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Case Comment: Dunsmuir v. New Brunswick, 2008
Published in the April 2008 issue of Transportation Notes - View Article
We include this note on the recent decision of Dunsmuir v. New Brunswick in our End of the Line section with tongue firmly in cheek. Although this is a decision of the Supreme Court of Canada which is intended to provide greater certainty and practical guidance respecting a much litigated question, we do not believe the aspirations of the justices who subscribe to the majority reasons will be met.
The issue at stake in Dunsmuir is standard of review of administrative decisions: when an appellate court is asked to correct the decision of an administrative body, what attitude should it take toward the decision making process and result of the lower tribunal? Should the appellate court demand that the result be demonstrably correct or is it enough that the result appear reasonable and the process fair? The result of these inquiries is often of great import to persons who are subject to discretionary administrative decision making. Of course, this includes transportation companies who are subject to heavy regulatory oversight by administrative agencies. Indeed, what we believe to be the first appellate consideration of Dunsmuir takes place in the context of a transportation dispute reviewed in the leading article of this edition of Transportation Notes.
In the inquiry into the appropriate standard of review, courts have become mired in a landscape of subtle distinctions, some of which are no more than semantic games with no practical consequences. The preliminary issue has often proven more complicated than the substantial dispute. Everyone agrees that this is a poor state of affairs.
In Dunsmuir, the Supreme Court attempts to provide some much needed guidance. Even without studying the decision, however, the interested reader will be discouraged to note that while the nine justices concurred in the result, they were not able to agree in a single set of reasons. Five justices concurring in one set of reasons announce their intention to “re-examine the Canadian approach to judicial review of administrative decisions and develop a principled framework that is more coherent and workable.” A single justice writes separate reasons (concurring in the result) in which he questions whether the majority have done much more than change the terminology of the debate. Finally, three justices join in a judgment which urges the need to clear this area of law “of superfluous discussions and processes”, a battle-cry which resonates strongly with this writer.
The law of judicial review, before Dunsmuir, was not difficult to describe, although application proved very vexing. It was undisputed (or almost so, as we will see in a moment) that there were three standards of review: correctness, reasonableness simpliciter and patent unreasonableness. It was also settled that where correctness is required, the appellate court should not give any deference to the tribunal, but should search for the correct result. At the other end of the scale, where the appropriate standard is patent unreasonableness, the appellate court should give considerable deference to the tribunal and should interfere only if the tribunal failed to follow a fair process or if it reached a decision which is so far beyond the realm of acceptable outcomes as to justify the conclusion that the result is patently unreasonable. Beyond these two lay the intermediate standard of simple reasonableness.
It is not hard to see why such an approach is bound to give rise to difficulties. What for one person will appear patently unreasonable will, for another, appear a perfectly acceptable outcome.
In introducing the three standards of review, we stated that there was possibly one exception to the general view that there are indeed three standards. In the case of Council of Canadians with Disabilities v. Via Rail Canada Inc. the majority of the Supreme Court referred to the difficulty in distinguishing between what is patently unreasonable and what is just unreasonable. This led Justice Abella to say that both standards “speak to whether a tribunal’s decision is demonstrably unreasonable.” The dissenting justices noted their reservations about “introducing another term to an already complex area of the law”. This could lead only to ambiguity. Having said this, the justices suggested that “in an appropriate case” the court might “engage in a review of the standards of unreasonableness and patent unreasonableness.”
Almost exactly one year after the Via Rail decision, the Supreme Court has in fact undertaken that review in Dunsmuir. The most obviously visible result is the collapse of three standards into two. Courts have been instructed to abandon the language of “patent unreasonableness” and confine themselves to correctness and reasonableness in the future.
The first of these standards, correctness, does not present much difficulty. It is very clear that where a tribunal interprets laws which do not lie within its particular field of expertise it will be held to a correctness standard. Thus, where a tribunal interprets the Constitution, the common law or the Civil Code of Quebec, it will be subject to review without deference. The appellate court has the ultimate authority to ensure that these questions are decided correctly. Unfortunately, the reasons of the majority endorse an earlier, and undesirable, complexity to this relatively well settled issue. The correctness standard will apply where the legal issue is outside the tribunal’s area of special expertise and “of central importance to the legal system as a whole”. This, as Justice Binnie says in his concurring reasons, is a “distraction” which it would have been better to avoid. It is to be hoped that the distraction does not become a major side-show.
When we move beyond the ambit of the correctness standard, the difficulties multiply. Again, the position can be stated clearly enough in the abstract: with respect to all questions of fact, questions of mixed fact and law and questions of law which relate to the tribunal’s “home statute or a statute ‘intimately’ connected thereto”, the appellate court should review on a standard of reasonableness.
However, those who would like to see a more rigorous approach to the reigning in of administrative tribunals by the courts have limited reason to applaud the Dunsmuir case. While we can register approval of the fact that “patent unreasonableness” is dead we cannot assume that the courts have been given carte blanche to undertake a searching review of every administrative decision. Furthermore, those who long to see simplicity restored may have to wait a considerable time to see their hopes realized. While the Supreme Court has taken a step in the right direction, the central problem remains. An administrative tribunal, when finding facts, deciding questions of mixed fact and law and interpreting its home statute, deserves some deference. That much is easy. But how much deference? That remains the core issue.
Under the “three standards” approach, courts sought to answer that question by deciding on the right standard. If patent unreasonableness was chosen, the court would grant the greatest possible deference to the tribunal, intervening only if the unreasonableness more or less “jumped off the page”. On the other hand, selecting reasonableness simpliciter as the standard would justify a “somewhat probing” examination of the course of reasoning accepted by the tribunal. While two standards of review for reasonableness have now collapsed into one, the central problem of identifying a level of deference appropriate for a particular administrative decision has not disappeared. As Justice Binnie points out, the present decision is likely to “shift the debate (slightly) from choosing between two standards of reasonableness that each represent a different level of deference to a debate within a single standard of reasonableness to determine the appropriate level of deference.” It was this consideration which led Justice Binnie to reach his pessimistic conclusion that the Dunsmuir decision may do nothing more than move traffic congestion from one intersection to another.
It may be that the selection of the word “reasonableness” to define the standard of review is a factor in the resulting difficulty encountered in applying the standard to particular cases. There are a few paragraphs in the decision of the majority justices which suggest that this may be so. They refer to a leading scholar in the field who has observed that identifying unreasonableness is the same as identifying irrationality and that “irrationality either exists or it does not. There cannot be shades of irrationality.” The justices go on to note that it would be “unpalatable to require parties to accept an irrational decision simply because, on a deferential standard, the irrationality of the decision is not clear enough.” The proponents of vigorous judicial review are sure to cheer these words. If what we are looking for is in the nature of a two-state machine—either on or off—then surely we should look as long and hard as we need to in order to determine which state the machine is in. But that would collapse “reasonable” and “correct” and this would be too large a step to take at this juncture of the development of the law of judicial review.
It would be an advance if the debate were to move away from an exercise in categorizing standards and towards a direct confrontation of the factors which should determine the degree of deference due to a particular decision in a particular context. Further mining of the Dunsmuir decision may lead to a more sensible and economic resolution of the judicial review problem, but it clearly is not yet time to celebrate a triumph of traffic engineering.
Dunsmuir v. New Brunswick
2008 SCC 9