Dunsmuir: Reasonableness and the Rule of Law (Peter A Gall QC)

Peter A Gall QC is a partner at Gall Legge Grant Zwack LLP in Vancouver

In Dunsmuir, the Supreme Court set out to do two things: first, to simplify the standards of judicial review by eliminating the patent unreasonableness standard, and second, to strike a balance between upholding the rule of law – that is, ensuring that administrative decision makers adhere to the law as written by legislatures – and according sufficient deference to the administrative decision maker to allow them to provide substantive “meat” to the legislative bones.

The first objective has been achieved.  There is no longer a need to specifically identify a patently unreasonable result, which has been subsumed in the reasonableness standard of review.  But that has not eliminated wrangling over the standard of review.  The parties still often battle over whether the correctness or reasonableness standard should govern, or what ‘reasonableness’ means in any given context, and the Court has often been divided on these issues.

Some members of the court have been seeking – directly or indirectly – to eliminate these battles by effectively abolishing correctness standard of review.[1]  To the extent that this would result in deference becoming a nearly irrefutable presumption in every judicial review analysis,[2] I fear that the rule of law component of judicial review will take a back seat to the deference side of the equation, contrary to the balance that was intended to be struck in Dunsmuir.

As Justices Bastarache and Lebel expressly recognized, our legal system is built on the rule of law.[3]  In the administrative law context this means that, in each judicial review case, a reviewing court must make a genuine and thorough effort to ascertain the legislative intent.  This is not an easy task. Often a grant of legislative power to an administrative decision maker is conferred in broad terms. And there is no doubt that the legislature often intends to confer sufficient authority on the administrative decision maker to provide the substantive details within the bounds the legislature has set, based on the decision maker’s understanding of that particular legal area and what is required in individual cases to achieve the objectives of the governing legislation. That law making role of administrative decision makers has to be respected by the courts.

But it is equally important, in my view, to respect and acknowledge the law making role of the courts.[4] Judicial review guards against the risk of administrative decision makers, who, even if legally trained, may become unduly focused on the particular legal area with which they have been entrusted, without fully appreciating how that area fits within the broader legal system.[5]  And it guards against administrative decision makers transcending the boundaries that were consciously and carefully set by the legislature.  Therefore, we must not only respect the law-making role of administrative decision makers, but also the co-ordinate law making role of the courts – to ensure that administrative decisions are consistent with the objectives and purposes of the legislation, the bounds set by the legislation, and other fundamental legal principles.

In short, there are three law making bodies whose role must be respected in the field of administrative law. The legislature provides the general legal framework. The administrative decision makers flesh out their framework.  And the courts make sure that the administrative decisions stay within their proper legal bounds, in accordance with the canons of interpretation and fundamental legal principles.  These three institutions are supposed to work together to achieve the policy goals of the legislature in a manner that reflects adherence to the rule of law.  It is not always easy to know where the lines between them should be drawn, but it is imperative to not go too far in any particular direction.

In my respectful view, by over-emphasizing the importance of deference in recent years, the Supreme Court has sometimes lost sight of the rule of law principle – the important role of the courts – in judicial review. That is, I think we have gone too far in safeguarding the law making role of administrative decision makers by ignoring the role of the courts. There are at least two possible explanations for this shift.

First, the over-reliance on deference may be a product of a hangover effect from an earlier era of judicial intrusiveness, which has guided current thinking of the appropriate scope of judicial review on the part of legal academics and some members of the Supreme Court.

At the time the doctrine of judicial deference was first developed by the Court in the late 1970s and 1980s, the courts in the labour relations area, in particular, had a poor record of interfering with the sensible development of labour relations policy by labour relations boards and arbitrators under collective bargaining statutes. As scholars like Paul Weiler and Harry Arthurs made abundantly clear, judges in this area were defeating the purposes of the progressive regime of labour relations that the legislatures were attempting to create, and which many judges may well have been hostile to. It became the received wisdom – accepted in New Brunswick Liquor Corp – that judges should stay out of this area, and defer to the experts carrying out the will of the legislatures.[6]

This phenomenon was not unique to Canada, or to labour relations. Justice Posner described the judicial policy of deference in administrative law as the “fossil remnant” of an earlier time when there was great faith in the ability of administrative decision makers to advance a progressive legislative agenda, as intended by the legislatures, and the view that the courts were an impediment to the achievement of these legislative objectives.[7] Like Justice Posner, I don’t think that concern reflects the modern reality.  By ensuring that administrative decisions fit within the legislative scheme in a way that makes sense in terms of the basic rules of statutory interpretation and fundamental legal principles, the courts are not acting contrary to the legislative will, but rather carrying it out.

The modern reality is that not all administrative decision makers are expert labour boards, entrusted with broad power to adjudicate cases in a way that furthers the policies underlying the statute. And even where deference is appropriate, as it generally continues to be in areas like labour relations, that should not mean judicial abdication. As Gerry LeDain once cautioned me as a young academic teaching administrative law, not all labour boards are chaired by Paul Weiler. And the reason why Paul Weiler’s labour relations decisions were entitled to deference was not only that they were a product of expertise, but that they demonstrated that expertise.

The other consideration which often results in a restrained approach to judicial review is the belief that deference to first level decision-makers will facilitate access to justice.   The thinking is that judicial review makes attaining justice more expensive and time consuming, and thus should be discouraged.[8] The best expression of this judicial concern is found in the Court’s decision in the Canada Post pay equity case, in which I represented Canada Post.[9]  By the time the case reached the Supreme Court, it had been going on for over 20 years, a point that was stressed by Justice Lebel in oral argument.  In my view, the Tribunal decision on review was very difficult to understand and rationalize, and it was overturned by the Federal Court, whose decision was upheld by the Federal Court of Appeal. But for the Supreme Court, the prospect of the case beginning again was too much for the legal system to bear, regardless of whether the Tribunal’s decision made legal sense.  It allowed the appeal in this very complex case from the bench.

I accept that access to justice is of great concern generally and of particular concern in cases like Canada Post.  But with respect, I don’t think this is a sufficient reason or justification for the courts to abdicate their responsibility for upholding the rule of law in the judicial review of administrative decisions entirely.  There is still a need for the rule of law to be protected by the Courts on judicial review.[10]

So what is the way forward? How can the court reassert the balance that Dunsmuir intended? As a starting point, and while I don’t always agree with Justice Abella in this area of the law, we agree on at least one thing: the process of labelling standards of review is neither necessary nor helpful.[11] The best way, in my view, for the courts to perform their constitutional role in our democratic system of reviewing administrative decisions is for the courts to eschew the standard of review categories altogether, and instead to focus on the factors that might lead to deference in any given case.[12]

There is a risk that in applying a presumption of deference, the court may fail to engage in any analysis of the degree of deference that should be accorded in a given situation.  The Court has said in MacLean, and Justice Abella emphasized in Wilson, that there may on occasion only be one reasonable answer.[13]  But, in order to determine what the range of reasonableness is in a particular case, there needs to be an assessment of the degree of deference to be accorded – and that requires an analysis of the issue in dispute, the breadth of the discretion accorded to the decision maker, the objects and purposes of the statute, the extent of which the issues comes within the policy making functions and expertise of the tribunal, and how the decision fits within the wording of the statute read as a whole and with fundamental legal principles or norms.

Yes, this looks a lot like the Pushpanathan list of factors,[14] but the difference is that these factors are being considered not to decide on the standard of review – correctness, reasonableness and patent unreasonableness – but rather to determine the extent to which the court should defer to an administrative decision in the context of a particular case and a particular question – that is, the range of options that are legally open to the decision maker.  That can’t be determined by a label, but rather by a searching analysis of all relevant factors in each case.[15]

And this type of analysis on judicial review necessarily requires that adjudicative decision makers provide adequate reasons, explaining their decisions – and not leave it to the court to fashion possible reasons[16] – and that there be a complete record – not just what was considered, but everything bearing on the matter that should have been considered, in the case of legislative type decisions such as the adoption of bylaws and rules.[17]  By requiring a reviewing court to engage in this type of analysis in each case – without resort to a standard of review label such as reasonableness or correctness – the rule of law can be appropriately balanced with the need to respect authority given to an administrative decision maker.  That was, in my view, the key lesson of Dunsmuir – the general principles it set out, and the balance it attempted to strike – and not the standard of review categorization exercise that came after.

[1] A proposal to this effect was made expressly by Madam Justice Abella in Wilson v. Atomic Energy of Canada Ltd., [2016] 1 SCR 770, 2016 SCC 29 [Wilson] at paras 19-38.

[2] See the disagreement between the majority and minority in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., [2016] 2 SCR 293, 2016 SCC 47.

[3] Dunsmuir v. New Brunswick, [2008] 1 SCR 190, 2008 SCC 9 [Dunsmuir] at paras 27-31.

[4] I discuss this issue in Peter A. Gall, “Judicial Review of Labour Tribunals: A Functional Approach” (1979) in Proceedings of the Administrative Law Conference (Vancouver: UBC Faculty of Law, 1979) [Gall, “Functional Approach”].

[5] See Gall, “Functional Approach”, at 330-358; see also PW Hogg, “Judicial Review: How Much Do We Need?”  (1974) 20 McGill LJ 157 at 171.

[6] See the review in Brian Langille and Benjamin Oliphant, “From Rand to Rothstein: Labour Law, Fundamental Values and the Judicial Role” (2016) 74 SCLR (2d) 252.

[7] See Richard A. Posner, Reflections on Judging (Cambridge, MA: Harvard University Press, 2013) at 123.

[8] I have discussed this issue in more detail in Peter A. Gall, “Problems with a Faith Based Approach to Judicial Review” in Judicial Deference to Administrative Tribunals in Canada: Its History and Future (Markham, ON: LexisNexis, 2014) [Gall, “Faith Based”] at 219-223.

[9] Public Service Alliance of Canada v. Canada Post Corp., [2011] 3 SCR 572, 2011 SCC 57.

[10] See Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v. Caron, 2018 SCC 3 [Caron] at para 56 (“I appreciate that these proceedings have been protracted, perhaps even unduly, but important legal principles had yet to be resolved.” (emphasis added))

[11] See Wilson, at para 24.

[12] See Gall, “Faith Based”, at 230.

[13] McLean v. British Columbia (Securities Commission), [2013] 3 SCR 895, 2013 SCC 67 at para 38; Wilson, at para 35.

[14] Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982 at paras 32-38.

[15] A recent decision of the Supreme Court, Caron, illustrates the problem.  After saying that the decision should be reviewed under a reasonableness standard, the majority then launches into an examination of the merits of the issue, without even mentioning the reasoning of the tribunal to which it was purportedly deferring.

[16] See Gall, “Faith Based”, at 216-219.

[17] See Lauren Wihak and Benjamin Oliphant, (2015) 28 Can. J. Admin. L. & P. 323.

This content has been updated on March 4, 2018 at 15:09.