Determining Standard Of Review Notes

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

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