David Dunsmuir – An Unlikely Administrative Law Celebrity (Clarence Bennett)

Clarence Bennett is the Managing Partner, Saint John and Fredericton, of Stewart McKelvey LLP

Having been cited almost fifteen thousand times and continuing to generate academic debate, it is easy to overlook the fact that Dunsmuir v. New Brunswick[1] is a case that, arguably, should not have involved an administrative decision.  In normal circumstances, the case would not have gone to adjudication and likely would have been resolved without resort to any hearing at all.

David Dunsmuir was an employee who had two and a half years of service with the Province of New Brunswick.  He retained counsel to provide advice with respect to an upcoming disciplinary meeting with his employer.  Instead, the meeting was cancelled and Mr. Dunmsuir was given a letter of termination which provided four and a half months’ notice of termination.  The facts of the case would not attract the attention of most lawyers.

Fortunately or unfortunately, depending on your perspective, the termination letter was delivered to my former Partner, the late J. Gordon Petrie, Q.C.[2]  Mr. Petrie was a management-side labour and employment lawyer who, much to the chagrin of his partners, occasionally took cases for employees who asked him for help.  He sometimes felt sorry for the individual and, more often, he was interested in a legal issue.

In this case, the primary legal issue Mr. Petrie identified was a change to the Public Service Labour Relations Act in New Brunswick which he thought provided an opportunity for non-unionized civil servants.  As a fall-back, the cancellation of Mr. Dunsmuir’s disciplinary meeting in favour of his termination raised a procedural fairness issue – one that we couldn’t lose.

I met Mr. Dunsmuir on the day he was terminated – I was supposed to be accompanying him to the disciplinary meeting.  Even with the termination letter in hand, it seemed to be a straight-forward case – almost three years later I found myself at the Supreme Court of Canada for a fifth hearing.  Ten years later, I am asked to reflect on whether I had any idea the contribution the decision would make to administrative law.

I did not.

It is not difficult for me to admit that I did not anticipate the significance of this case when we were initially retained.  In the first place, we had serious concerns about whether Mr. Dunsmuir had any right to grieve at all.  The Province did make a preliminary objection with respect to jurisdiction on the basis that the termination was without cause and therefore not subject to adjudication under the Public Service Labour Relations Act.  Our concern was that Mr. Dunsmuir had been appointed by the Lieutenant-Governor in Council as Clerk of the Court.  Accordingly, he did not meet the definition of an “employee” under the Public Service Labour Relations Act and, arguably, did not have the right to grieve.

This issue was never addressed at any level of the judicial process. The Adjudicator decided that he could determine whether the termination was disciplinary or not in his preliminary decision (without reference to the definition of employee) and ultimately found that the termination was not disciplinary but that Mr. Dunsmuir had been denied procedural fairness.  The Province’s decision to terminate was therefore deemed void ab initio and Mr. Dunsmuir was fully reinstated.

That, as we now know, was the end of any good news for Mr. Dunsmuir.[3]

Standard of Review

We did not anticipate the significance of this case but, after adjudication, we were extremely interested in attaining deference for the adjudicator’s decision which had reinstated our client.  As the case developed, it became clear that no one could agree on the appropriate standard of review.  The New Brunswick Court of Queen’s Bench determined that all three standards of review should be applied.  The Court of Appeal decided that reasonableness simpliciter was appropriate except for the interpretation of caselaw.  Finally, the Supreme Court of Canada, after re-framing the pragmatic and functional approach, could not agree amongst themselves on the appropriate standard of review.

Throughout these hearings, the standard of review was the least important issue for Mr. Dunsmuir.

Standard of Review as an Avenue to Appeal

While Dunsmuir is now synonymous with the standard of review, it was not argued with much conviction in Mr. Dunsmuir’s case.  Rather, we first felt strongly that the decision of the Court of Appeal was inconsistent with the Supreme Court of Canada’s decision in Knight[4] and second, we did not think that the adjudicator’s decision was incorrect or unreasonable.  Mr. Petrie was keenly interested in the procedural fairness issue but, strategically, the best outcome for Mr. Dunsmuir was a determination that the Public Service Labour Relations Act provided substantive rights permitting review of his dismissal.

The problem was that neither issue was likely to attract leave to the Supreme Court of Canada.  The first issue had been firmly rejected by the New Brunswick Court of Appeal and the second issue was side-stepped by using our own attempt to avoid the definition of “employee” under the Act against us.[5]

There was no national importance to either of the issues that could impact Mr. Dunsmuir and Mr. Petrie was reluctant to rely on the standard of review.  To him, the standard of review was a distraction from what he deemed to be the real issues in Dunsmuir.

The fact that the lower Courts in Dunsmuir were not willing to provide deference to the adjudicator and could not agree on the appropriate standard of review was interesting to me and, as a young lawyer, I was completely enthralled with the idea of going to the Supreme Court of Canada.  Conveniently, Justice LeBel had been openly critical of the pragmatic and functional approach in decisions leading up to our timeline for seeking leave.[6]

I wanted desperately to seek leave and pledged free labour to the effort; however, after four hearings, the file was not having a positive impact on anyone’s billings.  Compounding the fact that Mr. Petrie did not care about the standard of review issue, was advice I sought from Hon. Justice Gerard V. La Forest. I ambitiously solicited his opinion but he was unaffected and unimpressed by my enthusiasm for the issue and pronounced that we had no hope of getting leave.  Undeterred, I forged ahead with legal memos to Mr. Petrie and in the face of my pestering, he relented and allowed me to prepare a leave submission.

When we were successful in our leave application (with costs), Mr. Petrie got a second wind.  He thought that we could convince the Supreme Court that the Court of Appeal decision could not be reconciled with their decision in Knight.  In retrospect, the fact that Chief Justice McLachlin had dissented in that decision should have raised some alarms.

With only an hour to argue at the Supreme Court of Canada, Mr. Petrie was not interested in spending any of it on the question of deference to the adjudicator.  He had two reasons for this – first, he did not think deference would be the determining factor in whether Mr. Dunsmuir was successful.  Second, the tradition of the Court had been that the New Brunswick member would provide the reasons in a New Brunswick case and Mr. Petrie did not think attacking the pragmatic and functional framework constructed by Mr. Bastarache would be a fruitful use of his hour.

Mr. Petrie did not intend to address the standard of review at all in his oral submission before the Supreme Court of Canada.  He was more than thirty minutes into his submission when the issue was finally raised by the Hon. Justice Louise Charron who said, “In your plea to get yourself before this Court you suggested that the three standards of review were confusing. Could you help us on standard of review?”

Mr. Petrie wryly replied, “Could I help you?”  After pausing for laughter he said, “I’m sorry. You got yourself into it, you get…” invoking more laughter before making passing comments about the strength of the privative clause and moving on. Other members of the Court attempted to pick up Justice Charron’s line of questioning and Mr. Petrie simply provided cursory comments and went back to the issues he planned to argue.

This was our contribution to the new standard of review framework.

Conclusion

On the day of Mr. Dunsmuir’s termination, no one envisioned that his case would have any significance for anyone other than Mr. Dunsmuir and I confess to openly questioning why we were involved at all.

At the point in which we were seeking leave to the Supreme Court of Canada, I was convinced that the Court was looking for an opportunity to revisit the pragmatic and functional approach and our case could be the one.  Ironically, while I was able to convince Mr. Petrie to seek leave, I was never able to get him interested in the standard of review.  At the hearing, my ego had me desperately wanting to answer questions. At the same time, I was content to be in the room with my mentor, as second chair and was not naïve enough to think I had any real solution.

After a couple of manhattans that evening, I tried all of my responses on Mr. Petrie who quickly surmised that if I couldn’t get Mr. La Forest or him interested in my ideas on standard of review, my odds weren’t good in front of nine judges who had plenty of ideas of their own.  On the tenth year anniversary of the decision, after reflecting on the decision and the scholarly writing in its aftermath, it is clear that his assessment on this point does not “border on the absurd”[7].

[1]     [2008] 1 SCR 190

[2]     J. Gordon Petrie passed away on November 5, 2012. He graduated from the University of New Brunswick Law School in 1964, received a Masters of Law from the University of Michigan in 1965 and was admitted to the Law Society of New Brunswick in 1965. He was appointed Queen’s Counsel in 1984, was a Founding Member of the Canadian Association of University Solicitors, a Fellow of the American College of Trial Lawyers and he was granted an Honourary Doctorate from the University of New Brunswick in October of 2009.

[3]     By the time the first judicial review was decided, despite the provisional finding that eight months’ notice was appropriate, Dunsmuir had received almost twelve months’ pay which the Court of Queen’s Bench determined he could keep, [2005] N.B.J. No. 327, para. 85.  One year’s pay in lieu of reasonable notice for an employee of two and a half years of service was significant progress for Mr. Dunsmuir but the legal analysis was difficult to accept.

[4]     Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653

[5]     We were arguing that Dunsmuir’s appointment was hybrid in nature as he was a civil servant before his appointment as Clerk.  This was a way of avoiding the definition of employee under the Public Service Labour Relations Act.  Unfortunately, it allowed the Court of Appeal to also avoid the procedural fairness issue.

[6]     Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710; Toronto (City) v. CUPE Local 79, [2003] 3 S.C.R. 77; Voice Construction Limited v. Construction and General Workers Union Local 92, [2004] 1 S.C.R. 609

[7]     Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92, 2004 SCC 23, para. 18.

This content has been updated on February 22, 2018 at 16:03.