Brian M. Campbell
April 2003
Judicial Intervention in Administrative Decision Making
Introduction
1.
Judicial review in Canada today in characterized by a high degree of deference accorded
administrative decisions by the courts whether such decisions are made by tribunals or by
policymakers. The Supreme Court of Canada (“SCC”) has, not surprisingly, led the way.
However lower courts, country wide, appear to have adopted a much less principled or coherent
approach to judicial review than has the SCC, notwithstanding efforts of the SCC to articulate
the appropriate analytical framework as well as the standards of review.
2.
The reason for the high degree of deference that all levels of the court show towards
judicial review of administrative decisions is that there exists in Canada a highly developed sense
of the fundamental importance of the separation of power between the executive branch of
government and the judiciary. To the extent that administrative decisions are considered to be
decisions involving executive policymaking, the courts accord them significant deference. The
SCC in turn has developed a sophisticated analytical framework which analyzes judicial review
within the context of the deference which is already accorded such decisions.
3.
From quasi-judicial tribunals which make decisions within a sophisticated statutory and
procedural framework, to policymakers, whether they be Ministers or their delegates, who make
policy decisions in the public interest, judicial intervention is marked by deference towards the
decision itself because the SCC and indeed all the courts, have determined that the decision
makers are, in effect, carrying out executive policy under the auspices of a democratically
elected legislature.
4.
To the extent that judicial review occurs, it covers the spectrum from complete deference
(the matter is not justiciable) in the case of the Cabinet determining a polycentric issue on the
basis of public interest, to intervention where a decision may be subject to procedural fairness
and the rights and interests of individuals are at stake.
5.
The cases I will review reveal that there is a tension running through all levels of the
courts regarding judicial review wherein the courts oscillate between intervention on the one
hand and deference on the other as regards the extent to which they will intervene. I will analyze
several administrative type decisions that were reviewed by the SCC and lower courts in an
effort to demonstrate the competing strands which define the scope of judicial review to ascertain
if there exists an overall framework within which judicial review operates.
Thesis
6.
This paper will demonstrate how certain SCC and lower court decisions have wrestled
with the competing doctrines of intervention and deference. The conclusion reached is that the
SCC appears to have articulated a coherent philosophy as to how to review decisions, whether
policy in nature or quasi-judicial, in a way that can be predicted. The lower courts have not been
nearly as coherent. The piecemeal approach of the lower courts, however, does not stray far
from the overriding theme in Canada which is that the courts do not feel compelled to act as a
-2check on the exercise of executive power, which is left to the legislature and the public through
the elective process.
7.
My conclusion is that the SCC and the lower courts are reluctant to interfere with the
operation of government by policymakers or administrative tribunals and the courts will only
intervene if such decisions and policies are patently unreasonable or fail to take into account
fundamental values prevalent in a Canadian society.
Organization
8.
The landmark decision from which this analysis will flow is the 1999 Supreme Court of
Canada decision in Baker v. Canada1 which reaches back to the themes found in Roncarelli v.
Duplessis2, wherein the SCC in its review of a decision by Quebec Premier Duplessis intervened
to overturn the Premier’s decision to deny a liquor license, thereby beginning a chapter in
Canadian judicial history in which decisions of policymakers, such as Ministers and their
delegates could be subject to judicial review, in the same way as decisions of administrative
tribunals.
9.
In the subsequent SCC cases of Suresh3 and Mount Sinai4 it appears as though the SCC
has consolidated a more active and interventionist approach to judicial review, particularly of
decision making by Ministers or their delegates, thereby expanding on the theme set out in the
Baker case.
10.
However in my view the gains, if you will, that were made in Baker, Suresh and Mount
Sinai are to some extent offset by the more recent SCC decision in OceanPort decided in 2002
and I will deal with that case as a counterpoint to Baker. The OceanPort5 case squarely
articulated the countervailing opinion that administrative decisions are decisions of the executive
branch and should generally be accorded considerable deference.
11.
The case of Lalonde6 an Ontario Court of Appeal decision I see as an anomaly because
although it concerned judicial review of a decision made pursuant to Ontario’s “Common Sense
Revolution” in which the decision was reversed, most other such challenges failed because the
Ontario courts were not prepared to overturn decisions involving the making of public policy
carried out in the public interest. Having said that, LaLonde appears to have followed the Baker
trend towards greater judicial intervention.
12.
Lastly, the BearHunt7 case appears to re-establish the OceanPort theory of judicial
deference. It appears to me that, although the courts can intervene, that they do so reluctantly,
and only after acknowledging the high degree of deference to which all such administrative
decisions are initially entitled.
1
2
3
4
5
6
7
Baker v. Canada (Minister of Citizenship and Immigration) (1999) 2 S.C.R. 817
Roncarelli v. Duplessis [1959] S.C.R. 121
Suresh v. Canada (Minister of Citizenship and Immigration) (S.C.C. January 2, 2002)
Mount Sinai Hospital Centre v. Quebec (Ministry of Health and Social Services) [2001] 2 S.C.R. 281
OceanPort Hotel Ltd. v. British Columbia [2001] 2. S.C.R. 781
LaLonde v. Hospital Services Restructuring Commission (December 2, 2001) Ont. C.A.
Ontario Federation of Anglers & Hunters v. Ontario (2002) Ont. C.A.
-313.
The analysis of the above cases leads me to believe that the courts, whether it be the SCC
or the lower courts, generally speaking, will intervene and overturn decisions of administrative
tribunals or policymakers only if individual interests are specifically brought into play and where
such decisions are seen as patently unreasonable. On the other hand poly-centrist decisions
made by a Cabinets, Ministers or their delegates made in the public interest, receive considerable
judicial deference, even to the extent that the courts will often determine that there exists nothing
justiciable to review.
Conclusion
14.
My conclusion is that the Canadian courts do not see their role as protecting the public
against the executive branch of the government, except when the decision clearly exceeds the
provisions of statute which gave rise to the right to make the decision and/or violates provisions
of the Constitution Act (1867), the Charter of Rights and Freedoms or the fundamental values of
Canadian society.
15.
The SCC sees Parliament and the provincial legislatures as the harbingers of protection
against executive or administrative excesses and will only step in where it believes that a legal
issue has arisen which is not within the realm of morality or politics, because such issues are best
left to the elective process.
16.
Unless a court can find legal wrongdoing it will not interfere with the exercise of
executive or legislative power exercised according to the provisions of a statute in the public
interest.
17.
The courts do not see administrative tribunals as extensions of the courts and
policymakers as being required to operate under tight controls from the courts. Rather, these
entities are seen as extensions of the executive branch of government and their decisions, for the
most part, are beyond the scope of what courts can or should review or control.
18.
Indeed it may be argued in the last analysis that the courts, because of the deference that
they show to administrative decision making, act as an adjunct to the exercise of executive
power. Members of the Federal Court, provincial superior courts and the SCC are appointed by
the Federal Cabinet and as such, they do not view themselves as a check on the executive, but
rather they believe in a strong central government with the executive and the legislature subject
to elective rather than judicial control.
19.
Therefore the courts to a certain extent protect or insulate the executive from judicial
scrutiny because it is presumed that the democratically elected institutions of the legislature and
the executive will ultimately be answerable to the public they serve through elections.
The Analysis
20.
In Baker v. Canada, supra a Jamaican born woman with four Canadian born children was
ordered deported from Canada, but applied for an exemption from deportation pursuant to the
provisions of the Immigration Act on humanitarian and compassionate grounds. A senior
immigration official ruled that there were insufficient grounds for her to stay, but in doing so
provided no reasons. The decision was appealed to the Trial Division of the Federal Court of
-4Appeal where the appeal failed; thereafter it was appealed to the Supreme Court of Canada
where the appeal was allowed.
21.
In Baker the SCC reviewed the constituent elements which define the duty of fairness as
follows:
(a)
the nature of the decision being made (was the decision made in a tribunal setting
or by a person not subject to quasi-judicial procedures);
(b)
the terms of the statute pursuant to which the decision maker operated;
(c)
the importance of the decision upon the individual affected;
(d)
the legitimate expectations of the person challenging the decision regarding open
procedures; and
(e)
the choice of procedure made by the agency itself.
On the basis of an analysis of these considerations the SCC determined there was an
inadequate procedural process available to Baker, in that no reasons were given for the decision
and the decision was based on irrelevant criteria. As such, the SCC determined there was a
reasonable apprehension of bias and because of the absence of reasons and the lack of procedural
safeguards the decision was struck down and remitted back for reconsideration.
22.
More importantly, the case considered and analyzed the process of discretionary decision
making, in general, and determined that a principled approach should apply to judicial review of
all administrative decisions, whether they be decisions of administrative tribunals or policy
decisions made by Ministers or line officials.
23.
Madam Justice L’Heureux-Dubé at paragraph 53 of the Baker decision articulated a
modern analytical model for determining how and when to review administrative decisions
whether quasi-judicial or policy oriented as follows:
“Administrative law has traditionally approached the review of decisions
classified as discretionary separately from those seen as involving the
interpretation of rules of law. The rule has been that decisions classified as
discretionary may only be reviewed on limited grounds such as the bad faith of
the decision makers, the exercise of discretion for an improper purpose and the
use of irrelevant considerations … those doctrines incorporated two central ideas
– that discretionary decisions … must be made within the bounds of the
jurisdiction conferred by the statute, but that considerable deference will be given
to decision makers by courts in reviewing the exercise of that discretion …it is
necessary … to consider the approach to judicial review of administrative
discretion taking into account the “pragmatic and functional approach”.”8
24.
At paragraph 55 L’Heureux-Dubé elaborates upon the pragmatic and functional approach
as follows:
“The pragmatic and functional approach recognizes that the standards of review
for errors of law are appropriately seen as a spectrum with certain decisions being
entitled to more deference and others entitled to less … three standards of review
have been defined: patent unreasonableness, reasonableness simpliciter and
correctness … In my opinion the standard of review of the substantive aspects of
8
Baker v. Canada, supra, para. 53
-5discretionary decisions is best approached within this framework especially given
the difficulty in making rigid classifications between discretionary and nondiscretionary decisions. The pragmatic and functional approach takes into
account considerations such as the expertise of the Tribunal, the nature of the
decision being made, the language of the statutory provision … whether a
decision is polycentric and the intention revealed by the statutory language.”9
25.
In other words the SCC brought the review of abuse of discretion in the exercise of
Ministerial authority within the pragmatic and functional approach so characteristic of the
judicial review of administrative tribunal decisions.10
26.
I concur with the views of David Mullan regarding his analysis of the decision of
L’Heureux-Dubé in Baker, when he states about Baker as follows:
“In delivering the majority judgment L’Heureux-Dubé specifically takes on the
task left unfinished by Dixon, J. in the formulation of his theory of deference in
New Brunswick Liquor being the reconciliation of the theory of review for abuse
of discretion with the theory of review for jurisdictional infirmities and error of
law, normally associated with tribunal or agency decision making. Her solution is
to bring review for abuse of discretionary powers under the umbrella of the
“pragmatic and functional” approach to discerning the scope for judicial review
which is now standard fair in the case of administrative tribunals.”11
27.
Therefore within the analytical framework of the “pragmatic and functional” approach,
the SCC after Baker would now look at the nature of the power exercised, to whom the power is
conferred, the language of conferral in the statute and the presence or absence of a privative
clause or a right of appeal, in order to determine whether the appropriate standard of review
would be that of correctness, unreasonableness or patent unreasonableness.
28.
This pragmatic and functional approach when applied as it was to the facts in the Baker
case resulted in the SCC determining that the standard of review in that case was reasonableness.
L’Heureux-Dubé weighed the factors of the decision maker being the Minister, the discretionary
language found in the Act itself, the absence of a privative clause, the right of judicial review, the
individual rather than the polycentric nature of the decision, and, when balancing these factors,
determined the appropriate standard of review, to be reasonableness.
29.
Whereas the discretionary language of the Act, and the fact that the decision was that of a
Minister called for deference, the individual nature of the decision and its impact on the interests
of Baker called for more intervention.
30.
Once the standard was so selected, then on the facts of the case L’Heureux-Dubé
determined the immigration officer in the absence of procedural safeguards had dismissed the
interests of the children which interests were a fundamental value of a Canadian society;
9
Baker v. Canada, supra, para. 55
The Role of the Judiciary in the Review of Administrative Policy Decisions, David Mullan, March 24, 2002,
page 483
11
The Role of the Judiciary in the Review of Administrative Policy Decisions, David Mullan, march 24, 2002,
page 505
10
-6therefore the decision amounted to an unreasonable exercise of discretion which was inconsistent
with the values underlying the grant of the decision, sufficient to overturn it.
31.
In my view this may be the high water mark of intervention by the Supreme Court of
Canada because, although it attempts to apply the type of analysis to discretionary decisions
hitherto restricted to tribunals making quasi-judicial decisions, it looked beyond the enabling
statute, the Minister and even the individual affected, to underlying international legal norms, in
that the rights of the children were paramount when determining validity of the decision. As
such Baker added a further dimension to the task of determining which values or interests are
worthy of heightened respect in the judicial evaluation of the exercise of policy making
powers.12
32.
The significance of Baker is not the actual decision itself, but the bringing of the concept
of review of abuses of discretion within the “pragmatic and functional” approach previously
associated with error of law and jurisdictional review of administrative tribunal decisions. In
addition it adds to the list of factors considered by a Court in evaluating the exercise of
discretion, to include ministerial guidelines, unratified treaties and the fundamental values of the
Canadian society, which would thereafter augment the normal considerations of constitutional
norms, principles of administrative law, the Rule of Law and the Charter of Rights and Freedoms
as sources which are external to the relevant statute, and which may be called in aid of
controlling or policing the exercise of discretionary power.13
33.
However, Baker focused upon specific individual interests and involved individual rights
in relation to government activity rather than balancing the interests of various constituents and
mediating between them. This may explain why the court was able to overturn the decision on
review more readily than would otherwise have been the case.
34.
Although Baker suggests that the SCC may be prepared to intervene in certain
circumstances, in my view the intervention did not necessarily extend the scope of intervention
so much as it confirmed that, if a decision in which individual rights and interests are at issue,
and the decision is unreasonable because it is based upon bad faith, irrelevant considerations or
made for improper purposes, then the decision will be overturned.
35.
In my view the most interesting aspect of the decision was that the standard of review
was not that of patent unreasonableness. On the facts of the case it could have been argued that
the decision was patently unreasonable as opposed to unreasonable and the distinction between
these two standards of review is certainly not made clear in this decision and indeed is not made
particularly clear until the very recent SCC decision of Dr. Q14 released in April 2003 which I
will discuss later.
The OceanPort Hotel Case
36.
Having reviewed Baker as the high water mark of the interventionist approach to judicial
review of administrative decision making, the more recent case of OceanPort Hotel15
12
13
14
15
David Mullan, supra, page 523
David Mullan, supra, page 527
Dr. Q v. The College of Physicians and Surgeons of British Columbia (2003) S.C.J. No. 18
OceanPort, supra, note 5
-7(September 14, 2001) suggests that a more constrained and deferential approach to judicial
review of administrative decision making may either prevail or act as a countervailing theme on
the part of the SCC with respect to the degree of deference that the courts will give to judicial
review of administrative decisions.
37.
The facts of OceanPort are as follows:
(a)
an inspector of the liquor licensing branch of the Liquor Control Board of British
Columbia alleged that the hotel in question had violated certain liquor regulations
and these infractions were appealed to the Liquor Appeal Tribunal, which
Tribunal upheld the infractions. However the Tribunal members who served only
at the pleasure of the province were thought to lack independence and therefore
the decision was appealed to the SCC on the basis of the absence of the necessary
independence required of decision makers imposing penalties of this type.
Although the Court of Appeal of British Columbia determined that the
administrative tribunal was entitled to statutory independence, the SCC ruled to
the contrary.
38.
The case makes a number of pronouncements regarding judicial review of administrative
tribunals and the degree of independence they actually enjoy. It stands for the proposition that
the degree of independence accorded a particular decision maker or tribunal is determined
specifically by its enabling statute and that a court should not look beyond such legislation. The
degree of independence required of tribunal members may be ousted by the express language of
the enabling legislation because there exists a fundamental distinction between administrative
tribunals and courts of law.
39.
Administrative tribunals lack any constitutional distinction from the executive, as
opposed to courts, and such tribunals are created for the purpose of implementing government or
executive policy. Even though implementation of policy may require tribunals to make quasijudicial decisions, because their function is primarily policymaking, it is the role and
responsibility of Parliament not the courts to determine the composition and structure of such
bodies. In the case of the B.C. Liquor Appeal Tribunal, it carried out a licensing function and
this function fell clearly within the executive power of the federal government.
40.
Chief Justice McLaughlin states as follows at paragraph 22 in OceanPort:
“Ultimately it is Parliament or the legislature that determines the nature of a
tribunal’s relationship to the executive. It is not open to a court to apply a
common law rule in the face of clear statutory discretion. Courts engaged in
judicial review of administrative decisions must defer to the legislature’s intention
in assessing the degree of independence required of the tribunal in question.”16
41.
At paragraph 23 the Chief Justice continues as follows:
“This principle reflects the fundamental distinction between administrative
tribunals and courts. Superior courts by virtue of their role as courts of inherent
jurisdiction are constitutionally required to possess objective guarantees of both
individual and institutional independence.”17
16
OceanPort, supra, note 5, para. 22
OceanPort, supra, note 5, para 23
17
-842.
According to OceanPort this is not so with respect to administrative tribunals even if they
look and act like courts of law and make serious judicial type decisions affecting both
individuals and other entities. These tribunals, no matter how sophisticated or how judicial or
quasi-judicial in appearance, and no matter how extensive their rules of practice may be, or how
serious the implications of their decisions, or whether or not there are rights of appeal, are not
independent courts, but rather extensions of the executive and as such they must be accorded
deference by the courts when seeking to review their decisions.
43.
At paragraph 24 of OceanPort the Chief Justice makes a statement that appears to
substantially circumscribe the degree of judicial review possible with respect to the decisions of
administrative tribunals, quite apart from review of the decisions of policymakers, when she
states as follows:
“Administrative tribunals lack this constitutional distinction from the executive.
They are in fact created precisely for the purpose of implementing government
policy. Implementation of that policy may require them to make quasi-judicial
decisions. They thus may be seen as spanning the constitutional divide between
the executive and judicial branches of government. However given their primary
policy making function, it is properly the role and responsibility of parliament and
the legislatures to determine the composition and structure required by a tribunal
to discharge the responsibilities bestowed upon it … the degree of independence
required of a particular tribunal is a matter of discerning the intention of
parliament or the legislature and, absent constitutional constraints, this choice
must be respected.” (emphasis added)18
44.
The SCC determined that administrative tribunals are not entitled to constitutional
independence like courts and the Chief Justice in quoting from Lamer J. in the Provincial Court
Justice’s Reference case, it states at para. 32 as follows:
“Lamer, C.J. also supported his conclusion with reference to the tradition between
the executive, the legislature and the judiciary. The preservation of this tripartite
constitutional structure, he argued, requires a constitutional guarantee of an
independent judiciary. The classical division between court and state does not,
however, compel the same conclusion in relation to the independence of
administrative tribunals. As discussed, such tribunals spanned the constitutional
divide between the judiciary and the executive. While they may possess
adjudicative functions they ultimately operate as part of the executive branch of
the government under the mandate of the legislature. They are not courts and do
not occupy the same constitutional role as courts.”19
45.
Therefore the SCC determined the exercise of power by the Liquor Appeal Tribunal in
the OceanPort case was not that of an independent court or judiciary, but rather, an exercise of
executive power of the provincial government, therefore subject to modest judicial scrutiny and a
maximum of deference, in the sense that the composition of its members may not be independent
from the government, because the statute permitted such selection of these members and after all,
18
19
OceanPort, supra, note 5, para. 24
OceanPort, supra, note 5, para. 32
-9these members were merely implementing government policy rather than making an independent
judicial decision.
46.
In their article “Tribunal Independence and Impartiality” Messrs. Jacobs and Kuttner in
analyzing OceanPort, refer back to A.V. Dicey’s “Law of the Constitution” when they state as
follows:
“The insistence of Chief Justice McLaughlin in OceanPort that where the
integrity of an administrative tribunal is challenged for lack of independence,
legislative intent is critical to any judicial determination, is nothing other than the
articulation of the correct relationship between … two guiding principles. The
Rule of Law doctrine teaches that the common law must give way to the
Sovereignty of Parliament where in the eyes of the court, it has manifested its
intention to that effect.”20
47.
In my view, what this means is that the decisions of administrative tribunals are treated
only slightly different from those of straight policy makers in that they are both seen as
functionaries of the executive branch of government and therefore judicial review of their
decisions are accorded considerable deference, because whether it be a tribunal or a Minister,
they are both involved in making policy decisions, in accordance with the specific provisions of
the enabling statute.
48.
Mr. Justice Sharpe and Shirley Margolis in their article on judicial and tribunal
independence, analyzed the OceanPort decision in considerable detail and conclude that
“while the sources of judicial independence are constitutional, the primary source
of tribunal independence is the common law principle of natural justice … neither
the Constitution Act 1867 nor the Charter provides guarantees of tribunal
independence”.21
49.
In my view in order to understand the OceanPort decision one must appreciate that the
British Columbia Court of Appeal held that the ultimate decision to suspend a liquor license due
to a breach of the Act “closely resembles a judicial decision”. Therefore the BCCA determined
that the rule of procedural fairness must approach that of a court. Since the Board was not
financially independent and did not have security of tenure then its decision, according to the
British Columbia Court of Appeal, had to be set aside.
50.
Conversely the Supreme Court of Canada reversed this decision by stating that in the
absence of a constitutional challenge “a statutory regime prevails over common law principles of
natural justice”. The SCC held as follows regarding natural justice:
“Like all principles of natural justice, the degree of independence required
of tribunal members may be ousted by express statutory language or necessary
implication … ultimately it is parliament or the legislature that determines the
nature of a tribunal’s relationship to the executive. It is not open to the court to
apply a common law rule in the face of clear statutory direction. Courts engaged
in judicial review of administrative decisions must defer to the legislature’s
20
Tribunal Independence and Impartiality, Jacobs and Hunger, page 5.
Therrien, OceanPort and the Doctrines of Judicial and Tribunal Independence (Sharpe and Margolis)
(SCLR) 16 SCLR 2d pg. 315.
21
-10intention in assessing the degree of independence required of the tribunal in
question.”22
51.
The SCC’s decision in OceanPort limits the doctrine of tribunal independence to the
common law principle of natural justice which itself is subject to legislative limitation. Katrina
Wyman23 suggests that the distinction between tribunal and judicial independence is justified on
two grounds as follows:
(a)
the distinct dispute resolution process of administrative tribunals, and
(b)
the limited constitutional role of administrative tribunals.
52.
For example, administrative tribunals are generally more specialized, flexible, efficient,
inexpensive and more informal than courts. Extending to such tribunals, judicial independence
would undermine the ability of governments to create tribunals to perform such dispute
resolution functions. Part-time, limited term, at pleasure appointments (which were at issue in
the OceanPort) have the advantage of diversity of membership, the ability to attract
participation, increase efficiency and decrease costs. This is required according to Katrina
Wyman when one understands that tribunal members and tribunals are part of the executive
branch of government and that they are performing delegated policy making functions.24
53.
In respect of the function of tribunals, only a few determine rights and freedoms under
the Charter and only a few deal with constitutional issues. In any event their constitutional
conclusions give rise to no curial deference. Therefore the primary non-constitutional role of
administrative tribunals warrants limited protection from tribunal independence.25
54.
Although some administrative tribunals closely resemble courts in both form and
function in that some tribunals have dispute resolution processes similar to courts, the fact is that
they do not warrant independence in that they are adjuncts to the exercise of executive power not
independent judicial bodies.
55.
In my view the OceanPort case re-emphasizes the separation of powers doctrine which
lies at the heart of the deference accorded by Canadian courts to administrative decisions.
Because tribunals and policymakers are part of the executive branches, the constraints on their
authority are determined by the statute in question and ultimately the legislature, and therefore
the public, rather than the courts.
Review of Cases Within the Baker and OceanPort Framework
56.
In this part I will analyze the Suresh, Mt. Sinai, LaLonde and BearHunt cases to ascertain
how the SCC and the lower courts have reacted to the Baker case at the interventionist end of the
spectrum, compared to OceanPort at the deference end of the spectrum; thereafter I will review
very recent authorities from the SCC and the Ontario Court of Appeal which suggest that the
SCC has now formalized an analytical framework as a specific guide to the lower courts in
determining how to properly review administrative decisions.
22
23
24
25
OceanPort, supra, note 5, para. __.
Therrien, OceanPort, supra, quoting from Katrina Wyman, page 331
Therrien/OceanPort, supra, page 332.
Therrien/OceanPort, supra, page 333.
-11Suresh v. Canada et al (2002) Supreme Court of Canada26
57.
Suresh was a convention refugee from Sri Lanka who applied for landed immigrant status
in Canada. A deportation certificate was confirmed by the Federal Court on the basis that he
belonged to a terrorist organization in Sri Lanka and he was ordered deported even though he
might be subject to torture in Sri Lanka. Suresh applied for judicial review on the basis he had
never seen the immigration officer’s notes, as well as on humanitarian and compassionate
grounds; on appeal to SCC ruled that Suresh was entitled to a new deportation hearing on the
basis that the decision was patently unreasonable.
58.
It was determined by the SCC that Suresh was entitled to procedural fairness in the sense
of knowing the case he had to meet, which information had been denied to him. By denying to
Suresh procedural fairness and by making a decision which considered irrelevant factors, the
Minister’s decision was deemed by the SCC to be patently unreasonable, in the sense that it was
made arbitrarily, and could not be supported by the evidence. In addition, the Minister in
question failed to consider relevant factors such as the fact that if Suresh was deported, he may
be subject to torture.
59.
In my view this case follows the reasoning in Baker, and is comparable to it because it
involved a consideration of individual rights and interests being determined by the Minister of
Immigration, as opposed to a more polycentric decision involving the weighing of competing
interests affecting large numbers of people. Baker concerned the possible deportation of Baker
while Suresh concerned the possible deportation of Suresh, with adverse consequences to each,
individually, if such occurred. In these circumstances the courts analysis focused upon
procedural fairness. Although there is an effort to prescribe a principled approach to the
analysis, in my view the Court did not want to deport Suresh to torture any more than it wanted
to deport Baker to Jamaica and leave her four children destitute in Canada.
60.
Whereas Baker deals thoroughly with the concept of procedural fairness before analyzing
the appropriate standard of review, in the Suresh case the SCC begins with the issue of the
appropriate standard of review.
61.
To that end Suresh looks at the factors which determine the appropriate standard of
review as follows:
(a)
does the statute grant a right of appeal or does it contain a privative clause,
(b)
what is the relative expertise of the Minister as decision maker as compared to the
Court,
(c)
what is the purpose of the legislation which requires the humanitarian balancing
of various interests, and
(d)
what is the nature of the case; is it fact driven, mixed fact and law or is it a
question of law alone?
62.
The SCC states at paragraphs 34 and 35 of the decision as follows:
“… the weighing of irrelevant factors is not the function of a court reviewing the
exercise of ministerial discretion … the court’s recent decision in Baker, supra did
not depart from this view. Rather, it confirmed that the pragmatic and functional
approach should be applied to all types of administrative decisions in recognition
26
Suresh v. Canada, supra, note 3.
-12of the fact that a uniform approach to the determination of the proper standard of
review is27 preferable …”
63.
In my view the logic applied by the SCC in this case is suspect in the sense that, the
initial question of characterizing the decision as one requiring considerable deference, because it
is a Minister’s decision, is the important one, whereas the standard of review is somewhat
secondary.
64.
I see no strong argument for applying reasonableness as the standard of review in Baker,
while applying the patent unreasonableness standard in Suresh. In my view the SCC could have
chosen either standard in each case and arrived at the same result. What is of importance in
Suresh is that the court considered the possibility of Suresh being deported to torture, much like
it considered the interests of the children in Baker, should she be deported. In Baker, ignoring
the interests of the children did not comport with international treaties to which Canada
subscribed, and in Suresh, deporting to torture offended the provisions of section 7 of the Charter
wherein a person is entitled to life, liberty and security of person and as such, the person should
not be deprived of these rights except in accordance with the principles of fundamental justice.
65.
Like Baker, Suresh has an international flavour as indicated by the court’s
pronouncements at paragraph 46:
“The enquiry into the principles of fundamental justice is informed not only by
Canadian experience and juris prudence, but also by international law ... this takes
into account Canada’s international obligations and values as expressed in the
various sources of international human rights law, declarations, covenants,
conventions, judicial and quasi-judicial decisions of international tribunals and
customary norms.”28
66.
The Baker and Suresh cases may be seen as attempts by the SCC to unify charter law,
administrative law and international law through the unifying doctrine of reasonableness. In
both Baker and Suresh there was a concern for procedural safeguards, in that neither Baker nor
Suresh received the opportunity to refute the decision of the Minister in an adequate way and
therefore both were denied procedural fairness or due process which was required when dealing
with the individual interests of these people.
The Mt. Sinai Case29
67.
The Mt. Sinai case reflects, in my view, how the SCC tends to be deferential in some
areas of administrative decision making, while being interventionist in others. The SCC
intervened in Baker and Suresh but was extremely deferential in the OceanPort case. The Mt.
Sinai case demonstrates the policy considerations with which the SCC wrestles in an effort to
determine the degree of intervention which is appropriate in respect of judicial review of
administrative decisions, particularly when they affect a single individual or entity, and where
there has been no due process.
27
28
29
Suresh v. Canada, supra, note 3, para. 34, 35.
Suresh v. Canada, supra, note 3, para. 46.
Mount Sinai et al, supra, note 4.
-1368.
In this case the Minister of Health and Social Services changed his mind about issuing a
hospital permit in circumstances where it had been promised for seven years by previous
Ministers, leading the Mount Sinai Hospital to relocate its premises, only to have the decision to
grant the permit reversed without reasons or notice to the hospital or the opportunity for the
hospital to respond.
69.
For the SCC this was a case where the Minister was supposedly making a decision he
was in the best position to make, in the public interest and therefore gave rise to a considerable
amount of judicial deference. The Court stated that decisions of Ministers of the Crown in the
exercise of discretionary powers in the administrative context should generally be reviewable
only on a standard of patent unreasonableness.
70.
The broad regulatory purpose of the permit in the context of the legislation designed to
regulate the provisions of health services “in the public interest” favoured a high degree of
deference as did the expertise of the Minister and his advisors. The exercise of the power turned
on the Minister’s appreciation of the public interest which was a function of the operation of
public policy in its fullest sense. Here it was determined the Minister’s decision to refuse the
permit was patently unreasonable in terms of the public interest as it had been defined for the
past seven years by the minister’s predecessors.
71.
Mr. Justice Binnie states at paragraphs 18 through 21 of the judgment as follows:
“18. If the respondents did not have a right to a modified permit they nevertheless
had a direct financial interest in the outcome of their application sufficient to
trigger the duty of procedural fairness … this court has affirmed that there is as a
general common law principle a duty of procedural fairness lying on every public
authority making an administrative decision which is not of a legislative nature
and which effects the rights, privileges or interests of an individual …”30
“19. The respondents were entitled to procedural fairness … “
“20. Once triggered, the content of procedural fairness is generally a function of
(1) the nature of the decision to be made, (2) the relationship between the decision
maker and the individual, and (3) the effect of the decision on the individual’s
rights.”
“21. Even minimal procedural fairness was not extended to the respondents in
this case. They had no notice that the minister was about to reverse his position
or the reasons for the reversal, and no opportunity to present argument as to why
the minister’s earlier and long-standing view that public interests favoured a
modified Mt. Sinai Hospital Centre should prevail.”
72.
The court refers to Baker and deals with the various standards of review, even asserting
that the case established that review of abuse of discretion may in principle range from
correctness through unreasonableness to patent unreasonableness.
30
Mount Sinai et al, supra, note 4, paras. 18 – 21.
-1473.
I question whether a decision of any Minister made in the exercise of his discretion in the
public interest would be overturned on the basis of incorrectness, given the SCC’s concern with
judicial deference, but it is clear when dealing with individual rights and interests (like Mt. Sinai
Hospital) the test will be unreasonableness or patent unreasonableness; in my view in such
circumstances the most often used standard is that of patent unreasonableness, because it marries
the concept of deference with the ability, on occasion, to intervene.
74.
The court at paragraph 63 sums up the situation as follows:
“In Canada, at least to date, the courts have taken the view that it is generally the
Minister who determines whether the public interest overrides or not. The courts
will intervene only if it is established that the Minister’s decision is patently
unreasonable in the sense of irrational or perverse … so gratuitous or oppressive
that no reasonable person would think it justified”.31
75.
Therefore when comparing Baker, Suresh and Mt. Sinai, each of these cases concerned
the interests and rights of individuals of a single entity directly, and this required a measure of
procedural fairness which included the right to reasons and to notice of the decision itself. To
the extent that the decisions or reasons were perverse or given without notice or the opportunity
to respond, procedural fairness was denied and the decisions overturned.
76.
The distinction from OceanPort is that in OceanPort the consequences of an adverse
decision were much less onerous on the individual, in that case, the hotel in question. In
OceanPort there was no need to look to the degree of procedural fairness accorded and no
requirement to deal with a standard of review because the decision was more polycentric, (the
enforcement of liquor laws) and less about the actual hotel. In addition in OceanPort the statute
provided for a hearing, and thus there was no need for the Court to look closely to see if
procedural safeguards applied.
The LaLonde Case32
77.
The fact that Canadian courts are reluctant to interfere in policymaking undertaken by the
Cabinets or Ministers or their delegated representatives was never more obvious than in the
many challenges in recent memory to the “Common Sense Revolution” implemented by the
conservative government in Ontario in the late 1990s. David Mullan argues that there is great
reluctance by Canadian courts to become involved in judicial review of the policymaking
process, and that this was exemplified in the failure of lawsuits launched to challenge the
aforesaid Common Sense Revolution.
78.
Although the Mt. Sinai case is a case where a Minister, acting in the public interest, made
a decision which was overturned on the basis of patent unreasonableness, such was not the case
regarding the majority of the efforts to challenge the decisions of the Health Services
Restructuring Commission (“HSRC”) implemented to carry out government policy regarding
hospital restructuring under the Common Sense Resolution in Ontario. As David Mullan states
in respect of the HSRC in Ontario:
“It had very broad powers to order the closure or amalgamation of any public
hospitals in the province … the only express statutory constraint on its powers
31
32
Mount Sinai et al, supra, note 4, para. 34.
LaLonde et al, supra, note 6.
-15was “the public interest”. This broad policy development role notwithstanding,
various attempts were made to set aside aspects of the Commission’s work on the
basis that it had taken into account irrelevant factors, failed to take account of
relevant factors, or made decisions or orders that were patently unreasonable. All
failed.”.33
79.
For our purposes the LaLonde case (Ontario Court of Appeal) which was such a
challenge to the Common Sense Revolution, succeeded because like Baker and Suresh, it looked
beyond administrative law principles and focused on the fact that French language minority
rights were protected or enshrined in the Constitution and that these rights and values could not
be ignored by the HSRC exercising administrative discretion in the public interest. In the
context of policymaking, wherein judicial deference is at its highest, the Court of Appeal was
prepared to review the decision because a fundamental value was at stake.
80.
At paragraph 176 the court quotes from David Mullan’s article Administrative Law
(2001) at page 114 as follows:
“The statutory conferral of the power to make a discretionary decision does not
immunize from judicial scrutiny the decision maker who ignores the fundamental
values of Canada’s legal order.”
81.
Again at page 176 the court quoted from Baker as follows:
“The possibility of the review of discretionary decisions on the basis of
fundamental Canadian constitutional and societal values is reinforced by the
Supreme Court of Canada’s decision in Baker.”
“Though discretionary decisions will generally be given considerable respect that
discretion must be exercised in accordance with the boundaries imposed by the
statute, the principles of the Rule of Law, the principles of Administrative Law,
the fundamental values of Canadian society and the principles of the Charter.”34
82.
At paragraph 179 the court in overturning the HSRC decision to close Montefort Hospital
and thereby deny Francophone medical services, compared the LaLonde case to the Baker
decision as follows:
“If the values of an international convention not adopted in statute by parliament
(regulating the rights of children in the Baker case) have a bearing on the validity
of the exercise of ministerial discretion, it must be the case that failure to take into
account a fundamental principle of the constitution (minority rights) when
purporting to act in the public interest, renders a discretionary decision subject to
judicial review.”35 (parenthesis added)
83.
What is significant about LaLonde is that the court did not deal at all with the principled
analysis set out by L’Heureux-Dubé in Baker regarding a “pragmatic and functional” approach
and did not deal with an analysis of the standard of review because it found as follows at
paragraph 186:
33
34
35
David Mullan, supra, page 515.
LaLonde et al, supra, note 6, para. 176.
LaLonde et al, supra, note 6, para. 186.
-16“In the circumstances, detailed consideration of the appropriate standard of
review is neither necessary nor appropriate as it is clear that the directions cannot
survive even the most deferential standard because the commission refused to
take into account or give any weight to Montefort’s broader institutional role.”36
84.
But for LaLonde and one or two other cases however, judicial challenges to the Common
Sense Revolution failed, because when the courts were faced with legislation creating extremely
broad discretion, the Ontario courts were resistant to attempts to persuade them to enter into the
merits of policy making. Generally speaking it was not for the courts to agree or disagree with
decisions of the HSRC, or consider the relevance or irrelevance of factors entering into such
decision making. The courts in Ontario were extremely reluctant to play a supervisory role over
bodies like the HSRC on which the legislature conferred broad policy making mandates.
85.
What distinguishes LaLonde is that, like Baker, it focused on preservation of a
fundamental value to overturn the decision, concern for which could not be overlooked by the
HSRC, in considering the public interest.
The Ontario Federation of Anglers and Hunters vs. The Minister of Natural Resources (the
BearHunt case)37
86.
The last case for consideration following from LaLonde is another Ontario Court of
Appeal decision which in my view returns to the OceanPort analysis of acknowledging extreme
deference to administrative decisions.
87.
In the BearHunt case the Minister of Natural Resources of Ontario announced he would
be canceling the spring black bear hunt in Ontario, and in so doing the passed an enabling
regulation to that effect, which regulation was challenged by the Anglers and Hunters Federation
of Ontario (AHF). The AHF accused the Minister of having been swayed by Premier Harris,
thereby considering improper or extraneous factors in deciding to cancel the hunt.
88.
The Ontario Court of Appeal ignored any principled analysis and did not deal with the
appropriate standard of review, on the basis that the decision was not justiciable.
89.
Paragraph 41 of the decision stated as follows:
“… judicial review of regulations as opposed to administrative decisions, is
usually restricted to the grounds that they are inconsistent with the purposes of the
statute … the motives of their promulgation are irrelevant.”
90.
At paragraph 49 the court further stated as follows:
“The wisdom of government policy through regulations is not a justiciable issue
unless it can be demonstrated that the regulation was made without authority or
raises constitutional issues. Neither is the case here. (emphasis added)
91.
And again at paragraph 57 the Court of Appeal states as follows:
36
LaLonde et al, supra, note 6, para. 179.
The BearHunt case, supra, note 7.
37
-17“There is, with respect, no merit in the underlying application in this case. No
justiciable constitutional issues are raised in the underlying application … and
even if the decision to cancel the spring BearHunt was made unilaterally by the
Premier, or if he directed the minister to cancel the hunt, or if the minister took
political expediency or humane hunting practices into account, none of these facts
would provide any justification for setting aside the regulation.”38
92.
In this case it is seen as was the case with most of the Common Sense Revolution
challenges, and as is confirmed in OceanPort, that considerable judicial deference was accorded
an administrative decision. The more the decision is politically motivated and polycentric in
nature the greater the deference, and the less likely the decision will be subject to any judicial
scrutiny.
93.
The exception is the Baker type of decision where the decision affects individual interests
which in turn requires a measure of procedural fairness. Only then will the courts consider
overturning the decision provided it falls within a certain category of unreasonableness or patent
unreasonableness.
94.
The review of Baker, Suresh and Mt. Sinai as compared to LaLonde and the BearHunt
case reveals in my view that the SCC is more sensitive to the articulation of an analytic
framework than the lower courts, and much more likely to take a principled approach. The
overriding consideration of deference is a common theme to all courts but the SCC is more likely
to be sensitive to a principled approach than are the lower courts.
95.
The lower court cases do not always determine which standard of review will be utilized.
When such a court does articulate a standard review, it appears that, whatever the standard
selected, it is likely to be a function of how the court wants to decide the case. In neither
LaLonde nor the BearHunt case was the Court of Appeal concerned with the “pragmatic and
functional” analysis nor the standard of review, nor issues of fairness all of which arose in Baker,
Suresh cases and Mount Sinai:
96.
These Court of Appeal cases are less vigorous in their analysis and prone to making a
determination to uphold or reject the administrative decision without a thorough analysis. In my
view the following cases are an attempt by the SCC to reverse this trend.
The Recent Case Law
97.
Judicial review of administrative decision making is in no way static or subject to
inflexible standards, but is rather a changing and developing theory of analysis and
interpretation. To this end I would like to refer to the following three recent cases: (a) The
U.S.A. et al v. Johnson (62 O.R). 3rd p. 327, Court of Appeal,39 (b) Dr. Q v. College of
Physicians and Surgeons of B.C. (SCC)40, and (c) The Law Society of New Brunswick v. Ryan41
(SCC), (April 3, 2003) which cases further develop and consolidate the themes of this paper.
38
39
40
41
The BearHunt case, supra, note 7, paras. 41, 49, 57.
The U.S.A. et al v. Johnson (620R) 3rd, pg. 327 (Ont. C.A.) December 12, 2002.
Dr. Q v. College of Physicians and Surgeons of British Columbia (SCC), supra, note 14.
The Law Society of New Brunswick v. Ryan (SCC) April 3, 2003.
-1898.
It is my contention that provincial Courts of Appeal in Canada do not apply the
comprehensive principled analysis to judicial review of administrative decisions which has been
adopted by the SCC since Baker in 1999. These very recent SCC decisions re-emphasize the
necessity for applying the “pragmatic and functional approach” and in addition they more clearly
articulate the difference between the three standards of review.
99.
The Dr. Q v. Ryan decision attempts to draw together the different strands of thinking
articulated by the SCC in recent years and in so doing, attempts to reconcile Baker and
OceanPort so that the lower courts will have a coherent model from which they can analyze
administrative decisions, whether they be tribunal decisions (OceanPort) or decisions by
officials as policy makers (Baker, Suresh), in accordance with a coherent model. In my view
such a coherent model has now been articulated by the SCC and it is for the lower courts to refer
to such analysis in their review of administrative decisions in the future.
100. The case of U.S.A. v. Johnson, supra (December 12, 2002) released by the Court of
Appeal Ontario, appears to follow the spirit of Baker and Suresh. It refers to Baker specifically
but without the principled analysis set out in the Baker case. There is therefore no application of
the “pragmatic and functional approach” undertaken to arrive at the appropriate standard of
review.
101. In this case a Nigerian citizen who resided in Canada was fighting a surrender order of
the Minister of Justice which would send him back to the U.S.A. for breach of parole whereby he
could be deported back to Nigeria where his life would be in danger. He had spent 22 months in
jail in Canada and the Minister, although aware of this fact, did not take this into account or the
fact that he might be deported back to Nigeria if deported, when ruling whether or not he should
be returned to the USA.
102. The Court of Appeal in its analysis, started with the assumption that the standard of
review was that of “plainly unreasonable” without any analysis or explanation as to why this
standard was chosen. It stated as follows at paragraph 37:
“The standard of review by this court of the minister’s surrender decision is set
out by Laskin, J.A. in Whitely v. U.S.A. “these passages together with the
provisions of the Act indicate that if the Minister violates the fugitive’s
constitutional rights or otherwise errs in law, or if the minister denies the fugitive
procedural fairness, acts arbitrarily, in bad faith or for improper motives, or if the
Minister’s decision is plainly unreasonable, then the reviewing court is entitled to
interfere; otherwise, the court should defer to the minister’s surrender decision”.”
(emphasis added)
103. In my view the standard of review is far from clear, because plainly unreasonable may
mean reasonableness simpliciter, while bad faith and improper motives may refer to patent
unreasonableness. The court is careless with the standard of review because it has not followed
“the pragmatic and functional” approach, which in turn would have determined as a matter of
logic, what the appropriate standard of review should be.
104. Although there is reference to the Baker case at paragraph 46 of the decision, it does so
only to the extent of adopting the reasoning on Baker as to the requirement for reasons. It fails to
-19go through the pragmatic and functional analysis to determine why reasons were required, and
merely compares the deporting of the fugitive Johnson as requiring the same humanitarian and
compassionate consideration as deporting Baker required in the Baker decision.
105. In my view the Court of Appeal may have reached the right conclusion but it did not
follow the analysis delineated by the SCC in Baker or Suresh. It is curious why Suresh was not
cited as it is clearly a case more on point than Baker. The point is that the Court of Appeal did
not apply a vigorous analysis to judicial review as set down by the SCC in the cases I have
reviewed.
106. Moving on to the SCC cases of Dr. Q v. The College of Physicians and Surgeons and
New Brunswick v. Ryan, supra both released on April 3, 2003, these cases crystallize all the
SCC’s prior reasoning on judicial review on all aspects of administrative decision making, and in
doing so these authorities act as an official blueprint for how the lower courts must deal with
judicial review in the future, whether it be a pure policy decision or an appeal from a quasijudicial decision of an administrative tribunal, acting with all the procedural safeguards of a
court.
107. To the extent that provincial Courts of Appeal have been overturned by the SCC in many
decisions that have been appealed to it, many of which I have discussed, these two recent SCC
decisions attempt to provide guidance as to how all lower courts should hereafter deal with such
administrative decisions. These SCC decisions not only confirm the legitimacy of the
“pragmatic and functional” approach to all administrative decisions regarding judicial review,
but define and explain the three standards of review, thereby attempting to instruct the lower
courts on how to properly review such cases.
108. In the case of Dr. Q v. The College, supra the Inquiry Committee of the College of
Physicians and Surgeons of British Columbia suspended a doctor for sexual assault of a patient.
The reviewing judge set aside the decision disagreeing with the Committee’s findings of
credibility. This was upheld on appeal to the British Columbia Court of Appeal but subsequently
reversed by the SCC on the basis that one must first apply the pragmatic and functional approach
to the analysis, which in turn requires the court to weigh certain factors in order to determine the
appropriate standard of review.
109. The initial judge had not done this administrative law analysis and thereby applied the
improper standard of “correctness” rather than that of “reasonableness” to the Committee’s
decision which, under the reasonableness test, resulted in the Committee’s decision being
upheld.
110.
At paragraph 21 Chief Justice McLaughlin states as follows:
“In a case of judicial review such as this the court applies the pragmatic and
functional approach … in every case where a statute delegates power to an
administrative decision maker, the reviewing judge must begin by determining the
standard of review on the pragmatic and functional approach.”42
111.
At paragraph 22 McLaughlin, J. continues as follows:
42
Dr. Q, supra, note 14, para. 21.
-20“… the pragmatic and functional approach calls upon the court to weigh a series
of factors in an effort to discern whether a particular issue before the
administrative body should receive exacting review … or be left to the near
exclusive determination of the decision maker. These various postures of
deference correspond respectively to the standards of correctness, reasonableness
simpliciter, and patent unreasonableness.”43
112. After referring back to Baker and Suresh McLaughlin, J. refers to the four factors which
must be weighed and considered in applying the pragmatic and functional approach at paragraph
26:
“… the presence or absence of a privative clause or statutory right of appeal; the
expertise of the Tribunal relative to that of the reviewing court on the issue in
question; the purposes of the legislation and the provision in particular; and the
nature of the question – law, fact or mixed law and fact … the virtue of the
pragmatic and functional approach lies in its capacity to draw out the information
that may be relevant to the issue of curial deference.”44
113. At paragraph 35 McLaughlan, J. puts it all together in reaching an appropriate standard of
review as follows:
“Having considered each of these factors, a reviewing court must settle upon one
of three currently recognized standards of review … where the balancing of the
four factors above suggests considerable deference, the patent unreasonableness
standard will be appropriate. Where little or no deference is called for, a
correctness standard will suffice. If the balancing of factors suggest a standard of
deference somewhere in the middle, the reasonableness simpliciter standard will
apply.”45
114. In my opinion this is the clearest articulation of the principled approach adopted by the
SCC from as far back as Baker, that exists. In the simultaneously released case of New
Brunswick v. Ryan, supra the SCC went further and determined that there are only three
standards of judicial review, not a spectrum of standards, and set out the characteristics of each
standard. These two cases therefore provide a complete and coherent outline for the future
judicial review of all administrative decisions.
115. In the case of New Brunswick v. Ryan, supra the Court of Appeal in New Brunswick
overturned a decision of the Discipline Committee of the New Brunswick Law Society regarding
disbarring a lawyer who failed to advise his clients he had taken no proceedings on their behalf
for five and a half years.
116. This case confirms that there exist only three standards of judicial review, being
correctness, reasonableness simpliciter and patent unreasonableness and that the pragmatic and
functional approach will determine in each case which of these three standards is appropriate.
117.
At paragraph 21 Iaccabucci, J., states as follows:
43
Dr. Q, supra, note 14, para. 22.
Dr. Q, supra, note 14, para. 26.
Dr. Q, supra, note 14, para. 35.
44
45
-21“The pragmatic and functional approach to review (of) decisions of administrative
tribunals … will determine which standard is appropriate in the judicial review of
the choice of sanction by the discipline committee. … the pragmatic and
functional approach applies to judicial review, whether that review is by way of
application of the court or statutory right of appeal. This means that the courts
must always select and employ the proper level of deference. There is no shortcut
past the components of the pragmatic and functional approach … “46
118.
At paragraph 27 the continues as follows:
“The pragmatic and functional approach determines the standard of review in
relation to four contextual factors, (1) the presence or absence of a privative
clause or statutory right of appeal; (2) the expertise of the tribunal relative to that
of the reviewing court on the issue in question; (3) the purpose of the legislation
and the provision in particular; (4) the nature of the question in issue …”47
119. On the basis of analyzing the above four criteria the court in this case determined that the
appropriate standard of review was reasonableness simpliciter. It states at paragraph 42 as
follows:
“Although there is a statutory right of appeal for decisions of the discipline
committee, the expertise of the committee, the purpose of the enabling statute and
the nature of the dispute all suggest a more deferential standard of review and
correctness. These factors suggest that the legislator intended that the discipline
committee of the self-regulating law society should be a specialized body with the
primary responsibility to promote the objectives of the Act by overseeing
professional discipline, and where, necessary, selecting appropriate sanctions. In
looking at all the factors as discussed in the foregoing analysis, I conclude the
appropriate standard is reasonableness simpliciter.”48
120. The SCC has therefore set out the analytical framework for deciding how courts must
review all administrative decisions. What is even more helpful is that the Court went on to
analyze and define the distinctions between the separate standards of review.
121.
At paragraph 50 Iaccabucci, J. states as follows:
“At the outset it is helpful to contrast judicial review according to the standard of
reasonableness with the fundamentally different process of reviewing a decision
for correctness. When undertaking a correctness review, the court may undertake
its own reasoning process to arrive at the result it judges correct. In contrast when
deciding when an administrative action was reasonable, a court should not at any
point ask itself what the correct decision would have been. Applying the standard
of reasonableness gives effect to the legislative intention that a specialized body
will have the primary responsibility of deciding the issue according to its own
process and for its own reason …”49
46
The Law Society of New Brunswick v. Ryan (SCC) April 3, 2003.
New Brunswick et al, supra, supra, para. 21.
New Brunswick et al, supra, note 42, para. 42.
New Brunswick et al, supra, note 42, para. 50.
47
48
49
-22122.
Again at paragraph 52 the court continues as follows:
“The standard of reasonableness simpliciter is also very different from the more
deferential standard of patent unreasonableness. In Southam … the court
described the difference between an unreasonable decision and a patently
unreasonable one as routed “in the immediacy or obviousness of the defect”.
Another way to say this is that 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”.”50
Conclusion
123. By way of conclusion it is my view that in the future the lower courts should look to the
reasoning of these two SCC cases to understand the framework within which the judicial review
of administrative decisions, whether they be policy or quasi-judicial in nature, should be
determined. A significant amount of deference will be accorded to all administrative decisions
whether policy or a quasi-judicial in nature because of the adherence by Canadian courts to the
principle of the separation of powers. Thereafter in order to determine whether the decision will
be overturned on review such decisions will be subject to the “pragmatic and functional
approach” which seeks on the basis of four criteria to determine the appropriate standard of
review, which standard of review is applied to ascertain whether the decision should or should
not be overturned.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
50
BIBLIOGRAPHY
The Role of the Judiciary in the Review of Administrative Policy Decisions: Issues of
legality, by David Mullan, March 24, 2002
Roncarelli v. Duplessis [1959] S.C.R. 121
Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817
Black v Canada (Prime Minister) [2000] O.J. No. 784 (Ont. S.C.)
Suresh v. Canada (Minister of Citizenship and Immigration) (S.C.C. January 2, 2002)
OceanPort Hotel Ltd. v. British Columbia (General Manager, Liquor Control and
Licensing Board) [2001] 2 S.C.R. 781
Mount Sinai Hospital Centre v. Quebec (Minister of Health and Social Services) [2001] 2
S.C.R. 281
LaLonde et al v. Hospital Services Restructuring Commission December 2, 2001, (Ont.
C.A.)
Ontario Federation of Anglers & Hunters v. Ontario (2002) (Ont. C.A.)
Dr. Q v. The College of Physicians and Surgeons of British Columbia (2003) S.C.J. No.
18, page 19
Law Society of New Brunswick v. Ryan (2003) S.C.J. No. 17, page 20
Tribunal Independence and Impartiality, Jacobs and Hunter
Therrien, OceanPort and the Doctrines of Judicial and Tribunal Independence (Sharpe
and Margolis)
The U.S.A. et al v. Johnson 62 O.R. 3rd pg. 327 (Ont. C.A.)
New Brunswick et al, supra, 42, para. 52.
-2315.
16.
Dr. Q v. The College of Physicians and Surgeons of British Columbia (S.C.C.) April 3,
2003
The Law Society of New Brunswick v. Ryan (S.C.C.) April 3, 2003
©
Brian M. Campbell
April 2003