Administrative Deference: The Canadian Doctrine That Continues to Disappoint

Abstract

This essay offers an overview of the Supreme Court’s doctrine of administrative deference leading to the “demise” of Dunsmuir v New Brunswick and the rise of “disguised correctness review.” It is a primer for those who have been unable to keep pace with the jurisprudence constantly flowing from the Supreme Court and who struggle with decisions that conflict with the foundational principles upon which Dunsmuir was premised.Those principles have been abandoned in favour of a simplified framework; one that requires deference for of all administrative decisions, save for those falling within one of four correctness categories. Regrettably, those categories are both over-and-under inclusive while plagued by case law that is remarkable for its inconsistency. Better still, the Court’s application of the deferential standard of reasonableness has had little impact on decisions tied to the interpretation of the decision-maker’s enabling legislation. The Court consistently engages in correctness review under the banner of reasonableness. The phenomenon is explored together with other pertinent issues surrounding the application of the deferential standard of review (“sufficiency of reasons” and “statutory ambiguity”). The essay concludes with modest proposals aimed at restoring confidence in a doctrine that continues to disappoint.

Keywords: judicial review, Dunsmuir, reasonableness, standard of review, deference, canada