Developments in Administrative Law: The 2007-2008 Term - The Impact of Dunsmuir
Supreme Court Law Review, Vol. 43, No. 2d, pp. 1-34, 2008
34 Pages Posted: 15 Feb 2009 Last revised: 19 Oct 2009
Date Written: December 15, 2008
The 2007-2008 term was a landmark year in Canadian administrative law. The Supreme Court of Canada decision in Dunsmuir v. New Brunswick (2008 SCC 9) affected dramatically the approach to determining the applicable standard of review in administrative law. The Dunsmuir decision caused a fervour of discussion among practitioners, judges, academics and all those involved in the administrative justice community. It essentially eclipsed all other administrative law cases decided in the 2007-2008 Supreme Court term. This article discusses findings from an examination of cases that have been decided by lower courts, between the decision date and the end of 2007-2008 Supreme Court term, as a measure of Dunsmuir's impact with respect to the standard of review jurisprudence.
Dunsmuir picked up on Justice Lebel's earlier critiques of the current state of the law and was used as a platform for improving the methodology for substantive review of administrative action. Although Dunsmuir purports to make a significant change to the way that the standard of review analysis is undertaken, many of the modifications simply codify existing legal principles. As well, in some respects, Dunsmuir clarifies the standard of review methodology; however, the new approach has significant ambiguities which are being experienced by lower courts. In short, although Dunsmuir has taken the standard of review jurisprudence to a certain point, there are many pressing questions still to be answered.With respect to procedural fairness, Dunsmuir has also had a significant impact - it has reversed the holding in Knight v. Indian Head School Division No. 19 ( 1 S.C.R. 653) that procedural fairness is always owed in the dismissal of public servants, holding instead that common law principles of contract may govern the employment relationship between public officeholders and the Crown.
Keywords: Administrative Law, Canada, Standard of review, patent reasonableness, employment of public officeholders
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