The Canadian Bar Association National Administrative Law and Conference: Beyond the Horizon: The Expanding and Overlapping Jurisdiction of Arbitrators & Tribunals November 21 and 22, 2008 Ottawa, Ontario RECENT DEVELOPMENTS IN ADMINISTRATIVE LAW DAVID PHILLIP JONES, Q.C. de VILLARS JONES Barristers & Solicitors 300 Noble Building 8540-109 Street N.W. Edmonton, Alberta T6G 1E6 Phone (780) 433-9000 Fax (780) 433-9780 dpjones@sagecounsel.com
TABLE OF CONTENTS I. INTRODUCTION....1 II. STANDARDS OF REVIEW....2 A. The Simplification in Dunsmuir....3 (1) Background...3 (2) The majority decision...5 (3) Justice Binnie s concurring decision......................... 8 (4) The decision by Justice Deschamps......................... 1 2 B. Examples of Post-Dunsmuir Cases...1 5 ( 1 ) Proprio Direct inc.....15 ( 2 ) Lake v. Canada (Minister of Justice)....19 ( 3 ) Coffey v. College of Licenced Practical Nurses of Manitoba....21 ( 4 ) Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal)...22 ( 5 ) Igbinosun and Evans....23 ( 6 ) Khosa v. Canada (Minister of Citizenship & Immigration)... 2 3 C. Unresolved Questions on Standards of Review after Dunsmuir...2 4 D. Summary...2 7 III. THE DUTY TO BE FAIR....2 8 A. Right to Know the Case to Be Met: Audi Alteram Partem....2 8 ( 1 ) Shooters Sports Bar Inc. v. Ontario (Alcohol and Gaming Commission)...2 8 ( 2 ) Boardwalk Reit LLP v. Edmonton (City)....3 0 B. The Rule Against Bias...3 2 ( 1 ) Boardwalk Reit LLP v. Edmonton (City)....32 ( 2 ) Moore v. New Brunswick Real Estate Assn...38 ( 3 ) C.E.P., Local 60N v. Abitibi Consolidated Inc.....40 -i-
( 4 ) Merchant v. Law Society of Alberta...41 ( 5 ) Pelletier c. Canada (Procureur général)....42 C. Delay and Streamlining...4 3 ( 1 ) Igbinosun v. Law Society of Upper Canada...43 ( 2 ) Tora Regina Ltd. (c.o.b. Giant Tiger, Regina) v. Saskatchewan (L.R.B.)....45 ( 3 ) Shooters Sports Bar Inc. v. Ontario (Alcohol and Gaming Commission)...46 ( 4 ) Hennig v. The Institute of Chartered Accountants of Alberta....46 ( 5 ) Institute of Chartered Accountants (Ontario) v. Darwish....48 ( 6 ) IBEW Local 1739 v. International Brotherhood of Electrical Workers...49 ( 7 ) Other statutory attempts to streamline...51 D. Reasons...5 1 ( 1 ) Lake v. Canada (Minister of Justice)....51 ( 2 ) Institute of Chartered Accountants (Ontario) v. Darwish....52 ( 3 ) Sylvester v. Pincher Creek (Municipal District No. 9) Subdivision and Development Appeal Board...53 E. Other cases on Procedural Fairness............................... 5 3 IV. STANDING...5 5 A. Brewer v. Fraser Milner Casgrain LLP....56 B. Hartwig v. Saskatchewan (Commissioner of Inquiry)...57 V. MULTIPLE FORUMS...5 9 A. Jurisdictional Issues...6 1 ( 1 ) Symington v. Halifax (Regional Municipality)...61 ( 2 ) Halifax v. Nova Scotia (Human Rights Commission)....62 B. Forum conveniens Hazanavicius c. McGill University....6 3 -ii-
C. Multiple Forums When an Allegation of Bias is Present.............. 6 3 ( 1 ) Merchant v. Law Society of Alberta...64 ( 2 ) Milner Power Inc. v. Alberta Energy and Utilities Board....65 VI. STRUCTURAL INDEPENDENCE: TERMINATION OF APPOINTMENTS....6 5 A. Schumacher v. Alberta (Minister of Sustainable Resources Development)...66 B. Pelletier c. Canada (Procureur général)...67 C. Martin v. Vancouver (City)....69 D. Canadian Nuclear Safety Commission....70 E. T h e McKenzie case....70 VII. DISCLOSURE AND PRIVACY...7 1 A. Blood Tribe Dept. of Health v. Privacy Commissioner of Canada...7 1 VIII. A MISCELLANY OF OTHER DEVELOPMENTS...7 4 A. Cyr v. Québec (Société de l assurance automobile)....74 B. Hartwig v. Saskatchewan (Commissioner of Inquiry)...75 C. Hartwig v. Saskatoon (City) Police Assn.....77 D. Investment Dealers Assn. of Canada v. MacBain....78 E. Litchfield v. College of Physicians & Surgeons (Alberta)...78 IX. CONCLUSIONS...8 0 -iii-
I. INTRODUCTION 1 The purpose of this paper is to highlight significant developments in administrative law over the past year. As always, particular emphasis will be placed on decisions of the Supreme Court of Canada, but several noteworthy decisions of lower courts, and some legislative developments, will also be discussed. Unlike last year, 2008 has brought some highly significant developments in administrative law, particularly in the area of standards of review. While last year s paper noted that standards of review had not been made any clearer, this year the Supreme Court of Canada has attempted to simplify the analysis. While it is still open to debate about whether the court accomplished its goal, the decisions in Dunsmuir and subsequent cases provide ample material for this paper and excellent opportunity for discussion and debate. There also have been several interesting cases addressing the duty to be fair, multiple forums, structural independence and privacy and disclosure. Finally, there is the usual multitude of miscellaneous interesting cases dealing with administrative law. 1. I gratefully acknowledge the assistance of Dawn M. Knowles, LL.B. from our office in the preparation of this paper.
2 II. STANDARDS OF REVIEW Last year s paper began its discussion of standards-of-review by citing Justice Berger of the Court of Appeal of Alberta as follows: 2 The standard of review labyrinth continues to perplex reviewing judges. The maze of complexities is difficult to navigate. Along the tortuous path are the twin obstacles of reasonableness and patent unreasonableness which challenge the judicial mind to, among other questionable nuances, distinguish between probing and somewhat probing analyses. Nor is the hurdle of differentiating between questions of fact, law, and mixed law and fact easily overcome. Judges are invited to discern an extricable question of law that emanates from that which would otherwise be characterized as a question of mixed fact and law. The journey is exhausting. Needless to say, lower courts had recognized the need for the simplification of the standardsof-review analysis. Unfortunately, the 2007 Supreme Court of Canada decisions in Lévis 3 4 and Via Rail only complicated matters more. It was only a matter of time before the Supreme Court of Canada would try to simplify the standards of review. The opportunity presented itself in Dunsmuir. 5 2. Chauvet v. Alberta (Workers Compensation Board, Appeals Commission), 2007 ABCA 155 at paragraph 17. Justice Berger s comments are reminiscent of Justice LeBel s cri de coeur in Toronto v. C.U.P.E., [2003] 3 S.C.R. 3, 232 D.L.R. (4th) 385. 3. Lévis (City) v. Fraternité des policiers de Lévis Inc., 2007 SCC 14. 4. Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15. 5. 2008 SCC 9.
3 A. The Simplification in Dunsmuir Dunsmuir is a valiant attempt to simplify standards-of-review analysis by merging the two 6 deferential standards of review into one unified standard of reasonableness. It also streamlines the analysis where precedent has already determined the standard of review applicable to a particular decision. Unfortunately, it also raises a number of questions about the contextual nature of reasonableness, and the circumstances in which reasonableness (rather than correctness) should be applied when reviewing questions of law. (1) Background Mr. Dunsmuir was a non-unionized lawyer in the New Brunswick Department of Justice. He held a position under the Civil Service Act which provides that the termination of employment shall be governed by the ordinary rules of contract (subject to any other applicable statutory provisions, such as those which would govern a unionized employee). He also held the clerk s office at pleasure. The department became dissatisfied with his performance, and ultimately terminated his employment with payment of four months salary in lieu of notice. The department did not allege cause. Dunsmuir grieved using the grievance process under section 100.1 of the Public Service Labour Relations Act, alleging that he was not given reasons for the department s dissatisfaction or the opportunity to respond thereto, and that the length of the notice period was insufficient. The grievance was denied, and the matter was referred to adjudication. 6. Not patent unreasonableness, as was the case pre-southam.
4 At adjudication, a preliminary issue (the interpretation issue ) arose about whether under the applicable legislation the adjudicator was entitled to determine the reasons for the decision to terminate the grievor s employment, and if the termination was for cause, whether the adjudicator had jurisdiction to reinstate the grievor (which would have been the case for a unionized employee). Although the adjudicator asserted that he had this jurisdiction, he ultimately did not make a finding about whether there was or was not cause (which the 7 department was not alleging). Applying the decision in Knight v. Indian Head, the adjudicator held that the principles of procedural fairness applied because the grievor was an office holder; the principles of procedural fairness had been breached; and therefore the grievor was entitled to be reinstated to his position with no loss of pay. In the alternative, the adjudicator would have increased the notice period from four to eight months, with a corresponding increase in the amount of pay in lieu of notice. The Government applied for judicial review. The Court of Queen s Bench applied the correctness standard with respect to the interpretation issue; held that the adjudicator s decision was incorrect; with the result that there was no reinstatement, but eight months pay in lieu of notice. In dismissing Dunsmuir s appeal, the Court of Appeal determined that reasonableness simpliciter was the applicable standard of review, and held that the adjudicator s interpretation of the statute was unreasonable, with no change in the result. The Supreme Court of Canada unanimously dismissed Dunsmuir s further appeal, and seized this case as the opportunity to attempt to rationalize the law relating to standards of review. Although all of the judges concurred in merging the two deferential standards of review into one unified standard of reasonableness, and were unanimous in the result, it is unfortunate 7. Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R.653.
5 that the court was not unanimous in its reasoning, or the description of reasonableness, or in the standard of review. (2) The majority decision 8 Written jointly by Justices Bastarache and LeBel, the majority decision concluded that the three-standard model was too difficult to apply to justify its retention. However, the court was not prepared simply to revert to the pre-southam situation where patently unreasonable was the sole deferential standard, but rather collapsed the two variants of reasonableness review into a single new standard: 47 Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [Emphasis added.] After noting that the move to a single reasonableness standard should not pave the way for 9 more intrusive review by the courts, the majority emphasized that the justification for 8. Concurred in by Chief Justice McLachlin and Justices Fish and Abella. 9. At paragraph 48. The thought that Voice Construction had virtually abolished the patently unreasonable standard had caused considerable push-back, particularly in the labour relations community: see Jones v. New Brunswick, 2004 NBCA 65; Halifax Employees Association v. International Longshoremen Association, Local 269, 2004 NSCA 101; National Automobile, (continued...)
6 10 deference is respect for the administrative process. Nevertheless, they reiterated that it is without question that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law. 11 The majority emphasized that an exhaustive review is not required in every case to determine 12 the proper standard of review. The first and newly articulated step is for the court to ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference (if any) to be accorded to a particular category of question. 13 9. (...continued) Aerospace, Transportation and General Workers Union of Canada v. London Machinery Inc., [2006] O.J. No. 1087 (C.A.); Lakeport Beverages v. Teamsters Local Union 938 (2005), 77 O.R. (3d) 543 (Ont. C.A.); OPSEU v. Seneca College of Applied Arts & Technology, [2006] O.J. No. 1756; CAW Canada v. Bristol Aerospace Ltd., 2006 MBQB 51, aff d [2006] MBCA 111. But compare Flin Flon School Division v. Flin Flon Teachers Association, 2006 MBQB 49; Canada Safeway Ltd. v. Retail, Wholesale and Department Store Union, Local 454 (2005), 257 Sask R. 199; United Nurses of Alberta, Local 33 v. Capital Health Authority 2004 ABCA 401; U. of A. v. Edmonton (2005), 44 Alta. L.R. (4th) 6 (C.A.). See the discussion in Beth Bilson, Q.C., The Voice from the Trenches: Administrative Tribunals and the Interpretation of the Charter (2006), 69 Sask. L. Rev. 3. All of this may explain why the majority in Dunsmuir felt it was important to specifically articulate that the merger of the two deferential standards did not entail more intense judicial scrutiny. 10. At paragraphs 48 and 49. Compare this with legislative intent as the basis for selecting the appropriate standard of review referred to in Pushpanathan and the Retired Judges Case (among others). 11. At paragraph 50. 12. At paragraph 57. 13. The use of precedent in this context should be obvious, provided the issue and statutory context in the particular case is in fact identical to the precedent. See Nabors Canada LP v. Alberta (Workers Compensation Appeals Commission), 2006 ABCA 371 (leave to appeal to SCC dismissed June 21, 2007) where Justice Berger stated (at paragraph 13): In my opinion, if the standard of review has previously been judicially considered and determined, further analysis pertaining to the same administrative tribunal and the same discrete question under review, is an exercise in redundancy. It should be noted, however, that the issue arose in the context of a newly-enacted statutory right of appeal, whereas the previous standard of review had been determined in the context of a judicial review application which involved a strong privative clause. (continued...)
7 The majority noted that there are many precedents for applying the deferential standard to questions of fact, discretion and policy, as well as questions where the legal and factual 14 issues are intertwined with and cannot be readily separated. Deference will usually apply where a tribunal is interpreting its own statute or statutes connected to its function, or has expertise in the application of a general common law or civil law rule in relation to its 15 specific statutory context. By contrast, precedent indicates that correctness will apply to questions regarding the division of powers between Parliament and the provinces, and other 16 17 constitutional questions; true questions of an administrative body s jurisdiction or vires; questions regarding the jurisdictional lines between two or more competing specialized 18 tribunals; or a question of general law that is both of central importance to the legal system as a whole and outside the adjudicator s specialized area of expertise. 19 13. (...continued) Justice McFadyen dissented, concluding instead that the requirement for a fresh Pushpanathan analysis in every case should not be abandoned. See also Foster v. Alberta (Transportation and Safety Board), 2006 ABCA 282; Chauvet v. Alberta (Workers Compensation Board, Appeals Commission), 2007 ABCA 155; White v. Alberta (Workers Compensation Board, Appeals Commission), 2006 ABQB 359; and Pincher Creek (Town of) v. Municipal Government Board, 2006 ABQB 513, aff d 2007 ABCA 360. 14. At paragraphs 51 and 53. However, the majority does not indicate any guidelines for determining whether a legal question is so entwined with factual issues that it cannot be segmented. The majority did note (at paragraph 56) that [t]here is nothing unprincipled in the fact that some questions of law will be decided on the basis of reasonableness. It simply means giving the adjudicator s decision appropriate deference in deciding whether a decision should be upheld, bearing in mind the [four Pushpanathan] factors indicated. 15. At paragraph 54. 16. At paragraph 58. 17. At paragraph 59. 18. At paragraph 61. 19. At paragraph 60.
8 If precedent does not identify the applicable standard, then the second step is to proceed to an analysis of the four Pushpanathan factors. Curiously, while emphasizing the contextual nature of this analysis, the majority eschewed describing it as pragmatic and functional : 20 The existing approach to determining the appropriate standard of review has commonly been referred to as pragmatic and functional. That name is unimportant. Reviewing courts must not get fixated on the label at the expense of a proper understanding of what the inquiry actually entails. Because the phrase pragmatic and functional approach may have misguided courts in the past, we prefer to refer simply to the standard of review analysis in the future. The majority then applied the standard of review analysis, determined that reasonableness was the applicable standard of review for the interpretation issue, and determined that the adjudicator s interpretation was unreasonable. However, this issue was moot because the adjudicator ultimately did not base his decision on the interpretation point, but rather on the procedural fairness point (which the majority went on to reverse). 21 (3) Justice Binnie s concurring decision While Justice Binnie accepted the need to merge the two deferential standards (and concurred 22 in the outcome), he differed from the majority in two important respects: 20. At paragraph 63. 21. Whether procedural fairness applies to the holder of an office with a contractual backdrop is discussed below. 22. In the first paragraph of his decision, Justice Binnie agrees that the public law principles of procedural fairness were not applicable to this case, and observed that this was sufficient to dispose of the appeal. Nevertheless, he discussed the standards-of-review issue at length.
9 First, Justice Binnie was concerned that the majority s decision appears to be 23 restricted to adjudicative decisions, instead of the administrative system as a whole. The same holistic approach should apply to all types of administrative decisions, whether made by a minister, a board, a public servant, a commission, an elected council or other administrative bodies and statutory decision-makers. 24 Secondly, Justice Binnie sees a greater role for the courts in correcting errors of law. The majority would generally defer to a statutory delegate on questions of law, unless they are of central importance to the legal system as a whole. By contrast, Justice Binnie sees the courts having the final word on most questions of law: 128... [I]t is for the courts (not the administrators) to have the final word on questions of general law that may be relevant to the resolution of an administrative issue. The instances where this Court has deferred to an administrator's conclusion of law outside his or her home statute, or a statute "intimately" connected thereto, are exceptional. We should say so. Instead, my colleagues say the court's view of the law will prevail [only] where the question at issue is one of general law "that is both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise". [para. 60] 23. Which Justice Binnie called administrative decisions. 24. See paragraphs 120 to 125 and 130. Contrast with Justice LeBel s earlier concern that standardsof-review analysis may not be appropriate for all types of judicial review: Chamberlain v. Surrey School Board, 2002 SCC 86, 46 Admin. L.R. (3d) 1 at paragraphs 190-195 and 202; Toronto v. C.U.P.E., Local 79, 2003 SCC 63, 9 Admin L.R. (4th) 161 at paragraph 61. Also, is it accurate to apply the correctness standard when reviewing questions of procedural fairness? See Edmonton Police Assn. v. Edmonton (City), 2007 ABCA 184 and Schumacher v. Alberta (Minister of Sustainable Resource Development), 2006 ABQB 786, aff d 2007 ABCA 359; but cf Foster v. Alberta (Transportation and Safety Board), 2006 ABCA 282. This latter point is discussed further below.
10 It is, with respect, a distraction to unleash a debate in the reviewing judge's courtroom about whether or not a particular question of law is "of central importance to the legal system as a whole". It should be sufficient to frame a rule exempting from the correctness standard the provisions of the home statute and closely related statutes which require the expertise of the administrative decision maker (as in the labour board example). Apart from that exception, we should prefer clarity to needless complexity and hold that the last word on questions of general law should be left to judges. Further, Justice Binnie refers to the possibility of a full statutory right of appeal several 25 times. The implication is that deference would never be appropriate in such a circumstance, regardless of the issue involved on the appeal. This is inconsistent with Pezim and Southam and the use of the former reasonableness simpliciter standard in statutory appeals. In addition to identifying areas where he differs from the majority, Justice Binnie makes a number of observations about the nature of the new reasonableness standard (which he states 26 should presumptively apply to all reviews of a decision-maker s substantive decision): The new reasonableness is a a big tent that will have to accommodate a lot of variables that 27 inform and limit a court s review of the outcome of administrative decision-making. It is heavily contextual; it must be calibrated to fit the circumstances, the perspective within which the delegated power is intended to operate: 151... The reviewing judge will obviously want to consider the precise nature and function of the decision maker including its expertise, the terms and objectives of the governing statute (or common law) conferring the power of decision, including the existence of a privative clause and the nature of the issue being decided. Careful consideration of these matters will reveal the extent of the discretion 25. See paragraphs 123 and 130. 26. As opposed to reviews of the decision-maker s jurisdiction or issues of natural justice. 27. At paragraph 144.
11 conferred, for example, the extent to which the decision formulates or implements broad public policy. In such cases, the range of permissible considerations will obviously be much broader than where the decision to be made is more narrowly circumscribed, e.g., whether a particular claimant is entitled to a disability benefit under governmental social programs. In some cases, the court will have to recognize that the decision maker was required to strike a proper balance (or achieve proportionality) between the adverse impact of a decision on the rights and interests of the applicant or others directly affected weighed against the public purpose which is sought to be advanced. In each case, careful consideration will have to be given to the reasons given for the decision. To this list, of course, may be added as many "contextual" considerations as the court considers relevant and material. The contextual nature of the new reasonableness standard is inconsistent with Justice Iacobucci s fixed meaning of reasonableness simpliciter which focused solely on the reasoning process used by the statutory delegate. 152... In Ryan v. Law Society (New Brunswick), for example, the Court rejected the argument that "it is sometimes appropriate to apply the reasonableness standard more deferentially and sometimes less deferentially depending on the circumstances" (para. 43). It seems to me that collapsing everything beyond "correctness" into a single "reasonableness" standard will require a reviewing court to do exactly that. 28 Unreasonableness is not the same as irrationality. As de Smith points out, many decisions which fall foul of [unreasonableness] have been coldly rational. 29 Finally, Justice Binnie agrees with the majority that the adoption of a single reasonableness standard should not mean more intense judicial scrutiny of administrative decisions. 28. At paragraph 148. 29. S.A. de Smith et al., Judicial Review of Administrative Action, 5th ed., (London: Sweet & Maxwell, 1995) at 13-003, quoted by Justice Binnie at paragraph 148.
12 (4) The decision by Justice Deschamps 30 Justice Deschamps took a completely different approach to simplifying judicial review. For her, 158 The law of judicial review of administrative action not only requires repairs, it needs to be cleared of superfluous discussions and processes. This area of the law can be simplified by examining the substance of the work courts are called upon to do when reviewing any case, whether it be in the context of administrative or of appellate review. Any review starts with the identification of the questions at issue as questions of law, questions of fact or questions of mixed fact and law. Very little else needs to be done in order to determine whether deference needs to be shown to an administrative body. [Emphasis added.] By focussing on the nature of the question, not all of the four Pushpanathan factors need to be considered in every case. Thus, when the issue is limited to questions of fact, deference is owed to the decision- 31 maker just like it would be on an appeal. The substance of the court s review is the same in both cases: palpable and overriding error in an appeal, compared with unreasonable decision in judicial review both phrases encapsulate the same principle of deference with respect to the original decision-maker s findings of fact. With respect to questions of law, the courts will correct errors of law on an appeal, and this may be the default position on judicial review as well. However, deference will be required 30. Writing for herself and Justices Charron and Rothstein. 31. At paragraph 161.
13 on judicial review where Parliament or a legislature has protected the decision of the administrative body with a privative clause; or when the administrative body was created to interpret and apply certain legal rules, as a result of which it has developed specific expertise in exercising its jurisdiction and has a more comprehensive view of those rules than the 32 court. On the other hand, the courts will not defer on questions of law where the decision- maker does not have expertise about the legal issue in question, or the laws are of general application (such as the Constitution, the common law and the Civil Code) where consistency is of prime societal importance, or where the legislature has provided for a statutory right of review on such questions. With respect to questions of mixed fact and law, the court should show the same deference 33 to an adjudicator on judicial review as an appellate court would show a lower court. 34 Justice Deschamps noted that the present case did not involve a discretionary power, but observed that deference is owed to an exercise of discretion unless the decision-maker has exceeded its mandate. 35 Throughout, Justice Deschamps used the word deference, which she used to define the contours of reasonableness because it describes the attitude adopted towards the decision 32. At paragraph 162. 33. It is not clear whether Justice Deschamps intended to limit her discussion to adjudicative decisions, or to all types of decisions or actions taken by statutory delegates a point made by Justice Binnie with respect to the majority s reasons. 34. Some commentators seem to think that all issues of statutory interpretation are inherently discretionary in nature and, therefore, discretion is always required with respect to all issues of statutory interpretation. Justice Deschamps clearly contemplates that discretionary powers involve an explicit grant of discretion (whether objective or subjective). 35. At paragraph 165.
14 maker. While recognizing the difficulties inherent in any exercise of deference (including the untenable distinction between the two former deferential standards), she noted that the concepts of reasonableness and deference work without complexity in other areas of the law. As a result of this analysis, Justice Deschamps stated: 172 In this case, the Court has been given both an opportunity and the responsibility to simplify and clarify the law of judicial review of administrative action. The judicial review of administrative action need not be a complex area of law in itself. Every day, reviewing courts decide cases raising multiple questions, some of fact, some of mixed fact and law and some purely of law; in various contexts, the first two of these types of questions tend to require deference, while the third often does not. Reviewing courts are already amply equipped to resolve such questions and do not need a specialized analytical toolbox in order to review administrative decisions. Turning then to the interpretation issue, she identified the issue as being the rules governing the non-unionized employee s contract of employment a question of law. Because the applicable rules of contract were from the common law (and not from the adjudicator s enabling statute), and because the adjudicator did not have specific expertise n interpreting the common law, there was no basis for deference to the adjudicator s interpretation. Accordingly, the applicable standard of review was correctness, and the adjudicator s interpretation was incorrect. Even if deference had been owed to the adjudicator, his interpretation of the rules was unreasonable. 36 36. Justice Deschamps also agreed with the rest of the court on the issue of natural justice. For both reasons, she agreed that Dunsmuir s appeal should be dismissed.
15 B. Examples of Post-Dunsmuir Cases (1) Proprio Direct inc. Shortly after Dunsmuir, the Supreme Court of Canada revisited standards of review in Association des courtiers et agents immobiliers du Québec v. Proprio Direct inc. 37 The court was reviewing a disciplinary decision ruling that Proprio s practice requiring vendors to pay non-refundable membership fees when they signed exclusive brokerage contracts, regardless of whether the properties sold, contravened Quebec s Real Estate 38 Brokerage Act and the Association s rules linking compensation to a sale. 39 The decision was upheld on judicial review but was overturned by the Quebec Court of 40 Appeal. The Court of Appeal applied a correctness standard on the issue of whether the payment terms contained in a brokerage contract which were in accordance with the Act were mandatory, and a reasonableness standard on the issue of whether Proprio s practice caused prejudice to the public. It concluded that the payment provisions were not mandatory; that is, they did not prohibit the non-refundable fee. 37. 2008 SCC 32. 38. R.S.Q., c. C-73.1. 39. [2004] Q.J. No. 7420. 40. [2006] Q.J. No. 7477.
16 The Supreme Court of Canada allowed the appeal and the decision of the Discipline Committee was restored. The majority concluded that, following Dunsmuir, the correct standard of review was reasonableness: 41 17 The purpose of REBA is to protect consumers. As s. 66 states, the "primary role" of the Association is the protection of the public from breaches of ethical norms by members of the real estate profession. 18 Upholding these ethics is at the core of the discipline committee's mandate and the Quebec Court of Appeal has consistently applied a reasonableness standard to its decisions under REBA. This deferential degree of scrutiny was articulated in Pigeon v. Daigneault, [2003] R.J.Q. 1090, by Chamberland J.A., and in Pigeon v. Proprio Direct inc., J.E. 2003-1780, SOQUIJ AZ-50192600 by Dalphond J.A. In the first of these cases, as in this case, no privative clause existed. Chamberland J.A. explained that, despite the absence of this protection, the expertise of the committee dictated a deferential standard of review: [TRANSLATION]... even though the Act provides for a right of appeal from the Discipline Committee's decisions, the expertise of the Committee, the purpose of the Act and the nature of the issue all favour greater deference than under the standard of correctness. The appropriate standard of review is therefore reasonableness.... [19] 19 Dalphond J.A. amplified the rationale for deferring to the committee's expertise in the second case which, by virtue of a slightly different legislative scheme, had a form of privative clause: [TRANSLATION] Regarding the expertise of the Discipline Committee, as my colleague Chamberland J.A. pointed out in François Pigeon v. Stéphane Daigneault... it is not in doubt. The majority of the Committee's members come from the real estate brokerage field (s. 131 of the Act) and have an intimate knowledge of that sector of economic activity. The legislature thus intended to establish a peer justice system, as it was aware that on questions of ethics, the expected standards of conduct are generally better defined by people who work in the same sector and can gauge both the interests of the public and the constraints of the specific economic sector (Pearlman v. Manitoba Law Society, [1991] 2 S.C.R. 869). On the other hand, a judge of the Civil Division of the Court of Quebec... cannot claim to have special expertise in the area of professional discipline, and this is even more true in 41. At paragraphs 17 to 21.
17 matters relating to real estate brokerage. This second factor once again favours some deference as regards the interpretation of the standards of conduct applicable to brokers and the imposition of appropriate penalties. [Emphasis added; para. 27.] 20 The decision under appeal in this case is a departure from that deferential approach. In my view, with respect, the standard of review applied in the earlier cases by Dalphond and Chamberland JJ.A. is to be preferred and is in greater compliance with Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9 (at paras. 54 and 55). In particular, the presence or absence of a privative clause, while relevant, is not determinative (Dunsmuir, at para. 52). 21 What is at issue here is the interpretation by the discipline committee, a body of experts, of its home statute (Dunsmuir, at para. 54. See also Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, 2002 SCC 11; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at para. 32). The legislature assigned authority to the Association, through the experience and expertise of its discipline committee, to apply - and necessarily interpret - the statutory mandate of protecting the public and determining what falls beyond the ethical continuum for members of the Association. The question whether Proprio Direct breached those standards by charging a stand-alone, non-refundable fee falls squarely within this specialized expertise and the Association's statutory responsibilities. I see nothing unreasonable in the discipline committee's conclusion that the provisions requiring a sale before a broker or agent is entitled to compensation, are mandatory. [Emphasis added.] The minority in Proprio disagreed with applying a reasonableness standard on the issue of interpretation of the payment provisions: 42 67 Furthermore, the issue in this case entails more than a simple statutory interpretation that will affect only the parties. It can be viewed from two different perspectives. The first is a narrower one: Does the Association have the authority to determine the mandatory particulars of an exclusive brokerage contract? The second is broader: Can the Association impose a single model of practice on Quebec's real estate brokers? Regardless of which perspective is adopted, the issue is an important one. It is likely to affect the future of the brokerage profession in 42. At paragraphs 67 to 71.
18 Quebec. In summary, I see nothing to warrant showing any deference whatsoever to the Discipline Committee's decision. 68 The Court of Appeal, taking the same approach as the Discipline Committee, split the issue into two components: the first was the question of law and the second the question of prejudice to the public. This approach is linked to the wording of the provision of the Rules of professional ethics of the Association des courtiers et agents immobiliers du Québec, R.R.Q., c. C-73.1, r. 5, on which the syndic relied. Since Proprio Direct's practices were not prohibited by an express provision, the syndic had to rely on a very general provision of the Rules, namely s. 13, which reads as follows: 13. A member shall not participate in any act or practice in real estate matters which may be illegal or which may cause prejudice to the public or to the profession. 69 When assessing prejudice, a decision maker must usually consider the facts. Questions of fact always call for great deference, whether on appeal or on judicial review. In the instant case, however, all the Discipline Committee did was to find the act to be illegal and to infer from this that Proprio Direct's business practice entailed a risk of prejudice. The following is what it said regarding prejudice: [TRANSLATION] The remaining question is whether the risk of prejudice or of an illegal act is proven in light of the parties' admissions. According to admission No. 17, the facts described... were consistent with the respondent's business plan in effect at the time the two above-mentioned contracts were signed. According to admission No. 18, the two immovables were not sold through the respondent, but it is alleged in admission No. 19 that the respondent kept the sums of $1,262.97 and $1,724.22. In the Committee's view, these facts suffice to establish a risk of prejudice if this practice is provided for in the respondent's business plan. 70 It is clear from these comments that the Discipline Committee did not assess the facts with respect to the question of prejudice. Its conclusion was based exclusively on the collection of membership fees, which it considered to be illegal. The Discipline Committee did not ask whether it might be to the sellers' advantage to receive, in exchange for refundable or non-refundable membership fees, services other than the full range of services usually offered by brokers. Rather, it held that since, as a matter of law, it considered the fees to be illegal, it had to infer, also as a matter of law, that there was prejudice. In the circumstances, the conclusion regarding prejudice cannot be characterized as a finding of fact to which an appellate court should show deference.
19 71 However, even if the standard of reasonableness had been applied to the question of prejudice, the erroneous conclusion on illegality would have led me to conclude that the Discipline Committee's decision based on prejudice was unreasonable. [Emphasis added.] (2) Lake v. Canada (Minister of Justice) The Supreme Court of Canada also addressed standards of review in Lake v. Canada 43 (Minister of Justice). Lake had been ordered to surrender to the United States to stand trial on charges of drug trafficking. He argued that the order violated his Charter rights, including his right to life, liberty and security of the person and his mobility rights. The Ontario Court of Appeal dismissed Lake s application for judicial review. The Supreme Court of Canada upheld the decision of the Court of Appeal. On the issue of standard of review, the court stated: 34 This Court has repeatedly affirmed that deference is owed to the Minister's decision whether to order surrender once a fugitive has been committed for extradition. The issue in the case at bar concerns the standard to be applied in reviewing the Minister's assessment of a fugitive's Charter rights. Reasonableness is the appropriate standard of review for the Minister's decision, regardless of whether the fugitive argues that extradition would infringe his or her rights under the Charter. As is evident from this Court's jurisprudence, to ensure compliance with the Charter in the extradition context, the Minister must balance competing considerations, and where many such considerations are concerned, the Minister has superior expertise. The assertion that interference with the Minister's decision will be limited to exceptional cases of "real substance" reflects the breadth of the Minister's discretion; the decision should not be interfered with unless it is unreasonable (Canada v. Schmidt) (for comments on the standards of correctness and reasonableness, see Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9). 43. 2008 SCC 23.
20 The court rejected Lake s argument that, where the decision to order surrender engages an individual s Charter rights, the appropriate standard of review is correctness: 37... the Minister's superior expertise in relation to Canada's international obligations and foreign affairs remains relevant to the review of his assessment of a fugitive's claim that extradition would violate his or her rights under the Charter. Whereas the Minister's discretion must be exercised in accordance with the Charter, his assessment of any Charter infringement that could result from ordering an individual's surrender is closely intertwined with his responsibility to ensure that Canada fulfills its international obligations. The right of a Canadian citizen under s. 6(1) to remain in Canada is prima facie infringed by a decision to order that citizen's surrender for extradition, but the infringement can generally be justified under s. 1, as this Court held in Cotroni. In determining whether the infringement is justified, the Minister is required to consider not only "the possibility of prosecution in Canada, but also the interest of the foreign State in prosecuting the fugitive on its own territory": Kwok, at para. 93. Accordingly, the Minister's assessment of whether the infringement of s. 6(1) is justified rests largely on his decision whether Canada should defer to the interests of the requesting state. This is largely a political decision, not a legal one. The legal threshold for finding it unacceptable is evidence that the decision not to prosecute in Canada was made for improper or arbitrary motives. This leaves room for considerable deference to the Minister's conclusion that the infringement of s. 6(1) is justified. The court, instead, applied a standard of reasonableness: 41 Reasonableness does not require blind submission to the Minister's assessment; however, the standard does entail more than one possible conclusion. The reviewing court's role is not to re-assess the relevant factors and substitute its own view. Rather, the court must determine whether the Minister's decision falls within a range of reasonable outcomes. To apply this standard in the extradition context, a court must ask whether the Minister considered the relevant facts and reached a defensible conclusion based on those facts. I agree with Laskin J.A. that the Minister must, in reaching his decision, apply the correct legal test. The Minister's conclusion will not be rational or defensible if he has failed to carry out the proper analysis. If, however, the Minister has identified the proper test, the conclusion he has reached in applying that test should be upheld by a reviewing court unless it is unreasonable. This approach does not minimize the protection afforded by the Charter. It merely reflects the fact that in the extradition context, the proper assessments under ss. 6(1) and 7 involve primarily fact-based balancing tests. Given the Minister's expertise and his obligation to ensure that Canada complies with its international commitments, he is in the best position to determine whether the factors weigh in favour of or against extradition.
21 (3) Coffey v. College of Licenced Practical Nurses of Manitoba The Manitoba Court of Appeal had a chance to consider Dunsmuir in Coffey v. College of 44 Licenced Practical Nurses of Manitoba. In deciding the standard of review of a decision of the Discipline Committee of the College of Licensed Practical Nurses, the court considered the facts that (1) there was no privative clause in the Licensed Practical Nurses 45 Act, (2) the purpose of the Panel, (3) the nature of the question, and (4) the expertise of the Panel. After categorizing the question of whether the appellant s conduct constituted professional misconduct or conduct unbecoming as one of mixed fact and law, and finding the expertise of the Panel to be higher than that of the court, the court found that the factors pointed to a high degree of deference, and, therefore, applied the reasonableness standard. The court in Coffey considered both Dunsmuir and Ryan in reaching its conclusion. Just as the unreasonableness standard had required, the court found that the appellant still had to establish that there is no line of analysis within the... reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. 46 44. 2008 MBCA 33, leave to appeal to SCC refused. It should be noted that an application for leave to appeal this case to the Supreme Court of Canada has been filed. See also Flora v. Ontario (Health Insurance Plan, General Manager), 2008 ONCA 538 in which the Ontario Court of Appeal concluded that Dunsmuir had not entirely jettisoned the factors relevant under the pragmatic and functional analysis at paragraph 35. 45. C.C.S.M., c. L.125. 46. Coffey, supra note 44 at paragraph 47, quoting Ryan at paragraph 55.
22 Interestingly, the court added that in cases in which bias or natural justice were at issue, the 47 standard of review would be correctness. However, this statement is contrary to the ample jurisprudence that holds that questions involving a denial of procedural fairness or a breach 48 of the principles of natural justice do not attract the standard of review analysis at all. It will be interesting to see if the court s comments in Coffey on this issue are overturned. (4) Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal) 49 In Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal), the Ontario Court of Appeal considered whether the reasonableness standard set out in Dunsmuir consists of varying degrees of deference or whether it is a single standard. The court concluded it is a single standard: 50 18 I understand the majority in Dunsmuir to be referring now to only two degrees of deference, correctness, where no deference is accorded, and reasonableness, where deference is accorded. It is not necessary or appropriate to then assess the degree of deference within the reasonableness standard. 19 In my view, by collapsing the patently unreasonable standard and the reasonable standard, the majority has not set aside the court's earlier decision in Law Society of New Brunswick v. Ryan, nor has it signalled that courts must now puzzle over the degree of deference to give to a tribunal within the reasonableness standard. The existence of varying degrees of deference within the single reasonableness standard suggests that a decision made by a tribunal will be found to be unreasonable if the court accords the tribunal a low degree of deference but that same decision will be found to be reasonable if the court decides to accord the tribunal a high degree of 47. At paragraph 31, citing Histed v. Law Society of Manitoba, 2006 MBCA 89. 48. See Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249 at paragraphs 74-85 (Justice Arbour). See also Hennig v. Institute of Chartered Accountants, 2008 ABCA 241, paragraph 12. 49. 2008 ONCA 436. 50. At paragraphs 18 and 19.
23 deference. I do not read the decision of the majority in Dunsmuir as encompassing any such approach. The court noted that the revised system established in Dunsmuir was designed in part to simplify the standards-of-review analysis. 51 (5) Igbinosun and Evans The standards-of-review analyses in the Ontario cases of Igbinosun v. Law Society of Upper 52 53 Canada and Law Society of Upper Canada v. Evans suggest that Dunsmuir has had little or no effect on the review of decisions of law society disciplinary committees. The standard of review has merely shifted from the previous standard of patent unreasonableness to reasonableness for questions of fact or mixed fact and law, and remains correctness for questions of law outside the tribunal s areas of expertise. For questions involving a denial of procedural fairness or a breach of the principles of natural justice, the standard of review does not arise. (6) Khosa v. Canada (Minister of Citizenship & Immigration) The Supreme Court of Canada has another opportunity to comment on standards of review at least in the context of the presence of a statutorily mandated standard of 54 review in Khosa v. Canada (Minister of Citizenship & Immigration). The case dealt with 51. At paragraph 21. 52. [2008] O.J. No. 2848 (S.C.J.). 53. [2008] O.J. No. 2729 (S.C.J.). 54. 2007 FCA 24, reversing 2005 FC 1218.