Dunsmuir: A rose by any other name …?

Last Friday, the Supreme Court of Canada (“SCC”) delivered a bombshell decision in Dunsmuir v New Brunswick, [2008] 1 SCR 190, changing the landscape of several areas of administrative law in one fell swoop. While we here at TheCourt.ca have lined up some academics to comment on the consequences of this case, I thought I’d take today to pull out some of the more poignant passages from this decision. Though this decision also modifies the law concerning the availability of a public law duty of fairness for public employees under contract, I will stick to the court’s comments on standards of review and the determination thereof.

The decision is broken up into 3 parts: a 5-member majority co-penned by Bastarache and Lebel JJ., a concurring opinion written by Binnie J. (which reads like a comment on the majority’s opinion), and an additional 3-member concurring opinion led by Deschamps J.

For a summary of the facts and the judicial history, please see the posts made at TheCourt.ca regarding this case. First, Julien Ho wrote at the time of the hearing back in May of last year [(22 May 2007) online: <www.thecourt.ca>]. Second, about six weeks ago, Yu-Sung Soh worte an article in anticipation of this decision [(22 May 2007) online: <www.thecourt.ca>]. Indeed, as was observed back in May during the hearing, the SCC was deeply concerned with the complexities involved with determining the proper standard of review for administrative decisions.

Starting at para. 32, the majority identifies the problem they’re trying to address:

Despite efforts to refine and clarify it, the present system has proven to be difficult to implement. The time has arrived to re-examine the Canadian approach to judicial review of administrative decisions and develop a principled framework that is more coherent and workable.
…
[43]…[The current] highly contextual “functional” test … provides great flexibility but little real on-the-ground guidance, and offers too many standards of review. What is needed is a test that offers guidance, is not formalistic or artificial, and permits review where justice requires it, but not otherwise. A simpler test is needed.

Binnie J., in his opinion, echoes this. At paras. 132-133, he writes,

…our present ‘pragmatic and functional’ approach is more complicated than is required by the subject matter.

Litigants…find the court’s attention focused not on their complaints, or the government’s response, but on lengthy and arcane discussion on something they are told is the pragmatic and functional test…. The law of judicial review should be pruned of some of its unduly subtle, unproductive, or esoteric features.

Two’s company, three’s a crowd

Having identified the problem to solve, the majority moves to prune off the review standard of patent unreasonableness, reducing the number of standards of review from three to two (leaving reasonableness and correctness). In doing so, the majority criticizes the inadequacy of the tests for distinguishing between patent unreasonableness and reasonableness, saying at paras. 41-42,

Looking to either the magnitude or the immediacy of the defect in the tribunal’s decision provides no meaningful way in practice of distinguishing between a patently unreasonable and an unreasonable decision….

[E]ven if one could conceive of a situation in which a clearly or highly irrational decision were distinguishable form a merely irrational decision, 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. It is also inconsistent with the rule of law to retain an irrational decision.[emphasis in original]

At para. 47, the majority gives guidance on what this new unified reasonableness standard will look like:

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

They also warn that this is not a signal to courts that they can usurp power delegated to administrative bodies. At para. 48, they write:

The move towards a single reasonableness standard does not pave the way for a more intrusive review by courts and does not represent a return to pre-Southam formalism….

A rose by any other name would smell as sweet

Not content with just updating the number of standards of review, the majority chose also to provide guidance on how to arrive at the appropriate standard. After a review of the caselaw surrounding the various factors used for the ‘pragmatic and functional’ test, the majority affirms those factors, but re-brands it as the ‘standard of review analysis’. At paras. 63, they write:

Because the phrase “pragmatic and functional approach” may have misguided courts in the past, we prefer to refer simply to the “standard of review analysis” in the future.

Importantly, they also note that it is not necessary to go through all of the four factors of the test. At para. 64, they write,

The analysis must be contextual. As mentioned above, it is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case. [emphasis mine]

What does this all mean?

As stated earlier, Binnie J.’s opinion reads like a comment on the majority decision.

First, he states that “[c]hanging the name of the old pragmatic and functional test represents a limited advance” (para. 121), citing, in a tongue-in-cheek fashion, Shakespeare’s famous line of “a rose by any other name would smell as sweet” in the process.

Second, and more lengthily, he discusses the new reasonableness standard: questioning how varying degrees of deference can be accommodated in the new standard, what concerns such a move raises, and how such a standard will look moving forward.

At para. 139, he writes:

The judicial sensitivity to different levels of respect (or deference) required in different situations is quite legitimate. “Contextualizing” a single standard of review will 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. [emphasis his]

He fleshes out the argument that lower courts might see this as an invitation for subjecting administrative decisions to greater curial scrutiny. He writes at para. 141,

The danger of labelling the most “deferential” standard as “reasonableness” is that it may be taken (wrongly) as an invitation to reviewing judges not simply to identify the usual issues, such as whether irrelevant matters were taken into consideration, or relevant matters were not taken into consideration, but to reweigh the input that resulted in the administrator’s decision as if it were the judge’s view of “reasonableness” that counts. At this point, the judge’s role is to identify the outer boundaries of reasonable outcomes within which the administrative decision maker is free to choose.

In commenting on what the new reasonableness standard will look like, he writes at para. 149,

a single “reasonableness” standard will now necessarily incorporate both the degree of deference formerly reflected in the distinction between patent unreasonableness and reasonableness simpliciter, and an assessment of the range of options reasonably open to the decision maker in the circumstances, in light of the reasons given for the decision. Any reappraisal of our approach to judicial review should, I think, explicitly recognize these different dimensions to the “reasonableness” standard. [emphasis his]

The 3-judge plurality

For their part, the 3-member plurality lead by Deschamps J. took a more radical approach, and felt that the pragmatic and functional approach could be dispensed with completely. They would focus the inquiry into the nature of the question first, and determine the level of deference according to the type of question being asked (i.e., whether it was a question of law, question of fact, or question of mixed fact and law).

Conclusion

While it is admirable for the SCC to try to provide some guidance and clarity for lower courts, only time will tell whether their efforts actually have the intended effect. Indeed, as Binnie J. points out, having to take into account the degree of deference within the reasonableness standard may just figuratively “shift rush hour congestion from one road intersection to another [intersection].” (para. 139)

Seeing as how this area of law is so complex and widely-applicable, this may be inevitable. As Deschamps J. writes at para. 167,

The problem with the definitions resides in attempts by the courts to enclose the concept of reasonableness in a formula fitting all cases. No matter how this Court defines this concept, any context considered by a reviewing court will, more often than not, look more like a rainbow than a black and white situation. One cannot change this reality.