Dunsmuir's Flaws Exposed: Recent Decisions on Standard of Review

16 Pages Posted: 18 Jul 2012 Last revised: 28 Mar 2018

Paul Daly

University of Cambridge - Faculty of Law

Date Written: July 17, 2012

Abstract

In its decision in Dunsmuir v. New Brunswick, the Supreme Court of Canada attempted to clarify and simplify Canadian judicial review doctrine. I argue that the Court got it badly wrong, as evidenced by four of its recent decisions.

The cases demonstrate that the categorical approach is unworkable and in fact a reviewing court cannot apply the categorical approach without reference to the much-maligned pragmatic and functional analysis factors (or some variant thereon). The categories regularly come into conflict, in that decisions could perfectly reasonably be assigned to more than one category. When conflict occurs, it must be resolved by reference to some factors external to the categorical approach.

I also maintain that the single standard of reasonableness is similarly unworkable without reference to external factors. It is not enough to say that reasonableness is a single standard that takes its colour from the “context”. Different types of decision attract different degrees of deference and they do so on the basis of factors that are external to the elegant elucidation of reasonableness offered in Dunsmuir.

Clarification and simplicity have thus not been achieved. I conclude by mischievously suggesting that the Court’s decisions fail to meet the standards of justification, transparency and intelligibility that the Court has deemed central to the conception of reasonableness in Canadian administrative law.

Keywords: Supreme Court of Canada, judicial review, administrative law, public law, deference, formalism, substantive review, administrative agencies, legal theory, Dunsmuir, reasonableness

Suggested Citation

Daly, Paul, Dunsmuir's Flaws Exposed: Recent Decisions on Standard of Review (July 17, 2012). McGill Law Journal, Vol. 58, 2012, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2111353

Paul Daly (Contact Author)

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

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