Revisiting Dunsmuir: Food for Thought

Yesterday, the Supreme Court of Canada did something very unusual, granting leave to appeal in three judicial review cases and explaining:

The Court is of the view that these appeals provide an opportunity to consider the nature and scope of judicial review of administrative action, as addressed in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, and subsequent cases. To that end, the appellants and respondent are invited to devote a substantial part of their written and oral submissions on the appeal to the question of standard of review, and shall be allowed to file and serve a factum on appeal of at most 45 pages.

This is unusual because the Court does not give explanations for its leave decisions. It is perhaps significant that this direction comes early in Wagner CJ’s stewardship of the Court. Having heard the significant criticisms levelled at the status quo by practitioners, academics and judges, Wagner CJ has marked a break with the past by indicating the Court’s explicit willingness to address the criticisms.

Regular readers know that in the run-up to the tenth anniversary of Dunsmuir, in March of this year, this blog, along with Leonid Sirota’s Double Aspect, ran an online symposium on the past, present and future of Canadian administrative law. The contributions will shortly be published in a special issue — a timely special issue, it turns out — of the Canadian Journal of Administrative Law & Practice.

In this post, I have collected all of the contributions, with hyperlinks to the versions that appeared in the online symposium. These are not the final versions — for that readers will have to wait for the special issue of the CJALP — and on occasion the titles are different, but the posts constitute a useful reading list for those thinking about “the nature and scope of judicial review of administrative action, as addressed in Dunsmuir“. Enjoy.


Paul Daly: Why is Standard of Review so Addictive?

The Hon. Justice David Stratas: A Decade of Dunsmuir: Please No More

The Background to Dunsmuir/Le contexte de Dunsmuir

Martine Valois : Si l’histoire de la norme m’était contée : évolution et circonvolutions du principe de déférence au Canada

Clarence Bennett: David Dunsmuir – An Unlikely Administrative Law Celebrity

Dunsmuir and Public Employment/Dunsmuir et la fonction publique

Matthew Lewans: On the Privilege of Public Employment

Nicolas Lambert: Dunsmuir v. New Brunswick – the Saviness of Standards of Review

The Philosophy of Dunsmuir/La philosophie de Dunsmuir

Mark D. Walters: Theorizing Administrative Law – Does Dunsmuir have a Philosophy?

Mary Liston: Deference as respect: Lost in translation?

Andrew Green: The Search for a Simpler Test: Dunsmuir and Categories

Evan Fox-Decent & Alexander Pless: Dunsmuir and Jurisdiction

Léonid Sirota: The Paradox of Simplicity in Canadian Administrative Law

Correctness Review/La norme de la décision correcte

Mark Mancini: The Dark Art of Deference: Dubious Assumptions of Expertise On Home Statute Interpretation

Lauren Wihak: The Withering of Correctness Review

Shaun Fluker: The Return of Correctness in Judicial Review

Martin Olszynski: Dunsmuir is Dead – Long Live Dunsmuir! An Argument for a Presumption of Correctness

Gerald Heckman: The Supreme Court and questions of law in immigration and refugee law decision-making

Reasonableness Review/La norme de la décision raisonnable

David Mullan: The True Legacy of Dunsmuir – Disguised Correctness Review?

The Hon. Joseph T. Robertson, Q.C.: Dunsmuir’s Demise & The Rise of Disguised Correctness Review

Eddie Clark: Dunsmuir and the hows and whys of judicial review

Alice Woolley: Stranger Things – A defence of Dunsmuir

Dunsmuir and Fairness/Dunsmuir et l’équité procédurale

Laverne Jacobs: Transparency and Institutional Bias in Canadian Administrative Law: Why the Dunsmuirian Approach is Not Enough

Dunsmuir and the Constitution/Dunsmuir et la constitution

Audrey Macklin: Charter Rights and Charter-Lite

Kate Glover: Dunsmuir & the Constitutional Status of the Administrative State

Indigenous Peoples and Dunsmuir/Les peoples autochtones et Dunsmuir

Janna Promislow: Deference with a Difference: Dunsmuir and Aboriginal Rights

Naiomi Metallic: Deference and Legal Frameworks Not Designed By, For or With Us

Teaching Dunsmuir/Enseigner Dunsmuir

Craig Forcese: Through a glass, darkly – Teaching Canada’s administrative law standard of review

Narelle Bedford: Transcending Jurisdictions – Teaching Dunsmuir in Australia

Sheila Wildeman: The road to Dunsmuir or, on re-reading administrative law’s bumpy kinky chain novel in the fading light of “a culture of justification”

Judicial Perspectives/Regards de la magistrature

The Hon. Joseph T. Robertson, Q.C.: The Merits of Dunsmuir: Rightly or Wrongly Decided (Then & Today)?

Hon. John M. Evans: Reflections on Dunsmuir of a Recovering Judge

Comparative Perspectives/Regards comparatifs

Janina Boughey: Dunsmuir’s Influence in Australia

Dean R. Knight: Locating Dunsmuir’s Meta-structure Within Anglo-Commonwealth Traditions

Jeff Pojanowski: Dunsmuir: A View from South of the Border

The Effects of Dunsmuir/Les effets de Dunsmuir

Robert Danay: Did Dunsmuir simplify the Standard of Review? An Empirical Assessment

William Lahey and Diana Ginn: How the Lower Courts are “doing Dunsmuir

Moving on from Dunsmuir/Faut-il passer à autre chose?

Lorne Sossin: Dunsmuir – Plus ça change Redux

Peter Gall: Dunsmuir: Reasonableness and the Rule of Law

The Hon. Justice David Stratas: Looking Past Dunsmuir: Beginning Afresh


Michel Bastarache: Dunsmuir 10 Years Later

Louis LeBel: L’ordre et le rêve – Le contrôle judiciaire après Dunsmuir

This content has been updated on May 11, 2018 at 12:01.