The Scope and Meaning of Reasonableness Review
32 Pages Posted: 3 Aug 2014 Last revised: 22 Sep 2015
Date Written: August 1, 2014
Questions continue to abound about the standard of review of administrative action in Canada. For something apparently simplified in Dunsmuir v. New Brunswick and subsequent cases, it provokes a great many questions.
The key question now, in light of the “triumph” of reasonableness, is the scope and meaning of reasonableness review. To what does the standard of reasonableness apply and, when it does, what does it mean? Unfortunately, we have had little concrete guidance from the Supreme Court of Canada in recent years.
There are four difficult issues, each of which is shrouded in uncertainty. The first is the scope of the post-Dunsmuir framework: does it apply to regulations issued by a minister or cabinet; are questions of procedural fairness now covered, as some appellate judges have suggested? The second is the scope of the categories to which a standard of correctness applies. The third is the ability of decision-makers to bolster their decisions after judicial review proceedings have been commenced. The fourth is the revival and development of troublesome distinctions – between “law” and “policy”, “clear” and “unclear” statutory provisions, and “implied” and “express” components of decisions – that are designed to implement a unified reasonableness standard that varies according to a “context” created by an amorphous group of “all relevant factors”.
A unifying meta theme is the Court’s reluctance to engage in grand theorizing about the post-Dunsmuir framework. Some of the Court’s interventions have had the unfortunate effect of increasing the uncertainty about the scope and meaning of reasonableness review.
Without some grand theorizing, it is likely that questions about the standard of review analysis will continue to abound. I do not offer much in the way of grand theory in this paper. Rather, I attempt to identify the key problems that require some sustained engagement from the Court and other actors in the legal community. I also offer some modest suggestions on how to improve the current state of the law.
Keywords: judicial review of administrative action, Canada, Dunsmuir, reasonableness, deference, standard of review
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