Law Times

Law Times • may 28, 2018 Page 5 www.lawtimesnews.com Little consensus on how to apply Dunsmuir framework BY SHANNON KARI For Law Times I n the decade since it was is- sued, very few Supreme Court of Canada decisions have been the source of as much commentary as Dunsmuir v. New Brunswick. The ruling was supposed to simplify judicial review of ad- ministrative action by reduc- ing the number of standards of review to two from three and clarifying the required analysis. Instead, the only consensus among academics, lawyers and members of the judiciary is that there is very little consensus as to how to apply the Dunsmuir framework in a consistent fash- ion. However, there will be anoth- er opportunity for the Supreme Court to provide greater clarity as a result of leave decisions it is- sued on May 10. Leave was granted in three decisions of the Federal Court of Appeal. Two are companion cases re- lated to a decision by the CRTC that denied permission for the Canadian rights holder to sub- stitute domestic commercials on the U.S. network [that could be accessed by Canadian cable or satellite subscribers] broadcast- ing the Super Bowl. The third appeal stems from a decision by the Registrar of Citizenship to strip the citizen- ship of a 24-year-old man born in Toronto who learned at the age of 16 that his parents had been living under an assumed name and were Russian spies. In an unusual addendum to its leave decisions, the Supreme Court stated explicitly that the focus of the appeals is to revisit the findings of Dunsmuir, both in the nature and scope of re- view of administrative action. "There is still a lot of grey," says Bernard LeBlanc, a partner at Steinecke Maciura LeBlanc LLP in Toronto, who regularly acts for and advises national and provincial regulators. "What would help is if some greater distinctions were placed between the two standards," he adds. The majority decision in Dunsmuir reduced the number of standards of judicial reviews of administrative decisions to reasonableness and correctness. The deference implicit in a standard of reasonableness "im- ports respect for the decision- making process of adjudicative bodies with regard to both the facts and the law," wrote justices Michel Bastarache and Louis LeBel. The ruling attempted to de- fine these concepts, but some of the comments in the Federal Court of Appeal decisions where leave was granted highlight an ongoing lack of agreement on how to apply them in practice. In its decision in Vavilov v. Canada, the Federal Court of Appeal split 2-1 in a ruling where the majority found that the citizenship of the young man should not have been stripped. Justice Mary Gleason, in her dissenting ruling, stated that the majority was wrong on the issue of reasonableness. "Questions that are poly-cen- tric in nature or that involve the exercise of discretion by a deci- sion-maker will often give rise to more than a single reasonable response and thus a variety of different determinations in re- spect of these sorts of questions may well be reasonable," wrote the judge. While the majority of the panel ruled in favour of his cli- ent in Vavilov, lawyer Hadayt Nazami says the reasonableness standard is far too broad, espe- cially in the area of immigration and citizenship proceedings. "This has been a major prob- lem. What is the range of possible acceptable outcomes?" he asks, citing a key line from Dunsmuir. "In some contexts, it makes sense to have a reasonableness standard. But I think it should be correctness in the area of human rights," says Nazami, a lawyer at Jackman Nazami & Associates in Toronto. The decision in Vavilov also suggests there is a difference of judicial opinion on the standard of review of whether a tribunal provided procedural fairness. "I cannot agree with the Federal Court's statement in its reasons that it is 'settled law that issues of procedural fairness are reviewed on the standard of correctness.' While some may disagree, in my view the law re- mains unsettled," stated Justice David Stratas, who wrote the majority decision. In the context of professional regulation proceedings, the courts have been clear that the standard of review of a tribunal's ultimate finding is normally rea- sonableness, LeBlanc notes. "What about disclosure or Charter issues? What constitutes a breach of procedural fairness? It is an open question," he says. Gillian Dingle, a partner at To- rys LLP in Toronto, says that, in the securities context, a standard of reasonableness is the norm. "Reasonableness, though, is a tricky concept. If it is the case of a tribunal interpreting its own statute, it will be reasonableness. Correctness will be raised on questions of jurisdiction," says Dingle, a civil litigator who fo- cuses on corporate and securi- ties law. The broader theme of Dun- smuir "is respect for the tribu- nal" because of its specialized expertise, Dingle observes. But it remains unclear, she says, where the line is for a court to overturn a decision on a judicial review. "That is part of the fuzziness of Dunsmuir. Are there param- eters that can be placed that will provide better guidance," says Dingle. The lawyers for Bell Cana- da and the National Football League were unsuccessful at the Federal Court of Appeal in ask- ing for narrow parameters of when a CRTC decision should be reviewed on a standard of reasonableness. "The standard of review is reasonableness where an admin- istrative decision-maker inter- prets its home statutes or statutes closely related to its functions and this extends to the delineation of its own jurisdiction in applying its home statutes," stated the Fed- eral Court of Appeal in a finding that is likely to be one of the argu- ments raised again by the appel- lants at the Supreme Court. LT NEWS Order # 804218-65203 $537 2 volume looseleaf supplemented book Anticipated upkeep cost – $480 per supplement 4-6 supplements per year Supplements invoiced separately 0-88804-218-3 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. Jurisdiction: Canada (National) Cited by the Supreme Court of Canada Canadian Employment Law Stacey Reginald Ball "The most comprehensive text on employment law in Canada. It is carefully constructed and accurate." 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