The Return of Context in the Standard of Review Analysis?

Long-time readers of this blog know I never really thought context had been eradicated by the simplification project which the Supreme Court of Canada began in Dunsmuir: see, e.g. my 2012 articles here and here. Standard of review issues continue to cause disquiet on lower courts around the country. Once a case does not fall into one of the neat categories of correctness or reasonableness review, difficulties abound. As Layh J. put it in Skyline Agriculture Financial Corp. v Farm Land Security Board, 2015 SKQB 82:

Respecting the first conclusion and notwithstanding the Supreme Court’s continuing leadership in setting the standards of judicial review, locating the goalposts of correctness and reasonableness has remained an elusive target for those obliged to follow this leadership. The Supreme Court, itself, has acknowledged that its efforts to bring clarity to the standard of review analysis are dogged with different views, obliging it to continually hone and reshape standard of review tests (para. 35).

For other recent cases in which first-instance judges have struggled to understand the Supreme Court of Canada’s recent standard of review pronouncements, see Pfizer Canada Inc. v. Canada (Attorney General), 2014 FC 1243, at paras. 57-120; Pfizer Products Inc. v. Canadian Generic Pharmaceutical Association, 2015 FC 493, at para. 149. As Slatter J.A. recently put it: “The day may come when it is possible to write a judgment like this without a lengthy discussion of the standard of review. Today is not that day” (Edmonton East (Capilano) Shopping Centres Limited v Edmonton (City), 2015 ABCA 85, at para. 11).

A particularly clear example of the attraction of contextual analysis is the case from which Slatter J.A.’s comment is drawn: Edmonton East (Capilano) Shopping Centres Limited v Edmonton (City), 2015 ABCA 85. At issue was “whether an Assessment Review Board can increase a property assessment when a complaint is brought by a taxpayer seeking a reduction of the assessment” (at para. 1). For Slatter J.A., this question had to be answered by the courts: a standard of correctness applied.

Slatter J.A.’s comment that “a mechanical and formalistic test for the standard of review is not reflective of the subtlety of the underlying issues” (at para. 23) gives a flavour of his preferred approach. He provided six reasons justifying a correctness standard in this particular case, in particular, to justify his conclusion (at para. 24) that the present case “presents either an addition to or a variation of the four ‘presumptive’ categories” of correctness review set out in Dunsmuir.

First, the legislation provided for an appeal: “The presence of a statutory right of appeal may not invariably signal a correctness standard of review, but it is clearly enough to displace any presumption that reasonableness applies” (at para. 24). Oddly, Slatter J.A. supported this reason with a citation to McLean, a statutory appeal where the presumption of reasonableness review was very much relied upon by the Supreme Court.

Second, the appeal to the courts had “specific mandatory parameters” (at para. 26) that commanded correctness review: in particular, where a case is remitted to the Board the legislation binds it to follow the directions given by the court. This reason perhaps moves this particular case closer to the situation in Tervita, where the Supreme Court invoked a strangely-worded appeal clause to justify correctness review (see my post).

Third, the appeal is by way of leave, “a signal that the Legislature wishes to have questions of this sort reviewed by the superior courts, and the legislative intent is not fully realized without a correctness standard of review” (at para. 27). I agree that leave provisions of this sort are potentially important indicators of legislative intent. Yet in Saguenay, its most recent pronouncement on standard of review, the Supreme Court did not attach any importance whatever to a similar clause (see my post).


…the relative expertise of the tribunal and the courts is in favour of a correctness standard of review. The statutory scheme allows a taxpayer to complain to the assessment review board. That board’s particular expertise and mandate is to review issues relating to the categorization and value of property. It must necessarily interpret the statutes and regulations which cover taxation, but statutory interpretation is not the core of its expertise. The “expertise” of the tribunal is not fully engaged here. In recognition of that, the statute allows appeals on questions of law, with leave. The statute recognizes the expertise of the assessment review boards, but it also recognizes the expertise of the superior courts in the interpretation of taxing statutes. The Legislature has decided not to choose between one kind of expertise or the other; rather the Legislature has created a regime which gains the benefit of both (at para. 28).

Explicit analysis of the relative expertise of the courts and decision-makers has fallen out of favour recently, probably because it has been subsumed into the presumption of reasonableness review. I am happy for it to make a return. At least Slatter J.A.’s reasons here are transparent rather than unseen — and can perhaps be criticized on the basis that they reduce the Board to a finder of facts in the interstices of judicial commands.

Fifth, taxation is special: “the existence of a right of appeal is in keeping with the general democratic principle that taxpayers are entitled to have their liability to the government determined by the ordinary courts” (at para. 29). Sure enough, common lawyers have long construed taxing provisions narrowly. However, absent specific concerns about the independence of the Board, it is difficult to see why a taxpayer should be treated differently from, say, the recipient of a welfare benefit or the holder of a government permit.

Sixth, “multiple tribunals” are involved in the assessment process (at para. 30), which creates a need for judicial intervention to ensure coherence, along the lines suggested by the Supreme Court in Rogers. I think Rogers should be limited to its special facts (and see also Simser v Aviva Canada and Fsco, 2015 ONSC 2363, at para. 32) but the Supreme Court recently gave it a new lease of life and Slatter J.A.’s invocation of it is further evidence of its vivacity.

Having “weighed and considered” all these factors, Slatter J.A. applied a standard of correctness (at para. 31). He also commented:

It is worth noting that a correctness standard of review does not mean that the opinions of the tribunal are ignored. When the court is applying its legal expertise to the interpretation of the statute, it should always take note of the tribunal’s perspective on the issue from a policy point of view. The two are not mutually exclusive. The correctness of a particular interpretation of a statute is not determined in the abstract, but only by considering the statutory provisions in the full policy and factual context (at para. 32).

This is analytically correct, I think, but is difficult to square with the Supreme Court’s insistence in Dunsmuir that there are only two standards of review: reasonableness and correctness — and not, for example, the sort of diet correctness that Slatter J.A. invoked here.

On the merits, Slatter J.A. dismissed the appeal:

When the statute is considered as a whole, it discloses an intention to permit a complaint by a taxpayer only. Once a complaint is filed, the assessment is fixed until the Board renders its decision. There is no room in the complaint procedure for a municipality to effectively mount a cross-complaint and seek an increase in the assessment (at para. 40).

I am all for contextual analysis in the standard of review context, especially where it is transparent. I may not agree with each of Slatter J.A.’s justifications for correctness review, but I must accept that he has mounted a formidable argument in this particular case, and I am at least able to respond openly to his justifications rather than having to read between the lines of his judgment. An application for leave to appeal has been filed, which presents the Supreme Court with an opportunity to clarify the role of context in the standard of review analysis.

This content has been updated on June 11, 2015 at 13:04.