Dunsmuir and the hows and whys of judicial review (Eddie Clark)

Dr. Eddie Clark, Faculty of Law, Victoria University of Wellington

I am, in general, a fan of the instinct that drove Dunsmuir.  The notion that that some administrative decisions might require stricter scrutiny than others is a good one.  The idea to make the calibration of this level of scrutiny an explicit part of the judicial review is a good one. Of course, Dunsmuir was hardly the start of deference in Canadian law, but it saw the creation of a single reasonableness standard and, in subsequent case law, the ascendancy of reasonableness to the default standard of review for the vast majority of public decisions. Indeed, Abella J in Wilson v Atomic Energy Canada Limited suggested that the correctness/reasonableness distinction could be discarded, and a single intensity of review analysis (presumably on a spectrum), taking into account the sorts of things currently contained in the application of reasonableness, could usefully replace it.

This trajectory has been subject to significant criticism, some of it justified (the details of how reasonableness is applied are at time utterly impenetrable.  Binnie J’s concurring judgment in Dunsmuir suggesting that signposts within reasonableness would inevitably be needed looks more and more correct with every passing year). But as I noted above, I think the instinct is correct.  As Dean Knight argues compellingly in his soon-to-be-released book, a calibration of the intensity of judicial scrutiny is an inevitable part of judicial review.  Judges in other jurisdictions simply aren’t as open about this fact as are those in Canada.  Knight identifies four methods of modulating intensity of review:

(a)       scope of review, based on an array of formalistic categories which determine whether judicial intervention is permissible;

(b)       grounds of review, based on a simplified and generalised set of grounds of intervention;

(c)       intensity of review, based on explicit calibration of the depth of scrutiny taking into account a series of constitutional, institutional and functional factors; and

(d)       contextual review, based on an unstructured (and sometimes instinctive) overall judgement about whether to intervene according to the circumstances of the case.

The Canadian approach to judicial review, post-Dunsmuir, involves the latter two methods of modulating intensity (“intensity of review” in selecting correctness or reasonableness, and “contextual review” in the application of reasonableness if that is the standard chosen).  This is in my view a better way to set the depth of scrutiny to be applied in any given situation than the first two methods, which mask the question of how review is to be conducted within the questions of whether and why to intervene respectively.  The current of review in Canada foregrounds the question of how openly and honestly, and this is to be welcomed.

If, however, Canada has a good handle on how it conducts review, Dunsmuir has entrenched the impression that, at least since Baker, the courts no longer have a clear impression of why.  As noted above, the grounds of review can be finessed to modulate the intensity of review, but that is not their primary purpose. The subgrounds of illegality – improper purpose, relevancy, error of law, acting under dictation, and the like – provide a clear hook as to what is alleged to have gone wrong in the decision-making process: why the courts are justified in interfering. Some commentators see signs of the nominate grounds persisting in Canada (see for example Hanna Wilberg in Chapter 12 of Traversing Taggart’s Rainbow), some welcome their atrophy (see especially Daly here and here). In my view, however, the move away from the nominate grounds and, post Dunsmuir, having one all-encompassing standard of review do the vast majority of the work in conducting judicial review means Canadian law has lost something important.

This is because reasonableness is a methodology for review, not a standard that decision-makers much meet in order for their decision to be valid.  To use Tom Hickman’s useful terminology, reasonableness in the Dunsmuir sense is a standard of review, not a standard of legality.  Hickman describes the distinction as follows:

On the one hand, public law standards demarcate the boundaries of the High Court’s supervisory jurisdiction.  They are the rules and principles that dictate the degree of scrutiny, or lack thereof, that the courts will give to decisions made by the executive and inferior tribunals.  Public law standards are in this sense avowedly directed to the courts, and not to inferior tribunals or public officials.  On the other hand, some public law standards are not directed at the courts but at public officials.  They are rules and principles that set the legal standards that apply to public officials and inferior tribunals when making their decisions.

To apply this model to the questions at issue in substantive review, the standard of review that the court uses to review a decision is typically reasonableness – which involves question about the quality of justification offered for the outcome and the extent to which that outcome is within a reasonable range.  But this is a methodological question: it speaks to how a public decision ought to be assessed by the court, not what standard the public decision-maker is expected to meet. That standard – the standard of legality – is that an exercise of power must be within the decision-maker’s lawful authority.  Or, as Stratas JA has put it (though I do not think he would agree with my broader point): “We interfere because the tribunal has reached an outcome based on an indefensible interpretation, application or exercise of Parliament’s law.”  Too often, this question about the lawfulness of action, anchored in the source of the power and relevant surrounding facts, is not explicitly asked, instead being subsumed by the reasonableness analysis.

The two inquiries described in the previous paragraph are (or at least should be) two different questions.  In using a standard – reasonableness – designed to guide the courts in how they should go about reviewing a decision to also set the standard of conduct and decision-making rectitude expected of public officials, a significant amount of clarity is lost.  It is hard for public officials to know what standard they are expected to meet for their decisions to be safe from review, and hard for courts to articulate why they feel compelled to intervene.

I return to my first point: the instinct behind Dunsmuir – to defer in some circumstances, and talk explicitly about how and whether we ought to defer – is a good one. In its implementation, however, we have lost significant clarity on why the courts might want to intervene and what standards public decision-makers are supposed to meet.  As we look at the next ten years of substantive review, my hope is that the care paid in the last ten years to the idea of standards of review is applied to revivifying standards of legality.  A return to the nominate grounds (in combination with existing standard of review jurisprudence) would be one way to do this, but certainly not the only way.  Ultimately what is needed is a renewed focus on the basic question of the heart of any judicial review: whether or not the decision-maker exercised their authority lawfully.

This content has been updated on February 14, 2018 at 20:49.