I love practising administrative law because it’s always exercise for my brain. Undoubtedly, considering concepts such as standard of review leaves my cerebral cortex fatigued. I’ve always found it ironic that the area of law that should be most robust and practical given its proximity to the “average Joe” is actually one of the most academic and entirely unpractical (not to mention unpredictable) to apply.
Did Dunsmuir v. New Brunswick help? I don’t think so. The reduction of three standards of review to two really did little to eliminate the lengthy (and costly) time it takes in almost every proceeding to figure out what the standard of review is supposed to be and how it should be applied. Even if it is agreed that the standard is reasonableness — what exactly “reasonableness” means is anyone’s guess.
As stated in Wilson v. Atomic Energy of Canada Ltd.:
“Collapsing the three standards of review into two has not proven to be the runway to simplicity the Court had hoped it would be in Dunsmuir. The terminological battles over which of the three standards of review should apply, have been replaced by those over the application of the remaining two. That leaves the merits waiting in the wings for their chance to be seen and reviewed. This complicated entry into judicial review is hard to justify, and directs us institutionally to think about whether there is a principled way to simplify the path to reviewing the merits.
Most of the confusion in our jurisprudence has been over what to call the category of review in a particular case. Perhaps it is worth thinking about whether it is really necessary to engage in rhetorical debates about what to call our conclusions at the end of the review. Are we not saying essentially the same thing when we conclude that there is only a single “reasonable” answer available and when we say it is “correct”? And this leads to whether we need two different names for our approaches to judicial review, or whether both approaches can live comfortably under a more broadly conceived understanding of reasonableness.”
I also wholeheartedly agree with Justice Rosalie Abella that much of the debate around correctness versus reasonableness as a standard of review is rhetorical in nature. A conclusion that there is only one reasonable outcome (which is how I read the majority in Wilson) is, in my view, precisely the same thing as correctness (a.k.a. the dissent in Wilson).
Abella suggests that if there is going to be only one standard then it should be reasonableness. I disagree. First of all, the whole reason we have a standard of correctness is because it has been determined that the Legislature could not have intended that statutory decision-makers have the ability to make wrong legal findings. Reasonableness as the one and only standard of review may not meet the requirements of the rule of law.
Secondly, reasonableness in and of itself is problematic. Reasonableness, at its core, suggests that there can be multiple “reasonable” interpretations (as opposed to one correct one). I can tell you from personal experience that it’s quite difficult to explain to a client why or how a judge could agree that our interpretation is correct but we could still nevertheless lose. Quite simply, the rule of law is undermined when two reasonable but conflicting interpretations of a statue can, even theoretically, be permitted to exist simultaneously. As long as reasonableness remains as a standard, there will be confusion regarding its interpretation.
I suggest we eliminate the standard of review analysis altogether and simply revert to appeals. Lawyers understand appeals. There does not seem to be any dispute around the standard’s palpable and overriding error for issues of fact and simple error for issues of law.
The whole concept of judicial review was essentially created by the courts pursuant to the rule of law following what appeared to be a legislative intent to oust courts from certain decisions with the use of statutory privative clauses. Essentially, the courts created judicial review by determining that the legislatures could not have intended that a statutory decision-maker would be permitted to make a wrong legal decision.
One can only assume that the legislators of the day thought that having non-judicial decision-makers would reduce the time and resources (costs) needed to make decisions pursuant to certain statutory regimes. Well, we can all see how well that turned out. The Legislature can fix the problem by legislating a statutory right of appeal with the same standards as any other appeal. Or it can once again leave this mess for the courts to address.