Academic journal article University of New Brunswick Law Journal

Identifying the Review Standard: Administrative Deference in a Nutshell

Academic journal article University of New Brunswick Law Journal

Identifying the Review Standard: Administrative Deference in a Nutshell

Article excerpt


The volume of Supreme Court jurisprudence dealing with the review of decisions rendered by administrative decision-makers and the application of the deference doctrine is overwhelming. While Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corporation (1) and Dunsmuir v New Brunswick (2) are often regarded as lead decisions, there are close to 200 precedents, spanning six decades, underscoring the doctrine's evolution. Most were rendered over the last 35 years and most proved not to be of long-term precedential significance. They simply demonstrate the proper application of the deference doctrine, as it stood at the time the case was decided, while affirming the Court's error-correcting role. (3) Regrettably, the doctrine has been unable to escape criticism.

Professor Paul Daly writes of the Court's struggle to achieve "coherence" in Canadian administrative law. Justice David Stratas, writing in his personal capacity, has concluded that: "Doctrinal incoherence and inconsistency plague the Canadian law of judicial review." (4) Prior to those observations, it was David Mullan who isolated fifteen issues that remained outstanding following the release of Dunsmuir, (5) Such commentaries suggest that the prospect of accurately distilling the tenets of the deference doctrine into a nutshell format is misguided. Thankfully, the administrative lawyer, in search of go-to answers, knows of the risks inherent in any presentation that oversimplifies the law.

Neither the volume of litigation nor academic commentary surrounding administrative deference detracts from the need for an analytical framework that enables reviewing courts to address two essential questions. The first is whether the decision is owed deference on the review standard of reasonableness. Otherwise, the correctness standard applies. Second, assuming the deferential standard applies, there is an obvious need to know how reviewing courts are to assess the reasonableness of an administrative decision.

Due to time restraints, this presentation focuses on only the first question. Admittedly, the task of providing a go-to answer for the second question is riddled with difficulty from both a practical and theoretical perspective. In particular, the application of the deferential standard of review to decisions that involve the interpretation of the decision-maker's enabling legislation has been largely ignored. However, it was agreed that today's presentation would focus on standard of review issues.

This presentation draws a bright-line distinction drawn between the decisions of specialized tribunals (e.g., labour boards) and those made by other statutory delegates (e.g., Ministers and officers of the Crown). Admittedly, when it comes to those falling within the residual category, the analysis is as argumentative as it is descriptive. Regardless, the distinction is important if only because it draws attention to what some regard as a design flaw in the deference doctrine. This topic warrants separate consideration and is addressed in the latter portion of my presentation.

Stripped to its essentials, my underlying thesis is neither complicated nor controversial. Dunsmuir left us with a two-step framework for identifying the proper review standard. The first embraces the categorical approach. The second is labeled the contextual approach or what is often referred to as contextualism. Dunsmuir anticipated the categorical approach could prove "unfruitful" and, therefore, reviewing courts would have to move to the contextual one. However, the post-Dunsmuir jurisprudence reveals that contextualism is no more. The Supreme Court has consistently applied the categorical approach and expressly rejected the contextual one.

In short, under the categorical approach, the deferential standard of review applies unless the issue at hand falls within of the four correctness categories first identified in Dunsmuir. …

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