the law, by set ting the boundaries of the "range" of reasonable outcomes and structuring the analytical framework for identifying unreasonable administrative decisions. Finally, the author draws the strands of Parts I and II together by arguing for the adoption of a unified, context-sensitive reasonableness standard, underpinned by the rule of law and democracy, with the aim of providing clarity and simplicity to Canadian administrative law in a manner faithful to the Supreme Court of Canada's decision in Dunsmuir.

Bien que la decision de la Cour supreme du Canada dans Dunsmuir c. Nouveau-Brunswick ait maintenant ete citee plus de 10 000 fois par les cours de justice et les tribunaux administratifs, un nombre important de ses caracteristiques principales demeurent obscures. Dans le present article, l'auteur analyse les decisions recentes jugees suivant Dunsmuir afin de determiner le parcours que les cours de justice devraient emprunter. L'auteur maintient que les deux principes fondamentaux censes sous-tendre le cadre d'analyse de Dunsmuir--la primaute du droit et la democratie--peuvent fournir des directives aux tribunaux en vue de simplifier et de clarifier le controle judiciaire des actes de l'Administration. Dans la partie I, l'auteur explique comment la relation entre l'approche categorielle de Dunsmuir et l'approche contextuelle qui l'a remplacee est incertaine, provoquant ainsi une confusion majeure, et explore l'utilite potentielle des deux principes fondamentaux en vue de simplifier le droit. L'application de la norme de controle de la raisonnabilite est au coeur de la partie II, dans laquelle l'auteur critique l'approche generale du controle judiciaire de la raisonnabilite au Canada, mais suggere que la primaute du droit et la democratie pourraient aider a clarifier le droit en definissant les limites des issues raisonnables et en structurant le cadre d'analyse permettant d'identifier les decisions administratives deraisonnables. Enfin, l'auteur resserre le lien entre les parties I et II en soutenant l'adoption d'une norme de raisonnabilite unifiee et contextuelle qui repose sur la primaute du droit et sur la democratie, et qui confere clarte et simplicite au droit administratif canadien tout en restant fidele a la decision de la Cour supreme du Canada dans l'arret Dunsmuir.

Introduction I. Step One: Selecting the Standard of Review A. Correctness and Context B. The Return of Context II. Step Two: Reasonableness Review A. How to Do Reasonableness Review B. How Not to Do Reasonableness Review Conclusion Introduction

Last year, Dunsmuir v. New Brunswick (1) was cited for the ten thousandth time by a Canadian court or an administrative tribunal. To put the number in perspective, Housen v. Nikolaisen, (2) the leading case on standards of appellate review, has been cited over five thousand times, although it was decided six years before Dunsmuir was handed down. Even allowing for the fact that my source is CanLII, which may not adequately cover the early 2000s, (3) the difference is remarkable. Dunsmuir is cited roughly one hundred times a month, twenty-five times a week, five times a (working) day.

Yet, many of Dunsmuir s features remain somewhat obscure. (4) As Justice Layh put it in Skyline Agriculture Financial Corp. v. Saskatchewan (Farm Land Security Board), "[L]ocating the goalposts of correctness and reasonableness has remained an elusive target for those obliged to follow [the Supreme Court of Canada's] leadership." (5) Similarly, Justice Slatter chimed in: "The day may come when it is possible to write [an administrative law] judgment ... without a lengthy discussion of the standard of review. Today is not that day." (6) And Justice Abella described standard of review as the "prodigal child" of Canadian administrative law. (7) More recently, an appellate judge has taken the unprecedented step of posting on an open-access website a twenty-seven-page "Plea for Doctrinal Coherence and Consistency" in the Canadian law of judicial review, which is referred to as a "never-ending construction site." (8)

Most of the academic commentary on Dunsmuir has been cautiously supportive, praising the changes that the Supreme Court of Canada sought to effect but suggesting that more may need to be done to develop a workable approach to reasonableness review. Audrey Macklin's comment that, on the whole, Dunsmuir has made "[t]he job of discerning the appropriate standard of review ... simpler" (9) is probably representative, though the recent complaints from the bench and from a judge writing extra-judicially suggest that any such early optimism is wearing thin.

Indeed, a majority of the Court seems to appreciate the desirability of modifying the current standard of review framework. In Wilson v. Atomic Energy of Canada Ltd., Justice Abella aired in obiter a "proposal" on how to "simplify the standard of review labyrinth we currently find ourselves in," with a view to "starting the conversation about the way forward." (10) Four of her colleagues welcomed her "efforts to stimulate a discussion on how to clarify or simplify our standard of review jurisprudence to better promote certainty and predictability." (11) The dissenting judges commended the "constructive spirit" in which Justice Abella's suggestions were offered, although they "harbour[ed] concerns about their merits." (12) Only Justice Cromwell, concurring, firmly took the view that Dunsmuir should not be revisited, commenting that the standard of review framework "does not need yet another overhaul." (13)

At the root of these difficulties in understanding, applying, and changing Dunsmuir is the attempt to set out a categorical approach to judicial review of administrative action. (14) In doing so, Justices LeBel and Bastarache found themselves swimming against a strong tide. The current of modern administrative law has long been pulling toward context. Gone are the old categories of "quasi-judicial" and "administrative" decisions, (15) replaced by more nebulous notions, such as fairness and reasonableness, which require courts to focus on various contextual factors. (16) The attempt to impose a categorical framework to restore order was as doomed as it was noble. (17) Sure enough, as my review of recent cases on standard of review will reveal, context has returned to the forefront of Canadian administrative law.

A possible manifestation of these difficulties is that the Supreme Court of Canada sometimes avoids standard of review analysis in whole or in part. The most egregious example is surely Febles v. Canada (Citizenship and Immigration,18) an immigration judicial review in which the standard of review was not mentioned even in passing. This omission is all the more bizarre when viewed in light of a spirited disagreement between Justices Evans and Stratas in the court below on the appropriate approach to questions of international law, (19) a disagreement which the Supreme Court acknowledged but did not deign to resolve in B010 v. Canada (Citizenship and Immigration). (20)

This article is not intended to give a comprehensive overview of the post-Dunsmuir jurisprudence (21) or literature. (22) My modest goal is to analyze recent cases decided under the Dunsmuir framework with a view to determining where Canadian courts might usefully go next.

My focus in Part I will be on the first step in the standard of review analysis: selecting the standard of review. In and subsequent to Dunsmuir, the Supreme Court of Canada explained the required categorical analysis. Correctness applies to: constitutional questions; questions of general law "that [are] both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise;" (23) jurisdictional conflicts between two or more specialized tribunals; and "true questions of jurisdiction or vires." (24) Meanwhile, the deferential standard of reasonableness "is normally the governing standard" for: the interpretation of an administrative decision-maker's "home" statute or statutes closely related to its function; matters of fact, discretion, or policy; and "inextricably intertwined legal and factual issues." (25)

Lurking on the edges of this new "analytical framework" were the contextual factors that formed part of the discarded pragmatic and functional analysis: statutory language relating to appeals or privative clauses; relative expertise; statutory purpose; and the nature of the question. (26) These contextual factors were retained in Dunsmuir and, in Alliance Pipeline, served to resolve "[a]ny doubt" as to whether the categorical analysis identified the appropriate standard. (27) Yet, as we will see, the precise relationship between categories and context remains uncertain and continues to cause confusion.

In Part II, I will address the second...