Appellate Standard of Review in Public Law Cases: Pressure for Change in Canada

This is an excerpt from my forthcoming article, “The Appellate Standard of Review in Public Law Cases“. Download it here from SSRN.

The Canadian approach to appellate review in public law cases resembles the approach robustly defended by the High Court of Australia in SZVFW.[1] An appellate court must step into the shoes of the first-instance judicial review court,[2] “for all intents and purposes” to thereby “conduct the judicial review analysis afresh”.[3]  However, the Canadian position on the three issues canvassed in the previous section closely resembles the English.

This tension has not gone unremarked. Current Canadian practice has been challenged by Justice David Stratas, in extra-judicial commentary, who has asked why the appellate deference familiar to other areas of law is absent from judicial review: “Given the importance of access to justice and minimization of expense…why require the appellate court to conduct a complete rerun of the exercise?”[4]

In appellate review generally, Canadian appellate courts have been instructed to review findings of fact and many findings of mixed law and fact only for palpable and overriding error, because “the numerous policy reasons which support a deferential stance to the trial judge’s inferences of fact, also, to a certain extent, support showing deference to the trial judge’s inferences of mixed fact and law”.[5] Whereas the High Court of Australia draws a distinction between questions of “law” and “discretion” for the purposes of determining the scope of appellate review, the Supreme Court of Canada relies on policy-based justifications. Moreover, in judicial review of administrative action generally, the Supreme Court of Canada has long since rejected a hard-and-fast distinction between “law” and “discretion” in favour of a context-sensitive reasonableness standard.[6] This being the case, it is surprising that in the area of judicial review, the Canadian courts have not yet considered policy-based justifications for restricting the scope of appellate review.

Proportionate dispute resolution received the imprimatur of the Supreme Court of Canada in Hryniak v Mauldin.[7] This case concerned the use of the summary judgment procedure in Ontario, a procedure that has equivalents in the other common-law provinces. Karakatsanis J. began her analysis by noting “a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system”, which “entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case”.[8] Indeed, she warned that “[t]he interest of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability”.[9] Judges are no longer passive observers of counsel and witnesses, but must “actively manage the legal process”[10] to achieve more efficient dispute resolution, recognizing all the while that “new models of adjudication can be fair and just”.[11] Put simply, the traditional model of judicial adjudication had to give way to the policy goal of proportionate dispute resolution.

From a proportionate dispute resolution perspective, there are obvious benefits to a more restrictive approach to appeals of judicial review decisions made by first-instance judges. It makes little sense to have many layers of internal appeal and/or reconsideration, followed by a judicial review in a provincial superior court (or Federal Court), followed then by the same exercise in an intermediate appellate court, followed finally (if leave is granted) by a further repeat in the Supreme Court of Canada. At present, at least three judicial reviews can, in principle, be conducted of a Canadian administrative decision. However, one will usually be enough, especially if there is the safeguard of an appeal to an intermediate appellate court. The workload of appellate courts would decrease dramatically if AR were followed in Canada. Where a first-instance judge had delved into the decision-maker’s reasons and accompanying record to make a determination as to reasonableness or fairness, the appellate court would only be able to intervene to correct an error in principle or, otherwise, a palpable and overriding error.

Finally, there is little doubt that Canadian legal doctrine is much more contextualist than it is legalist. This is true of appellate review generally and more broadly in public law, civil procedure and private law. In recent decades, the law of standing has become highly context-sensitive;[12] the “water-tight compartments” of federal and provincial jurisdiction[13] have been discarded in Canadian federalism jurisprudence in favour of “constitutional creativity and cooperative flexibility”;[14] a strict doctrine of procedural exclusivity has been rejected in favour of a case-by-case assessment of “whether the claimant has pleaded a reasonable private cause of action for damages” or is making “a claim for judicial review with only a thin pretence to a private wrong”;[15] and the Supreme Court has recognised good faith as “an overarching organizing principle” of the law of contract.[16] Even where the Supreme Court has tried to establish a more categorical approach, in administrative law and in the law of tort, key components of legal doctrine remain contextual: the selection of the “standard of review” might not be context-sensitive,[17] but its application certainly is;[18] and whereas the Supreme Court has laid out a detailed framework for conducting the duty of care analysis in tort cases,[19] the existence of a duty of care in novel cases invariably requires a contextual analysis.[20] As with England and Australia, making sweeping generalisations about Canadian legal culture is dangerous. Nonetheless, it is fair to infer that Canadian legal culture must be open to contextualism, for otherwise such a degree of contextualism would not be observable (or sustainable) across such diverse fields of legal doctrine.

A change of approach on appellate standard of review in public law cases to bring Canada into line with England and Wales would be more faithful to the Canadian approach to the distinction between “law” and “discretion”, would further the goal of proportionate dispute resolution and would be consistent with Canada’s contextualist (rather than legalist) legal culture. Further calls for reform are to be expected.[21] This is not to say that they will or ultimately should be heeded. Again, my goal in this section has been descriptive. I take up the normative questions in the next section [to be posted shortly].

[1] Indeed, Edelman J cited to Canadian authorities on the standard of appellate review: [2018] HCA 30; (2018) 357 ALR 408 at [154]-[155].

[2] Agraira v Canada (Public Safety and Emergency Preparedness) [2013] 2 SCR 559 at [45]-[47].

[3] Begum v Canada (Citizenship and Immigration), 2018 FCA 181 at [34].

[4] David Stratas, “A Decade of Dunsmuir: Please No More” in Paul Daly and Léonid Sirota eds. A Decade of Dunsmuir/Les 10 ans de Dunsmuir (Carswell, Toronto, 2018). See also Ashley Bowron, “Reviewing the Reviewer: The Role of Appellate Courts in Judicial Review” (2019) 50 Advocates’ Quarterly 18.

[5] Housen v Nikolaisen [2002] 2 SCR 235 at [32]. See similarly HL v Canada (Attorney General) [2005] 1 SCR 401.

[6] Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 at [53]-[56].

[7] 2014 SCC 7, [2014] 1 SCR 87 [Hryniak].

[8] Hryniak, supra note 34 at [2].

[9] Ibid at [56].

[10] Ibid at [32].

[11] Ibid at [2].

[12] Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, [2012] 2 SCR 524 at [36].

[13] Attorney General of Canada v Attorney General of Ontario, Re Weekly Rest in Industrial Undertakings Act etc [1937] 1 DLR 673, 684 per Lord Atkin.

[14] Fédération des producteurs de volailles du Québec v Pelland [2005] 1 SCR 292 at [15].

[15] 2010 SCC 62, [2010] 3 SCR 585 at [78].

[16] Bhasin v Hrynew [2014] 3 SCR 494 at [69].

[17] See e.g. Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd [2016] 2 SCR 293 at [32]-[35].

[18] See e.g. Catalyst Paper Corp v North Cowichan (District) [2012] 1 SCR 5 at [18]; Law Society of British Columbia v Trinity Western University [2018] 2 SCR 293 at [53].

[19] Cooper v Hobart [2001] 3 SCR 537.

[20] See e.g. Childs v Desormeaux [2006] 1 SCR 643 at [31]-[47].

[21] At the time of writing, the Supreme Court of Canada was preparing to hear the appeal in Northern Regional Health Authority v Manitoba Human Rights Commission et al, 2017 MBCA 98, where the question of appellate standard of review has been raised by the parties.

This content has been updated on September 11, 2020 at 14:54.