"The time has come," the Walrus said, "To talk of many things: Of shoes--and ships--and sealing-wax-- Of cabbages--and kings-- And why the sea is boiling hot-- And whether pigs have wings." (2) The Walrus was right. The time has come in Canadian administrative law to revisit, once again, the issue that has bedevilled--and sometimes bewildered--lawyers, judges, and academics alike: standard of review. Pleas for coherence have been issued. (3) Calls for submissions have been made. (4) And with the complexion of our highest court now almost completely different since the last revision, (5) it appears that the next chapter in this story may be a deceptively simple one. A single standard of review for reasonableness would not only bring consistency to the judicial review of administrative decisions, but also strike a sound doctrinal balance between legislative supremacy and the rule of law. But, before doing so, we must first--as the Walrus said--talk of many things.
This article will not be a definitive account of the way forward. Its author is neither "the dean" (6) of Canadian administrative law nor "a rising member" (7) of the academy. In fact, he is not even in that company. Rather, this article will represent an attempt to contribute the perspective of a lawyer--just a plain old lawyer from a small town who is trying to help clients navigate this labyrinth of fundamental principles and basic practicalities. It will be one more answer to the call; nothing more and nothing less.
Part I will review the organizing principles distilled by the Supreme Court of Canada in Dunsmuir. There is soundness in these principles, and they remain useful in the judicial review process. Part II will examine some of the cases decided after Dunsmuir that have plagued and perplexed practitioners in this field. Common threads will be drawn from this sample of work by our highest court. Part III will consider how our understanding of legislative supremacy and the rule of law--the seemingly omnipresent source of tension in this area of law--has matured over time. Each now recognizes a legitimate role for both administrative decision-makers and courts. And finally, Part IV will explore how a contextual standard of review for reasonableness could operate in a principled yet practical way.
Part I: The Basic Soundness of Dunsmuir
Administrative law has been the great Canadian re-write. As Daly has unfortunately noted, "major recalibrations" have occurred every ten years or so. (8) Cases like CUPE, Bibeault, Southam, and Dunsmuir will all echo in the ears of lawyers, judges, and academics working in this area. And with no real restatement of the law since 2008, it appears that we are due. Recent cases suggest that even the Supreme Court of Canada thinks there is still work to be done. (9) An epilogue to Dunsmuir seems to be inevitable.
When that time comes, our highest court will be tasked, once again, with making the judicial review process even "simpler" and even "more workable." (10) The question for this new panel must be whether the law of standard of review--once described as a juggling act with three seemingly transparent objects (11)--requires only revision or "fundamental re-thinking." (12) Now, for this practitioner at least, the decision in Dunsmuir provides a solid foundation for any future "recalibration." (13)
Principles of Legislative Supremacy and the Rule of Law
The Supreme Court of Canada in Dunsmuir helpfully identified and described the basic legal principles that animate judicial review: legislative supremacy and the rule of law. (14) It is important to emphasize, however, that these principles do not just explain the purpose of judicial review. They also guide "its function and operation." (15) These principles provide the doctrinal bases for two other operational rules, namely the deference extended to administrative decision-makers operating at first instance and the supervisory function assigned to courts conducting independent review. And while courts will have "the last word" on some questions of general law, they no longer "have a monopoly on deciding all questions of law." (16) Standard of review must balance both of these foundational principles.
Principle of Deference
In Dunsmuir, the Supreme Court of Canada also embraced the principle of deference in substantive review. (17) But deference is not just an attitude that must be assumed by the court. It is also "a requirement of the law of judicial review." (18) In its attitudinal sense, deference is unhelpfully described by what it is not. It does not require a court to be "subservient" or to show "blind reverence." (19) And it is neither "lip service" nor "submission." (20) Rather, it is said to be "respectful attention" for the reasons supporting an administrative decision. (21) The legal requirement of deference, however, is often obscured by this type of descriptive language. (22) The obligation arises from the expression of legislative choice; that is, from the "governmental decisions to create administrative bodies with delegated powers." (23) At its core, deference is respect for that exercise of legislative authority. It is "not a gift conferred by the court." (24) Standard of review must therefore recognize deference as a legal obligation and not simply a mindset.
As noted in Dunsmuir, the role of the court is a supervisory one. (25) The "triumph" (26) of reasonableness "[did] not pave the way for a more intrusive review." (27) Rather, judges were directed to inquire into the reasons offered--and the outcome reached--by the decision-maker under review. (28) Even in the apparent absence of deference, a reviewing court was still told to ask "whether the tribunal's decision was correct" and to "decide whether it agree[d] with the determination of the decision-maker," (29) In other words, while the last word on certain legal questions was reserved for the court, Dunsmuir emphasized that the court no longer had the only word. Standard of review must always allow for judicial scrutiny. But the priority of the administrative decision-maker must now be acknowledged.
Principle of Contextual Review
Finally, the Supreme Court of Canada recognized in Dunsmuir that judicial review is a "contextual" exercise. (30) It was said that context "always" informs the interpretation of the law. (31) For that reason, an administrative decision has to be considered not only in light of the "legal context" in which the decision-maker is operating, but also "the context of the legislative wording." (32) In short, the relevant context will vary "with the relevant circumstances." (33) However, this contextual exercise is also intended to yield "a range of possible, acceptable outcomes which are defensible in respect of the facts and law." (34) Intervention by the court is to be limited to situations "where justice requires it, but not otherwise." (35) Standard of review must therefore not just have the capacity to operate in a variety of administrative environments. It must also have the ability to reveal justifiable outcomes within each of those fields.
There is a basic soundness in these principles from Dunsmuir. And they provide a solid foundation for any future revision. By focusing on them, instead of the categories created in Dunsmuir for sorting administrative decisions, substantive review has the potential to be simplified even further.
Part II: The Story Since Dunsmuir
In the cases since Dunsmuir, it has become, as Justice Abella noted in Tervita, "increasingly difficult to discern the demarcations between a reasonableness and correctness analysis." (36) This difficulty arises, in part, from the practical reality that, if a reviewing court wishes to intervene, it is capable of finding a way to do so--regardless of the standard of review. Even the Supreme Court of Canada itself has struggled with coherence. For lawyers and litigants, it has felt at times that the juggling act has continued. And the only thing that has changed is the number of objects in the air.
On the particular subject of standard of review, the cases decided by the Supreme Court of Canada after Dunsmuir have given rise to at least three practical complaints. First, the Court has sometimes failed to mention (37) or even decide (38) the applicable standard of review. Second, the Court, having chosen one standard of review, has appeared to apply another. (39) Third, having directed parties to focus on the merits, the Court itself has become deeply divided on the preliminary question of standard of review. (40) The result has been needless confusion for litigants, lawyers, and reviewing courts. What was intended to be a "more coherent and workable" (41) framework for substantive review has become a "labyrinth." (42) But, before proposing to simplify the entry to judicial review, it is important to understand what we must try to avoid. With that objective in mind, a sample of this "imperfect" (43) work from our highest court is examined below.
In Bombardier, (44) the Supreme Court of Canada considered a decision by the Quebec Human Rights Tribunal which found that the aerospace company had discriminated against a pilot by refusing to allow him to participate in a flight training program. That refusal was rooted in an earlier decision by American authorities on grounds of national security. After investigation, the complaint proceeded before the Tribunal and damages were ordered. An appeal to the Quebec Court of Appeal was successful, and the decision by the Tribunal was set aside. At the Supreme Court of Canada, the appeal was dismissed. In a judgment delivered on behalf of the Court, however, Justices Wagner and Cote provided no reasons on the subjects of deference or standard of review. Instead, the Court embarked on its own review of the evidence in the record and, ultimately, it concluded that the decision was unsupported and therefore unreasonable. These types of...