Dunsmuir v. New Brunswick

Dunsmuir v. New Brunswick, [2008] 1 SCR 190, 2008 SCC 9 (CanLII)

• Seminal case on standard of review; only reasonableness and correctness standards remain

• First, must ask whether standard of review has already been established by case-law

• If the standard of review has not been established, then when determining whether a reviewing court ought to apply the standard of correctness or reasonableness, the new “standard of review analysis” requires consideration of the following four factors, which come from the pragmatic and functional approach set forth in Pushpanathan:
o the presence or absence of a privative clause;
o the purpose of the tribunal as determined by interpretation of enabling legislation;
o the nature of the question at issue; and
o the expertise of the tribunal
• The decision clearly signifies a move towards greater deference to administrative tribunals, including with respect to questions of law

• A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision making process and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. It is a deferential standard which requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system. [47 50]

Dunsmuir in other important case-law:

Newfoundland and Labrador Nurses Union v Newfoundland and Labrador (Treasury Board) 2011 SCC 62

o In the context of the reasonableness standard of review, courts can look beyond the decision/reasons to examine record (paras 11 – 12)

Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61

o However, this doesn’t mean Courts have “carte blanche” to re-formulate reasons to save a decision (paras 54 – 55)

• The FCA in Serrano Lemus 2014 FCA 114 describes the tension between the SCC’s decisions in Newfoundland Nurses and Alberta Teachers over the interpretation of a paragraph from Dunsmuir. The FCA suggests that Alberta Teachers is more persuasive where the tribunal has provided detailed reasons and there is a full record. Paragraphs 27-39 from Serrano Lemus are reproduced here:
[27] The Minister submitted that there was enough evidence in the record to sustain the Officer’s decision to reject the Lemus family’s application for humanitarian and compassionate relief. The Minister invited us to find material in the record before the Officer to sustain the outcome she reached.
[28] The Minister’s submission is supported by a literal reading of the following statement in Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII), [2008] 1 S.C.R. 190 at paragraph 48:
We agree with David Dyzenhaus where he states that the concept of “deference as respect” requires of the courts “not submission but a respectful attention to the reasons offered or which could be offered in support of a decision”: “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286 (quoted with approval in Baker, at para. 65, per L’Heureux-Dubé J.; Ryan, at para. 49).
[29] However, Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 (CanLII) suggests that this does not allow a reviewing court free rein to dive into the record before the administrative decision-maker to save the decision.
[30] In Alberta Teachers’ Association, at paragraph 54, Justice Rothstein, writing for the majority of the Supreme Court, found that giving respectful attention to the reasons which could be offered in support of a decision is not a “carte blanche to reformulate a tribunal’s decision in a way that casts aside an unreasonable chain of analysis in favour of the court’s own rationale for the result.”
[31] At paragraph 55 of Alberta Teachers’ Association, Justice Rothstein envisaged that:
[i]n some cases, it may be that a reviewing court cannot adequately show deference to the administrative decision maker without first providing the decision maker the opportunity to give its own reasons for the decision. In such a case, even though there is an implied decision, the court may see fit to remit the issue to the tribunal to allow the tribunal to provide reasons.

[32] On the day after the Supreme Court decided Alberta Teachers’ Association, it released Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (CanLII). In it, the Supreme Court reiterated paragraph 48 of Dunsmuir. It did not cite Alberta Teachers’ Association.
[33] At paragraphs 11 and 12 of Newfoundland Nurses, the Court reiterated the need for reviewing courts to pay “respectful attention to the reasons…which could be offered in support of a decision” [my emphasis]. In the same case, the Supreme Court adopted the following additional excerpt from Professor Dyzenhaus’ article, in an unqualified manner without any rationale:
For if it is right that among the reasons for deference are the appointment of the tribunal and not the court as the front line adjudicator, the tribunal’s proximity to the dispute, its expertise, etc., then it is also the case that its decision should be presumed to be correct even if its reasons are in some respects defective.
One might well query the idea that reviewing courts are to presume the correctness of administrators’ decisions, even in the face of a defect. One might also query whether, in trying to sustain an outcome reached by flawed reasoning, the reviewing court might be coopering up an outcome that the administrator, knowing of its error, might not have itself reached. Finally, whether an outcome should be left in place because of the strength of the record or other considerations has traditionally been something for the remedial stage of the analysis, not an earlier stage: MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2 (CanLII), [2010] 1 S.C.R. 6.
[34] But these are queries for another day. We now have a practical question to resolve. Alberta Teachers’ Association was released on one day and Newfoundland Nurses released on the very next day, with the latter not commenting on the former. Which of the two cases states the principle that ought to be applied in this case? In my view, it is Alberta Teachers’ Association. I make the following observations.
[35] First, the statements made in Newfoundland Nurses about paragraph 48 of Dunsmuir arose in the context of a discussion about how to analyze sparse reasons given by an administrative tribunal. That is not the issue before us.
[36] Second, in Alberta Teachers’ Association the Supreme Court had to deal directly with paragraph 48 of Dunsmuir on the facts of the case before it. Its discussion was central to its disposition of the case. The same cannot be said of the discussion about paragraph 48 of Dunsmuir in Newfoundland Nurses.
[37] Therefore, I conclude that in this case, the controlling authority is Alberta Teachers’ Association. It follows that it would not be appropriate, in this case, to accept the Minister’s invitation and supplement or recast the Officer’s reasons to save her decision.
[38] This is a situation where the Officer, informed by these reasons of her error and of the proper standard to be applied, might well reach a different result. There is evidence in the record that could support a decision either way. I cannot say that the record leans so heavily against relief that sending the matter back to the Officer would serve no useful purpose, as per MiningWatch Canada, supra. Nor can I say that the record is unequivocally in favour of relief allowing us to award mandamus and grant the subsection 25(1) application.
[39] It follows that the Officer’s decision is unreasonable and the matter should be sent back for redetermination.