Standard of Review: Correctness, Context and Confusion

A trilogy of recent Canadian decisions raising standard of review issues have caught my eye. In each case, a standard of correctness is applied, but different reasons are given by each court. Indeed, it would be fair to say that each court follows a different analytical approach. Some more evidence, then, of confusion in this important area of the law, but also of a recurring underlying problem: how to review a decision for which no reasons, or unsatisfactory reasons, have been given.

The first case is World Health Edmonton Inc. v Edmonton (City), 2015 ABCA 377. At issue was whether the appellant had filed an appeal to the Subdivision and Development Appeal board within 14 days of the publication of a development permit in a local newspaper. The problem was that the information in the local newspaper was difficult to interpret, so much so that it arguably did  not “describe” the development as required by the relevant zoning by-law. A majority of the Alberta Court of Appeal applied a standard of correctness, per Bielby J.A.: “This statute and the land use bylaws enacted under its authority – of which the Zoning Bylaw is one – are typically reviewed for correctness, it being “untenable that planning legislation means one thing in one municipality and something else in another”: Young v Okotoks (Town of), 2015 ABCA 345 at para 5” (at para. 9). You can follow the development of this idea back through a few cases, but its essence seems to be that potential inconsistency in the application of the law is an independent basis for correctness review. Veldhuis J.A. dissented: “The notice was certainly less than perfect; however, the Board’s conclusion that the notice complied with the bylaw is one of mixed fact and law, reviewed on a reasonableness standard” (at para. 24).

The second is Apotex Inc v. Canada (Health), 2015 FC 1161. At issue here was an import ban and modification of licences imposed by the Minister. Facilities of companies affiliated to Apotex in India had received a negative review from the American Food and Drug Administration. Public pressure in Canada mounted (see especially para. 98) and eventually the Minister took action.  On the standard of review, Manson J. followed the analytical approach laid out by Stratas J.A. in Takeda. This involves rebutting the presumption of reasonableness review by reference to the contextual factors in the pragmatic and functional analysis. Here:

[S]tatutory interpretation is a legal question, the FD Regulations contain no privative clause and the Court is as well placed as the Minister to determine the proper statutory interpretation of the Regulations. Part C, Division 1A does not confer a large degree of deference to the Minister. Although the particular provision, subsection C.01A.008(4), which the Respondents contend provides statutory authority for the Minister’s actions, does provide the Minister with some degree of deference to set out terms and conditions, the contextual and legal scheme for establishment licensing provides little deference to the Minister. Even in situations where the Minister is given some discretion, she is required to consider certain factors and follow specific procedures (at para. 75).

It seems that the Minister just about won on the merits on this point (at para. 150), but lost on almost everything else: the decisions were procedurally unfair and an abuse of discretion. There is also a discussion of the reviewability of the Minister’s public statements (at paras. 159-168). Part of Manson J.’s order even requires the Minister to withdraw certain public statements.

The third is Lymburner v. Nova Scotia (Health and Wellness), 2016 NSSC 23. Here, a ministerial delegate had conducted an audit of the appellant’s practice. The agreement (adopted pursuant to s. 8 of the provincial Health Services and Insurance Act) contained a ‘deeming provision’ providing that doctors are deemed to accept the results of an audit if they do not contest them within a set time period. Here, a dispute arose about precisely when the doctor received notice. At issue was the interpretation of the agreement by the ministerial delegate. Murphy J. rejected the Minister’s argument that he was presumptively entitled to deference because he was interpreting his home statute (at para. 28). He went straight to the second step of the Dunsmuir analysis:

The interpretation of the word “receipt” is a question of general procedural law, on which MSI and its medical consultant have no particular expertise, and no expertise comparable to a court.  The statutory scheme – and the agreements and policies it authorizes – creates areas where deference would be required, such as substantive decisions on the application of the tariffs for insured services.  This is not one of them.  I find that the standard of review is correctness.  This standard applies to the Minister’s interpretation of the governing scheme, and particularly of the meaning of “receipt” in Schedule ‘Z.’ (at para. 39).

It is an indication of the confusion in this area that the judges here could find support in the jurisprudence for three different approaches. The majority of the Alberta Court of Appeal used the potential for inconsistency as an independent basis for judicial intervention. Manson J. was the most faithful to the Dunsmuir framework, accepting that the Minister was interpreting his home statute but finding that the presumption of deference was rebutted by reference to contextual factors. Murphy J. denied that the ministerial delegate was interpreting her home statute and, implicitly concluding that the decision did not fall into any of the Dunsmuir categories (which have typically been presented as exhaustive), went directly to the contextual factors to determine the standard of review.

Moreover, in two of these cases sparse or no reasons had been given, which evidently caused the judges some discomfort. As Watson J. commented: “Dr. Church provided no reasons for her determination that the applicant had missed the deadline.  Post‑decision efforts by the Minister during judicial review to invoke deeming provisions contained in policies and manuals, which were neither referenced by the decision maker nor provided to the applicant, do not support the correctness of the Minister’s decision” (at para. 53). Similarly, in World Health Edmonton, Bielby J.A. noted that answering the question at issue did not engage the decision-maker’s expertise:

Determining the requirements of adequate notice does not engage the expertise of the SDAB. Indeed, no such expertise is evidenced in the decision under appeal, which gives no reason for concluding that the published notice was adequate beyond it containing the correct legal description for the entire shopping centre site and complying with the Zoning Bylaw (presumably by having been published in a daily newspaper circulated in the City of Edmonton). Those reasons do not demonstrate an awareness of the requirements of adequate notice, nor do they explain why the publication of this notice, as a minute part of a larger advertisement, was sufficient to ensure that a reasonable reader could appreciate that his or her interests might be adversely affected by the development in question (at para. 14, emphasis added).

Underlying the unsatisfactory state of the doctrine, then, is a more fundamental question about whether it is ever appropriate to defer to administrative decision-makers where no reasons have been given or the reasons do not grapple with the relevant issues. Choosing correctness as the standard of review permits courts to avoid this fundamental question (which has been answered unconvincingly by the Supreme Court of Canada).

This content has been updated on January 25, 2016 at 15:27.