Lecture 20

Appropriate std is reasonableness

 Deschamps J in his concurring judgement indicates a very distinct methodology – seeks to

recharacterise problem of judicial deference based totally at the technique utilized by appellate
courts to scrutinize decrease court selections. He makes a speciality of the nature of the
question extra than Dunsmuir majority, opportunity method says that courts- absent statutory
course to contrary – need to defer to admin tribunals on qs of fact, and generally on qs of
combined reality and law or of discretion, but presumptively not on qs of regulation. On q’s of
law, deference is simplest warranted wherein there may be a privative clause and mainly now
not in which there's a statutory proper of attraction on such questions. Deference is also
precluded wherein difficulty falls outdoor the ordinary sports of the decsionmaker and its
information.

 She came to adopt a correctness fashionable (because, as D turned into non-unionised, not
unusual regulation as opposed to statutory policies carried out and adjudicator doesn’t have
specific knowledge in reviewing not unusual law) and to overturn the selection – in spite of
strong privative clause and longstanding role of labour adjudicators in resolving place of work
dismissal grievances

Another summary of Deschamps Analysis is:

 “Justice Deschamps proposed a simplified preferred of review analysis focused commonly on

the character of the question. Deference became owed to administrative bodies of their
determinations of questions of fact or blended reality and law, their interpretation and alertness
of legal guidelines in admire of which they have understanding, and where their decisions are
blanketed by way of a privative clause. Deference turned into now not owed on the translation
of legal guidelines falling out of doors their know-how, consisting of legal guidelines of
fashionable utility. In a clean destroy from previous doctrine, Justice Deschamps determined
that deference become not owed on questions of regulation for which there was a statutory
right of attraction. Since the adjudicator lacked unique information regarding the common
regulation rules relevant to Dunsmuir’s termination, she reviewed this selection at the
preliminary trouble on a correctness fashionable and quashed it because it “did now not even
remember” the employer’s common regulation right to disregard Dunsmuir without reason.”
 CF with Binnie J – where applicant for JR challenges noticeable final results of an administrative
movement, judge is invited to go the road into second guessing topics that lie inside function of
administrator. Controversial as it isn’t obvious why judges view of the reasonableness of an
admin policy or workout of admin discretion have to be favored to that of the administrator to
whom legislature has allocated the choice, until there may be full proper of attraction to courts
or the conferring rules shows a correctness wellknown is supposed

Another precis of Binnie’s Analysis is:

 “Justice Binnie’s judgment pays close attention to the role of context in noticeable review,
specifically in defining the content of the brand new reasonableness standard. He alone notes
that the pre-Dunsmuir life of both a fairly deferential and an intermediate preferred of evaluate
attempted to apprehend that administrative choice makers making certain choices need to be
entitled to greater deference than other administrative decision makers making distinct
decisions:

 The judicial sensitivity to one-of-a-kind tiers of admire (or deference) required in one-of-a-kind
conditions is quite valid. “Contextualizing” a single trendy of evaluation will shift the controversy
(barely) from choosing between two standards of reasonableness that each represents a
extraordinary degree of deference to a debate within a single wellknown of reasonableness to
decide the ideal stage of deference.

 A single reasonableness popular could require judges to use the same old “greater deferentially
and from time to time much less deferentially depending at the instances,” an method the Court
had expressly rejected within the context of the framework with three requirements of
evaluation. The diploma of deference measured via the contextual factors, consisting of the 4
factors from the pragmatic and practical technique, could decide the “variety of possible,
acceptable outcomes which can be defensible in appreciate of the information and regulation.”

 In Justice Binnie’s view, “[r]easonableness is a huge tent so as to must accommodate a variety of

variables that inform and restriction a court’s overview of the outcome of administrative
decision making.” The nature of the query especially “enables to define the variety of
reasonable results within which the administrator is permitted to pick.” This variety can be
 broader for a selection premised on the workout of a extensive, coverage-infused discretion
than for one hinging on the interpretation of a enormously static felony popular.”

 Rothstein JJ in Khosa consents with Deschamps in attempts to revise the decsions that prioritise
deference where an administrative actor is observed to have extra information than courts:

 Discordance among imputed vs real information is one manifestation of large conceptual

unhinging of tribunal knowledge from the privative clause. Legislatures that create
administrative choice-makers are higher able to don't forget relative qualifications,
specialisation and day after day workings of admin our bodies that they have got constituted. If
the legislatures accept as true with that administrative selection-makers have superior
information on query that historically within bailiwick of courts, then it must explicit it by
enacting a privative clause.

 Dunsmuir majority and Dechamps/Rothstein range on what to presume within the fact of
silence or ambiguity in statute on unique trouble of appropriate preferred of review.

 Binnie for majority on Khosa disagrees with Rothstein – in this view the court docket have to
practice a std of correctness except otherwise directed via the legislature. Rejects Rothstein’s
attempt to roll again the Dunsmuir clock

LINGERING QUESTIONS AFTER DUNSMUIR

 In Dunsmuir Binnie J stated the “pragmatic and useful” method became unduly diffused,
unproductive and esoteric and contributed to lengthy and arcane discussions in both factums
and at the listening to of packages and appeals, undue fee and delay. Does Dunsmuir solve this?
 Alice Wolley (law professor) – it may be that a radical exchange in path in this area is impossible
and the foremost flaw of Dunsmuir is the judgement’s phantasm that it is able to fix the
problem. No standard system can determine whilst a selected q is better answered via the
admin choice-maker or by way of courtroom. No take a look at can inform one the way to be
deferential for the reason that deference is neither capitulation nor substitution of judgement, it
always calls for the drawing of first-rate traces mainly instances.

 First Q – Precedent – std of evaluate must observe existing jurisprudence in which it has already
determined in a quality manner the degree of deference to be accorded with reference to a
particular category of question. How can you tell when a past selection is satisfactorily just like
the case at hand? Lets evaluate publish Dunsmuir cases to see.
 Clear that you must avoid follwing the std of evaluate if there may be a sufficiently clear record
of beyond decisions that govern the problem.

 Second Q – cases where statute or current jurisprudence dictate a preferred of assessment not
to be had after Dunsmuir –

 BC Administrative Tribunals Act sets out unique requirements such as patent unreasonableness.
In Khosa, most people held that if statute refers to it, then it keeps. BC Administrative Tribunals
Act refers to patent unreasonableness so it lives on in BC however the content of the
expression, and the proper degree of deference it instructions inside the various occasions of a
massive provincial management, will always continue to be calibrated consistent with popular
concepts of administrative regulation
 .
 What about patent unreasonableness std in current jurisprudence? Dunsmuir doesn’t actually
leave that open for a decrease court but decrease court ought to adopt reasonableness as the
usual after which apply it in a way like to vintage patent unreasonableness std.

 Third Q – proper scope of JR on questions of law – Deference will be shown in which a tribunal is
deciphering its very own statute or statutes intently related to its feature, with which it'll have a
particular familiarity or in which an admin tribunal has evolved particular understanding in the
application of a trendy not unusual law rule or civil regulation rule when it comes to a selected
statutory context.
 But in which the q of regulation is considered to be of primary imptce to the criminal device as a
whole and outside the specialised understanding of the selection-maker. Binnie J says this
connection with a new category of qs of regulation will motive pointless confusion:

 It is a distraction to unleash a debate in the reviewing court docket about whether the question
of law is of central significance to the legal device as a whole. It could be enough to exempt
from the correctness standard determinations on home statutes or statutes carefully associated
with the executive decision makers’ knowledge. Other than that, the ultimate word on
wellknown questions of regulation must be left to judges.

 Fourth Q – role of factors in preferred in the popular of evaluate analysis. Majority stated “In
many cases, no longer necessary to bear in mind all the factors as a few may be determinative.”
Is this accurate?
 To what quantity is it necessary for court docket to consult several or all of the elements when
explaining its reasoning? Difficult to apprehend the standard of evaluate evaluation without
appreciating the position that is played with the aid of the various factors. Even wherein a court
docket doesn’t explicitly consult with the underlying factors inside the preferred of evaluate
analysis, therefore, one must recognize that the ones factors ought to continually play a few
position in a courtroom’s selection on whether or not to defer.

 Fifth Q – will majority method offer a coherent and manageable framework for the device of JR
as a whole? Possible in which most of the people have focussed on overview of admin
tribunals? Per Binnie J – sure it's miles applicable to all frameworks:

 Parliament or a provincial legislature is regularly well suggested to allocate an administrative

decision to a person apart from a decide. The judge is on the outdoor of the administration
searching in. The legislators are entitled to put their agree with within the viewpoint of the
distinctive decision maker (specifically as to what constitutes a reasonable final results), now not
handiest inside the case of the executive tribunals of important situation to my colleagues but
(taking a “holistic technique”) additionally within the case of a minister, a board, a public
servant, a commission, an elected council or different administrative our bodies and statutory
selection makers. In the absence of a full statutory right of appeal, the courtroom ought
commonly to respect the exercise of the executive discretion, specifically in the face of a
privative clause.
  Sixth Q – interaction among various factors in widespread of overview analysis, particularly the
position of privative clauses. Funny that Dunsmuir emphasised deference after which went
directly to overturn the adjudicator’s decision, despite a privative clause and interpretation of
own statute. Le? Possible where most people have focussed on evaluation of admin tribunals?
Per Binnie J

REASONABLENESS REVIEW

Dunsmuir majority at the reasonableness preferred:

 Reasonableness is a deferential widespread animated by using the principle that underlines the
development of the 2 preceding standards of reasonableness. Certain questions that come
before administrative tribunals do now not lend themselves to 1 unique specific result. Instead,
they may give upward thrust to some of feasible reasonable conclusions. Tribunals have a
margin of appreciation within the range of perfect and rational answers. The court docket
accomplishing a assessment for reasonableness inquiries into the characteristics that make a
choice affordable, referring both to the manner of articulating the motives and to final results.
In judicial review, reasonableness is worried mainly with the existence of justification,
transparency and intelligibility within the choice-making procedure however it is also worried
with whether the selection falls within a number of viable perfect outcomes which are
dispensable in admire of the facts and law.

 This does not mean that courts can conduct a extra intrusive assessment. Deference imports
admire for the decisionmaking procedure of adjudicative our bodies in regards to both the
information and the regulation.

 Deference in the context of reasonableness method courts must give due attention to the
determinations of choice-makers. Deference calls for recognize for the legislative choices to
leave some topics in the hands of administrative decision makers, for the tactics and
determinations that draw on specific expertise and stories, and for the specific roles of the
courts and administrative bodies inside the Canadian constitutional gadget.

 Re wellknown of correctness - while making use of the correctness fashionable in respect of

jurisdictional and a few other questions of law, a reviewing court will no longer show deference
 to the decision maker’s reasoning technique; it'll as a substitute adopt its own analysis of the
question and determine whether or not it concurs with the willpower of the decision maker; if
now not, the court will alternative its own view and offer the best answer. From the outset, the
court docket must ask whether or not the tribunal’s decision become accurate.

Canada (Citizenship and Immigration) v Khosa 2009 SCC

Facts:

 K was citizen of India and landed immigrant to Canada. Took element in street racing in Canada.
K become prepared to plead responsible to dangerous using however no longer to criminal
negligence causing dying (he become eventually convicted of this). K carried out unsucessfully
to Immigration Appeal Division of the Board to stay in Canada notwithstanding conviction.
Majority of IAD didn’t receive there had been enough H&C considerations to warrant unique
comfort towards removal order w/i that means of the statute. Applying patent
unreasonableness, the reviewing choose disregarded K’s challenge. Majority CofA carried out
reasonableness simpliciter std to set aside the IAD selection. Both selections made before
Dunsmuir.

 Binnie J – Dunsmuir teaches that JR need to be much less involved with method of various
requirements of evaluate and greater focused on substance, especially on nature of the problem
before the admin tribunal below review. Concludes the packages judge became proper to give a
better diploma of deference to IAD decision than regarded suitable to CofA majority. Decision
of IAD restored.

Analysis:

 Good instance of why Dunsmuir adjustment became well timed. CofA switched patent
unreasonableness std to reasonableness simpliciter std to retry the case. CofA majority felt
decision turned into unjust to Khosa but Parliament saw match to confide that specific choice to
IAD now not to judges.
  BC Administrative Tribunals Act units out precise standards which includes patent
unreasonableness. In Khosa, the majority held that if statute refers to it, then it maintains. BC
Administrative Tribunals Act refers to patent unreasonableness so it lives on in BC however the
content material of the expression, and the suitable degree of deference it commands within
the diverse occasions of a big provincial administration, will always stay calibrated consistent
with standard ideas of administrative regulation.

Notes Dunsmuir two steps

1. An exhaustive evaluation is not required in every case to determine right trendy. Existing
jurisprudence may be beneficial. Dunmuir renders patent unreasonableness std vs reasonableness
simpliciter std moot. None of earlier jurisprudence points to correctness so existing jurisprudence
factors to reasonableness.

2. When present jurisprudence isn't conclusive, circulate directly to factors:

• Privative clause

• Purpose of IAD as determined via enabling rules

• Nature of query at issue earlier than IAD

• Expertise of the IAD in managing imnmigration policy

Consider them as a whole bearing in thoughts now not all may be relevant for every unmarried case.

• Yes – there has been a privative clause within the statute.

• Purpose of IAD – determines a extensive range of appeals below Act

• In popularity of the worry of elimination from Canada, Act furnished for a electricity to grant
wonderful alleviation. Nature of query –sufficient H&C grounds to warrant special remedy? Respondent
established removal order become legitimate, he was purely hard the refusal of IAD to provide him a
“discretionary privilege”. Decision to withhold comfort became primarily based on facts of record.
• Noted that IAD members have sizeable know-how in figuring out appeals below the Act.

Decided reasonableness fashionable applied. Signals a reluctacnce to intrude with the discretionary
selections of an admin tribunal.

Art Hauser Centre Board Inc (City of Prince Albert) v. CUPE Local 882 2008 SKCA

 Sports complex known as Art Hauser Centre, previously operated by using the City of Prince
Albert. Canadian Union of Public Employees represents City personnel pursuant to phrases of a
collective agreement. The City created a separate organization to operate the sports
complicated, Art Hauser Centre Board Inc. With its own board of directors. Centre become
nonetheless sure via terms of the collective settlement.

 Centre determined to agreement out the concession offerings. CUPE grieved this decision on
basis that collective settlement prohibits contracting out besides in certain circs and if it's miles
possible, consultation have to take region earlier than choice to contract out takes region.
Majority of arbitral board (the “Board”) agreed.

 Judicial evaluation – the QB judge located the usual of review to be reasonableness but
observed the Board’s interpretation of the contracting out clause unreasonable. CofA has the
same opinion preferred of overview to be reasonableness however the Chamber decide erred in
concluding that the translation of the contracting out clause turned into unreasonable. Also
discovered that Board’s opinion that a prior letter of information may be considered in
interpreting the collective agmt is cheap. Restores Board choice.

Factual context laid out.

 Then checked out clause to be interpreted – Article 12.07 of the collective agmt. “Having
regard to the desirability of keeping strong paintings and having regard to periodic peaks in
workload dictating the need of contracting exercise session, the City agrees to notify and consult
with the Union prior to making any final decision to contract training session.”
 What become intended by means of italicised words?

 Board heard testimony from reps of CUPE and Centre and City. Board summarized evidence in a
hundred paras.

Analysis: there are two opportunity interpretations of Article 12.07:

Boards int:

 Employer is against the law from contracting training session except “periodic peaks in workload
dictating the need of contracting the exercise session” exist. Where such circs exist, the City will
notify and visit the Union prior to making any very last choice.

Chambers Judge int:

 Only restriction in City’s right to agreement exercise session is that it need to notify and consult.

 CofA located there was not sufficient deference with the aid of Chambers Judge to Board’s
interpretation. Dunsmuir demonstrates need for extra deference to a consensual labour
board’s decision than became established.

 Notes that the assessment of an admin tribunal selection, the context wherein the decision
arises and the character of the question to be decided must be taken into consideration.

 Decsion reviewed is that of a labour arbitrator selected by means of parties pursuant to a

system mounted by a collective agmt. A lot of instances assist proposition that consensual
labour arbitrators have to be accorded a excessive diploma of deference – Toronto (City) v.
CUPE.

 Important component is a privative clause which the Sask. Legislature delivered lately. This
doesn’t completely insulate a choice from JR but presence is a issue in considering the context
of the decision beneath evaluate.
 Nature of query additionally performs a function in figuring out want for deference. Board
became no longer thinking about a precept of trendy law or one among giant impact for labour
relations as a whole for which one may expect there to be one answer only. Rather Board
referred to as on to interpret a clause in a collective agmt and the interpretation of this clause
become the very trouble stated the Board.

 There is more than one interpretation of the clause. Board considered and rejected the
translation that the Chambers decide standard. Also, Chambers choose selection did no longer
do not forget the Board’s interpretation and reliance on the specific body of jurisprudence
concerning contracting out clauses. Based onthis – Board held that City and CUPE are
presumed to recognise that emplouyer is free to contract out bargaining unit paintings in the
absence of contractual language to the contrary. By agreeing the phrases contained in first 2
strains of Article, the City agreed to a hindrance on its management rights.

 Not unreasonable to expect (as Board did) that the events pondered consultations would be
required inside the most effective situation in which the employer had authority to settlement
out.

 Held that Board’s decision fell inside more than a few affordable results (doesn’t really count
number if one is “extra” reasonable that the opposite and court docket can’t fall into this lure of
perceived progressed reasonableness) per Binnie J –
 the (rule of) law sets the limits of capability administrative action. Sometimes the administrator
has the proper to be wrong. This reflects an unduly court docket targeted view of the universe.
A confrontation between the court and the administrator doesn‘t always mean the
administrator is incorrect.

 Board also found its interpretation become supported by using a letter of expertise. It is
permitted to try this – words beneath attention must be examine in the context of the sentence,
phase and agmt as an entire.

 NOTE – now and again courts apply reasonableness however then display little or no deference
to choice maker. Is it engaging in correctness review in cover?