We commented on the SCC’s decision in Dunsmuir v. New Brunswick 2008 SCC 9 in our June 2008 edition, and again in our February 2009 edition, wherein we reviewed the judicial consideration of the two-standard approach to judicial review introduced in Dunsmuir. We noted a trend in the judicial treatment of Dunsmuir toward the near abolishment of the patent unreasonable standard of review and predicted greater deference being granted to administrative decision-makers. We also noted that Dunsmuir had created uncertainty for the federal courts and the courts in British Columbia when reviewing decisions that were subject to subsection 18.1(4)(d) of the Federal Courts Act1 and Sections 58 and 59 of the B.C. Administrative Tribunals Act2 (ATA). Pre-Dunsmuir, these two acts were interpreted to essentially codify the previous standards adopted by the Supreme Court, including the standard of patent unreasonableness. Post-Dunsmuir, decisions out of the Federal Court and the B.C. courts were split as to whether the decision in Dunsmuir altered the application of these statutory provisions.

In its recent decision in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, the majority of the Supreme Court of Canada (SCC) provides clarification as to the application of Dunsmuir to these two acts and similar legislation across Canada, and urges reviewing courts to grant greater deference to administrative tribunals generally.

By way of background, the administrative decision under review in Khosa relates to an appeal brought by the then immigrant and permanent resident Sukhvir Singh Khosa from an order that he be removed from Canada for serious criminality, having been convicted of criminal negligence causing death as a result of his "street racing." Khosa appealed the order to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board on the basis of humanitarian and compassionate grounds pursuant to s. 67(1)(c) of the Immigration and Refugee Protection Act (IRPA). The IAD denied Khosa’s appeal. The Federal Court applied the "patent unreasonableness" standard of review and dismissed Khosa’s challenge to the IAD decision. The Federal Court of Appeal disagreed with the lower court’s interpretation of s.18.1 of the Federal Courts Act, applied the reasonable simpliciter standard of review, and ultimately reversed the IAD’s decision.

The SCC agrees with the Federal Court of Appeal’s application of the reasonable simpliciter standard, but disagrees with the result and affirms the IAD’s decision. Writing for the majority, Binnie J. cautions that the abolition of the patent unreasonableness standard "does not pave the way for a more intrusive review by courts" (Khosa, at para 2, citing Dunsmuir, at para. 48). The SCC further states:

"This appeal provides a good illustration of why the adjustment made by Dunsmuir was timely. By switching the standard of review from patent unreasonableness to reasonableness simpliciter, the Federal Court of Appeal majority felt empowered to retry the case in important respects, even though the issues to be resolved had to do with immigration policy, not law. Clearly, the majority felt that the IAD disposition was unjust to Khosa. However, Parliament saw fit to confide that particular decision to the IAD, not to the judges." (Khosa, at para 17.)

Throughout its decision, the SCC endorses the trend for reviewing courts to grant greater deference to administrative decision-makers.

As stated above, for judicial reviews considered under the Federal Courts Act, the SCC clearly endorses the application of Dunsmuir and the two-standard approach to judicial review. The SCC found that the "language of s.18.1 generally sets out threshold grounds which permit but do not require the court to grant relief." (Khosa, at para 36, emphasis added.) The SCC further states that this discretion to grant or withhold relief "must be exercised judicially and in accordance with proper principles," which "principles include those set out in Dunsmuir." (Khosa, at para 40.) After reviewing the particular paragraphs of s. 18.1(4) of the Federal Courts Act, the SCC concludes that the legislature only intended to specify grounds for, not standards of, judicial review. (Khosa, at paras. 41-48.)

In Khosa, the SCC acknowledges that "a legislature has the power to specify a standard of review … if it manifests a clear intention to do so." (Emphasis added.) The SCC further notes that most jurisdictions in Canada enacted legislation like the Federal Courts Act that identify grounds for review but not the standard of review. (Khosa, at paras 50-51, emphasis added.) Thus, for judicial reviews commenced under such legislation, it follows that the two-standard approach applies.

Yet even where the intention appears clear — such as in the B.C. ATA, which specifies the standard of patent unreasonableness, the SCC suggests that Dunsmuir ought to guide a reviewing court’s decision. (Khosa, at paras 19 and 50.) For example, considering the B.C. ATA, the SCC states:

"Despite Dunsmuir, ‘patent unreasonableness’ will live on in British Columbia, but the content of the expression, and the precise degree of deference it commands in the diverse circumstances of a large provincial administration, will necessarily continue to be calibrated according to general principles of administrative law." (Khosa, at para. 19, emphasis added.)

The SCC further states that even where there is a clear intention to specify a standard of review, where the legislative language permits, the courts:

(a) will not interpret grounds of review as standards of review, (b) will apply Dunsmuir principles to determine the appropriate approach to judicial review in a particular situation, and (c) will presume the existence of a discretion to grant or withhold relief based on the Dunsmuir teaching of restraint in judicial intervention in administrative matters…" (Khosa, at para. 51, emphasis added.)

McCarthy Tétrault Notes

It is difficult to decipher the meaning that is to be given to the two passages cited above. The SCC’s statement that the standard of patent unreasonableness "lives on" seems inconsistent with its statement that the "precise degree of deference … will be calibrated in accordance with general principles of administrative law." These statements appear to re-import varying degrees of reasonableness — the very thing Dunsmuir abolished. Regardless of this potential uncertainty for those few provincial statutes that expressly reference the "patent unreasonable" standard, the decision in Khosa is significant to the wide range of decisions reviewed under the Federal Courts Act. Moreover, the decision in Khosa is a clear endorsement in favour of granting greater deference to administrative decision-makers.