Confusion and Contestation: Canada’s Standard of Review
As all but the newest readers of this blog are aware, the Supreme Court of Canada should, sometime this year, release a trilogy of decisions intended to clarify the Canadian law of standard of review.
It is by now very clear that the stakes are quite high. A tour of recent appellate and first-instance decisions indicates that the Court’s writ is not quite running a mari usque ad mare. There is significant confusion about the current state of Canadian administrative law; members of appellate courts disagree with each other about the basics of judicial review of administrative action; and some judges openly question or defy the authority of the Supreme Court’s pronouncements.
First, to Nova Scotia, where one finds confusion and contestation. In Atlantic Mining NS Corp. (D.D.V. Gold Limited) v Oakley, 2019 NSCA 14, which involved a complaint by the Corporation about the non-pecuniary losses it was obliged to cover in respect of an expropriation of property, Bryson JA was strongly critical of the Court’s prevailing approach to appeal clauses:
Respectfully, the reasons of the majority in [Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd.,  2 SCR 293] for such an indulgent standard of review as reasonableness, are unconvincing. Respect for legislative preferences cannot explain deference in a statutory appeal on a question of law when that right of appeal long predates later Supreme Court decisions on deference. In such cases, the legislature would have understood the law to require review on a correctness standard. So a reasonableness standard does not respect legislative intent. Legislated deference on questions of fact within a specialized tribunal’s area of expertise is a weak basis for supposing a superior expertise on questions of law which is the every day business of Superior Courts to which no such deference is given. That is especially so where presumed expertise may be more generous than the limited resources of some tribunals may justify. A strong “rule of law” argument can be made that on questions of law, the Superior Courts should have the final say because consistency is a hallmark of that rule.at para. 13
With evident distate, Bryson JA applied the reasonableness standard but concluded that the Board’s interpretation was unreasonable and, indeed, that interpreting losses as pecuniary only was the sole reasonable interpretation of the provincial Expropriation Act. The effect was to deny Mr Oakley compensation for (unquantifiable) discomfort and anxiety.
By contrast, writing for the majority in Nova Scotia (Attorney General) v S&D Smith Central Supplies Limited, 2019 NSCA 22, another case involving the Utility and Review Board, Fichaud JA had no hesitation in applying a reasonableness standard to the Board’s interpretation of the Expropriation Act. As he explained: “The Supreme Court has explained its reasons for the textured, rather than a linear approach to deference. Whether that approach should be revisited is for the Supreme Court, not this Court” (at para. 51).
In dissent, however, Beveridge JA applied correctness, writing pointedly: “The last ten years of judicial debate has, with respect, lost its focus on the key issue of legislative intent” (at para. 250). Of Edmonton East, he wrote: “reliance on a presumption of legislative intent in favour of deference, created by the Supreme Court in 2015 [in Mouvement laïque québécois v. Saguenay (City),  2 SCR 3 at para. 46], spurns well-established norms of statutory interpretation” (at para. 278).
Beveridge JA makes some fair points about the background assumptions against which the legislature provided for rights of appeal and some less persuasive ones about deferring to administrative decision-makers and not lower courts on questions of law (at paras. 297-298: appellate standard of review is purely about internal judicial management, whereas the principles of judicial review of administrative action require careful attention to legislative intent). But his strong dissent indicates deep disagreement amongst the judges on the Nova Scotia Court of Appeal and (as with Bryson JA) a willingness to challenge the authority of the Supreme Court of Canada.
Second, in spite of the Supreme Court’s insistence that the standard of review on matters of procedural fairness is correctness (Mission Institution v. Khela,  1 SCR 502 at para. 79), the Quebec courts continue to insist that where an issue of procedural fairness arises in the context of the interpretation of a decision-maker’s home statute, reasonableness review is appropriate. They apply the (excellent) analysis of Bich JA in Syndicat des travailleuses et travailleurs de ADF – CSN c. Syndicat des employés de Au Dragon forgé inc., 2013 QCCA 793 in preference to the Supreme Court’s edicts on the matter: see variously C.E. c. Collège des médecins du Québec, 2018 QCCS 4849; Wang c. Procureur général du Québec, 2019 QCCS 764; and Alliance des professeures et professeurs de Montréal (FAE) c. Lavoie, 2019 QCCS 963.
Why is this? I do not know but I suspect that the Supreme Court’s unwillingness to deal directly with the arguments for deference on questions of procedural fairness (which the judges would, ideally, do in a case coming from Quebec) has given the Quebec judges some succour. In her analysis Bich JA squarely addressed the place of procedural fairness in the Supreme Court’s Dunsmuir framework and convincingly argued (as did Stratas JA in Maritime Broadcasting System Limited v. Canadian Media Guild, 2014 FCA 59 ) that in at least some circumstances reasonableness review is appropriate on procedural matters. Against such arguments, the Supreme Court’s assertions seem not to carry sufficient weight.
Third, consider the contrasting approaches to the application of reasonableness review to administrative interpretations of law in a case from British Columbia and one from the Federal Court of Appeal.
In Simon Fraser University v. British Columbia (Assessor of Area #10 – Burnaby), 2019 BCCA 93, a case involving the scope of universities’ exemption from property taxes, Hunter JA held:
[B]efore a reviewing court can determine the reasonableness of the tribunal’s statutory interpretation, the court must conduct its own independent statutory interpretation. If the court concludes that the statutory term at issue is capable of more than one reasonable interpretation, the interpretation of the tribunal, if reasonable, will prevail. But if the court determines that there is only one reasonable interpretation and the tribunal failed to adopt it, the decision must be set aside.at para. 55
Hunter JA’s approach involves setting a “benchmark” against which the decision-maker’s interpretation is to be measured. Though how would any mere administrative interpretation of law ever match one reached by an appellate judge after considered argument by counsel?
There is a clear contrast between this approach and the one laid out by Stratas JA in Hillier v. Canada (Attorney General), 2019 FCA 44, in the context of determining the scope of an appeal by a dissatisfied claimant of disability benefits to the Social Security Tribunal Appeal Division:
I shall begin by conducting my own tentative examination of section 58. I do this not to create my own yardstick to measure the Appeal Division’s decision. That would be correctness review under the disguise of reasonableness review, an oft-criticized methodology some rightly describe as “disguised correctness”…Rather, I do this in order to appreciate the range of interpretive options that were available to the Appeal Division…Central to this task is legislative interpretation…Then, mindful of the range of interpretive options, we can assess whether the administrator’s legislative interpretation was “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir at para. 47. In doing this, we must focus on the administrator’s interpretation, noting what the administrator invokes in support of it and what the parties raise for or against it. Provided we maintain that analytical focus and remember that the legislator may have empowered the administrator to work within a range of interpretive options, we will be conducting reasonableness review, not disguised correctness review. Lastly, when conducting reasonableness review of an administrator’s legislative interpretation, we must acknowledge that sometimes administrators pursuing their legislative mandates can be better placed than us to appreciate the purpose behind a legislative provision in all its nuances and ramifications—an appreciation they have acquired through dint of daily, in-the-field work or genuine expertise…at paras. 14-17, citations omitted.
Hunter JA’s approach could properly be described as external, inasmuch as he would arrive at a definitive conclusion about the best way to read the statutory provision under review before considering how the administrative decision-maker’s interpretation matched up with his preferred reading. By contrast, Stratas JA’s approach is better labelled internal, as it involves a relatively cursory examination of the provision at issue, with a view to analyzing the robustness of the administrative decision-maker’s interpretation. Whereas Stratas JA would work from the decision out, demonstrating whether or not it was unreasonable in light of the statute and other relevant legal considerations, Hunter JA would work from the statute in, demonstrating whether the decision was compatible or incompatible with his interpretation of the statute.
Although my stated preference has long been for an approach much closer to (and in some respects going even further than) Stratas JA’s, the Supreme Court of Canada has given no explicit guidance on how a lower court should choose between the Stratas JA or Hunter JA approach. Confusion reigns. And, if the Court is not sufficiently definitive in the trilogy, contestation will follow.
This brief tour demonstrates that the stakes for the trilogy are high. Unless there is deep consideration and definitive resolution by the Court of the issues that are causing division on and between Canadian courts, the trilogy will not bring the confusion or contestation to an end.
I have expressed doubts on both of these fronts (here and here). But as the President of the European Council recently observed, “Hope dies last” and there is at least a chance that the Court will indeed do what it needs to do.
This content has been updated on April 23, 2019 at 12:45.