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Determining Standard Of Review Notes

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Determining Standard of Review: The Pragmatic and Functional Approach Dunsmuir Framework

1. Has jurisprudence already adequately set what the proper standard is?

If so, apply this standard
-e.g. Northrop: surveyed previous jurisprudence on Cdn Intl Trade Tribunal and found previous standard of correctness, applied this standard

2. If not, what suggests the degree of deference to the decision maker?
(Pushpanthan) a. i. ii. iii.


Recourse available to courts?
Privative clause- but non-determinative (Dunsmuir) Ordinary JR? - middle deference Full Appeal? - least deference Expertise (the most important factor in Pushpanathan)

i. Greater deference to specialized board:

-economics, finance and technical matters: given most deference
-human rights: given least as cts considered arbiters of HR ii. Determine:

1. the relative expertise of the tribunal
-i.d. the tribunal's general expertise and if there is any specialized expertise
-e.g. Pushpanathan: IRB expertise is about id'ing a refugee, not an expert in HR

2. the ct's expertise on the issue
-ct positions itself as an expert on HR (Pushpanathan)

3. identify the issue before the decision maker and compare the tribunal's expertise to the courts c. i.

Purpose of Act as a whole and provision in particular: where statute or provision is polycentric, dealing with


multiple interests, constituencies, scarce resources and other factors, with a significant policy element = more deference granted where statute positions parties in adversarial situation = less

balancing of

deference (i.e. if it looks like what the courts would normally deal with) iii.

where a positive discretion or exemption from a rule, more


-positivistic vs. normative approaches


1. Positivistic: one

interpretation only (use of dictionary definition): Dickson in CUPE disagrees

2. Normative: More self-conscious about values and assumptions we bring to bear in statutory interpretation: LHD in Baker
-purposive, contextual approach, relying on values, policy analysis (Driedger):
- Purpose/context: i. Pr ovision in context of statute ii. Pu rpose of statute as a whole iii. So ft law - guidelines, policies, etc iv. Co mparisons
- Values/Norms: v. Ex
. LHD in Baker, Mossop vi. Ch arter, International Law, CL values, QuasiConstitutional (Mossop) d.

Nature of Problem: Q of law or fact or mixed?

Less deference on law, more deference on

-bc cts positioned to be legal experts
-e.g. Pushpanathan: HR
-however can be given wide deference where other factors suggest deference is clear legislative intention
-e.g. Paschenyk: specialized expertise, privative clause created deference even w extremely general ?s of law
-mixed fact and law, where inseparable, suggests deference (Dunsmuir)
-distinguishing can be difficult: will the determination will have precedential value?
-Barrie Utilities: pure ? of law
-Bibeault: concept derived from civil law or CL
-Mossop: general ? of law
-Chamberlain; Pushpanathan: HR issue
-Mattel: not scientific or technical b. A Q of law that is of central importance to the legal system and outside the special area of expertise =
-Pushpanathan: FC certification: "a ? of general importance"
+ HR issue (outside of cts expertise)

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