What is the Standard of Review for (Mixed) Constitutional Questions?

Abstract

According to the framework for selecting the standard of review in civil appeals developed in Housen v Nikolaisen, questions of mixed fact and law are reviewed on a standard of palpable and overriding error. This framework applies to allegations that a statute is constitutionally invalid. However, in Société des casinos du Québec inc v Association des cadres de la Société des casinos du Québec, the Supreme Court held that when a statute is challenged as unconstitutional before an administrative tribunal, questions of mixed fact and law are subject to a correctness standard on judicial review as an exception to the general presumption of reasonableness. Société des casinos thus introduces a schism into public law doctrine on the standard of review for mixed constitutional questions. In this article, we expose this schism before exploring possible ways of repairing it. One proposal is to follow the lead of some provincial appellate courts and hold that Société des casinos impliedly overrules Housen such that mixed constitutional questions should be reviewed on a correctness standard. Another is to regard the claim about such questions from Société des casinos as per incuriam because it did not advert to Housen's claim to the contrary. Therefore, the approach from Housen prevails. We discuss advantages and disadvantages for each proposal, operating under the assumption that unity in standard of review doctrine is preferable to bifurcation. We ultimately remain neutral on which is superior and allow the reader to draw their own conclusions.

Keywords: Standard of review, Unity in Public Law, Mixed Questions of Fact and Law, Appellate Review, Administrative Review