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Rebooting the standard of review: Can it be done?

The stage has been set for a December SCC hearing that will leave a profound imprint on the administration of justice in Canada for a long time to come.

Supreme Court of Canada

In December, the Supreme Court of Canada will hear three concurrent appeals touching on one awkward question: where courts should draw the line on revisiting, and overturning, the decisions of government-appointed panels and individuals tasked by governments with administering the law.

The facts of the appeals are intriguing enough on their own. One deals with a government decision to rescind the citizenship of a Canadian-born son of Russian spies. The other two are going after the CRTC’s decision in 2016 to prohibit the practice of “simultaneous substitution” — buying American TV programming (in this case, the Super Bowl) and swapping American commercials for Canadian ones.

Espionage and football — a weird combination that guarantees intense media interest. But that’s not why lawyers will be watching.

Administrative law — the law that governs the actions of a wide spectrum of government-empowered administrators making binding legal decisions — tends to be both low profile and ubiquitous. “Administrative law affects our lives more than any other category of law. You can’t go a week without being affected by some administrative decision – whether by a hospital, school, regulator or government itself,” says Lorne Sossin, a professor of administrative and constitutional law at Osgoode Hall. “Few of us are likely to be defendants in court, but we all apply for drivers’ licences or passports.”

When the CRTC grants a broadcasting licence, or an assessment review board decides how much property tax a business owes, that’s administrative law at work — the sometimes dull decisions that make up much of Canada’s legal machinery. In a rare public statement, the SCC has said it wants these three appeals to serve as a reboot of the standard of review for administrative law decisions — the formula that’s supposed to tell judges whether to overturn such a decision or ‘defer’ to the body or individual tasked by elected governments with administering the law.

The last such formula was set in Dunsmuir v. New Brunswick in 2008. The courts tend to revisit the standard of review every ten years or so. So we’re due. Some say we’re overdue.

“(Dunsmuir) was supposed to simplify the question of how the court goes about determining the proper degree of deference,” says Aaron Dantowitz, a partner at Stockwoods LLP and chair of the Ontario Bar Association’s administrative law section.

“There have been challenges in applying Dunsmuir, some degree of unpredictability in how the decisions have played out. It’s rare for even the SCC itself to agree on how to apply the framework.”

Dunsmuir followed the trend in jurisprudence toward deference in judicial reviews while attempting to strike a new balance between deference and the “correctness standard” — basically, between the principles of democratic accountability and the rule of law. Under Dunsmuir, deference is the court’s default stance, recognizing that the panels and individuals tasked with making administrative law decisions are empowered to do so by elected legislatures.

For courts, “deference” to administrative law decisions means evaluating them on the basis of “reasonableness” — whether the decision was, in the words of the Dunsmuir majority, “defensible in respect of the facts and the law.” If it wasn’t, the court can overturn or vary the decision.

The “correctness standard,” meanwhile, is supposed to be employed in cases where deference doesn’t apply. So, the court is expected to overturn or vary the decision to the degree that it isn’t “correct” — i.e., not the decision it would have made in the administrator’s place.

Dunsmuir listed four circumstances that would evoke the correctness standard: where there are constitutional questions; where there are “true” questions about whether the decision made was within the administrator’s jurisdiction; where the decision touches on matters of law of “central importance” to the legal system that lie outside the administrator’s area of expertise; and where there are questions about the jurisdictional lines between administrators.

If you found that formula to be a little on the blurry side, you’re not alone. Decisions on administrative law reviews post-Dunsmuir have landed all over the map, with many divided benches and some decisions leaning hard on “deference” while others tilt towards “correctness.” It’s sometimes hard to tell whether judges themselves know how the rule works.

Some argue that courts have interpreted the Dunsmuir test as inviting a decision based on a de facto “correctness” standard even when a strict reading of Dunsmuir might argue for “deference.”

“In the ten years since, deference has been used by the courts as both a sword and a shield,” says David Phillip Jones of de Villars Jones LLP. He points to the 2016 SCC decision in Wilson v. Atomic Energy of Canada Ltd. as an example of “the deference standard (leading) the court to say that either two decisions are both ‘reasonable’ or that only one decision is ‘reasonable’ and the other is not.

“That’s the ‘correctness’ approach going in disguise as ‘reasonableness’. Why go through all this deference stuff if, at the end of the day, you’re making a decision based on the correctness standard?”

In Wilson v. AECL, Justice Rosalie Abella — having already argued that the “correctness” and “reasonableness” standards had been getting muddled together — suggested a fix: throw out “correctness” and collapse the Dunsmuir formula into a simple test of “reasonableness.” A lot of administrative law practitioners like the idea.

“The question is, can the court come up with a clear test that doesn’t waste everyone’s time?” says Guy Regimbald, a partner at Gowling WLG. He predicts that the SCC will end up taking Justice Abella’s lead.

“You see some cases go forward under the reasonableness standard and the decision ends up looking a lot more like the correctness standard,” he says. “It’s a bit of a crapshoot. It makes it very difficult for us to advise our clients.

“The problem with the current test is that, instead of arguing the substance of the case, we waste a lot of time and money debating the standard of review.”

Others have doubts. “If you say that reasonableness is the only standard, then it implies that administrative bodies can do whatever they want as long as it falls within the range of ‘reasonable,’” says Jones. “I don’t think they have that kind of unlimited authority.”

In its leave application to the SCC for the December appeals, the Canadian Bar Association agrees that the Dunsmuir standard could use some tightening up — that the jurisprudence drift from one judicial review to another “makes it difficult for lawyers to advise clients on the probability of success.”

Its caveat is that no change to the Dunsmuir rule can be allowed to water down the courts’ role in defending the rule of law: “While the rule of law has matured to recognize that legal decision-making is a joint enterprise … this does not mean that there will always be a number of answers to every legal question.”

So the stage has been set for a December SCC hearing that will leave a profound imprint on the administration of justice in Canada for a long time to come. Or for another ten years, at least.