McGill Law Journal ~ Revue de droit de McGill
DUNSMUIRS FLAWS EXPOSED: RECENT DECISIONS
ON STANDARD OF REVIEW
Paul Daly*
In Dunsmuir v. New Brunswick, the Su-
preme Court of Canada attempted to clarify
and simplify Canadian judicial review doc-
trine. I argue that the Court got it badly
wrong, as evidenced by four of its recent de-
cisions.
The cases demonstrate that the new
categorical approach is unworkable. A re-
viewing court cannot apply the categorical
approach without reference to something like
the much-maligned pragmatic and function-
al analysis factors. The categories regularly
come into conflict, in that decisions could
perfectly reasonably be assigned to more
than one category. When conflict occurs, it
must be resolved by reference to some factors
external to the categorical approach.
The new, single standard of reasonable-
ness is similarly unworkable without refer-
ence to external factors. Different types of
decision attract different degrees of defer-
ence, on the basis of factors that are external
to the elegant elucidation of reasonableness
offered in Dunsmuir.
not been achieved.
Clarification and simplicity have thus
Dans Dunsmuir c. Nouveau-Brunswick, la
Cour suprme du Canada a tent de clarifier et
simplifier la doctrine canadienne du contrle
judiciaire. Javance que la Cour sest trompe
dans son analyse, comme le prouvent quatre de
ses rcentes dcisions.
Ces affaires dmontrent que la nouvelle
approche de catgorisation ne fonctionne pas.
Une cour de rvision ne peut pas appliquer cette
approche sans se rfrer des outils semblables
aux facteurs tant dcris de lanalyse pragma-
tique et fonctionnelle. Les catgories entrent en
conflit rgulirement, dans la mesure o des d-
cisions peuvent raisonnablement tre assignes
plus dune catgorie. Quand un conflit se pr-
sente, il doit tre rsolu en se rfrant des fac-
teurs externes lapproche de catgorisation.
Le nouveau standard de la dcision raison-
nable est galement impraticable sans rfrence
des facteurs externes. Diffrents types de d-
cisions attirent diffrents degrs de dfrence,
bass sur des facteurs externes llgante lu-
cidation de la norme de la dcision raisonnable
offerte par Dunsmuir.
teintes.
Clart et simplicit nont donc pas t at-
* Assistant Professor, Facult de Droit, Universit de Montral. Thanks, with the usual
disclaimer, to Peter Oliver, Ann Chaplin, and the anonymous reviewers for comments
on a previous draft. Thanks also to participants at a Justice Canada workshop on defer-
ence and justiciability in January 2012.
Citation: (2012) 58:2 McGill LJ 483 ~ Rfrence : (2012) 58 : 2 RD McGill 483
Paul Daly 2012
484 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Introduction
I. Alberta (Information and Privacy Commissioner)
v. Alberta Teachers Association
II. Nor-Man Regional Health Authority Inc. v. Manitoba
Association of Health Care Professionals
III. Canada (Canadian Human Rights Commission)
v. Canada (Attorney General)
IV. Catalyst Paper Corp. v. North Cowichan (District)
Conclusion
485
488
493
496
501
506
DUNSMUIRS FLAWS EXPOSED 485
Introduction
Judicial review aims to ensure that administrative action is lawful,
reasonable, and procedurally fair.1 Achieving these goals requires the de-
velopment and application of doctrine, which is often complex in its de-
sign. Complexity results from the inherently technical nature of the disci-
pline, which involves the application of general principles to substantive
areas of law that differ greatly in their contours and content, combined
with the need for doctrine to conform to normative commitments (such as
the principles of good administration and the rule of law).2 Sitting atop
the Canadian judicial hierarchy, the Supreme Court of Canada bears the
additional responsibility of developing clear and coherent doctrine, thus
providing a set of tools that lower courts can confidently apply to the com-
plex (and not-so-complex) cases that come before them.
In its decision in Dunsmuir v. New Brunswick,3 the Court attempted
to clarify and simplify Canadian judicial review doctrine.4 I will argue in
this paper that the Court got it badly wrong, as evidenced by four of its
subsequent decisions. Clarification and simplicity have not been achieved.
Indeed, one might playfully suggest that the Courts decisions fail to meet
the standards of justification, transparency, and intelligibility that the
Court has deemed central to the conception of reasonableness in Canadi-
an law.
Before Dunsmuir, the standard of review of administrative action was
determined by application of the pragmatic and functional analysis.5
During the first stage of the analysis, reviewing courts were charged with
examining four factors: whether there was a privative, or conversely an
appeal, clause in the decision makers home statute;6 whether the decision
1 See Canada (Attorney General) v TeleZone Inc, 2010 SCC 62 at para 24, [2010] 3 SCR
585.
2 See generally The Honourable Madame Justice Beverley McLachlin, Rules and Discre-
tion in the Governance of Canada (1992) 56:1 Sask L Rev 167.
3 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir].
4 For an overview, see David Mullan, Dunsmuir v. New Brunswick, Standard of Review
and Procedural Fairness for Public Servants: Lets Try Again! (2008) 21:2 Can J Ad-
min L & Prac 117.
5 UES, Local 298 v Bibeault, [1988] 2 SCR 1048 at 1088, (sub nom Syndicat national des
employs de la Commission scolaire rgionale de lOutaouais (CSN) v Union des em-
ploys de service, local 298 (FTQ)) 95 NR 161.
6 The recent fashion is to attach the label home statute to what might be more accurate-
ly described as the constitutive statute. The latter label better captures the notion of a
decision maker interpreting a statute that established the decision maker and under
which the decision maker operates. Nevertheless, to avoid confusion, I use the term
home statute.
486 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
maker was relatively more expert than the reviewing court in respect of
the decision under review; what the purpose of the statutory scheme and
of the particular provision or provisions at issue was; and what the nature
of the question in dispute was.7 The goal was to capture legislative intent
and, particularly, the degree of deference the legislature intended that re-
viewing courts should accord in respect of the decision under review.
The second stage was the selection and application of the standard of
review. Depending on the degree of deference indicated by the examina-
tion of the four factors, one of the following standards was applied by the
reviewing court: the highly interventionist standard of correctness, the
moderately deferential standard of reasonableness simpliciter, or the
highly deferential standard of patent unreasonableness.8
Both stages of the pragmatic and functional analysis were much criti-
cized. The first stage was said to require an overly lengthy analysis of the
statutory scheme, which distracted from the merits of the challenge to the
decision under review.9 Of the second stage, it was said that the distinc-
tions between the three standards were unclear and that the standards
could be difficult to apply in practice.10 Thus, in Dunsmuir, the Court an-
nounced that it was time to reassess Canadian judicial review doctrine.11
The Court made changes to the first and second stages of the pragmat-
ic and functional analysis, itself renamed the standard of review analy-
sis.12 As to the second stage, the Court merged the standards of reasona-
7 See generally Dr Q v College of Physicians and Surgeons of British Columbia,
2003 SCC 19 at paras 26-34, [2003] 1 SCR 226 [Dr Q]; Law Society of New Brunswick v
Ryan, 2003 SCC 20 at para 27, [2003] 1 SCR 247 [Ryan].
8 See Dr Q, supra note 7 at para 35; Ryan, supra note 7 at para 1.
9 See e.g. Dunsmuir, supra note 3 at para 133, Binnie J, concurring.
10 See e.g. Toronto (City) v CUPE, Local 79, 2003 SCC 63 at paras 60-135, [2003] 3 SCR
77, LeBel J, concurring [CUPE].
11 Supra note 3 at para 1. For assorted criticism of the standard of review analysis pre-
Dunsmuir, see e.g. United Nurses of Alberta, Local 95 v Calgary Health Region (Alberta
Childrens Hospital), 2005 ABQB 893 at para 20, 388 AR 368; Currie v Canada (Cus-
toms and Revenue Agency) (FCA), 2006 FCA 194 at paras 20-23, [2007] 1 FCR 471; Mil-
ler v Workers Compensation Commission (Nfld) et al (1997), 154 Nfld & PEIR 52 at 57-
58, (sub nom Miller v Newfoundland (Workers Compensation Commission)) 2 Admin
LR (3d) 178 (NLSC (TD)); Mountain Parks Watershed Association v Chateau Lake
Louise Corp et al, 2004 FC 1222 at para 11, 263 FTR 12; Stryker Bertec Mdical c Qu-
bec (Commissaire du travail), 2004 CarswellQue 1287, [2004] JQ No 4237 (QL) (CS).
See also Grant Huscroft, Judicial Review from CUPE to CUPE: Less is Not Always
More in Grant Huscroft & Michael Taggart, eds, Inside and Outside Canadian Admin-
istrative Law: Essays in Honour of David Mullan (Toronto: University of Toronto Press,
2006) 296.
12 In Dunsmuir (supra note 3 at para 63), Justices Bastarache and LeBel, in their majori-
ty reasons, preferred the term standard of review analysis on the basis that the term
DUNSMUIRS FLAWS EXPOSED 487
bleness simpliciter and patent unreasonableness. It sought not just to re-
duce the number of standards of review but also to clarify the meaning of
reasonableness. Reasonableness, the Court explained, is concerned with
justification, transparency and intelligibility within the decision-making
process, and also with whether the decision falls within a range of ac-
ceptable and rational solutions.13
As to the first stage, the Court held that an exhaustive review of the
standard of review factors would not always be necessary and could be
omitted altogether where previous decisions had clearly established the
appropriate standard of review.14 In Smith v. Alliance Pipeline Ltd., Jus-
tice Fish explained the effect of Dunsmuir as the identification of a series
of nonexhaustive categories. Decisions falling into these categories are
subject to review for either correctness or reasonableness. Correctness
applies to (1) constitutional issues; (2) questions of general law both of
central importance to the legal system as a whole and outside the adjudi-
cators specialized area of expertise; (3) the drawing of jurisdictional
lines between two or more competing specialized tribunals; and (4) true
question[s] of jurisdiction or vires. Reasonableness is normally the gov-
erning standard where the question: (1) relates to the interpretation of
the tribunals … home … statute or statutes closely connected to its func-
tion, with which it will have particular familiarity; … (2) raises issues of
fact, discretion or policy; or (3) involves inextricably intertwined legal and
factual issues.15
The four-factor approach has thus been marginalized in favour of a
categorical approach. The former has not been entirely jettisoned, howev-
er; the Court has continued to mention the factors,16 but they are now to
be treated as guideposts17 rather than as a road map. In short, it is clear
that the categorical approach now drives the analysis.18
pragmatic and functional had led to confusion. I henceforth employ the new label ra-
ther than the old.
13 Ibid at paras 45, 47.
14 Ibid at para 57.
15 2011 SCC 7 at paras 25-26, [2011] 1 SCR 160, citing CUPE, supra note 10 at para 63,
Dunsmuir, supra note 3 at para 54.
16 See Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011
SCC 53 at para 16, [2011] 3 SCR 471 [Canadian Human Rights Commission].
17 Nor-Man Regional Health Authority Inc v Manitoba Association of Health Care Profes-
sionals, 2011 SCC 59 at para 41, [2011] 3 SCR 616 [Nor-Man].
18 See Alberta (Information and Privacy Commissioner) v Alberta Teachers Association,
2011 SCC 61 at para 30, [2011] 3 SCR 654 [Alberta Teachers Association]; Canadian
Human Rights Commission, supra note 16 at paras 17-22. Contrast the approach taken
by the Newfoundland court of appeal in Newfoundland and Labrador Hydro v New-
488 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
I have argued elsewhere that the Courts reform efforts were flawed in
principle.19 In the present article, I focus closely on four of the Courts re-
cent decisions, which demonstrate the flaws with the Dunsmuir approach.
As to the first stage of the analysis, the cases demonstrate that the cate-
gorical approach is unworkable and that a reviewing court cannot in fact
apply the categorical approach without reference to the much-maligned
four factors (or some variant thereon). The categories regularly come into
conflict, in that decisions could reasonably be assigned to more than one
category. When conflict occurs, it must be resolved by reference to some
factor or factors external to the categorical approach. As to the second
stage, the single standard of reasonableness is similarly impractical. It is
not enough to say that [r]easonableness is a single standard that takes
its colour from the context.20 Different types of decisions attract different
degrees of deference, and they do so on the basis of a factor or factors ex-
ternal to the elegant elucidation of reasonableness offered in Dunsmuir.
I will address each of the four recent cases in turn. I start with the two
that exemplify the flaws of the first stage of the analysis and conclude
with the two that, in addition to illustrating problems with the first stage,
demonstrate the flaws of the second stage.
I. Alberta (Information and Privacy Commissioner) v. Alberta Teachers
Association21
In this case, the Court artfully avoided creating a conflict between
classifying the relevant issue as a jurisdictional question or an interpreta-
tion of a home statute, which prevented the flaws of the categorical ap-
proach from being fully exposed. Nevertheless, the decision demonstrates
that application of the categorical approach still requires reference to ex-
ternal factors.
In 2005, several individuals complained to Albertas information and
privacy commissioner that their data had been disclosed contrary to the
provisions of the Personal Information Protection Act (PIPA). The com-
foundland and Labrador (Board of Commissioners of Public Utilities), 2012 NLCA 38 at
paras 84-103, 323 Nfld & PEIR 127 (pursuant to which the categories were treated as
relevant to one of the standard of review analysis factorsnamely, the nature of the
questionrather than as determinative of the standard of review).
19 Paul Daly, The Unfortunate Triumph of Form over Substance in Canadian Adminis-
trative Law 50:2 Osgoode Hall LJ [forthcoming in 2012].
20 Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59, [2009] 1 SCR
339, Binnie J.
21 Supra note 18.
missioner commenced an investigation into the complaints.22 At the time,
subsection 50(5) of the PIPA provided for stringent timelines:
DUNSMUIRS FLAWS EXPOSED 489
An inquiry into a matter that is the subject of a written request
referred to in section 47 must be completed within 90 days from the
day that the written request was received by the Commissioner un-
less the Commissioner
(a) notifies the person who made the written request, the
organization concerned and any other person given a
copy of the written request that the Commissioner is
extending that period, and
(b) provides an anticipated date for the completion of the
review.23
An investigation was commenced in October 2005. A report was issued
in July 2006. Shortly thereafter, the complainants requested an inquiry.
The inquiry was completed in March 2008.
Between the commencement of the investigation and the completion of
the inquiry, the commissioner used its power to extend the ninety-day
timeline. But this was not done until August 2007, some twenty-two
months after the initial complaint had been received.
The Alberta Teachers Association sought judicial review of the com-
missioners decision on the basis that the commissioner had lost jurisdic-
tion by failing to exercise its subsection 50(5) power within the ninety-day
timeline. This argument prevailed at first instance and in the Alberta
Court of Appeal,24 but not before the Supreme Court.
One can easily observe how the categorical approach fell short. There
is a strong argument that the issue was purely a true question of jurisdic-
tion or vires. There were statutory preconditions with which the commis-
sioner had to comply in order to remain seized of the matter. The commis-
sioner had failed to do so and, by virtue of that failure, forfeited jurisdic-
tion. Equally, however, there is a strong argument that the commissioner
was interpreting its home statute, on a question with which it had some
familiarity. Matters relating to compliance with timelines are likely to
arise often in the course of a decision makers work. Different factual con-
texts might demand different responses from the commissioner. Whether
strict compliance is necessary or whether the purposes of the statutory
22 Authority was delegated by the commissioner to an adjudicator, who ultimately issued
the impugned order. For the sake of simplicity, I treat the two as synonymous.
23 SA 2003, c P-6.5 [emphasis added].
24 Alberta Teachers Assn v Alberta (Information & Privacy Commissioner (2008), 21 Alta
LR (5th) 24, 1 Admin LR (5th) 85 (QB); Alberta Teachers Association v Information and
Privacy Commissioner (Alta) et al, 2010 ABCA 26 at paras 37-40, 474 AR 169.
490 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
scheme would be furthered by a less rigorous approach is arguably a
question of policy and fact. The application of the categorical approach
could justify imposing either the reasonableness standard or the correct-
ness standard, and is incapable of resolving this conflict.
Justice Rothstein, writing for the majority, purported to follow the
categorical approach. He determined that the decision under review did
not fall into any of the correctness categories. Instead, it involved an in-
terpretation of the home statute and thus attracted a standard of reason-
ableness. The influence of the standard of review analysis is discernible,
however, in Justice Rothsteins determination that the question related to
the home statute. Justice Rothstein noted that the decision was square-
ly within the specialized expertise of the decision maker and that the
decision maker had significant familiarity with the issue, which was
specific to the PIPA.25 The expertise of the decision maker and the rai-
son dtre of the commissioner (i.e., balancing competing interests) are
factors that would have been taken into account in a standard of review
analysis.
In the same passage, Justice Rothstein stated that the parties inter-
ests in the conclusion of inquiries in a timely manner, in being kept in-
formed, and in the effect of automatic termination of privacy investiga-
tions all fell within the commissioners role, which centres upon balanc-
ing the rights of individuals to privacy with organizations needs to dis-
close information in certain circumstances.26 The complexity of the com-
missioners balancing exercise would also have been considered under the
standard of review analysis. This passage was critical to the decision, yet
note that the factors discussed are external to the categorical approach,
which the Court claims should be driving the analysis of the reviewing
court.
It is notable as well that Justice Rothstein expressed significant skep-
ticism about the categorical approachs category of true questions of juris-
diction. He pronounced himself unable to provide a definition of such a
question27 but twice emphasized that true jurisdictional questions are ex-
ceptional.28 While this acknowledgment was commendable,29 it made the
application of the categorical approach artificially easy. Questions relating
to timelines might be frequent enough to ground an argument that the
administrative approach to timelines is a general question of law of cen-
25 Alberta Teachers Association, supra note 18 at para 32.
26 Ibid.
27 Ibid at para 42.
28 Ibid at paras 34, 39.
29 See infra notes 37-38 and accompanying text.
DUNSMUIRS FLAWS EXPOSED 491
tral importance to the legal system, but the true conflict here was be-
tween jurisdictional questions and questions pertaining to the decision
makers home statute. By defining jurisdictional questions almost out of
existence, Justice Rothstein avoided this conflict. It was just as well that
he did, for it is difficult to think of a better example of a jurisdictional er-
ror than a failure not just to comply with a time limit (which is often ex-
cusable)30 but also to exercise a power to extend the time limit. Justice
Rothsteins artful avoidance of a direct conflict between the category of ju-
risdictional questions and the category of interpretations of a home stat-
ute prevented the shortcomings of the categorical approach from being
further exposed.
Justice Rothstein then assessed the reasonableness of the decision. He
was presented with an interesting problem in that the commissioner had
not formally given a decision on the timeline issue. The point was first
raised in argument at first instance and was not, therefore, explicitly de-
cided by the commissioner, but Justice Rothstein was satisfied that no
prejudice resulted from considering it. Moreover, a finding that the failure
to extend the timeline was not fatal to the ability to continue the process-
es of investigation and inquiry was necessarily implicit in the commis-
sioners decision.31 The key factor here was that, in light of Dunsmuirs
admonition to look to the reasons that could be offered for a decision,32 a
plausible basis for the commissioners implicit decision was readily avail-
able. In related decisions of the commissioner in respect of the PIPA and
the Freedom of Information and Protection of Privacy Act,33 the latter of
which is also within the commissioners purview, a consistent approach
had been taken to the timelines issue. Because a reasonable basis for the
decision was apparent and no prejudice would be suffered, Justice Roth-
stein concluded that the absence of a set of formal reasons from the com-
missioner should not inhibit the Court from conducting an analysis of the
commissioners approach.34
Justice Rothstein concluded that the implicit decision in the instant
case was reasonable. First, it was consistent with the approach taken by
the commissioner in similar cases. Second, the text of subsection 50(5)
30 On the basis that the timeline is directory rather than mandatory, see e.g. David Phillip
Jones & Anne S de Villars, Principles of Administrative Law, 5th ed (Toronto: Carswell,
2009) at 161-63.
31 See Alberta Teachers Association, supra note 18 at paras 28-29.
32 Supra note 3 at para 48. The formulation was borrowed from David Dyzenhaus, The
Politics of Deference: Judicial Review and Democracy in Michael Taggart, ed, The
Province of Administrative Law (Oxford: Hart, 1997) 279 at 286.
33 RSA 2000, c F-25.
34 See Alberta Teachers Association, supra note 18 at paras 53-55.
492 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
was ambiguous, in that the ninety-day limit could be taken as referring
either to completion of the inquiry or to extension of the inquiry, such that
the power of extension would not necessarily lapse after the period had
expired. Third, the decision was also consistent with the purposes of the
statutory scheme: subsection 50(5) aimed in a general sense at keeping
parties informed, a purpose not subverted by permitting implicit exten-
sions of the timeline after the ninety days were up. Finally, the decision
was well reasoned, detailed, and transparent.35
As to the broader question of whether the category of jurisdictional
questions ought to be retained, Justice Rothsteins reasons indicate an
openness to abolishing the category altogether.36 This is unsurprising,
given the weak theoretical basis for the category37 and the historical diffi-
culty in applying the concept of jurisdictional error in a clear and coherent
manner.38
35 See ibid at paras 56-72.
36 Ibid at para 34. Justice Cromwell, who authored a concurring opinion, had a curious
exchange with Justice Rothstein on the question of jurisdiction, curious perhaps be-
cause both parties seemed to be talking past each other. To Justice Rothsteins proposi-
tion that the category of true questions of jurisdiction or vires should be narrowly con-
strued and possibly abolished, Justice Cromwell responded that the concept of jurisdic-
tional error should not be abolished: some questions must be reviewable on a standard
of correctness, to comply with the view of section 96 of the Constitution Act, 1867 ((UK),
30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5) taken in Crevier v. Quebec (AG)
([1981] 2 SCR 220, 127 DLR (3d) 1 [Crevier cited to SCR]): Alberta Teachers Associa-
tion, supra note 18 at paras 102-103, Cromwell J, concurring. This provoked a response
from Justice Rothstein, who noted that a narrowing or elimination of the category of
true questions of jurisdiction or vires would be compatible with Crevier (ibid at para
43). Both judges positions are perfectly reconcilable: one can remove the category with-
out undermining the availability of review for correctness on certain questions. Indeed,
Justice Cromwell even noted his agreement with Justice Rothsteins position (ibid at
para 97)! Where the two differed sharply was as to the treatment of the categorical ap-
proach, about which Justice Cromwell expressed significant skepticism (ibid at paras
98-101).
37 See the discussion in Public Service Alliance of Canada v Canadian Federal Pilots Assn
(FCA), 2009 FCA 223 at paras 36-52, [2010] 3 FCR 219.
38 See e.g. David Mullan, The Supreme Court of Canada and TribunalsDeference to the
Administrative Process: A Recent Phenomenon or a Return to Basics? (2001) 80:1-2
Can Bar Rev 399 at 423. See generally Paul Craig, Jurisdiction, Judicial Control, and
Agency Autonomy in Ian Loveland, ed, A Special Relationship? American Influences on
Public Law in the UK (Oxford: Clarendon Press, 1995) 173.
II. Nor-Man Regional Health Authority Inc. v. Manitoba Association of
DUNSMUIRS FLAWS EXPOSED 493
Health Care Professionals39
In Nor-Man, the categorical approach proved incapable of resolving a
conflict between a question of general law and one of fact, policy, and dis-
cretion. Again, reference to external factors was necessary to determine
the appropriate standard of review.
This case concerned the interpretation of a collective agreement by a
labour arbitrator. Ms. Jacqueline Plaisier had been employed by the re-
gional health authority for twenty years. For some of that period, she was
a casual employee. Once Ms. Plaisier had accumulated twenty years of
service, she claimed an additional week of paid leave under the collective
agreement. This claim was denied by the authority, based on the fact that
it had consistently interpreted the collective agreement as not permitting
workers time as casual employees to be taken into account in determin-
ing their entitlement to additional paid leave. When Ms. Plaisiers time as
a casual employee was not taken into consideration, she had not accumu-
lated the required twenty years of service.
Significantly, Ms. Plaisiers union had never previously mounted a
challenge to the authoritys interpretation of the collective agreement.
Over five collective agreements spanning a twenty-year period, the au-
thoritys interpretation had been consistently applied. On this occasion,
however, her union adopted Ms. Plaisiers position that time as a casual
employee should be taken into account.
A single arbitrator appointed under The Labour Relations Act40 (LRA)
concluded that the unions interpretation was correct. But the arbitrator
also concluded that the union was estopped from challenging the regional
health authoritys interpretation. After years of acquiescence, it would be
unfair for the union to prevail. The authority was entitled to assume that
the union had accepted its practice and to act on that assumption.
The union sought judicial review. It was unsuccessful at first instance,
where a standard of review of reasonableness was applied in upholding
the arbitrators decision.41 On appeal, the union persuaded the Manitoba
Court of Appeal to apply a standard of correctness. As the court of appeal
commented, defining the parameters of promissory estoppel was a matter
within the purview of the ordinary courts and outside that of labour arbi-
39 Supra note 17.
40 RSM 1987, c L10.
41 Manitoba Association of Health Care Professionals v Nor-Man Regional Health Authori-
ty Inc, 2009 MBQB 213 at paras 11-13, 20, 243 Man R (2d) 281.
494 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
trators.42 The court of appeal went on to quash the decision, on the basis
that the arbitrator had wrongly applied the common law concept.43
It is difficult to see how the categorical approach could have resolved
this conflict. On the one hand, as the court of appeal held, estoppel is a
quintessentially common law principle, which arbitrators are not neces-
sarily expert at applying. On the other hand, there is much to commend
the view of the judge at first instance, as the application of concepts such
as estoppel in the context of complex labour relations disputes will invari-
ably involve important considerations of fact and policy.44
How did the Supreme Court of Canada resolve the impasse? Writing
for a unanimous Court, Justice Fish emphasized the unique position of
labour arbitrators. He first drew attention to their broad statutory and
contractual mandates. He linked this to their role in fostering industrial
peace and harmonious relations between management and unions. He
then emphasized their expertise in dealing with labour relations issues.
Finally, he noted that arbitrators are uniquely placed to respond to the
exigencies of … employer-employee relationship[s].45
Significant reliance on the standard of review analysis factors was
necessary to determine the appropriate standard of review. Starring roles
were played by expertise and statutory purpose. In addition, Justice Fish
relied on additional factors, namely the extent of the statutory mandate
and the complexity of the problem underlying the decision in issue.
42 Manitoba Association of Health Care Professionals v Nor-Man Regional Health Authori-
ty Inc, 2010 MBCA 55 at para 46, 255 Man R (2d) 93.
43 Ibid at paras 76-78.
44 Further support for a correctness standard of review could be found in CUPE, supra
note 10. Justice Arbour explained for the majority that res judicata and abuse of process
are complex common law concepts, the application of which lies clearly outside the
sphere of expertise of a labour arbitrator (ibid at para 15). CUPE involved an attempt
to reopen, or at least cast doubt upon, an individuals criminal conviction. This could
perhaps be distinguished from the present case, in which estoppel was invoked as a
means of achieving fairness between two parties in a collective bargaining relationship.
Balancing competing interests in such a fashion is at the core of a labour arbitrators
expertise and function, whereas second-guessing the outcome of criminal proceedings is
peripheral at best. Justice Fish simply held, however, that no issue of central im-
portance to the legal system had been raised in Nor-Man (supra note 17 at para 38).
Perhaps more detailed discussion would have splintered the Courts unanimity, but in
any event, it is unfortunate that the Court did not clarify the relevant distinctions be-
tween the present case and CUPE.
45 Nor-Man, supra note 17 at para 49. See ibid at paras 42-53.
DUNSMUIRS FLAWS EXPOSED 495
But at least two dangers lie in this resort to contextualism.46 The first
is that the identification of the appropriate standard of review will turn on
whatever factors the reviewing court considers relevant in the case before
it. This puts litigants in a difficult position. At least with the previous
standard of review analysis it was clear what factors would be relied up-
on. Now, it is entirely unclear. The second danger is that the factors will
differ from sector to sector. In other words, what is relevant to labour ar-
bitrators may not be relevant to ministers, municipalities, or telecommu-
nications regulators. Canada could end up with a balkanized administra-
tive law, in which different principles apply depending on the subject mat-
ter of the decision makers jurisdiction, even where the relevant legal
frameworks are substantively similar. The Court should think long and
hard before giving in too easily to the siren call of context.
These important concerns about clarity and balkanization notwith-
standing, the central point is that, in determining the standard of review,
the work was not done by the categorical approach, but by factors external
to it.
Having held that the appropriate standard of review was reasonable-
ness, Justice Fish had no difficulty in determining that the arbitrators
decision should be upheld. It was transparent, intelligible, and, indeed,
coherent; it was based on the evidence, submissions of the parties, and the
arbitrators analysis; and it was consistent with the precedents relied up-
on by the arbitrator in reaching a conclusion.47
To the submission that the arbitrators application of promissory es-
toppel failed to follow the test laid down in Maracle v. Travellers Indemni-
ty Co. of Canada,48 Justice Fish held simply that the arbitrator had
adapted and applied the equitable doctrine of estoppel in a manner rea-
sonably consistent with the objectives and purposes of the LRA, the prin-
ciples of labour relations, the nature of the collective bargaining process,
and the factual matrix of Ms. Plaisiers grievance.49 Some relief exists in
46 Compare Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 at pa-
ra 158, [2000] 2 SCR 307, LeBel J, dissenting in part.
47 Nor-Man, supra note 17 at para 58.
48 [1991] 2 SCR 50, 80 DLR (4th) 652 [cited to SCR]:
The principles of promissory estoppel are well settled. The party relying on the
doctrine must establish that the other party has, by words or conduct, made a prom-
ise or assurance which was intended to affect their legal relationship and to be act-
ed on. Furthermore, the representee must establish that, in reliance on the repre-
sentation, he acted on it or in some way changed his position (ibid at 57).
49 Nor-Man, supra note 17 at para 60.
496 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Nor-Man, then, for those who saw the court of appeal decision as an in-
terventionist aberration.50
III. Canada (Canadian Human Rights Commission) v. Canada (Attorney
General)51
This case again exposes the categorical approachs inability to identify
the appropriate standard of review where there is conflict between catego-
ries. Moreover, it lays bare some of the shortcomings of the conception of
reasonableness developed in Dunsmuir.
Ms. Donna Mowat was an employee of the Canadian Forces for a peri-
od of fourteen years before she was compulsorily released in 1995. Ms.
Mowat had made numerous complaints against her employers over the
years and, subsequent to her release, filed a complaint with the Canadian
Human Rights Commission. She alleged sexual harassment, adverse dif-
ferential treatment, and failure to continue employment on the basis of
sex.
Ms. Mowats claim was heard by the Canadian Human Rights Tribu-
nal. After a hearing that lasted several weeks and required the considera-
tion of voluminous evidence, Ms. Mowat was partially successful: her sex-
ual harassment claim was upheld, though her other complaints were not.
Ms. Mowat received an award of $4,000. In addition, the tribunal awarded
her legal costs, in the amount of $47,000. The award of costs was made by
virtue of paragraphs 53(2)(c) and 53(2)(d) of the Canadian Human Rights
Act (CHRA). These paragraphs provide that, where an adverse finding
has been made against a respondent, the tribunal may order
(c) that the person compensate the victim, as the Tribunal may
consider proper, for any or all of the wages that the victim was de-
prived of and for any expenses incurred by the victim as a result of
the discriminatory practice; and
(d) that the person compensate the victim, as the Tribunal may
consider proper, for any or all additional cost of obtaining alternative
goods, services, facilities or accommodation and for any expenses in-
curred by the victim as a result of the discriminatory practice.52
50 See e.g. Gerald P Heckman, Nor-Man Regional Health Authority: Labour Arbitration,
Questions of General Law and the Challenges of Legal Centrism (2011) 35:1 Man LJ
63.
51 Supra note 16.
52 RSC 1985, c H-6 [emphasis added].
DUNSMUIRS FLAWS EXPOSED 497
The question that occupied the reviewing courts was whether the effect of
these provisions was to vest the power to award legal costs in the tribu-
nal.53
What would be the appropriate standard of review? On the one hand,
one might agree with the Federal Court, which held that the tribunal was
interpreting its home statute and as such was entitled to deference.54 On
the other hand, the position of the Federal Court of Appeal, which held
that the tribunal was answering a question of general law of central im-
portance to the legal system as a whole, seems equally plausible.55 Many
tribunals have the power to award expenses, and a finding that the hu-
man rights tribunal is entitled to award legal costs would surely resonate
throughout federal and provincial administrative structures.
At the Supreme Court of Canada, Justices LeBel and Cromwell held
that the appropriate standard was that of reasonableness. In setting out
the categorical approach, and presaging the view taken by Justice Roth-
stein in Alberta Teachers Association, Justices LeBel and Cromwell held
that the category of jurisdictional questions was to be construed narrow-
ly.56 Ultimately, however, the conflict between the categories was re-
solved by reference to external factors. Justices LeBel and Cromwell held
that the question of whether legal costs incurred because of discriminato-
ry conduct constituted expenses within the meaning of the CHRA was one
within the core function and expertise of the tribunal. They noted that
the question was inextricably intertwined with the Tribunals mandate
and expertise to make factual findings relating to discrimination.57 They
further added that, given the tribunals familiarity with making such fac-
tual determinations, the tribunal was well positioned to make assess-
ments as to the necessity of awarding legal costs.58 Finally, they empha-
sized that the question required a fact-sensitive inquiry.59
In determining the appropriate standard of review, Justices LeBel and
Cromwell relied on the tribunals expertise, the factual nature of the ques-
tion, and the purpose of the statutory provisions at issue. In other words,
while Justices LeBel and Cromwell purported to apply the categorical ap-
53 For the tribunals decision on this issue, see Donna Mowat v Canadian Armed Forces
(15 November 2006), 2006 CHRT 49, online: CHRT
54 Canada (Attorney General) v Mowat, 2008 FC 118, 322 FTR 222.
55 Canada (Attorney General) v Mowat, 2009 FCA 309, [2010] 4 FCR 579.
56 Canadian Human Rights Commission, supra note 16 at para 24.
57 Ibid at para 25.
58 Ibid.
59 Ibid at para 26.
498 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
proach,60 the real drivers of the choice of standard of review were the
much-maligned standard of review analysis factors.
Justices LeBel and Cromwell proceeded, however, to apply a stringent
standard of reasonableness to the decision. The question, they stated
baldly, was one of statutory interpretation, calling for the application of
Driedgers modern principle.61
Justices LeBel and Cromwell first examined the text of the provision.
Significant concern was caused by the appearance of the word expenses
in both paragraphs 53(2)(c) and 53(2)(d). Accepting the tribunals inter-
pretation, Justices LeBel and Cromwell reasoned, would render the repe-
tition of the term expenses redundant and [fail] to explain why the term
is linked to the particular types of compensation described in each of those
paragraphs.62 This violated the presumption against tautology (i.e., that
the legislature avoids superfluous or meaningless words).63 In addition,
in legal parlance, the term costs was said to have a well-understood
meaning different from that of expenses. Had Parliament intended to
grant the authority to make costs awards, it could simply have employed
the term costs.64 Finally, the tribunal did not have the power to make fi-
nancial awards in excess of $5,000; to allow it to make potentially unlim-
ited awards of legal costs would do violence to an express limitation on the
tribunals authority.65
Justices LeBel and Cromwell then examined the surrounding context:
the legislative history, the commissions understanding of its authority to
award costs, and parallel provincial and territorial legislation. The legis-
lative history bolstered the justices view that the term costs was a term
of art that Parliament could have included had it been so minded: previ-
ous, unenacted iterations of human rights legislation have expressly in-
cluded a power to award costs. Instead, the commission was given a role
60 Ibid at para 27.
61 Ibid at para 33. For the general principles of statutory interpretation, see e.g. Rizzo &
Rizzo Shoes Ltd (Re), [1998] 1 SCR 27, 154 DLR (4th) 193. Driedgers modern principle
states that [t]oday there is only one principle or approach, namely, the words of an Act
are to be read in their entire context and in their grammatical and ordinary sense har-
moniously with the scheme of the Act, the object of the Act, and the intention of Parlia-
ment (Elmer A Driedger, Construction of Statutes, 2d ed (Toronto: Butterworths, 1983)
at 87).
62 Canadian Human Rights Commission, supra note 16 at para 38.
63 Sullivan on the Construction of Statutes, 5th ed by Ruth Sullivan (Markham: LexisNex-
is, 2008) at 210-14.
64 Canadian Human Rights Commission, supra note 16 at para 40.
65 Ibid at para 41.
DUNSMUIRS FLAWS EXPOSED 499
that could include litigating on behalf of claimants.66 This legislative
choice obviated the need to grant the tribunal a free-standing power to
make costs awards. That the tribunal did not have such a power was sug-
gested by the commissions own interpretation of section 53: [T]he Com-
mission itself has consistently understood that the CHRA does not confer
jurisdiction to award costs and has repeatedly urged Parliament to amend
the Act in this respect.67 Finally, reference to provincial and territorial
legislation tended to confirm the view that the word costs is used con-
sistently when the intention is to confer the authority to award legal
costs.68 For Justices LeBel and Cromwell, the absence of this magic word
from the CHRA was telling.
Lastly, the justices examined the purposes of the CHRA. While they
acknowledged that the legislation ought to be given a broad and liberal in-
terpretation, the justices held that a liberal and purposive interpretation
cannot supplant a textual and contextual analysis simply in order to give
effect to a policy decision different from the one made by Parliament.69
Here, the text, context and purpose of the legislation clearly show that
there is no authority in the Tribunal to award legal costs and that there is
no other reasonable interpretation of the relevant provisions.70
Justices LeBel and Cromwell essentially applied a standard of cor-
rectness: they judged the tribunals decision by reference to the principles
of statutory interpretation, presumablythough they did not put it in
these termsbecause the relevant context was one of statutory interpre-
tation. Indeed, Justices LeBel and Cromwell rebuked the tribunal for not
having employed legal principles: its decision to adopt a dictionary mean-
ing of expenses and to articulate a beneficial policy outcome led the
Tribunal to adopt an unreasonable interpretation of the provisions [in is-
sue].71
Even if Justices LeBel and Cromwell have (slightly) the better of the
argument on the interpretation of the term expenses, this rebuke was
not justified. First, the approach demanded by the justices is unrealistic.
66 Ibid at para 51.
67 Ibid at para 53. It is interesting that the Court was comfortable referring to the com-
missions annual reports and recommendations to Parliament in informing its interpre-
tation of the statute. By contrast, in Canada (Attorney General) v Mavi (2011 SCC 30,
[2011] 2 SCR 504), Justice Binnie expressly refused to take into consideration contrac-
tual undertakings drawn up by the provincial government. These represented merely
an administrative interpretation of the legislative framework (ibid at para 61).
68 Canadian Human Rights Commission, supra note 16 at para 59.
69 Ibid at para 62.
70 Ibid at para 64.
71 Ibid.
500 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Administrative tribunals are not courts. They do not always have the
same access as judges to legal databases, a battery of eager clerks, and
most tellingly of all, to the assistance of learned counsel. It is hard to see
how they can realistically be held to the highest legal standards.
Second, Justices LeBel and Cromwells substitution of their own
judgment on the meaning of the term expenses was inappropriate. If
administrative tribunals are required to act like courts, with a corre-
sponding reliance on legalistic procedures, the advantages of simplicity,
accessibility, and flexibility that they offer will be lost.72 The tribunal
should not be obliged to articulate its conclusions in purely legal terms.
Rather, its conclusions should be informed by the overarching purposes of
the statutory scheme, the context presented by individual cases, and the
tribunals experience applying the provisions of the CHRA to diverse fac-
tual situations.
Moreover, the standard of review analysis indicated that the question
was one that the legislature intended the tribunal to resolve. The very
purpose of the standard of review analysis is to determine whether a
question should be answered by the reviewing court (correctness) or by
the decision maker in question (reasonableness). To employ a nondeferen-
tial standard of reasonableness is to undermine the standard of review
analysis. No justification was offered for the intensity of the review, be-
yond the summary conclusion that the question was one of statutory in-
terpretation. Given that the authority to determine the meaning of ex-
penses had been vested in the tribunal and not in the courts, Justices
LeBel and Cromwells insistence that the tribunal interpret statutory
provisions as if it were a court flew in the face of legislative intent. Had
Parliament intended the provision in question to be interpreted in a judi-
cial manner, it could have charged the courts with doing so.73
Where the standard of review is that of reasonableness, the onus is on
the applicant to demonstrate some shortcoming in the decision or deci-
sion-making process.74 To impose a standard of review of correctness is to
subvert review for reasonableness. To put the point starkly, the applicant
72 See also Tom Poole, Of Headscarves and Heresies: The Denbigh High School Case and
Public Authority Decision-Making Under the Human Rights Act [2005] PL 685.
73 See also Mellor v Saskatchewan (Workers’ Compensation Board), 2012 SKCA 10, [2012]
6 WWR 669 (in the context of judicial review, the modern approach to statutory inter-
pretation is only applied as an aid in determining whether the Board Decision falls
within the range of possible, acceptable outcomes (i.e., whether it is a reasonable deci-
sion), but not whether, in the courts view, that outcome is the correct interpretation at
para 32).
74 See generally Paul Daly, A Theory of Deference in Administrative Law: Basis, Applica-
tion and Scope (Cambridge, UK: Cambridge University Press, 2012) ch 4.
DUNSMUIRS FLAWS EXPOSED 501
is given a second kick at the can: an argument that failed to convince the
decision maker can be run again in the alternative forum of the reviewing
court. Whatever the merits of the ultimate conclusion reached by Justices
LeBel and Cromwell, the route by which they arrived there is a dangerous
one. Indeed, if the Courts treatment of the category of jurisdictional ques-
tions in Alberta Teachers Association suggests a willingness to narrow the
categories of correctness review in order to be more deferential,75 this aim
will be frustrated if the standard of reasonableness is applied in a non-
deferential manner.
IV. Catalyst Paper Corp. v. North Cowichan (District)76
The final case is most remarkable for its reintroduction of a third
standard of review, but it also provides an important lesson on the short-
comings of Dunsmuirs unified standard of reasonableness.
Catalyst Paper is a major corporation that has four mills in Western
Canada. One of these is located in the district of North Cowichan and has
been there for a long time.77 More recently, the residential population of
the district has increased dramatically, straining the districts resources.
Reluctant to raise residential taxes for fear of driving out newcomers, the
district instead began to incrementally raise the rates on major industrial
property, effectively, Catalyst Papers mill. By the time Catalyst Paper
applied for judicial review of the most recent municipal taxation bylaw, its
tax rate was over twenty times greater than the rate that applied to resi-
dents. Both the British Columbia Supreme Court78 and Court of Appeal79
upheld the bylaw.
Catalyst Paper conceded that the bylaw was reviewable on a standard
of reasonableness but argued that the district could not meet the stand-
ards of justification, intelligibility, and transparency mandated by Dun-
smuir. In agreeing that the standard of review was that of reasonable-
ness, the Supreme Court of Canada clarified a point that had been un-
clear:80 the same general principles apply to the review of municipal by-
75 See the comments of Justice Browne in Edmonton School District No 7 v Alberta Teach-
ers Association, 2012 ABQB 386 at para 11 (available on CanLII).
76 2012 SCC 2, [2012] 1 SCR 5 [Catalyst].
77 Though perhaps not for much longer: see Catalyst Paper Corp, Re, 2012 BCSC 451, 89
CBR (5th) 292.
78 Catalyst Paper Corp v North Cowichan (District), 2009 BCSC 1420, 98 BCLR (4th) 355
[Catalyst BCSC].
79 Catalyst Paper Corp v North Cowichan (District), 2010 BCCA 199, [2010] 7 WWR 259
[Catalyst BCCA].
80 See the discussion at first instance: Catalyst BCSC, supra note 78 at paras 30-44.
502 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
laws as apply to the review of administrative action. Delivering the judg-
ment of the Court, Chief Justice McLachlin overruled Thornes Hardware
Limited v. The Queen,81 which stood for the proposition that delegated leg-
islation could be reviewed only to determine whether it is ultra vires and
not for substantive reasonableness because the latter was related to policy
and was not within the purview of the courts. This position is untenable,
as Chief Justice McLachlin explained, because [t]he rule of law insists on
judicial review to ensure that delegated legislation complies with the ra-
tionale and purview of the statutory scheme under which it is adopted.82
However, in determining the appropriate standard of review, the chief
justice did not employ the categorical approach. Chief Justice McLachlin
first noted that municipal taxation decisions involve an array of social,
economic, political and other non-legal considerations. … In this context,
reasonableness means courts must respect the responsibility of elected
representatives to serve the people who elected them and to whom they
are ultimately accountable.83
Then, Chief Justice McLachlin held that previous approaches to judi-
cial review of particular types of decision should be taken into account in
determining the standard of review.84 Accordingly, fastening on a sugges-
tion made by the court of appeal,85 the chief justice held that the applica-
ble standard was whether the bylaw was so unreasonable that no reason-
able municipality could have enacted it.86
As to whether or not the bylaw was unreasonable, Chief Justice
McLachlin held that it was not. The municipality was not bound to take
only objective considerations into account; it was entitled to consider
broader social, economic and political issues.87 While Chief Justice
McLachlin acknowledged that the bylaws effect on Catalyst Paper was
extremely harsh, this was not sufficient to justify striking it down. The
district council was entitled to take into account the countervailing con-
siderations, which included the impact of a sudden hike in residential
property taxes on long-term, fixed-income residents, and a municipal poli-
cy of gradually working toward greater equalization of tax rates.88 There
81 [1983] 1 SCR 106, (sub nom Thornes Hardware Ltd v The Queen) 143 DLR (3d) 577.
82 Catalyst, supra note 76 at para 15.
83 Ibid at para 19.
84 Ibid at para 23.
85 Catalyst BCCA, supra note 79 at para 37.
86 See Catalyst, supra note 76 at para 24.
87 Ibid at para 32.
88 See ibid at para 35.
DUNSMUIRS FLAWS EXPOSED 503
may be much to commend the substantive outcome here, which expresses
faith in the democratic process and in the ability of municipalities to
reach rational results. But the route by which this outcome was reached is
again problematic.
On the face of it, the Catalyst standard is easier to meet, from the
point of view of the municipality, than the Dunsmuir standard. There is
no mention of justification, intelligibility, and transparency, qualities that
even a charitable observer would not attach to many instances of munici-
pal decision making (or perhaps legislating tout court!).
However, the standard emerges from a curious reading of Dunsmuir.
In Catalyst, the Court effectively reintroduced a third standard of review:
municipal bylaws can be struck down only where they are so unreasona-
ble that no reasonable municipality could have enacted them. This un-
dermines the Dunsmuir project, which was to simplify judicial review of
administrative action by reducing the number of standards of review and
clarifying the meaning of reasonableness. When the surrounding circum-
stances are taken into account, the Courts statement in Dunsmuir that
previous jurisprudence is relevant to determining the standard of review
must have been aimed at situations in which earlier cases had identified
the appropriate standard of review for a certain type of decision taken
under a particular statutory scheme.
Whether it is consistent with the spirit of Dunsmuir or not, the effect
of Catalyst has been to increase the number of available standards of re-
view. Moreover, it is inevitable that in subsequent challenges to delegated
legislation or to high-level policy decisions taken by elected officials (such
as the Governor-in-Council), parties will argue that this new standard
should also apply to them.89 In addition, the Catalyst standard will con-
fuse the meaning of reasonableness. It is in substance identical to
Wednesbury unreasonableness, which has been subjected to sustained at-
tack because of its opaque nature.90 This is all to the detriment of clarity.
One appreciates the bind in which the Court found itself. Municipal
bylaws certainly do not lend themselves to an analysis based on justifica-
tion, intelligibility, and transparency: elected representatives have never
89 This is ground left uncovered by Dunsmuir, as Justice Stratas has recently pointed out:
see Toussaint v Canada (Attorney General), 2011 FCA 213 at para 19, 343 DLR (4th)
677. See also Public Mobile Inc v Canada (Attorney General), 2011 FCA 194 at para 35,
[2011] 3 FCR 344.
90 See e.g. Jeffrey Jowell & Anthony Lester, Beyond Wednesbury: Substantive Principles
of Administrative Law [1987] PL 368; Jeffrey Jowell & Anthony Lester, Proportionali-
ty: Neither Novel nor Dangerous in JL Jowell & D Oliver, eds, New Directions in Judi-
cial Review (London, UK: Stevens & Sons, 1988) 51. But see Paul Daly, Wednesburys
Reason and Structure [2011] 2 PL 238.
504 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
been judicially required to furnish written reasons for their legislative de-
cisions. But having jettisoned the third standard of review in Dunsmuir,
the Court found itself without an appropriate standard to apply in Cata-
lyst.
I would venture that, in Dunsmuir, the Court spoke too soon. A third
standard is necessary. As the court of appeal had noted in Catalyst,91 the
spectrum of factors in Catalyst cried out for a highly deferential approach.
The decision was taken by an elected body, one that was capable of hear-
ing evidence and argument from those affected. It was expert in terms of
meeting the needs of those living in its area. It was addressing a complex
problem. Moreover, these are surely the reasons for which the authority
to pass bylaws was vested in the municipality in the first place.92 Any rea-
sonable reading of the home statute would indicate that a highly deferen-
tial standard of review must have been intended by the legislature. In-
deed, the Court was motivated by these factors in deciding to apply its
new Catalyst standard rather than the unified reasonableness standard
elucidated in Dunsmuir.93
Finding a workable third standard of review is difficult, however.94 In
his concurring reasons in Alberta Teachers Association,95 Justice Binnie
suggested that varying standards of reasonableness are appropriate,
based on his observation that [r]easonableness is a deceptively simple
omnibus term which gives reviewing judges a broad discretion to choose
from a variety of levels of scrutiny from the relatively intense to the not so
intense.96 With respect to administrative decisions, such as the one at is-
sue in Canadian Human Rights Commission, which involve an interpre-
tation of a statutory provision, a standard close to correctness will be ap-
propriate.97 For discretionary decisions, such as the one at issue in Cata-
lyst, a highly deferential standard will be appropriate.98 Once again, one
can perceive the lure of the standard of review analysis factors: for Justice
Binnie (and, apparently, the Court) the nature of the question is critical.
91 Catalyst BCCA, supra note 79 at para 36.
92 See Daly, A Theory of Deference, supra note 74, ch 3.
93 Catalyst, supra note 76 at para 19.
94 See e.g. CUPE, supra note 10 at paras 60-135, LeBel J.
95 Justice Binnies concurring reasons in Alberta Teachers Association constituted a re-
turn to a theme he expounded upon in his concurring reasons in Dunsmuir (supra note
3 at paras 135-41).
96 Alberta Teachers Association, supra note 18 at para 87.
97 See ibid at para 85.
98 See ibid at para 86.
DUNSMUIRS FLAWS EXPOSED 505
Questions of law attract little or no deference; exercises of discretion in a
fact- and policy-sensitive setting attract great deference.
Justice Binnie is correct that reasonableness depends on context.
Nonetheless, his analysis is problematic. For Justice Binnie, the degree of
deference should turn on a distinction between law and discretion. This
distinction was specifically rejected as a touchstone of judicial review doc-
trine in Baker v. Canada (Minister of Citizenship and Immigration),99 and
properly so.100 If it is inappropriate for judicial review doctrine to hinge on
a distinction between law and discretion, it must be inappropriate for the
intensity of reasonableness review to hinge on it. Otherwise, why not
choose a standard of review based on the distinction between law and dis-
cretion? If one finds Justice Binnies approach appealing, one should de-
fend it in terms of the distinction between law and discretion, rather than
seeking to send through the back door something that was rejected at the
front.
Moreover, given the difficulty that the Court has had in applying its
post-Dunsmuir framework, it is by no means clear that doubling down on
the categorical approach represents a workable solution. Sweeping prob-
lems under the carpet will not smooth out the fabric of administrative
law; rather, it will cause it to bulge and crease. Such is the inevitable ef-
fect of a formalistic approach to judicial review:
Formalism is formal in that it requires judges to operate with
categories and distinctions that determine results without the judges
having to deploy the substantive arguments that underpin the cate-
gories and distinctions. Since those categories and distinctions must
take on a life of their own in order to operate in this detached way,
they are capable of determining results that contradict the very ar-
guments for these categories and distinctions.101
The search for a workable third standard of review will have to continue.
More generally, taking Justice Binnies point as descriptively accurate,
the Courts approach demonstrates the flaws in the notion that reasona-
bleness takes its colour from its context. Context has not been defined by
the Court; instead, the standard of review seems to vary depending, on
the nature of the questionalthough, in the absence of a conclusive
statement from the Court, it is hard to so state with certainty.
It is telling that, despite the emphasis on the categorical approach, the
Court apparently has regard to the nature of the question that was before
99 [1999] 2 SCR 817 at paras 51-56, 174 DLR (4th) 193.
100 See Daly, A Theory of Deference, supra note 74, ch 6.
101 David Dyzenhaus, Constituting the Rule of Law: Fundamental Values in Administra-
tive Law (2002) 27:2 Queens LJ 445 at 450.
506 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
the administrative decision maker when determining how intrusive the
standard of review ought to be. It is discomfiting that the nature of the
question plays such an important role in practice even though its im-
portance has been diminished in the rhetoric of the Court. If the Court is
to continue to insist that reasonableness is a single standard that takes
its colour from its context, the Court ought to be more open about the fac-
tors that comprise the context.
Conclusion
If one wereperhaps mischievouslyto judge the Supreme Courts
recent decisions on standard of review by reference to the virtues of justi-
fication, intelligibility, and transparency, one would have to conclude that
the flaws in the Dunsmuir approach cause the Court to come up short.
In terms of intelligibility, it is not clear what is driving the choice of
standard of review in recent cases. The Courts rhetoric suggests the cate-
gorical approach, but a more close analysis suggests that the standard of
review analysis factors, or some variant thereon, are the real motor.
Moreover, apart from Justice Binnies concurring reasons in Alberta
Teachers Association, no attention has been paid to the pressing question
of what constitutes context for the purposes of applying the reasonable-
ness standard.
In terms of transparency, it is not clear what factors will push the
Court to choose correctness or reasonableness as the standard of review.
Litigants and litigators are likely to become more confused in the future
than they ever were by the standard of review analysis: at least the cate-
gorical approachs predecessor comprised four fixed factors. Furthermore,
the factors that the Court will take into account in determining context,
when it comes to assessing the reasonableness of a decision, remain
opaque.102
Finally, in terms of justification, I have tried to demonstrate in this
paper that the use of the categorical approach will almost inevitably lack
justification. Rather than examining the substance of the statutory
scheme, the intricacies of the decision-making process, and the character-
istics of the decision maker, the choice between correctness and reasona-
bleness is made by definitional diktat. The reviewing court simply holds
that a decision falls into a particular category and thus attracts the corre-
sponding standard of review. Of course, I have pointed out that, in truth,
102 See Mills v Workplace Safety and Insurance Appeals Tribunal (Ont), 2008 ONCA 436 at
para 22, 237 OAC 71 (for an example of the wide variety of factors that might plausibly
be said to be relevant to determining the context).
DUNSMUIRS FLAWS EXPOSED 507
a variety of factors influence the choice. But to hide these factors from
view rather than assess them openly is to fail to meet the requirement of
justification. And again, the judicial ability to rely on a mishmash of rele-
vant factors in determining context is most disconcerting.
This is not necessarily to say that the Court is being substantively un-
reasonable. Calibrating judicial review doctrine is a difficult undertaking,
particularly when the Court has not been presented with a raft of viable
alternatives.103 Rather, despite its good faith efforts to do so, the Court has
not yet succeeded in formulating clear and coherent standard of review
doctrine.
103 My preferred alternative is outlined at some length in Daly, Theory of Deference, supra
note 74. A practical summary can be found in Paul Daly, A Theoretical Book but a
Practical Approach (10 July 2012), online: Administrative Law Matters
