Dunsmuir v New Brunswick

The trial court took an application for judicial review and said the correct standard of review is correctness against the adjudicator's decision because the adjudicator did not have jurisdiction to inquire. It said that Dunsmuir received procedural fairness because of the hearing before the adjudicator and maintained the 8 month decision.

The Court of Appeal said that reasonableness was the correct standard and that the adjudicator was unreasonable because the employer dismissed the employee at pleasure, and that the common law rules did not require any more procedural fairness than Dunsmuir received.

The Court began by canvassing the recent history of administrative law decisions on the standard of review, including Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corp, Crevier v Quebec (AG), Canada (Director of Investigation and Research) v Southam Inc and Pushpanathan v Canada (Minister of Citizenship and Immigration). The court noted the general unworkability of the current state of the judicial review of administrative decisions in Canada. In response, the court decided to dispense with having three standards of review (correctness, reasonableness (simpliciter), and patent unreasonableness). Instead, the court decided that henceforth there shall be only two standards: correctness and reasonableness. Additionally, the decision to apply a correctness standard will no longer be based on 'jurisdictional' issues.

The court emphasized the use of precedent to simplify the issue of standard of review. First, courts must ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review.[2]

[50] As important as it is that courts have a proper understanding of reasonableness review as a deferential standard, it is also without question that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law. This promotes just decisions and avoids inconsistent and unauthorized application of law. When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct.

[51] Having dealt with the nature of the standards of review, we now turn our attention to the method for selecting the appropriate standard in individual cases. As we will now demonstrate, questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness while many legal issues attract a standard of correctness. Some legal issues, however, attract the more deferential standard of reasonableness.

...

[55] A consideration of the following factors will lead to the conclusion that the decision maker should be given deference and a reasonableness test applied:

— A privative clause: this is a statutory direction from Parliament or a legislature indicating the need for deference.

— A discrete and special administrative regime in which the decision maker has special expertise (labour relations for instance).

— The nature of the question of law. A question of law that is of "central importance to the legal system . . . and outside the . . . specialized area of expertise" of the administrative decision maker will always attract a correctness standard (Toronto (City) v. C.U.P.E., at para. 62). On the other hand, a question of law that does not rise to this level may be compatible with a reasonableness standard where the two above factors so indicate.

[56] If these factors, considered together, point to a standard of reasonableness, the decision maker’s decision must be approached with deference in the sense of respect discussed earlier in these reasons. There is nothing unprincipled in the fact that some questions of law will be decided on the basis of reasonableness. It simply means giving the adjudicator’s decision appropriate deference in deciding whether a decision should be upheld, bearing in mind the factors indicated.

The following matters were identified as being subject to the correctness standard:[3]

• constitutional questions regarding the division of powers between Parliament and the provinces
• determinations of true questions of jurisdiction or vires
• the question at issue is one of general law "that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise"
• questions regarding the jurisdictional lines between two or more competing specialized tribunals

When this new analytical framework was applied to the facts of Dunsmuir, the court determined that the reasonableness standard was the correct approach on which to judge the administrative decision in question. In that regard, the court ruled that the decision failed to meet this standard and was therefore unreasonable.[4]