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Dunsmuir: The Shift from Three Standards of Review to Two, Towards One


June 30, 2008


Geoff R. Hall
Catherine Mandeville
Kara L. Smyth
Andrew Wilkinson

As you may have heard, the rules of judicial review have once again changed with the Supreme Court’s recent decision in Dunsmuir v. New Brunswick. The Supreme Court’s stated purpose for the changes is to achieve what the previous tests had failed to do, that is, "provide real guidance for litigants, counsel, administrative decision makers [and] judicial review judges." Time will tell whether the decision in Dunsmuir will alter the application of administrative principles.

Meanwhile, three directives in the Supreme Court’s majority reasons provide significant clarification of judicial review jurisprudence, and this clarification could invoke a shift in favour of greater deference to administrative tribunals and the application of one standard of review.

The most obvious change to judicial review is the abolition of the "pragmatic and functional approach" and its three standards of review, namely correctness, reasonableness simpliciter and patent unreasonableness. In its place, the Supreme Court has implemented the "standard of review analysis," leaving only two standards of judicial review: correctness and reasonableness.

The Supreme Court removed the distinction between "reasonableness simpliciter" and "patent unreasonableness," agreeing with D.M. Mullan’s criticism that "[t]here cannot be shades of rationality." For anyone who has spent — or more cynically, wasted — days in court trying to articulate the difference between the two standards of review, you will appreciate that the Supreme Court’s decision is a welcomed and useful clarification.

The majority decision also provided clarification on the test for reasonableness, emphasizing that (i) administrative decisions may "give rise to a number of possible, reasonable conclusions" and (ii) a judicial review is concerned with "whether the
decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law." This test of reasonableness is similar to the frequently cited test in Ryan and will likely continue to be a helpful guide to reviewing courts.

In determining whether a reviewing court ought to apply the standard of correctness or reasonableness, the new "standard of review analysis" requires consideration of the following four factors:

  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.

On their face, these factors appear similar, if not identical, to the factors discussed under the "pragmatic and functional" analysis in previous Supreme Court decisions. Yet, the majority’s discussion of these factors suggests a trend towards greater deference to the expertise of administrative tribunals and, most significantly, a presumption of the reasonableness standard.

McCarthy Tétrault Notes:

The shift towards the reasonableness standard is evidenced in the majority’s discussion of the fourth factor, the "nature of the question." The Supreme Court has clearly indicated that even in circumstances where the question before the administrative tribunal is a sole "question of law," deference will often be accorded. The majority stated, "There is nothing unprincipled in the fact that some questions of law will be decided on the basis of reasonableness." Comments throughout the majority’s reasons suggest that unless the question at issue is a true question of vires or 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," the standard of reasonableness will apply. These comments very narrowly construe the types of decisions that will be reviewed on the standard of correctness.

Although the melding of the two standards of reasonableness in Dunsmuir is the most obvious development in administrative parlance, leaving only two standards of review, the majority’s narrowing of the correctness standard will have the most significant impact in administrative practice, leaving the overwhelming number of administrative decisions to be reviewed on the standard of reasonableness.

For a labour and employment perspective on this case, see It May Not Be Over Yet: The Supreme Court of Canada May Have Just Made It Easier to Appeal Decisions of Employment Tribunals in the McCarthy Tétrault Co-Counsel: Labour and Employment Quarterly, Volume 2, Issue 2.