Administrative Law
Markus Dubber
David Dunsmuir v.
Her Majesty the Queen in Right of the Province of New
Brunswick as represented by Board of Management
[2008] 1 S.C.R. 190
• “legal officer” fired with four months’ pay in lieu of notice;
no reasons; no hearing; no opportunity to present/contest
evidence
• “substance” [jurisdiction?]
– “Whether the combined effect of s. 97(2.1) and s. 100.1 of the
PSLRA [Public Service Labour Relations Act] permits [a labour]
adjudicator to inquire into the employer's reason for
dismissing an employee with notice or pay in lieu of notice”
• “process”
– Procedural fairness, due process, natural justice … (no hearing
etc etc etc)
Take 1: Adjudicator
• Substance
– “preliminary” (jurisdiction?)
• Yes, I may inquire into the “real” reason for the dismissal (cause vs.
notice/pay in lieu)
– “merits”
• For cause? Not for cause? Unclear…but no matter because…
• Process:
– Dunsmuir was entitled to procedural fairness, and didn’t get it, therefore…
– result: firing void
• Reinstatement
• Alternative: 8 months’ notice if overturned
• Who’s disrespecting whom?
– Administrator vs. administrator
Take 2: Court of Queen’s Bench
• Substance:
– Statutory interpretation (of PSLRA)
– Which standard (how much deference/respect)?
• Which standard to determine standard?
– Pragmatic and functional!
• Pragmatic and functional in action
–
–
–
–
Full privative clause
Adjudicator’s expertise re: PSLRA
Statutory purpose
Nature of question (stat interpretation! Law, law, law)
• Therefore: correctness
– Correctness applied
• Sorry, incorrect (no jurisdiction to inquire into cause)
– “Ordinary rules of contract” govern (see Civil Service Act s. 20)
» contract provides for termination with cause, reasonable notice
or with pay in lieu of reasonable notice
» employer elected to fire with pay in lieu of reasonable notice
» only issue (reasonable) length of notice period
Queen’s Bench cont’d
• Process: Procedural fairness?
– Got it, by virtue of the hearing before adjudicator!
• Remedy:
– Which standard(s?)
• Patent unreasonableness for factual questions
• Reasonableness simpliciter for mixed law/fact
– Reinstatement improper because not authorized by PSLRA to
make appointments
– Failure to consider alternative remedy (short of reinstatement)
» But provisional alternative remedy: 8 months’ notice
• Result: 8 months’ notice upheld
Take 3: Court of Appeal
• Trial judge used wrong standard!!!
– Reasonableness simpliciter, not correctess
– Standard for standard
• Pragmatic and functional (correct standard standard!)
– Full privative clause
– Adjudicator’s expertise re: PSLRA
– Statutory purpose
– Nature of question (stat interpretation! Law, law, law)
– Exception
• “correctness” review of “interpretation and application of caselaw”
• Reasonableness simpliciter applied
– Unreasonable interpretation of PSLRA
• Reasons? See trial court
• Procedural fairness
– En passant: grievance procedure is plenty of proc. fair.
• Disrespectometer:
– (app.) court disrespecting (trial) court disrespecting administrator disrespecting
administrator(s)
– Direct: (app.) court disrespecting administrator
• But less disrespectful than trial court?
– More respect: choice of standard (reasonableness simpliciter)
– Less respect: application of standard (unreasonable vs. incorrect)
Take 4: SCC!!
Bastarache and LeBel, JJ.
1. Substance
At issue, firstly is the approach to be taken in the judicial review of a
decision of a particular adjudicative tribunal which was seized of a
grievance filed by the appellant after his employment was terminated.
This appeal gives us the opportunity to re-examine the foundations of
judicial review and the standards of review applicable in various
situations.
2. Process:
The second issue involves examining whether the appellant who held an
office "at pleasure" in the civil service of New Brunswick, had the right
to procedural fairness in the employer's decision to terminate him.
3. And All of the Rest of It:
The two types of judicial review, on the merits and on the process, are
therefore engaged in this case. Our review of the system will therefore
be comprehensive, which is preferable since a holistic approach is
needed when considering fundamental principles.
Brave New World/Tabula Rasa?:
From the Ground Up
• Why judicial review at all?
– 1. Rule of Law!
• The function of judicial review is therefore to ensure the legality,
the reasonableness and the fairness of the administrative process
and its outcomes.
– 2. But also: “In addition to the role judicial review plays in
upholding the rule of law, it also performs an important
constitutional function in maintaining legislative supremacy.”!??
• “legislative supremacy is affirmed and the court-centric conception
of the rule of law is reined in [by the courts!?] by acknowledging
that the courts do not have a monopoly on deciding all questions
of law“
– In essence, [1] the rule of law is maintained because the courts
have the last word on jurisdiction, and [2] legislative supremacy
is assured because determining the applicable standard of
review is accomplished by establishing legislative intent.
And then there were two (?)
• From formalism to pragmatism and functionalism, or From Two to
Two (other, more pragmatic functional, i.e., better ones)
– Formalism: Jurisdiction (The Dark Ages)
• Preliminary question doctrine
– Did the agency act within its jurisdiction?
» If so, deference (intra vires)
» If not, ultra vires!!!: no deference
• Illegal, unauthorized, beyond the pale,
without basis …
– Law of corporations: ultra vires (corporate charter); “repugnancy” of charter with
common law, law of nations, public welfare (constitution…)
» Delegated (royal) jurisdiction
– Police
» Macro householder’s delegation of limited powers to micro householder (overseer,
official, delegate, minister, etc.)
– End the hypocrisy: Pragmatic and functional (The Enlightenment)
• Two standards of review (Enlightenment I)
– Correctness
» Formerly known as ultra vires
– Patent unreasonableness (CUPE 1979)
» Formerly known as intra vires (or, rather, as not
ultra vires)
Three are better than two
(the more the merrier)
• Southam (1997) (Iacobucci) (Yet more
light: Enlightenment II)
– More nuance, more
pragmatism/functionalism:
• We need a third standard of review:
– Reasonableness simpliciter (just plain ole
reasonable, reasonable, period, reasonable, no
ice, reasonable straight up etc)
• Fits snuggly in between correctness and patent
unreasonableness
– Shouldn’t it be incorrectness, unreasonableness,
and patent unreasonableness? Too negative,
perhaps
• “not supported by any reasons that can stand
up to a somewhat probing examination”
– Immediacy or obviousness of error
Trouble in Paradise
• What’s the difference? Too much nuance?
– Trouble in the “lower courts”!
• What’s unreasonable? What’s patently unreasonable?
What, for that matter, is patently (anything)?
– Is unreasonable ever OK? Even if it’s not patently
so?
• Too much of a good thing: deference to the point of
accepting unreasonable decisions?
Iacobucci to the rescue!
• Ryan (2003): Setting things straight, once and for all
[A] patently unreasonable defect, once identified, can be
explained simply and easily, leaving no real possibility of
doubting that the decision is defective. A patently
unreasonable decision has been described as "clearly
irrational" or "evidently not in accordance with reason". ... A
decision that is patently unreasonable is so flawed that no
amount of curial deference can justify letting it stand.
A decision may be unreasonable without being patently
unreasonable when the defect in the decision is less obvious
and might only be discovered after "significant searching or
testing" (Southam, supra, at para. 57). Explaining the defect
may require a detailed exposition to show that there are no
lines of reasoning supporting the decision which could
reasonably lead that tribunal to reach the decision it did.
Harsh words
• David Mullan, in "Recent Developments in Standard
of Review", in Canadian Bar Association (Ontario),
Taking the Tribunal to Court: A Practical Guide for
Administrative Law Practitioners (2000) [!]:
[T]o maintain a position that it is only the "clearly
irrational" that will cross the threshold of patent
unreasonableness while irrationality simpliciter will
not is to make a nonsense of the law. Attaching the
adjective "clearly" to irrational is surely a tautology.
Like "uniqueness", irrationality either exists or it
does not. There cannot be shades of irrationality.
This will not stand!
- LeBel in Toronto v. CUPE 2003 …
Enlightenment III, or LeBel has his way
• Dunsmuir (2008): The Advent of Holism, The
Irrelevance of Labels!
– From “pragmatic and functional” to holistic approach
– From “pragmatic and functional analysis” to
“standard of review analysis”
• Two are better than three, after all
– But not the old two! That would be taking “a step
backwards … and revert to pre-Southam law”
– No, onward and upward:
• Henceforth, it shall be
– Reasonableness simpliciter simpliciter (i.e., without the simpliciter)
– Correctness
Reasonableness: The Answer,
or More Questions?
• What does this revised reasonableness standard mean? most
widely used and yet most complex Reasonableness is one of the
legal concepts. In any area of the law we turn our attention to, we
find ourselves dealing with the reasonable, reasonableness or
rationality. But what is a reasonable decision? How are reviewing
courts to identify an unreasonable decision in the context of
administrative law and, especially, of judicial review? [Good
Questions, All!]
• Who knows? Here is what it doesn’t mean:
– The move towards a single reasonableness standard does not pave the way
for a more intrusive review by courts and does not represent a return to
pre-Southam formalism. … What does deference mean in this context?
Deference is both an attitude of the court and a requirement of the law of
judicial review. … [D]eference imports respect for the decision-making
process of adjudicative bodies with regard to both the facts and the law. …
Deference in the context of the reasonableness standard therefore implies
that courts will give due consideration [!!] to the determinations of decision
makers.
Standard standard:
Same old, same old
1. Privative
2. Purpose of tribunal in light of act
3. Nature of question
– Law vs. fact
– If law: "central importance to the legal system”?
“outside specialized area of expertise”?
– Constitutional question re: separation of powers
– “true jurisdiction”
4. Expertise
Including expertise in interpreting home statute
Standard standard applied
1. Privative
–
Yes! (“every order is final”)
2. Purpose of tribunal in light of act
–
“time- and cost-effective”; better than courts—replaced
courts
3. Nature of question
–
“The nature of the legal question is not one that is of
central importance to the legal system and outside the
specialized expertise of the adjudicator.” Done.
4. Expertise
–
Yes, and lots of it (Gold Standard: Labour!)
•
•
Interpreting collective agreements, keeping the industrial peace,
harmony
Therefore: reasonableness
Standard applied
• Was the Adjudicator’s Interpretation Unreasonable?
– Yes
• “deeply flawed,” “fatally flawed,” no “reasonable interpretation”
supports “remov[ing] the employer’s right under contract law” to
fire with notice or pay in lieu thereof
– But not patently unreasonable? What’s the difference?
– Context, context, context (Willis, Willis, Willis)
• Unionized employees vs. non-unionized employees
– The former are covered by collective agreement, the latter aren’t;
instead, they’re subject to ordinary rules of contract, which give
employer the right fire an employee (a) for cause, (b) with notice, or (c)
with pay in lieu of notice
– Non-unionized employees also may file grievance, but only within the
framework of their contractual employment relationship; in this case,
Dunsmuir could challenge the reasonableness [!] of the notice he
received for purposes of the calculation of “pay in lieu of notice” under
option (c)
» again, assessing the reasonableness of reasonableness assessments
The Concurrers: Binnie
• Not holistic enough
– Not just tribunals: minister, board, public servant,
commission, elected council, etc etc etc
• Basic constraints (preliminary, procedural?)
1. Section 96, Constitution Act 1867
•
“obvious”
2. “True jurisdiction”?
• “simple”: “no one can exercise a power they do not possess”
• Deference for, and only for, interpretation and application of home
statute (and closely related statutes…)
3. Fair procedure = handmaiden of justice
•
•
“obvious”
But, administrators want to be fair too! “They share a belief in
the rule of law.”
Binnie 2
• Next: Outcome (substance)
– Standard standard
• Reasonableness standard presumption (presumption 1)
– An applicant urging the non-deferential "correctness" standard should be
required to demonstrate that the decision under review rests on an error in
the determination of a legal issue not confided (or which constitutionally could
not be confided) to the administrative decision maker to decide, whether in
relation to jurisdiction or the general law.
– Privative clause: Laskin, CJ: “What's wrong with these people [the judges],
can't they read?”
» Its existence should presumptively foreclose judicial review on the basis of
outcome on substantive grounds unless the applicant can show that the
clause, properly interpreted, permits it or there is some legal reason why
it cannot be given effect.
– Standard
• Reasonableness presumption (presumption 2)
– Not only reasonableness requirement is presumed (as opposed to
correctness) but also its satisfaction:
» “It should also be presumed, in accordance with the ordinary rules of
litigation, that the decision under review is reasonable until the
applicant shows otherwise.“
• Reasonableness, “properly interpreted”
– Deference to official (minister vs. ministerial delegate (Baker)) plus
deference to official’s exercise of discretion
Binnie 3
• What’s changed? Not so much…
• Then: Deference debate framed as choice among standards (i.e.,
standard standard)
• Now: Deference debate framed as choice within standard (i.e.,
standard)
• The result of today's decision may be like the bold innovations of
a traffic engineer that in the end do no more than shift rush hour
congestion from one road intersection to another without any
overall saving to motorists in time or expense.
– Redeployment of Disrespectometer
• Standard standard applied
– Reasonableness (“home turf”)
• Standard applied
– Unreasonable (“he stretched the law too far”)
The Concurrers: Deschamps
• Let’s get formalist!
• What’s the big deal? This is easy!
– Law (no deference; correctness) vs. fact/law and fact
(deference; reasonableness)
– Just like appellate review of lower court
• Who is (dis)respecting whom?
– App ct vs. “inferior,” ”lower” court = (app/inferior?) ct vs. administrator
– “reasonableness” no problem in other areas of law, so what’s
the problem here?
• Standard standard applied: correctness
– Common law issue, not interpretation of enabling statute
• Standard applied: incorrect
– Context, context, context! Interpretation “in vacuum”!
– Same result if reasonableness standard!
Next: Procedural Fairness
• History of Procedural Fairness
– Nicholson (79)
• Gloss (simple application of Ridge v. Baldwin):
– master-servant (contractual!)
– offices
» held at pleasure
» “offices where there must be cause for dismissal” (Nicholson)
• “less rigid approach to natural justice” …
– Knight v. Indian Head School Division (1990) (L'Heureux-Dubé, J.)
• Dismissal of director of education w/ contractual notice
– Procedural fairness? Yes: “strong statutory flavour”
• Public vs. private law
– State as private law party (Dicey?)
• the Crown = ordinary citizen, contracting with other ordinary citizens for
employment; no special protections for those ordinary citizens beyond private
law remedies under law of contract; no reinstatement
– But public law remedy isn’t (permanent) reinstatement, only requirement of termination
under certain procedure (e.g., Nicholson)
– Abandon distinction between contractual employees and office holder
• All employees are contractual
– With some exceptions: judges!, ministers of the Crown, “others who fulfill
constitutionally defined state roles”
In Dunsmuir’s case…
• Adjudicator erred in applying duty of fairness to
Dunsmuir
– But they changed the law, didn’t they?
• Distinction b/w office holder and contractual employee
“should be done away with”
• “[T]o the extent that the majority decision in Knight ignored
the important effect of a contract of employment, it should
not be followed.”
– Respect
• Habeas corpus: contrary to law at the time of decision…
• Adjudicator didn’t misapply the law, at the time
– Less disrespect: no “correction” of “error”
– More disrespect: overturn despite absence of error
Canada (HRC) v. Canada (AG) [“Mowat”]
[2011] 3 S.C.R. 471
•
•
•
•
LeBel (Dunsmuir) & Cromwell
Fired, sexual harassment HR complaint
HR Trib: 6 weeks
$5k (max, incl. interest), plus $47k legal costs
($196k request)
• Question: May HRC order payment of victim’s
legal costs under s. 53(2) HR Act: “any expenses
incurred by the victim as a result of the
discriminatory practice”?
Dunsmuir effect?
• Answers:
– HR Trib: yes; FC: yes
Dunsmuir
– FCA: no; SCC: no
• Approaches on judicial review:
– FC: “pragmatic & functional”
• Reasonableness simpliciter/(simply) reasonable
Dunsmuir
– FCA: “standard of review analysis”
• correctness/incorrect (but also unreasonable)
– SCC: “standard of review analysis”
• reasonableness/unreasonable
How it’s done
• Precedent re: HR Trib
– Deference on facts, not on law (citing Mossop)
– But: Dunsmuir changed things, “emphasis on deference”…so
• “Standard of Review Analysis”
– Differentiate among questions of law: no “sweeping them all
under the standard of correctness” allowed!
– Starting point: Deference, even on questions of law
• Exc: Jurisdiction: not here
• Exc: Central importance to legal system as a whole: not here
• Exc: Outside area of expertise: not here
– No “return to formalism”; costs “intextricably intertwined with mandate &
expertise” to make fact finding re: discrimination
– Therefore: deference, reasonableness
The Standard Applied
• Reasonable?
– Driedger: text in context
– Text:
• Maxim: presumed intent to avoid superfluous language
• Maxim: presumed intent to use word in technical sense (“costs” vs.
expenses)
– Context:
• Legislative history (incl. unenacted provisions!): active commission vs. legal
costs
• Commission doesn’t think legal costs are an option (otherwise they wouldn’t
have kept asking for them to be included in Act!)
• “parallel” provincial legislation (not always helpful, but in this case…)
– Purpose:
• Can’t “supplant” textual/contextual analysis
• Policy change: HRC stops taking cases in 2003…but no provision for
costs…suggestion of “clinic-type assistance” not adopted
– Text, Context, Purpose all point one way; only “dictionary meaning of
‘expenses” used by HR Trib points in the other
• Verdict: Unreasonable, not just incorrect
HR Tribunal’s Response
Thank you very much for the deference!
CICB: Ahmed, Ont. Sup. Ct. ‘08
• Facts:
– Applicant: brain injury, cane, comprehension difficulty
– Fights with parking enforcement officer; damages car with
cane
• Arrested & taken to station: charged with mischief, assault w/ weapon,
possession of weapon…
– prosecution stays charges…
• Excessive force: handcuffed, kicked, head banged against road, …
– Files complaint with police; rejected; no criminal charges vs. police
– Files CICB application
• CICB refuses to issue application
– “In the absence of charges, it is assumed that the officers were acting in
accordance with the commission of their duties.”
– “The Board does not have sufficient
credible evidence to establish that the arresting
officers assaulted Mr. Ahmed, or that they were
acting outside the boundaries of their law
enforcement duties.”
Compensation for Victims of Crime Act
5. Where any person is injured or killed by any act or omission in Ontario of any other person
occurring in or resulting from,
(a) the commission of a crime of violence constituting an offence against the Criminal Code
(Canada), including poisoning, arson, criminal negligence and an offence under section 86 of
that Act but not including an offence involving the use or operation of a motor vehicle other
than assault by means of a motor vehicle; …
the Board, on application therefore, may make an order that it, in its discretion exercised in
accordance with this Act, considers proper for the payment of compensation to,
(d) the victim; ...
8. [Where an application is made under s. 5,] "the chair of the Board shall refer the application"
for a hearing.
16(1) An order for compensation may be made whether or not any person is prosecuted for or
convicted of the offence giving rise to the injury or death ….
Rules of Procedure (pursuant to the Statutory Procedure Act)
1.7 Refuse to Issue or Accept an Application
The Board, in exercising its discretion, may refuse to issue an application for compensation or
may refuse to accept an application for compensation under its Act, on the grounds that:
the applicant has failed to raise any issue which is within the jurisdiction of the Board under the
Act;
the applicant has failed to disclose a claim under the Act;
the Act does not apply to the subject matter raised in the application.
An applicant who disagrees with the decision of the Board to issue or accept an application may
ask the Board to review the application, in which case the chair, vice-chair, or appointed
member of the Board shall decide whether to accept the application or refuse it.
Tribunal Self-government:
Statutory Procedure Act
Control of process
25.0.1 A tribunal has the power to determine its own
procedures and practices and may for that purpose,
(a) make orders with respect to the procedures and
practices that apply in any particular proceeding; and
(b) establish rules under section 25.1.
25.1 (1) A tribunal may make rules governing the
practice and procedure before it.
Standard of review, or not…
Although neither of the parties directly address the
question of the standard of review [!!!] we note that in
Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9 the
Supreme Court held that deference will usually apply
to questions of discretion and to questions where the
legal and factual issues are intertwined and cannot
easily be separated [!!!]. However, in Gismondi v.
Ontario (Human Rights Commission), [2003] O.J. No.
419 (Div. Ct.) this Court held that where a tribunal's
decision is attacked on the basis of a denial of natural
justice, it is not necessary for the Court to engage in an
assessment of the standard of review [!!!].
Natural Justice? Procedural Fairness?
In declining to provide an application form because no charges were brought against the police officers in
relation to the incident, the Board ignores the specific provisions of s. 16(1) of the Act. [substance?]
Further, in stating that the Board "does not have sufficient credible evidence to establish that the arresting
officers assaulted Mr. Ahmed" the Board created for itself an evidentiary standard which does not exist
in rule 1.7. That rule makes no reference to credible evidence but simply to the disclosure of a claim
within the jurisdiction of the Board. [self-government?]
By its somewhat baffling insistence on "credible evidence" the Board must be taken to have determined that
the facts put before it by the applicant's counsel cannot be proved. Nowhere can I find authority in the
enabling legislation or the rules for that degree of pre-judgment…. [pre-judice? bias?]
It must also be noted that rule 1.8 and 1.8.1 of the Board's Rules of Procedure enabled the Board to dismiss
an application without a hearing upon notice to the applicant who may make submissions opposing the
intention to dismiss. The applicant's counsel concedes that power exists and may well be exercised in
this case. I accept his submission however that the power to dismiss without a hearing can only be
exercised after considering the application…. [what’s the point? efficiency?]
Regrettably, what permeates this decision of the Board is the suggestion that police officers act within the
scope of their authority when making arrests, and that therefore their conduct is to be considered in a
manner differently than that which applies to other persons. It is to be noted that s. 5 of the Act
commences with the phrase "where any person is killed or injured by any act or commission in Ontario
of any other person ..." resulting from the commission of a crime of violence that constitutes an offence
under the Code, the Board may order compensation. The phrase "other than a police officer" so as to
modify "any other person" is nowhere to be found. [substance?]
I therefore conclude that by prejudging the merits of the applicant's claim under the guise of its gate keeping
function set out in rule 1.7(1) and refusing to issue an application, the Board has denied to the applicant
procedural fairness. [substance in the guise of procedure? review of substance…?]