Dunsmuir v. New Brunswick – the Sexiness of Standards of Review (Nicolas Lambert)
Nicolas Lambert, Faculté de droit, Université de Moncton
If two administrative lawyers met in a bar, chances are they would succeed in having a conversation in which no one but them would understand what is being discussed. Another likely possibility is that even if they agreed with each other politically and morally, their ways of understanding conceptions of administrative law would likely not meet up because each would have a different understanding of what it means to be “reasonable” and how this might be different from being “correct”. The question is, talking about judicial standards of review can look very sexy, but what happens when we turn all of our attention into debating reasonableness?
The answer is that we build tunnel vision into our discipline and forget what it is about. Indeed, administrative law is a multi-faceted discipline, but Dunsmuir v. New Brunswick shows how easily one aspect of administrative law can eclipse all others. As Beetz J. stated: “[t]o a large extent judicial review of administrative action is a specialized branch of statutory interpretation”. Statutory interpretation, however, is difficult to compare with judicial standards of review. For one, statutory interpretation has never been about “rules”, but principles. In other words, the law of statutory interpretation does not prescribe how statutes should be interpreted, it only provides guidelines. Statutes can be interpreted differently in different circumstances. Judicial standards of review, on the other hand, have taken more authority, to the point where McLachlin C.J. once stated: “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.” Thus, while Dunsmuir talks at length about standards of review, it is still not clear what the whole discussion is about: rules or principles?
Another conception of administrative law is to view it as the law of public administration. To recall, Dunsmuir was about the powers of a labour arbitrator and how these powers vary according to the status of the employee. The Supreme Court stated that the traditional distinction between “office holders” and contractual employees was unworkable, yet it uses this very distinction to deny a right to procedural fairness because Dunsmuir was a “hybrid” employee, meaning both office holder and contractual employee. In fact, Dunsmuir was appointed as clerk of various courts under various pieces of legislation although the Supreme Court treated him as subject to a single set of rules. He may well have been an “office holder” without a contract although this was not even brought up. To this extent, the facts of the case were much richer than what was presented. The question, however, is why was this not done?
Lastly, the court in Dunsmuir appeared so fixated on standards of review that it seems to have forgotten what it was saying. On the one hand, the conclusion reached in Dunsmuir is that judicial review is not an appropriate because Dunsmuir’s relationship to his employer was contractual. On the other, the court concluded that the Arbitrator’s ruling was invalid and therefore nullified it. So is judicial review available or is it not? Government is normally the defendant in judicial review applications although it is was not in this case. Did the court confuse deference with ruling in favour of government?
When administrative law took off in North America at the turn of the century, it was understood as the law relating to public administration. Some called it the “administrative process” while others eventually called it the judicial review of administrative action, noting that judicial review was just a small part of “administrative law”. In Canada at present, the initial monster we once called “administrative law” has been swallowed up by its own progeny, the law of judicial review. This body of law was itself swallowed up by its own sub-field, the law of standards of review. Administrative lawyers are thus less concerned with good public administration than they are with good judicial review. Administrative law thus does not teach much about good and bad government – such knowledge pertains to “public administration”. Conversely, while law is not meant to be the stale description of rules, administrative lawyers generally do not criticise statutory schemes as incoherent – they are either “clear” or “ambiguous”. Lawyers do not evaluate and criticize administrative processes unless it is in relation to other rules such as the Charter. What lawyers do criticise is whether courts used the proper “standard of review”. Administrative law thus seek coherence not an administrative level, but at a judicial level. What administrative lawyers expect is that precedents relating to the judicial review of administrative action can be internally coherent.
However, when administrative law is understood broadly, it is easier to keep things in perspective. Of course, standards of review are predicated on the idea that courts should treat similar cases similarly. This is essential to the rule of law. That being said, there is nothing in the law of statutory interpretation prescribing courts to read a statute in a certain way once and for all. If individuals were going back to court with similar problems, this would be a problem since it would mean that precedents were not affecting government’s behaviour. But this is not what is going on. Judicial “incoherence” illustrates that administrative law is complex and diverse, but so is statutory interpretation. Trying to squeeze each case into a pigeonhole is not possible nor even desirable. If administrative law is to a large extent about statutory interpretation, this body of law has never been about “rules” but principles. Yet administrative law is also more than statutory interpretation, it is also the law of public administration. To this extent, Dunsmuir shows us what happens when lawyers become distracted to the point where they ignore one and do not bother to educate themselves about the latter.
 U.E.S., Local 298 v. Bibeault,  2 S.C.R. 1048, at p. 1087 quoting S. A. de Smith, H. Street and R. Brazier, Constitutional and Administrative Law (4th ed. 1981), at p. 558.
 Dr. Q v. College of Physicians and Surgeons of British Columbia,  1 S.C.R. 226, 2003 SCC 19 at para 21.
 The record shows that Dunsmuir was recruited under the Civil Service Act, S.N.B. 1984, c. C-5.1 However, three weeks after his initial engagement, he was appointed Clerk for the Court of Queen’s Bench (Trial and Family Divisions) and Clerk for the Probate Court. Where the record is erroneous, or at least, incomplete, is in describing his position as Clerk as pursuant to the CSA rather than the Judicature Act (JA) and the Probate Court Act (PCA) Judicature Act, R.S.N.B. 1973, c. J-2, ss. 61 (Deputy Registrar of the Court of Queen’s Bench and Court of Appeal) and 68(1) – trial division and 68(2) – family division; Probate Court: Probate Court Act, C. P-17.1, s. 12(1). See Order in Council 2002 – 101 and 2002-102 of March 14, 2002, The Royal Gazette – April 17 2002 at 429.
This content has been updated on February 14, 2018 at 09:33.