Standards of Review: The ABCA Weighs In
A well-written student note takes me to task for my interpretation of Catalyst Paper Corp. v. North Cowichan (District),  1 SCR 5.
Catalyst has not (yet) proved to be catalytic. It has not been applied to delegated legislation or decisions taken by other elected bodies. I unhesitatingly concede that Canadian courts have treated Catalyst as yet another example of reasonableness being a single standard that takes its colour from its context. Had McLachlin C.J. said only this, there would be no debate.
But she added the following at para. 24: “The applicable test is this: only if the bylaw is one no reasonable body informed by these factors could have taken will the bylaw be set aside”. I will leave it to readers to decide who has the better reading of Catalyst — bearing in mind that in the common law tradition old cases rarely die, so that if ever Canadian administrative law is reformulated, Catalyst may yet play an important role.
Which brings me to Imperial Oil Limited v Alberta (Information and Privacy Commissioner), 2014 ABCA 231, a case I blogged about previously. In obiter, the Alberta Court of Appeal accorded “limited deference” to the Commissioner’s interpretation of general statutes, such as environmental legislation, “over which he has no expertise” (at para. 43). Rather, the reviewing court “should extend deference to, and should favour the interpretation of that collateral legislation which has been adopted by the specialized tribunals that routinely administer it” (ibid.). The Court seemed thus to suggest that weight should be given to interpretations of legislation outside a decision-maker’s bailiwick, with courts maintaining the final word, but that specialized tribunals’ interpretations should be accepted unless unreasonable. This would be similar to the American distinction between Skidmore deference (agency interpretation given weight) and Chevron deference (agency interpretation controlling unless unreasonable).
Is this another example of reasonableness taking different colours in different contexts? Or is it a further example of Canadian courts attempting to define standards of review beyond the binary choice between correctness and reasonableness in order to respond coherently to the challenge of reviewing the full galaxy of administrative decision-makers?
The Alberta Court of Appeal’s approach evokes Evans J.A.’s suggestion in Re:Sound, 2014 FCA 48 that “weight” should be accorded to administrative decision-makers’ procedural fairness determinations. Stratas J.A. responded that this “would be like describing a car as stationary but moving” (Maritime Broadcasting, 2014 FCA 59, at para. 60).
Might one mischievously suggest that the stationary train is now leaving the station?
This content has been updated on July 23, 2014 at 21:19.