We commented on Dunsmuir v. New Brunswick, 2008 SCC9 (CanLII) in our June 2008 edition, predicting that as a result of the Supreme Court’s new two-standard approach to judicial review and its narrowing of the standard of correctness, greater deference would be granted to administrative tribunals. Now that some time has passed, we have been able to assess our prediction and examine how lower courts are treating the new approach to judicial review. We are proud to say that we were right — well, almost.

As at the beginning of the year, and only 10 months since the release of Dunsmuir, our electronic searches revealed approximately 700 reported English decisions considering Dunsmuir. Our review of these decisions disclosed a general trend of support for the two standards. Although a number of post-Dunsmuir decisions have applied the standard of correctness, these have been limited, for the most part, to true questions of jurisdiction or vires, matters of procedural fairness, and questions of law that are of general importance to the legal system and that clearly fall outside the expertise of the administrative decision-maker. Questions of fact, questions of mixed law and fact, and matters of discretion and policy have been decided, almost invariably, on the new reasonableness standard of review.

We note there was some room for lower courts to apply varying degrees of deference based on one comment from the majority in Dunsmuir that there may be "degrees of deference" (Dunsmuir, at para. 62), and on Justice Binnie’s comment that there may be a "different level of deference … within a single standard of reasonableness" (Dunsmuir, at para. 139). However, the Courts of Appeal in both Alberta and Ontario have clearly rejected such an approach, affirming that there is one standard of reasonableness: see International Association. of Machinists and Aerospace Workers, Local Lodge No. 99 v. Finning International Inc., 2008 ABCA 400 (CanLII); and Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 436 (CanLII) at para. 18.

Dunsmuir has clearly altered the standard of review at common law. Yet the decision has created uncertainty for the Federal Courts and the Courts in British Columbia when reviewing decisions that are subject to subsection 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7, and Sections 58 and 59 of the B.C. Administrative Tribunals Act, S.B.C. 2004, c. 45 (the ATA). These two acts have essentially codified the previous standards adopted by the Supreme Court. They mandate certain types of administrative decisions to be reviewed on the standard of patent unreasonableness, the standard abolished by the Supreme Court for being nonsensical (Dunsmuir, at paras. 34-45). This has resulted in the courts’ decisions being split.

In B.C., most judges have continued to apply the standard of patent unreasonableness in decisions of tribunals covered by the ATA’s standard of review provisions: see for example Evans v. University of British Columbia, 2008 BCSC 1026 (CanLII) at paras. 6-12; Brown v. Residential Tenancy Act, 2008 BCSC 1538 (CanLII) at para. 37; Carter v. Travelex Canada Limited, 2008 BCSC 405 (CanLII) at paras. 14 and 26; and Lavigne v. British Columbia (Workers Compensation Review Board), 2008 BCSC 1107 (CanLII) at para. 98. Judges in these cases have reasoned that the legislation takes priority over the common law. Interestingly, Macaulay J. in Evans found support for the patent unreasonableness standard in Binnie J.’s concurring judgment in Dunsmuir, wherein he stated that there remain "differing dimensions to the deference owed within a reasonableness standard" (Evans, at para 14, referencing Dunsmuir, at para. 149).

Other judges in B.C. have applied the new reasonableness standard to findings of fact or law covered by s. 58(2)(a) of the ATA: see Howe v. 3770010 Canada Inc., 2008 BCSC 330 (CanLII) at paras. 9, 16-19, and 35; and British Columbia Securities Commission v. Burke, 2008 BCSC 1244 (CanLII) at paras. 104-110.

There is a similar division in the Federal Courts, where several judges have continued to apply the standard of patent unreasonableness under Section 18.1(4)(d) of the Federal Courts Act: see for example Cabral De Medeiros v. Canada (Citizenship and Immigration), 2008 FC 386 (CanLII) at para. 14; Obeid v. Canada (Minister of Citizenship and Immigration), 2008 FC 503 (CanLII) at para. 9; and Bielecki v. Canada (Minister of Citizenship and Immigration), 2008 FC 442, (CanLII) at para. 21.

Yet, other judges have held that findings of fact for such tribunals are reviewable on the standard of reasonableness: see for example Sukhu v. Canada (Citizenship and Immigration), 2008 FC 427 (CanLII) at para. 15; Kaur Barm v. Canada (Citizenship and Immigration), 2008 FC 893 (CanLII) at para. 12; and Nasir v. Canada (Citizenship and Immigration), 2008 FC 504 (CanLII)at paras. 14-15.

McCarthy Tétrault Notes:

The division in the Federal Courts regarding the patent unreasonableness standard may soon be clarified in the appeal before the Supreme Court in Supreme Court of Canada (Minister of Citizenship and Immigration) v. Khosa, (File No. 31952), which was heard with decision reserved on March 20, 2008. It is uncertain whether this decision will resolve the split decisions in B.C. What is certain is that the standard of patent unreasonableness is not dead — at least not yet.