Determining Standard Of Review - Administrative Law

Determining Standard of Review: The Pragmatic and Functional Approach

Dunsmuir Framework

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

If not, what suggests the degree of deference to the decision maker? (Pushpanthan)

Recourse available to courts?

1. Privative clause- but non-determinative (Dunsmuir)

2. Ordinary JR? – middle deference

3. Full Appeal? – least deference

   Expertise (the most important factor in Pushpanathan)

1. Greater deference to specialized board:

-economics, finance and technical matters: given most deference

-human rights: given least as cts considered arbiters of HR

2. 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

   Purpose of Act as a whole and provision in particular:

1. where statute or provision is polycentric, dealing with balancing of

multiple interests, constituencies, scarce resources and other factors, with a significant policy element = more deference granted

2. where statute positions parties in adversarial situation = less deference

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

3. where a positive discretion or exemption from a rule, more deterrence

4. Interpretation:

-positivistic vs. normative approaches

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

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:

Provision in context of statute

Purpose of statute as a whole

Soft law – guidelines, policies, etc

Comparisons

- Values/Norms:

Ex. LHD in Baker, Mossop

Charter, International Law, CL values, Quasi-Constitutional (Mossop)

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

Less deference on law, more deference on fact:

-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

A Q of law that is of central importance to the legal system and outside the special area of expertise = correctness

-Pushpanathan: FC certification: “a ? of general importance” + HR issue (outside of cts expertise)

Approach (presumption of reasonableness, with many exceptions) (Dunsmuir)

What suggests deference? factors militating toward reasonableness standard:

privative clause = strong presumption of reasonableness bc of legislative intent, but is non-determinative

Q of fact

Q of discretion (esp. subjective discretion)

-Suresh: deportation to face torture

-Baker: H + C

Q of policy (principle from Pushpanathan)

DM interpreting its enabling/home statute or related CL provisions

Discrete and special admin regime requiring expertise

-Southam – competition tribunal (newspapers)

- Khosa – deport criminally negligent to India

Identity of decision maker high level

-e.g. minister (arguable)> Binnie minority in Dunsmuir; Suresh

Statutory right of appeal?

Decision correctly applies legal test; falls within a reasonable range of outcomes; demonstrates justification, transparency and intelligibility

When not to defer? Factors militating toward correctness standard:

Constitutional questions

-Suresh: CH issue

Q of law of central importance to the legal system as a whole and outside the area of tribunal’s special expertise

-defined as that which goes beyond admin scheme (Binnie in AB Info and Privacy)

-concerned about precedent and admin of justice (Celegene; Smith)

-CUPE: abuse of process is at the heart of admin of justice

-Pushpanathan

“true” questions of vires

-jurisdiction still relevant, but not broad like pre-CUPE

-instead, ask if there is legislative authority for the tribunal to decide the matter?

-review of jurisprudence suggests true jurisdictional ? hard to define: they are exceptional ?s and none have come before the ct since Dunsmuir (AB Info and Privacy)

assessing jurisdictional lines bw 2 or more competing specialized

tribunals

Applying the Standards of Review

Reasonableness simpliciter

-content: deference as respect (Dunsmuir)

-reasonable decision:

-the decision as a whole is supported by some reasoning that connects the evidence to the conclusion

-it falls within a range of reasonable, possible outcomes that are supported by facts and law (Dunsmuir)

- unreasonable decision

-not supported by any reasons that can stand up to a somewhat probing examination:

> a decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrives

-unreasonable reasons: if they are a bare conclusion w no supporting evidence, irrelevant considerations and attempt to immunize from review (NFLD Nurses)

-inquiry: assessing reasonableness:

-both the process of articulating the reasons and the outcome must be reasonable

-look to how the tribunal interpreted the statute at each step and determine if it was reasonable (Gonthier- Corn Growers)

-assess if the interpretations of its legislation was reasonable based on the tribunals expertise (dissent: Wilson- Corn Growers)

-must be justification, transparency and intelligibility within the decision

making process

-reasonable decision should not take into account irrelevant factors (Baker)

-is discretion/factors w/in boundaries of statute, rule of law, principles of admin law, CH, Cdn values?

-do not reweigh factors (Khosa; Suresh; Southam)

-but could argue that certain values have special weight, e.g. LHD,

implicitly in Baker re interests of child

-do not revisit the weight put by decision maker on discrete points of evidence or

arguments (Khosa)

-a court may find a decision is reasonable if there is a tenable explanation, even if the ct does not find this explanation...