THE SUPREME COURT OF CANADA’S

MULTIFACTORIAL APPROACH TO DEFERENCE IN JUDICIAL REVIEW

M. B. RODRIGUEZ FERRERE

A thesis submitted in conformity with the requirements for the degree of Masters of Laws

Faculty of Law, University of Toronto

© M. B. Rodriguez Ferrere 2012

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The Supreme Court of Canada’s Multifactorial Approach to Deference in Judicial Review

Master of Laws 2012

Marcelo Barry Rodriguez Ferrere Faculty of Law, University of Toronto

ABSTRACT

The Supreme Court of Canada has attempted several times to reform the way it

approaches the issue of curial deference in judicial review. Each attempt however, has been

in vain. This paper argues that the cause of this failure of each reform of the deference test

proposed by the Supreme Court is not necessarily one of content, but instead one of

structure. Each of the reforms retained a ‘multifactorial approach’ to the deference test,

involving the weighing of several factors leading to a prescribed level of deference.

Through critical analysis of the approach, and the postulation of an alternative, this paper

argues that the multifactorial approach is what thwarts the Court’s intentions, and that it

needs to abandon it should it wish to achieve clarity and coherence within judicial review.

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ACKNOWLEDGMENTS

To Professor David Dyzenhaus, for dedicated supervision, insightful and constructive

feedback and enduring patience; and

To Edward Clark, for crucial advice in the formative stages of setting a topic for research

and assistance well beyond the call of duty.

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TABLE OF CONTENTS

Introuction 1

PART I: THE PROBLEM WITH THE MULTIFACTORIAL APPROACH 1

The multifactorial approach defined 2

The aims of the deference test 6

Reconciling an underlying constitutional tension 6

Clarity and coherence for decision-makers, courts and litigants 8

The failure of the multifactorial approach 10

Flaws in the performance of the multifactorial approach 10

Charting the performance of the multifactorial approach – the early years 11

Charting the performance of the multifactorial approach – a change in expertise 15

Charting the performance of the multifactorial approach – a third outcome 18

Charting the performance of the multifactorial approach – Dunsmuir and Khosa 19

Measuring the performance 25

Structural flaws in the multifactorial approach 30

The problem of rigidity 30

The problem of inconsistency 36

The problems are unsolvable 39

Conclusion: the multifactorial approach is flawed 41

PART II: JUSTIFICATION AS A SUPERIOR ALTERNATIVE 41

Avoiding the problems of the past 42

Justification as a model 45

The influences behind the model 46

Applying the criteria 53

Conclusion 56

Bibliography/reference list 58

1

INTRODUCTION

For many years, the superior courts of Canada have wrestled with the question of how

much deference they ought to give to administrative decision-makers when judicially

reviewing their decisions. The decision of New Brunswick Liquor Corp. v. C.U.P.E., Local

9631 in 1979 represented the first of many attempts by the Supreme Court to answer that

question, representing a significant change in the way it dealt with the issue. Famously, the

decision introduced the standard of ‘patent unreasonableness’. Not so famously, the

decision also introduced a multifactorial approach to determining the level of appropriate

curial deference (hereafter, ‘the deference test’).

Patent unreasonableness no longer exists as a standard, but the multifactorial approach

has persisted, remaining an integral element in each of the Supreme Court’s attempts to

reform the deference test. Each of these attempts aimed to provide a definitive framework

for the deference test, and this paper argues that the common denominator in each failure

was a multifactorial approach.

The first part of this paper outlines why a multifactorial approach is problematic. It

proposes criteria for assessing the effectiveness of a deference test, and argues that a

multifactorial approach both inherently and demonstrably fails to meet those criteria. The

second part of this paper suggests an alternative approach to the deference test that better

achieves those criteria, namely a sole focus on justification.

PART I: THE PROBLEM WITH THE MULTIFACTORIAL APPROACH

Substantive judicial review – i.e., when the Court looks to the substance of an

administrative decision rather than the process that led to it – is inherently complex.2 The

deference test is a fundamental part of substantive judicial review, because it essentially

guides the Court on how to engage in the process of reviewing the substance of a decision.

1 [1979] 2 S.C.R. 227, hereafter ‘C.U.P.E.’. 2 Woolley, A., ‘The Metaphysical Court: Dunsmuir v. New Brunswick and the Standard of

Review’ (2008) 21 Can. J. Admin. L. & Prac. 259 at 264, 269, cited in Heckman, G. P. ‘Substantive Review in Appellate Courts since Dunsmuir’ (2010) 47 Osgoode Hall L.J. 751, n. 141.

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Accordingly, the Supreme Court’s role in providing guidance on this fundamental part of a

complex area of law is a justifiably difficult one. However, complexity does not provide a

complete answer to the Supreme Court’s inability to provide definitive guidance on the

deference test. Instead, it seems that there is a blind spot in the Court’s approach to the

deference test that prevents it from achieving its goals of coherence and clarity.

This paper argues that this blind spot is the multifactorial approach, and this part of the

paper shows why a multifactorial approach is problematic. It first defines the

multifactorial approach, and shows that it has remained a consistent and defective element

in the deference test. It then sets out what the normative aims of the deference test are:

what the Supreme Court ought to aim for when formulating it, drawing on the

constitutional principles that underlie judicial review. Finally, drawing on these descriptive

and normative analyses, it shows that a multifactorial approach is both a demonstrably

and inherently flawed method for achieving the aims of the deference test.

The multifactorial approach defined

For the purposes of this paper, a ‘multifactorial approach’ is simply any decision-making

process that involves the consideration and weighing of several predefined factors to

determine an outcome. For example, combinations of the presence (or absence) of factors

a, b and c, depending on the weight given to each, will yield outcomes x, y or z. The

deference test employs such a multifactorial approach because it requires the Court to

analyze and weigh various factors relating to an administrative decision in order to

determine an outcome: the particular standard of curial deference that the Court must

apply to the administrative decision-maker.

Both the outcomes and factors involved in the multifactorial deference test have varied

over time. In the past thirty years, there have been three potential outcomes:

• patent unreasonableness: mandating a level of complete curial deference save in

“obvious” situations, i.e. where the decision is so defective that the decision was

essentially beyond the decision-maker’s jurisdiction.

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• reasonableness simpliciter: a now defunct outcome that mandated some – but not

complete – curial deference, testing a decision to see whether it can withstand a

“probing examination”3 by the Court;

• reasonableness: the modern replacement for reasonableness simpliciter and near

identical in effect, involving analysis of the decision to see whether it falls within a

range of possible and acceptable outcomes defensible in fact and law;4 and

• correctness: mandating a level of zero curial deference, allowing the court to

substitute its decision for the decision-maker’s on the basis of simple

disagreement.5

The factors used to determine one of the three outcomes above have included at some

point all of the following:6

• presence of a privative clause: a legislative provision attempting to oust some or all

of the court’s jurisdiction to judicially review a decision warrants greater deference;

• expertise of the decision-maker: a decision-maker with greater expertise over the

subject matter of the decision relative to the Court warrants greater deference;

• legislative intent: a decision-maker designed to be a specialized body dealing with

complex issues and making decisions that have a wide impact warrants greater

deference;

• nature of the decision: decisions involving particular content, for example,

3 Dunsmuir v. New Brunswick 2008 SCC 9; [2008] 1 S.C.R. 190, hereafter referred to as

‘Dunsmuir’, [56] 4 Dunsmuir, [47]. 5 Ibid., [34]. 6 See, generally, Pushpanathan v. Canada (Minister of Employment & Immigration) [1998] 1

S.C.R. 982 (hereafter Pushpanathan) at [29]-[38] and Dunsmuir at [55].

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constitutional questions, will warrant less deference;7 and

• presence of a statutory right of appeal: decisions that are subject to a right of

appeal to the Court will warrant less deference.

Not all the factors and outcomes above have been operational since the Supreme Court

started applying the multifactorial approach, and they changed with each successive

reform. The table below summarizes those changes since the commencement of the

multifactorial approach until the present day. The decisions referred to are those decisions

where the Supreme Court attempted to make an explicit reformulation of the deference

test:8

FACTORS OUTCOMES

DECISION Privative clause

Expertise Legislative intent

Nature of problem

Right of appeal

Patent unreasonableness

Reasonableness simpliciter

Correctness

C.U.P.E. Ï Ï Ï Ï

Bibeault9 Ï Ï Ï Ï Ï

Pezim10 Ï Ï Ï Ï Ï Ï Ï

Southam11 Ï Ï Ï Ï Ï Ï Ï

Baker12 Ï Ï Ï Ï Ï Ï Ï

Dunsmuir Ï Ï Ï Ï13 Ï

There are, of course, significant nuances in each decision’s reformulation that this crude

summary overlooks. For example, this table ignores the evolution of the ‘spectrum’ of

7 See Dunsmuir at [57]-[61] for the full list of different types of content that mandate a more or

less deference, and Pushpanathan at [37]. 8 There are, of course, several further decisions that directly discuss and analyze the deference test.

However, the decisions in the table have either increased or reduced the factors/outcomes, thereby affecting the content of the test.

9 U.E.S., Local 298 v. Bibeault [1988] 2 S.C.R. 1048, hereafter referred to as ‘Bibeault’. 10 Pezim v. British Columbia (Superintendent of Brokers) [1994] 2 S.C.R. 557, hereafter referred

to as ‘Pezim’. 11 Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748,

hereafter referred to as ‘Southam’. 12 Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817 hereafter

referred to as ‘Baker’. 13 Dunsmuir removed the standard of ‘reasonableness simpliciter’ and replaced it with

‘reasonableness’; for simplicity’s sake, they are treated as the same in this table.

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deference: whereas the Court in C.U.P.E. essentially viewed the binary outcomes of patent

unreasonableness and correctness as representing two immutable standards, by the time it

decided Pezim, the Court regarded those standards as contextually flexible. The table also

does not capture the change in the definition of reasonableness,14 or the expansion of the

test to take account of discretionary decisions rather than simply focusing on whether the

decision had a proper factual and legal foundation.15

However, what the table does show is that – despite those changes in nuance – the shape

and form of the deference test as a multifactorial approach has persisted. When the Court

in each of these decisions has described the structure of the deference test, it has set out a

multifactorial approach.16

The Court’s retention of this structure is deliberate. However, the Court has never justified

its decision to retain such an approach with supporting examination or analysis, and this is

why this paper regards the multifactorial approach as a blind spot of the Supreme Court.

By focusing on the content of the multifactorial approach rather than justifying its

structure, the Court assumes that that the approach is unproblematic. For example, this

assumption was evident in the Court’s acknowledgment of approach in Pushpanathan at

[27]:

Since [Bibeault], this Court has determined that the task of statutory interpretation

requires a weighing of several different factors, none of which are alone dispositive,

and each of which provides an indication falling on a spectrum of the proper level

of deference to be shown the decision in question. This has been dubbed the

“pragmatic and functional” approach. This more nuanced approach in determining

legislative intent is also reflected in the range of possible standards of review.

In this account, the Court did not extend itself beyond acknowledgement of the structure.

It merely described the approach rather than questioning its functional effectiveness. In

this way, the assumption in the description – that such a multifactorial approach is and

14 See notes 3 and 4 above for the different definitions. 15 As formalized in Baker at [55]-[56]. 16 For such descriptions, see, for example Pezim, [66] and Dunsmuir at [62].

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will be effective in indicating the appropriate level of curial deference – can only remain an

assumption.

The aims of the deference test

This paper wishes to test this assumption that a multifactorial approach is effective.

However, in order to measure the performance of the multifactorial approach, this part

first identifies the criteria that an ideal deference test ought to meet. It proposes two

criteria: its ability to reconcile the traditional and fundamental constitutional tension at the

heart of judicial review and secondly, its ability to bring clarity and cohesion to

substantive judicial review.

Reconciling an underlying constitutional tension

The Supreme Court has best described this issue itself:

Judicial review seeks to address an underlying tension between the rule of law and

the foundational democratic principle, which finds an expression in the initiatives

of Parliament and legislatures to create various administrative bodies and endow

them with broad powers. Courts, while exercising their constitutional functions of

judicial review, must be sensitive not only to the need to uphold the rule of law, but

also to the necessity of avoiding undue interference with the discharge of

administrative functions in respect of the matters delegated to administrative bodies

by Parliament and legislatures.17

The ‘rule of law’ is a principle that “has meant many different things to many different

people”.18 Both this paper and the Supreme Court in the quote above are concerned with

the ‘rule of law’ as meaning that administrative decision-makers cannot transgress the

limits of their authority as set by the legislature. In maintaining and enforcing those limits,

the judiciary upholds the rule of law.19 The second principle enunciated by the Supreme

Court above is that the legislature has the power and authority to delegate such authority

17 Dunsmuir, [27]. 18 Simsovic, D. J. ‘No Fixed Address: Universality and the Rule of Law’ (2001) 35 R.J.T. 739, 746,

quoting Arndt, H. W., ‘The Origins of Dicey’s Concept of the Rule of Law’, (1957) 31 Austl. L.J. 117, 117.

19 Dyzenhaus, D., ‘The Deep Structure of Roncarelli v. Duplessis’ (2004) 53 U.N.B. L.J. 111, 127.

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to administrative decision-makers as it sees fit. The “underlying tension” referred to by the

Supreme Court exists because although these principles (termed “rule of law” and

“legislative supremacy” for convenience) are each integral to the process of judicial review,

they have the tendency to conflict.20

Looking to the reasons why each principle is integral to judicial review explains the

tension. First, if the rule of law requires the judiciary to ensure administrative decision-

makers do not exceed their legal authority, then judicial review is the mechanism that it

uses to achieve this. As described by LeBel J. extra-judicially:

It is the duty of the judiciary, as “the guardian of the constitution”, to supervise

state actors in their exercise of power to ensure they do not transgress the limits of

their legal authority. In short, through judicial review, courts perform their

constitutional duty of preserving the rule of law. This function includes not solely

defining the limits of powers, but also the rationality and fairness of their

exercise.21

Second, however, in determining the limits of those decision-makers’ authority, the

judiciary must look to statute, which is why judicial review has been termed as really only

a specialized branch of statutory interpretation.22 Statutory interpretation presupposes

legislative supremacy: the task is to give effect to the intent of the legislature and achieve

its aims without questioning the legitimacy or desirability of those aims.

Yet what occurs when the legislature explicitly attempts to prevent the Court from

engaging in judicial review and determining the limits of decision-makers’ power, say,

through a privative clause? On the one hand, the judiciary has an obligation to uphold the

rule of law by nevertheless engaging judicial review. On the other, in engaging judicial

review, it is ignoring the explicit aims of the legislature and undermining its supremacy.

The judiciary cannot uphold both principles simultaneously because they are in conflict.

20 Dunsmuir, [27]-[30]. 21 LeBel, L., ‘Some Properly Deferential Thoughts on Deference’ (2008) 21 Can. J. Admin. L. &

Prac. 1, 3-4 (citations omitted). 22 Michell, P. ‘Just Do It! Eskridge’s Critical Pragmatic Theory of Statutory Interpretation’, (1996)

41 McGill L.J. 513, 517 citing Bibeault at [121].

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The judiciary is currently of the opinion that the rule of law wins out over legislative

supremacy in this scenario; the court has the last word on the jurisdiction of administrative

decision-makers.23 In less extreme situations, however, the tension is still evident. When

the extent of a decision-maker’s statutory authority is unclear, courts must tread a narrow

path of attempting to uphold the rule of law by supervising the authority of administrative

decision-makers whilst simultaneously making sure that the extent of that supervision does

not thwart legislative intent and thus run contrary to legislative supremacy. As LeBel J.

explains it:

The need for both judicial review and restraint in its exercise requires that a

balance be struck that safeguards the rule of law to exist while allowing the

legislature and executive to do their jobs. Too much judicial review and the system

risks collapsing into an autocracy of the courts. Too much restraint and the rule of

law will disappear with nothing to check illegal or arbitrary state action.24

The deference test is the mechanism that judicial review uses to strike such a balance.

Accordingly, a key criterion for measuring the effectiveness of a deference test is its ability

to perform as such a mechanism; how effectively it can strike a balance between the rule of

law and legislative supremacy.

Clarity and coherence for decision-makers, courts and litigants

In its decision in Dunsmuir, the Supreme Court set itself the task of providing a clear and

coherent deference test, so as to give “real guidance for litigants, counsel, administrative

decision makers or judicial review judges”.25 This was a response to complaints by

academic commentators, practitioners and lower courts, who were confused over the

application of the deference test, and, as the Supreme Court in a previous decision noted,

had:

23 Dunsmuir, [30], quoting Cromwell, T. A., ‘Appellate Review: Policy and Pragmatism’, in 2006

Isaac Pitblado Lectures, Appellate Courts: Policy, Law and Practice, V-1, V-12. 24 LeBel, above n. 21, 4. 25 Dunsmuir, [1].

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[R]aised some serious questions as to whether the conceptual basis for each of the

existing standards has been delineated with sufficient clarity by this Court, with

much of the criticism directed at what has been described as “epistemological”

confusion [...] Reviewing courts too have occasionally expressed frustration over a

perceived lack of clarity in this area [...] The task of maintaining a predictable,

workable and coherent jurisprudence falls primarily on the judiciary...26

Accordingly, the Court’s task in Dunsmuir stemmed from a practical perspective. The

deference test must be understandable to all actors in the judicial review process to allow:

• decision-makers to inform their decision-making processes and know when the

substance of their decisions is potentially subject to judicial oversight;

• litigants and their counsel to understand the judicial review process and recognize

when they have a legitimate claim; and

• superior courts to effectively discharge their constitutional responsibilities of

supervising administrative decision-making when engaging in judicial review.

Despite first appearances, this criterion of clarity and cohesion is as difficult to meet as the

constitutional criterion discussed above, for it also involves a balancing exercise. In setting

a deference test, the Court must provide a framework that is both flexible enough for it to

exercise its supervisory jurisdiction and precise enough to provide definitive guidance to

administrative decision-makers.27

Commentators have deemed this requirement of both flexibility and precision an

“irreconcilable conflict”, and one that the Court would not necessarily desire to resolve.28

An unclear deference test, after all, does not limit the Court’s ability to engage its

26 Toronto (City) v. C.U.P.E., Local 79 2003 SCC 63; [2003] 3 S.C.R. 77 (hereafter Toronto

(City)) [63]-[64], per LeBel J. 27 Kempner, S. ‘Judicial review and the control of arbitrary power: impact or ideology?’ (1996)

UCL Juris. Rev. 1996, 183, 195. 28 Ibid., citing Feldman, D., ‘Judicial Review: A Way of Controlling Government?’ (1988) Public

Administration (66) 21, 32.

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supervisory jurisdiction; it simply means that the actors involved in the process –

administrative decision-makers in particular – are left without guidance as to how their

actions may invoke that jurisdiction.

Despite this difficulty, however, the Court nevertheless has an incentive to achieve clarity

and coherence, even if its jurisdiction is not hindered when such clarity is lacking.

Ultimately, if the guidance from the Court is sufficiently clear for administrative decision-

makers and superior courts to follow, the volume of judicial review actions (and appeals

against those superior courts’ judgments) will decrease and administrative decision-making

will improve. This is why any effective deference test must strive to meet such a criterion.

Accordingly, the two criteria that this paper will use to measure the effectiveness of a

deference test are:

• the degree to which it can assist judicial review to strike a balance between the

constitutional principles of the rule of law and legislative supremacy (the

‘constitutional criterion’); and

• its clarity, coherence and predictability for all actors in the judicial review process

(the ‘clarity criterion’).

This paper will now apply these criteria to the Court’s current multifactorial approach to

the deference test.

The failure of the multifactorial approach

As indicated in the introduction, this paper argues that the multifactorial approach fails to

meet the criteria outlined above. That failure is evident after analysis of its performance as

an approach and through analysis of its structure. Each of those perspectives is considered

below.

Flaws in the performance of the multifactorial approach

With over thirty years of application, it is relatively straightforward to measure the

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performance of the multifactorial approach. Given the Supreme Court has acknowledged

that the deference test is problematic, it similarly appears a straightforward proposition to

conclude that the multifactorial approach has performed poorly. However, correlation is

not causation. This part will argue that the multifactorial approach is responsible for the

problems with the deference test by showing that throughout its application, it has failed

to meet the criteria for an effective deference test.

Charting the performance of the multifactorial approach – the early years

To outline how the multifactorial approach has found difficulty in meeting the criteria

above, it makes sense to track its development from its inception in C.U.P.E.

C.U.P.E. was a response to the “judicial enthusiasm” for expanding the courts’

jurisdiction to inappropriately displace decision-makers’ authority through a broad notion

of ‘jurisdictional error’.29 The Supreme Court’s response to this issue was, in the main,

clarification of the concept of jurisdiction. If a decision-maker acted within its delegated

authority, the Court would only intervene if its decision were patently unreasonable. This

led to the binary outcomes in C.U.P.E.’s multifactorial approach: either the decision-

maker acted outside its authority, and the Court would apply a correctness standard and

give no deference, or it acted within its authority and the Court would give it full deference,

unless its decision was patently unreasonable. 30

It would have been unproblematic had the Court in C.U.P.E. established a multifactorial

approach for the sole purpose of determining whether a decision-maker was acting within

its jurisdiction. Since both the factors and the outcomes of its multifactorial approach were

geared towards that inquiry, its structure would have been closely aligned with its purpose.

The Court would look to factors that indicated whether a decision was made within the

decision-maker’s jurisdiction. If, after weighing those factors, the decision was within the

decision-maker’s jurisdiction, a standard of patent unreasonableness was applied. If not,

the Court would apply standard of correctness.

29 Bryden, P. ‘Understanding the Standard of Review in Administrative Law’ (2005) 54 U.N.B.L.J.

75, 85-86. 30 Ibid., 89.

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However, the Court did not simply focus on jurisdiction as the rationale for the deference

test. Justice Dickson provided a more nuanced account of the necessity of deference,

focusing not just on jurisdiction, but also the “[c]onsiderable sensitivity and unique

expertise” of the decision-maker.31 The inclusion of a second rationale for deference

required a more contextualized response than the binary outcomes of correctness or patent

unreasonableness could accommodate, explaining why the multifactorial approach began

to run into trouble from the outset.32

The inability of the C.U.P.E. multifactorial approach to accommodate that second

rationale of deference is evident from an examination of the C.U.P.E. decision itself.

C.U.P.E. involved a strike by unionized members of the New Brunswick Liquor

Corporation. The managers of this corporation had stepped in to undertake the role of

their employees whilst they were on strike. The union, C.U.P.E., sued the corporation for

allegedly breaching s. 102(3)(a) of the Public Service Labour Relations Act,33 which stated

that “the employer shall not replace the striking employees or fill their position with any

other employee.” The New Brunswick Labour Board held that the managers were

‘employees’ for the purposes of the Act, and thus held that the corporation was in breach.

The corporation sought review of the decision in the Court of Appeal of New Brunswick,

notwithstanding the presence of a privative clause in the Act that made the Labour Board’s

decision final.

The Court of Appeal quashed the Labour Board’s decision. The Court held that the Board

had wrongly determined the meaning of an ambiguous legislative provision: a task beyond

its jurisdiction.34 The union appealed to the Supreme Court, which overturned the Court

of Appeal. Under the multifactorial approach, both the privative clause and specialist

nature of the Board indicated that the Court ought to completely defer to the Board’s

interpretation of the legislation by applying a standard of patent unreasonableness. 31 C.U.P.E., 237; Lewans, M. ‘Administrative Law and Curial Deference’, Doctoral Thesis (2010),

University of Toronto, 8. 32 Bryden, above n. 29, 89; Mullan, D., ‘Judicial Deference to Executive Decision-Making:

Evolving Concepts of Responsibility (1993) 19 Queen’s L.J. 137, 141. 33 R.S.N.B. 1973, c. P-25. 34 21 N.B.R. (2d) 441, 37 A.P.R. 441 (Court of Appeal of New Brunswick).

13

This meant that the New Brunswick Court of Appeal gave zero deference to the Labour

Board but the Supreme Court gave it complete deference. Yet, this polarity in the result of

each Court’s decision was not reflected in the reasoning of the two courts. The results

suggest that the Courts took very different approaches, but the New Brunswick Court of

Appeal’s decision did not ignore the privative clause and did not ignore the fact that the

Board was confronted with exceptionally ambiguous legislation.35 Indeed, both the Court

of Appeal and the Supreme Court were of the opinion that the corporation’s argument was

without merit.36

The only substantive difference between the two decisions was the importance that the

Supreme Court placed on the expertise of the Labour Board. Although the Supreme Court

did not treat expertise as an explicit factor, the recognition of the Board’s expertise by the

Court as a rationale for deference altered the way it approached the deference test, such

that it selected patent unreasonableness as the appropriate standard. However, although

expertise was not an explicit consideration and may have only had a slight effect, since it

was sufficient to switch the standard from correctness to patent unreasonableness, the

Supreme Court arrived at a completely different result from the Court below. This shows

the disproportionate effect any nuances at the factorial stage will have at the outcome

stage: a direct consequence of the Supreme Court’s decision to adopt binary outcomes.

Decisions that followed C.U.P.E. showed the effect of the Court’s approach. The emphasis

of decision-makers’ expertise widened the jurisdiction of lower tribunals, leading to

decisions such as Manitoba Paramedical Association v. Misericorda General Hospital.37

This case involved a question as to whether paramedics could legitimately strike when

their refusal to work would prevent other hospital staff from being able to undertake their

roles. The answer to this question turned on the interpretation of ambiguous legislation, a

task that was referred to the Manitoba Labour Board by the Manitoba Minister of Labour.

The Board, after interpreting the ambiguous provision, held that it did not apply, meaning

35 Ibid., [31]: the legislation was so ambiguous that the Court of Appeal decided not to award

costs against the unsuccessful respondents. 36 C.U.P.E., [6]. 37 10 Man. R. (2d) 1 (Manitoba Court of Queen’s Bench).

14

that the paramedics were unable to strike. The Board then ordered the paramedics to

return to work.

The applicant sought judicial review of this decision, arguing that the Board simply had to

make a determination of whether a legislative provision applied, because this was the

question referred to it by the Minister. Instead, the Board went much further by

interpreting the legislation and then making an order returning the paramedics to work.

The Manitoba Court of Queen’s Bench rejected the application for review. Justice Deniset

arrived at this result after applying the C.U.P.E. multifactorial test and an outcome of

patent unreasonableness. Since the decision of the Labour Board was not patently

unreasonable, the Court would not intervene and it would defer to its decision.38 Before

arriving at his decision, however, Deniset J. made the following comment:

It should be remembered that the Labour Board is composed of members who have

acquired a great deal of experience and expertise in their field and the public

deserves more […] from the accumulation of their knowledge over the years.39

Had the Court focused on the factors in the multifactorial approach, the outcome may

have been different; after all, the Minister only referred a question to the Board for

determination and had not asked it to make an order.40 The Court could equally have

taken a stricter line, holding that although the Board was attempting to act in the public

interest, it needed to stay within the four corners of its delegated authority, and because it

did not do so, the Court had to intervene. This would have discharged the role of the

Court as supervisory mechanism that upholds the rule of law.

However, the emphasis by the Court of the Board’s expertise when it applied the

multifactorial approach led to a predilection to it finding that that the Board’s decisions

38 Ibid., [18]-[19]. 39 Ibid., [13]. 40 For completeness, however, I note that at the relevant time, “the authority given to the

Manitoba Labour Board is very sweeping, and the privative clause set forth in s. 121.3(1) [Labour Relations Act, R.S.M. 1970, c. L-10] contains perhaps the strongest wording in the country.” Hubble v. Labour Bd. (Man.) 43 Man. R. (2d) 33 at [7]. Of course, however, even the strongest of privative clause will not save those decisions that are made beyond the jurisdiction of an administrative decision-maker.

15

were within its jurisdiction, thus attracting a standard of patent unreasonableness. Even if

the Board was not technically asked to make an order, because it had expertise in such

matters, the Court was not prepared to intervene.

The recurrence of this emphasis on administrative decision-makers’ expertise led to many

decisions being assessed on a standard of patent unreasonableness, even if they involved

questions of decision-makers’ jurisdiction, which had hitherto instead attracted the Court’s

intervention. As a commentator remarked following the release of the C.U.P.E. decision:

Now comes the basic constitutional principle that makes judicial review of acting

without authority axiomatic to our system [...] the limits of statutory, or delegated

powers, are subject to ultimate judicial interpretation.

It should not be necessary to spell out such a basic proposition, but our fascination

with the monolithic possibilities of the theory of legislative supremacy has obscured

it.41

Essentially, the binary nature of the C.U.P.E. outcomes, combined with the Court’s

insistence on recognition of a decision-maker’s expertise meant that there was a

predisposition for the multifactorial approach to result in the application of a patent

unreasonableness standard. Given that patent unreasonableness mandated complete

deference, that predisposition was also to the detriment of the supervisory jurisdiction of

the Court. The bias to deferring to administrative decision-makers on any issue that might

be within their jurisdiction, meant the C.U.P.E. approach was emasculating the Court’s

role and, far from navigating between the constitutional principles of rule of law and

legislative supremacy, it led to the latter trumping the former.

Charting the performance of the multifactorial approach – a change in expertise

The emphasis on expertise in C.U.P.E. that led to this problem did not disappear. Instead,

a decade later in Bibeault, the Court deemed it an explicit factor in the multifactorial

approach alongside legislative intent and the presence of a privative clause when it

41 Lyon, N., ‘Case Comment’ (1980) 58 Can. Bar Rev. 646, 648.

16

instituted the ‘pragmatic and functional approach’.42 While the explicit recognition of

expertise increased the factors for consideration and formalized the contextual nature of

the inquiry, it was still frustrated by the binary outcomes of C.U.P.E., which persisted.

However, the effect of that frustration changed with Bibeault. Whereas following C.U.P.E.

there was a predisposition to favouring patent unreasonableness, following Bibeault,

courts began to favour correctness, and in fact began manipulating the multifactorial

approach to engineer that outcome.

In Dayco (Canada) Ltd. v. CAW-Canada43 and its near twin, Canada (Attorney General) v.

Mossop44, the Supreme Court used the factor of expertise to determine the jurisdiction of

administrative decision-makers in a fashion completely contrary to how it had operated

implicitly in C.U.P.E. The difference was Dayco and Mossop’s introduction of the

concept of “relative expertise”. No longer was the analysis solely focused on the nature

decision-maker’s expertise, but instead ‘expertise of the tribunal if of the relevant type’ as

compared to the Court’s expertise on the matter. 45

This approach left the definition of expertise solely within the Court’s domain. The Court

was not restricted by the legislature’s stipulated jurisdiction of a decision-maker: a

legislative grant of authority to a decision-maker was no longer determinative of its

expertise.46 It could now define that jurisdiction itself. Moreover, the Supreme Court also

deemed general questions of law to lie solely within the domain of the Court’s expertise

and thus not the decision-maker’s.47 Thus any question that lay outside of the decision-

maker’s expertise, or instead, was a general question of law and thus within Court’s

expertise, was beyond the decision-maker’s jurisdiction.

Under the binary outcomes in C.U.P.E., a correctness standard would arise only if a

42 Sossin, L., Flood, C. M., ‘The Contextual Turn: Iacobucci’s Legacy and the Standard of Review

in Administrative Law’ (2007) 57 U. Toronto L.J. 581, 586; C.J.A., Locals 527, 1370, 1598, 1907 & 2397 v. British Columbia (Labour Relations Board) 272 D.L.R. (4th) 253 (BCCA), [35].

43 [1993] 2 S.C.R. 230, hereafter ‘Dayco’. 44 [1993] 1 S.C.R. 554, hereafter ‘Mossop’. 45 Mossop, [41]. 46 Huscroft, G., ‘A Pragmatic and Functional Approach to Re-inventing Jurisdictional Error:

Dayco (Canada) v. C.A.W.’ (1994) 14 Admin. L.R. (2d) 122, 128. 47 Dayco, [42].

17

decision was beyond the decision-maker’s jurisdiction. Until Dayco and Mossop, this was

a rare scenario, because the emphasis of decision-makers’ expertise led to a predilection for

widening their jurisdiction. Dayco and Mossop represented a change in policy: the new

emphasis on the relative expertise of the Court led to a predilection for narrowing

decision-makers’ jurisdiction, making it more likely their decisions would attract a

correctness standard.

Moreover, since it was the Court’s role to determine the question of relative expertise, the

new approach risked the temptation of applying the multifactorial approach in reverse. If

the Court wished to intervene in a decision, all it needed to do was deem the matter within

its relative expertise and not the decision-maker’s. This would put the decision beyond the

decision-maker’s jurisdiction, leading to a correctness standard and justifying the Court’s

intervention. The multifactorial approach was now easily manipulated to justify

intervention whenever the Court wished to intervene.48

The effect of these changes in Dayco and Mossop was an almost complete reversal in

emphasis from legislative supremacy that occurred in C.U.P.E. to the rule of law, for the

rationale for the focus on relative expertise as a determinant of jurisdiction was the court’s

supervisory role in maintaining the rule of law: it should and did have the last word of

jurisdiction.49 Simultaneously, this was to the detriment of legislative supremacy, because

the Court was essentially displacing any legislative role in determining the expertise and

jurisdiction of decision-makers, and instead was deciding the breadth of that jurisdiction

itself.

This development did not occur without criticism, and much blame was placed on the

constraints of the C.U.P.E. test. Taggart, for example, argued that it was the rigidity of the

outcomes in C.U.P.E. that forced the situation, and that its schema has “run into the

sand”.50 It would be an issue so long as its multifactorial approach persisted.

48 Huscroft, above n. 46, 138. 49 Mossop, [75]-[77] 50 Taggart, M., ‘Outside Canadian Administrative Law’ (1996) 46 U. Toronto L.J. 649, 651-652.

18

Charting the performance of the multifactorial approach – a third outcome

Potential relief came in the form of Southam, three years after the decisions of Dayco and

Mossop. Southam attempted to break the conceptual deadlock in the multifactorial

approach by introducing a third outcome in addition to patent unreasonableness and

correctness. As Iacobucci J. noted, it was a “necessary consequence” of the need to relieve

the pressure of the binary outcomes of correctness and patent unreasonableness.51 Patent

unreasonableness was too focused on jurisdiction; correctness not sufficiently deferential: a

third standard was needed.52 Accordingly the outcome of ‘reasonableness simpliciter’ was

introduced requiring an analysis as to whether a decision could withstand a “probing

examination”.

However, the introduction of this third standard was only a logically necessary

consequence under the C.U.P.E. framework. An alternative, as Taggart argued, was to

abandon the C.U.P.E. framework altogether. The problem was not that there were not

enough outcomes: the problem was that there were outcomes at all. The multifactorial

approach forced the contextual analysis that occurred at the factorial stage into outcomes

that could not accommodate such analysis. The Court ought to have looked at what was

causing the problem by inquiring into whether the underlying multifactorial approach was

at fault and whether its rigidity lay at odds with the contextual nature of judicial review.

Instead, by introducing a third standard, the Court merely placed a Band-Aid on what this

paper argues was a mortal wound.

It is clear that Southam’s solution was only temporary relief because it lasted only a matter

of years before a different kind of problem arose: confusion as to the difference between

the outcomes of patent unreasonableness and reasonableness simpliciter. If already

confusing in theory – it was unclear what the actual difference was between a patently

obvious defect and one that would reveal itself after a probing examination – it was even

more so in practice, leading to several inconsistent applications of the deference test.53

51 Southam, [55]; Bryden, above n. 29, 89. 52 Southam, [55]. 53 Régimbald, G., ‘Correctness, Reasonableness and Proportionality: A New Standard of Judicial

Review’ (2005) 31 Man. L.J. 239, [8].

19

This led to a series of decisions that attempted to redefine and reformulate the outcomes of

the multifactorial approach – the standards of deference – without success. The Court took

the unusual step of expressing its frustration with the situation in Voice Construction Ltd.

v. Construction & General Workers’ Union, Local 92:

[I]t is time for this Court to re-evaluate the appropriateness of using the patent

unreasonableness and reasonableness simpliciter standards. Patent unreasonableness

is an inadequate standard that provides too little guidance to reviewing courts, and

has proven difficult to distinguish in practice from reasonableness simpliciter.54

Charting the performance of the multifactorial approach – Dunsmuir and Khosa

This set the stage for the Court in Dunsmuir to provide a solution to this problem of

confusing outcomes. The Court’s majority judgment opened with a statement of grand

ambition:

This appeal calls on the Court to consider, once again, the troubling question of the

approach to be taken in judicial review of decisions of administrative tribunals. The

recent history of judicial review in Canada has been marked by ebbs and flows of

deference, confounding tests and new words for old problems, but no solutions

that provide real guidance for litigants, counsel, administrative decision makers or

judicial review judges. The time has arrived for a reassessment of the question.55

Given this statement at the start of the Court’s judgment in Dunsmuir, one might expect

that it would include the considered analysis of the multifactorial approach’s structure that

was lacking in the decisions that preceded it. Yet while the Court abandoned the

“pragmatic and functional” approach, and replaced it with “standard of review analysis”,

there was no analysis of the structure of either approach.56 Once again, the Court simply

engaged in reform of the content of the deference test, rather than its structure. This is

evident from the Court’s explanation of standard of review analysis:

In summary, the process of judicial review involves two steps. First, courts 54 2004 SCC 23, [40]; [2004] 1 S.C.R. 609, Régimbald, ibid., [19]. 55 Dunsmuir, [1]. 56 Ibid., [63].

20

ascertain whether the jurisprudence has already determined in a satisfactory

manner the degree of deference to be accorded with regard to a particular category

of question. Second, where the first inquiry proves unfruitful, courts must proceed

to an analysis of the factors making it possible to identify the proper standard of

review.57

The first step referred to above – along with its eradication of the standard of ‘patent

unreasonableness’ – were the main innovations of Dunsmuir. The effect of those

innovations was to create a number of “presumptive principles and issues” that

conclusively determine the standard of review and obviate the need for the deference test.58

Yet in the absence of any presumptive principles and “where the applicable standard has

not previously been conclusively determined, an examination of the contextual factors will

be required, that is, those previously employed in the pragmatic and functional analysis”.59

This means that a Court still applies a multifactorial deference test identical to that which

had occurred previously, unless it had already engaged in that test in at an earlier

precedent. Justice Binnie’s cynical comment, in his minority judgment, thus appears

justified: “[c]hanging the name of the old pragmatic and functional test represents a

limited advance”.60 The deference test still involves a series of factors leading to two

alternative standards of review, correctness or reasonableness, and the Court in Dunsmuir

did little to analyze and assess – let alone criticize or alter – the foundational structure of

the deference test and its multifactorial approach.

As indicated above, Dunsmuir also reformed the concept of reasonableness, changing the

inquiry from the ‘probing examination’ standard instituted in Southam to one that

considers whether a decision falls amongst a series of reasonable outcomes. However, this

was not a singular standard of deference like that of correctness: as Binnie J. stated in

Dunsmuir: ““Reasonableness” is a big tent that will have to accommodate a lot of

variables that inform and limit a court’s review of the outcome of administrative decision

57 Ibid., [62], emphasis added. 58 Goltz. R., ‘Patent Unreasonableness is Dead. And We Have Killed It.’ A Critique of the Supreme

Court of Canada’s Decision in Dunsmuir’ (2008) 46 Alta. L. Rev. 253, 257. 59 Ibid. 60 Dunsmuir, [121].

21

making.”61 This position was formalized in Khosa v. Canada (Minister of Citizenship &

Immigration) 62 where now delivering the majority judgment, Binnie J. held that:

“Reasonableness is a single standard that takes its colour from the context.”63 However,

despite Binnie J.’s attempt at reform, as Rothstein J. noted in his dissenting judgment in

Khosa:

Regardless of what type of decision maker is involved, whether a Cabinet minister

or an entry-level fonctionnaire (para. 28), the Dunsmuir analysis can only lead to

one of two possible outcomes: reasonableness or correctness. And, as the present

majority makes clear, these are single standards, not moving points along a

spectrum.64

Justice Binnie’s approach to reasonableness as a standard that would vary with the context

was at odds with the Court’s clear statement in Dunsmuir and Rothstein J.’s dissent in

Khosa: they are decisions that appear difficult to reconcile.65 Dunsmuir was initially

lauded as a “milestone judgment” that caused practitioners to “praise the court for its

efforts to bring lucidity to the Byzantine realm of judicial review.”66 Over time, however, it

became clear that the decision had failed to eliminate confusion in the application of the

deference test.

What has appeared to have occurred in practice since the confusion arising in Dunsmuir

and Khosa is simply a duplication of the multifactorial approach within the standard of

reasonableness: if the deference test has arrived at a standard of reasonableness as the

outcome, the court goes through a secondary analysis to arrive at what reasonableness

means in the context, by looking at the same factors used in the original deference test. In

Catalyst Paper Corp. v. North Cowichan (District)67 the parties agreed that the standard

61 Ibid., [144]. 62 2009 SCC 12; [2009] 1 S.C.R. 339 (hereafter Khosa). 63 Ibid., [59]. 64 Ibid., [108]; paragraph references refer to Khosa. 65 Klinck, J. A., ‘Reasonableness Review: Conceptualizing a Single Contextual Standard from

Divergent Approaches in Dunsmuir and Khosa’ (2011) Can. J. Admin. L. & Prac. 41, 50. 66 Schmitz, C. ‘SCC overhauls judicial review’, The Lawyers Weekly, 21 March 2008, accessible at

<www.lawyersweekly.ca/index.php?section=article&articleid=638>. 67 [2012] SCC 2.

22

of review was reasonableness, which should have avoided requirement for the deference

test. Despite that agreement, however, the Supreme Court mandated a secondary process

to the particular flavour of reasonableness to be applied – using the same factors in the

multifactorial approach. Thus even with the parties’ consent, the application of the

deference test was seemingly unavoidable, and hardly the victory for the efficiency that the

Court wished to achieve in Dunsmuir.68

Adding to the confusion, Khosa resurrected the standard of patent unreasonableness that

Dunsmuir had rendered defunct. In his judgment, Binnie J. referred to the example of the

British Columbia Administrative Tribunals Act 2004, which explicitly refers to the

standard in its privative clause, a reference described as an “unprecedented” move that

lent itself to ossification.69 Yet instead of agreeing with the commentators’ disparaging

assessment, Binnie J. held the following at [19]:

The expression “patently unreasonable” did not spring unassisted from the mind of

the legislator. It was obviously intended to be understood in the context of the

common law jurisprudence [...] Despite Dunsmuir, “patent unreasonableness” will

live on in British Columbia, but the content of the expression, and the precise

degree of deference it commands in the diverse circumstances of a large provincial

administration, will necessarily continue to be calibrated according to general

principles of administrative law. [Emphasis original.]

Justice Rothstein in his judgment in Khosa identified that the locus of all this confusion

was the pragmatic and functional approach. He accordingly questioned the entire pedigree

of Dunsmuir, arguing that since Pezim, the Court had departed from the conceptual basis

of why a deference test is necessary, and Dunsmuir had failed to correct that error.70 He

argued that the core of the deference test should focus on the presence (or absence) of a

privative clause in a tribunal’s guiding legislation. Such privative clauses are a “manifest

68 Ibid., [18]. 69 Underhill, M. G., ‘Dunsmuir v. New Brunswick: A Rose by Any Other Name? (2008) 21 Can. J.

Admin. L. & Prac. 247, 258 citing Rankin, T. M. ‘The British Columbia Administrative Tribunals Act: Evaluating Reforms to the Standard of Review and Tribunals’ Jurisdiction over Constitutional Issues” (2005) 18 Can. J. Admin. L. & Prac 165.

70 Khosa, [87]-[88]

23

signal of the legislature’s recognition of relative tribunal expertise.”71 He favoured an

approach that would apply a default standard of correctness unless it was displaced by the

legislature through a privative clause, for:

It is not for the court to impute tribunal expertise on legal questions, absent a

privative clause and, in doing so, assume the role of the legislature to determine

when deference is or is not owed.72

Justice Binnie disagreed with Rothstein J., arguing that it was too difficult to roll back

fifteen years of jurisprudence since Pezim.73 His view of privative clauses was that in and

of themselves they were not determinative of a standard of review, and if the legislature

wanted to mandate a particular standard, it had to do so explicitly, rather than simply

limiting through a privative clause the grounds of review applicants could rely upon.74

Justices Binnie and Rothstein’s contrary approaches are an illustration of how the

multifactorial approach can favour either the rule of law or legislative supremacy but not

strike a between them. Justice Rothstein favoured an approach that would defer to

legislative supremacy in the form of a privative clause, even if that meant abandoning its

supervisory jurisdiction. Justice Binnie’s approach presumptively assumed such a

supervisory jurisdiction would triumph unless and until the legislature was explicit in how

the Court should exercise that jurisdiction. Justice Binnie’s approach won out, and thus

continued a trend that commenced with the Dayco/Mossop decisions of favouring the

Court’s supervisory jurisdiction and the rule of law over legislative supremacy.

Such a trend was evident in Dunsmuir itself, which held that a key reason for eliminating

the standard of patent unreasonableness was its inconsistency with the rule of law: the

high threshold of patent unreasonableness illegitimately circumscribed the Court’s

supervisory jurisdiction.75 This is so even if the legislature was clear about delegating a

wide jurisdiction to a tribunal. The Court in that decision gave an assurance that the 71 Ibid., [87]. 72 Ibid., [91]. 73 Ibid., [26]. 74 Ibid., [51]. 75 Dunsmuir, [42].

24

elimination of that standard and the “move towards a single reasonableness standard does

not pave the way for a more intrusive review by courts and does not represent a return to

pre-Southam formalism.”76

However, there are aspects of the Dunsmuir decision that increase the risk of such a return

to this pre-Southam approach. One of those aspects is its introduction of questions of

“true jurisdiction”, defined as occasions “where the tribunal must explicitly determine

whether its statutory grant of power gives it the authority to decide a particular matter”.77

When a decision contained such questions, the Court would apply a default standard of

correctness without engaging the deference test. This approach was “apt to cause

confusion”, since it was unclear whether the determination of these questions that act as

trump cards for determining the standard of review would occur outside of the contextual

analysis itself.78

Moreover, this category of questions of true jurisdictional questions risks the same

situation that occurred following Dayco and Mossop. Since it is the Court that decides

whether a decision involves a question of true jurisdiction, it has the ability to determine

an outcome of correctness simply by deeming a particular question one of true jurisdiction.

If the Court takes a liberal approach as to what those questions entail, it has the ability to

expand the reach of the correctness standard, and thus risks undermining legislative

supremacy if such intervention runs contrary to legislative intention. Accordingly as

Janisch notes:

The SCC said that it did not intend to expand the scope of judicial review

in Dunsmuir, but jurisdiction remains out there as an ever-threatened Achilles heel

of judicial deference.79

The Supreme Court has since distanced itself from the notions of questions of true

76 Ibid., [48]. 77 Ibid., [59]. 78 Canadian Federal Pilots Association v. Canada (Attorney General) 2009 FCA 223, [37]; Elliot,

D., ‘Khosa—Still Searching for that Star’ (2009) 33(2) Man. L.J. 211, n. 127. 79 Janisch, H., ‘Something Old, Something New’ (2010) 23 Can. J. Admin. L. & Prac. 219, 224

(emphasis original).

25

jurisdiction and the risk of their manipulation to justify intervention. Justice Rothstein in a

later case has stated that: “it may be that the time has come to reconsider whether […] the

category of true questions of jurisdiction exists and is necessary to identifying the

appropriate standard of review.”80 Some commentators have taken this to indicate that

Dunsmuir has had the peculiar effect of acting as the death knell for questions of true

jurisdiction, despite its explicit revival of the concept.81 If so, however, then it is only

thanks due to a patchwork of Supreme Court cases that followed and quashed any hope of

a revival of the approach in Mossop and Dayco.82

Although a crude measure, it is perhaps indicative that the “rule of law” was referred to

seventeen times and throughout Dunsmuir, whereas ‘legislative supremacy’ featured only

four times, and then only within a single paragraph. While the multifactorial approach is

not responsible for that imbalance in the Court invocation of one constitutional principle

over another, it is responsible for that imbalance manifesting itself in the deference test. It

was the multifactorial approach that caused a category of questions of true jurisdiction to

arise, since they only make sense under a system that is focused on arriving at outcomes of

predefined levels of deference. It is the rigidity of the multifactorial approach that

encourages courts to then expand the definitions of concepts such as jurisdiction, tempting

them to manipulate the approach and frame the inquiry in a way that inevitably leads

them to the outcome they desire. Thus even if courts only slightly favour the rule of law

and their supervisory jurisdiction over legislative supremacy, the multifactorial approach

turns this bias into a fundamental part of the deference test with significance implications.

Measuring the performance

The history of the deference test as outlined above has shown the persistence of the

multifactorial approach is a central part of that test. The history provides a basis for

measuring the approach against the two criteria set for an effective deference test.

80 A.T.A. v. Alberta (Information & Privacy Commissioner) 2011 SCC 61, [34]; [2011] 3 S.C.R.

654. 81 Lewans, M., ‘Judicial Deference and Reasonableness Review after Dunsmuir’ Can. J. Admin. L.

& Prac. (forthcoming). 82 Ibid.

26

Primarily, the multifactorial approach fails to meet the clarity criterion. Arguably, at its

introduction in C.U.P.E., given the low number of factors and outcomes involved, the

multifactorial approach had an ostensible clarity and simplicity. Indeed, in C.U.P.E. itself,

Dickson J. for the Court demonstrated how easy he thought the multifactorial approach

was to apply: ambiguous legislation and a privative clause meant that the Court ought to

defer to the expertise of the Labour Board.83 However, absent those clear facts, it was

fundamentally unclear how the multifactorial approach would operate. As Mullan noted:

What if there is no privative clause or a weaker form of privative clause? Did this

mean automatically that the standard of review would be that of correctness, or did

expertise and the nature of the question at stake still count for something? [...] In

any event, what was the nature of “patent unreasonableness” review? How

precisely was it differentiated from its opposite, “correctness” review?84

When those scenarios inevitably arose, the Supreme Court’s response was not to revisit the

suitability of the multifactorial approach in C.U.P.E., but instead amend it to allow a

more contextual approach through expanding the number of factors and/or allowing a

greater number of outcomes. With added flexibility, however, came increased complexity,

and “what started out as a seemingly simple inquiry [became] an extremely complex and

by no means definitively settled exercise”.85

That complexity not only affected judicial actors, but decision-makers too. In particular,

any clarity provided by C.U.P.E. as to decision-makers’ jurisdictional capacity was undone

by the expansive definition of the expertise factor in Dayco/Mossop, which left decision-

makers without any guidance and vulnerable to judicial intervention. As Huscroft noted:

The raison d'être for CUPE was the desire to prevent judicial interference with the

decisions of labour law tribunals. And yet the Court in Dayco, while purporting to

83 Huscroft, G., ‘Judicial Review from CUPE to CUPE: Less is Not Always More’ in Huscroft, G.,

and Taggart, M. (eds), Inside and Outside Canadian Administrative Law: Essays in Honour of David Mullan (Toronto: University of Toronto Press, 2006), 296.

84 Mullan, D. J. ‘Establishing the Standard of Review: The Struggle for Complexity?’ (2003) 17 Can. J. Admin. L. & Prac. 59, 61.

85 Ibid.

27

support the CUPE approach, is going much further than simply reviewing the

decision of a labour law tribunal – it is preempting the tribunal from making its

decision!86

The response to this situation by Iacobucci J. in Southam of a spectrum of three different

outcomes provided incomplete guidance as to how to apply the deference test or what the

outcomes would mean. Justice Iacobucci’s “probing examination” test for reasonableness

simpliciter may have provided a vivid metaphor but was vacuous in terms of actual

guidance.

This lack of guidance led to a high degree of complexity as various courts attempted to

apply and reconcile the various outcomes in the multifactorial approach. Post-Dunsmuir,

the multifactorial approach still persists where the standard of review is unclear87 and even

when there is no dispute as to the standard, is applied to determine the particular flavour

of reasonableness that is appropriate.88 It is no coincidence that the complexity inherent in

the pragmatic and functional approach and the problems that caused for courts and

decision-makers has also persisted:

If that indeed is the new world of standard of review, then the determination of

how to approach review of any particular decision has not necessarily become any

easier or, for that matter, any less likely to minimize the extent to which counsel

and lower courts have to concern themselves with identifying the appropriate

posture of the courts.89

Dunsmuir and its retention of the multifactorial approach as the framework for the

deference test means that decision-makers and lower courts are in the same position they

were prior to the decision. From the outset, the simplicity of the multifactorial approach 86 Huscroft, above n. 46, 135. 87 See, e.g. M.A.H.C.P. v. Nor-Man Regional Health Authority Inc. 2011 SCC 59, [40]; [2011] 3

S.C.R. 616: “Four non-exhaustive contextual factors have been identified in the jurisprudence to guide courts through [the deference test]…”, an approach applied almost verbatim in Canada (Attorney General) v. Mowat 2011 SCC 53; [2011] 3 S.C.R. 471 at [16] and Alliance Pipeline Ltd. v. Smith 2011 SCC 7; [2011] 1 S.C.R. 160 at [82].

88 See discussion of Catalyst Paper Corp. at n. 67 above. 89 Mullan D., Dunsmuir v. New Brunswick, Standard of Review and Procedural Fairness for

Public Servants: Let’s Try Again! (2008) 21 Can. J. Admin. L. & Prac. 117, 135.

28

meant that it was difficult to apply to hard cases, but the response of the Supreme Court in

retaining its structure and increasing the variables to better enable it to deal with hard

cases has made it confusing for those actors who abide by or apply the approach.

The multifactorial approach’s failure to meet the clarity criterion affects its ability to meet

the constitutional criterion. As indicated in the analysis of the previous section, what

C.U.P.E. possessed in ostensible clarity it lacked in any attempt to reconcile the tension

between the rule of law and legislative supremacy. As Dyzenhaus notes, it amounted to a

significant cession by the judiciary of interpretative authority to tribunals.90 Such a cession

of authority meant the Court was focusing on respecting legislative supremacy and not

maintaining the rule of law through its supervisory function, because it no longer had the

last word on jurisdiction. This was a situation caused by the multifactorial approach,

because the rigidity of its binary outcomes forced the judiciary to cede interpretative

authority in all but the most extreme situations.

A switch in focus from legislative supremacy to the rule of law accompanied the

development of the multifactorial approach and the increase in its complexity in the years

following C.U.P.E. As outlined above, Dayco and Mossop allowed courts to manipulate

the multifactorial approach in a way that increased their supervisory jurisdiction over

decision-makers even if that ran contrary to legislative intention. Through an expansion of

the definition of the courts’ expertise and simultaneously deeming the courts – and not the

legislature – the arbiter of administrative decision-makers’ authority, this approach risked

leading to “deference when it suited the courts”. This was precisely the situation envisaged

by LeBel J. when he argued that too much focus by the Court on upholding the rule of law

through its supervisory jurisdiction: a lopsided focus could lead to autocracy of the

courts.91 Obviously, the Court in Dayco and Mossop was not acting in bad faith. It was

simply emphasizing its supervisory jurisdiction in the name of the rule of law. This action,

however, was to the detriment to legislative supremacy, for the legislature was left with

little ability to guide the Court’s approach to administrative decision-making.

90 Dyzenhaus, D., ‘Disobeying Parliament? Privative Clauses and the Rule of Law’ in Bauman, R.

W. and Kahana, T. eds., The Least Examined Branch: The Role of Legislatures in the Constitutional State (Cambridge: Cambridge University Press, 2006), 512.

91 See n. 24 above.

29

Upon the Court’s adoption in Southam of a third standard to eliminate the Dayco/Mossop

approach and its adherence to the “deference as respect model”, the pendulum swung in

the opposite direction, but not nearly as far as the stance in C.U.P.E. This ought to have

represented a mid-point in the constitutional tension but the opaqueness and complexity of

the multifactorial approach during this period of jurisprudence undermined any attempted

reconciliation. No actor in the judicial review process was able to navigate the

multifactorial approach to predictable outcomes: a decision-maker could be subject to

reasonableness simpliciter today and correctness tomorrow. Moreover, the effect of those

outcomes was meaningless if the courts simply intervened under both these outcomes; any

difference between the two was lost. This upheld the rule of law – the courts’ supervisory

jurisdiction was preserved – but undermined legislative supremacy insofar as the

legislature’s clear directions as to the authority of tribunals was for nought. Once again,

this was the fault of the multifactorial approach, and the confusion surrounding its

multitude of factors and the consequences of its outcomes.

The attempt to resolve the confusion in Dunsmuir was, once again, a success on the part

of the rule of law and not for legislative supremacy. Although the Court prescribed a

presumptive stance of deference (insofar as reasonableness became the default standard),

the confusion with the multifactorial approach that occurred in the pragmatic and

functional approach was not cured: decision-makers are still left unclear as to what

reasonableness means and how it will apply in particular circumstances. Moreover, the

introduction of the category of questions of true jurisdiction attracting a standard of

presumptive correctness opens the door for the manipulation – and the undermining of

legislative supremacy – in Dayco/Mossop to recur. As one commentator has observed,

“Dunsmuir has not really changed that much.” This is problematic, given so much needed

to change.92

Accordingly, on each of the criteria, the multifactorial approach has performed poorly.

The next section will argue that the reason for this poor performance is inherent in the

92 Lambert, N. ‘Dunsmuir v. New Brunswick: The Perceived Choice between Fairness and

Flexibility in Public Service Employment’ (2009) 59 U.N.B. L.J. 205, 205.

30

approach itself, rather than simply a case of misapplication by the courts.

Structural flaws in the multifactorial approach

As detailed in the previous section, an assessment of the multifactorial approach since its

inception in C.U.P.E. shows that it has performed poorly in meeting the criteria for an

effective deference test. This section argues that an explanation for this poor performance

is the structure of the approach, and specifically, the simultaneous rigidity of that overall

structure and indeterminacy of the individual factors and outcomes involved. It is these

structural flaws that are integral to the approach and thus why it makes an inappropriate

approach to the deference test.

The problem of rigidity

This problem is one that was apparent almost immediately from the inception of the

multifactorial approach: essentially, it cannot accommodate hard cases. As discussed

above, C.U.P.E. was an easy case.93 It was easy to apply the multifactorial approach that

Dickson J. established in C.U.P.E. itself. The case involved confusing legislation, a

privative clause and a specialist Labour Board with a great deal of expertise: all factors

pointed toward a standard of patent unreasonableness.94 In that way, the multifactorial

approach was applied with relative ease, providing an excellent example of the approach

at work. However, as Huscroft notes:

There were bound to be harder cases in which the apparently all-or-nothing choice

between reviewing jurisdictional questions for correctness and letting decisions

made within jurisdiction stand unless they were ‘patently unreasonable’ would not

be attractive.95

The multifactorial approach would falter when dealing with these harder cases. A

contextual inquiry at the factorial stage was undermined by the polarity of the binary

93 See n. 83. 94 Of course, this opinion ran contrary to the Court below in C.U.P.E., which reversed the Labour

Board’s decision. However, recall that this Court was applying the then orthodox approach, explaining why simply a contrary legislative interpretation was sufficient to justify its intervention, but not the Supreme Court’s.

95 Huscroft, above n. 83, 296.

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outcomes. Those outcomes did not have the capacity to represent a complex and

contextual inquiry at the factorial stage: once an outcome was arrived at, it was irrelevant

whether all the factors clearly pointed towards that standard, or only did so by the

narrowest of margins. The same standard would apply, thereby ignoring the context that

led to the application of that standard. In this sense, it was an ‘all or nothing’ approach. It

is important to note that this was not the intention of Dickson J. in C.U.P.E. In trying to

create a system that would take better account of the decision-maker’s jurisdiction and

expertise, he was undermined by a system that essentially ignored context through its

rigidity. The pressure of such rigidity caused the reform in Bibeault, which sought to

amend the factors in the multifactorial approach to take better account of the contextual

circumstances in a decision.96

Yet the rigidity of the multifactorial approach not only constrained the Court in its

application, but also its reform. By retaining the structure of the multifactorial approach,

the introduction in Bibeault of the pragmatic and functional approach did not solve the

fundamental problem of the binary outcomes of correctness and patent unreasonableness.

The focus on recalibrating the factors ignored the rigidity of these outcomes and caused

the reversion in Dayco and Mossop to the jurisdictional focus: precisely what C.U.P.E.

had intended to halt. As Dyzenhaus noted at the time:

Since C.U.P.E., courts have accepted that a more [sic] error on the part of an

administrative tribunal as to interpretation of the law is not a sufficient justification

for judicial intervention. Thus, the Supreme Court has been occupied with the

difficult question of what the criteria are that tell us when it is appropriate for a

court to impose its interpretation of the law on an administrative tribunal.

At times, it may have seemed that the very search for criteria had subverted the

principle. Because of the difficulty the Supreme Court has experienced in

articulating the criteria, and because of a discernible trend to broaden and add to

the criteria, the principle might seem to have become so malleable that courts still

can, should they choose, intervene merely when they think that a tribunal is

96 Sossin and Flood, above n. 42, 586.

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wrong.97

It is unclear why the Court felt compelled to remain faithful to C.U.P.E. and the structure

it instituted. Certainly, overruling the decision would have constituted a perhaps

unattractively radical move by the Court. If this was the reason why the multifactorial

approach persisted, then it is somewhat ironic that the Court’s timidity in overruling

C.U.P.E. led to it undermining its principles: restricted to binary outcomes, the Court

instead tried – and failed – to achieve the aims of the deference test through the existing

structure with inconsistent results.

Of course, the sheer logical pressure of these binary outcomes forced development of the

multifactorial approach – the ‘spectrum’ of outcomes in Pezim; a third outcome in

Southam – each designed to more accurately reflect the contextual circumstances of a

decision and give better effect to the principles in C.U.P.E.98 One might expect that these

changes would create flexibility: increasing the factors and outcomes increases the number

of permutations available and the accommodation of a greater number of contextual

circumstances. Yet such an expectation falsely assumes that each of the three outcomes

has an equal validity, that each is separate, distinct and as likely as a result of the

multifactorial approach as the others. The only amendment by the Pezim and Southam

Courts was to introduce reasonableness simpliciter, but with little conceptual daylight

between that standard and the existing standard of patent unreasonableness, the

amendment did not improve the multifactorial approach’s contextual capacity and instead

rendered patent unreasonableness obsolete. 99 That obsolescence was formalized in

Dunsmuir with the eradication of patent unreasonableness, showing that far from being a

panacea in improving the ability or flexibility of the multifactorial approach to account for

different contexts, the amendments simply staved off more significant reform.

97 Dyzenhaus, D., ‘CUPE’s Spirit? Case Comment: Domtar Inc. c. Québec (Commission d’appel en

matière de lésions professionnelles)’ (1994) 15 Admin. L.R. (2d) 73, 74-75. 98 Sossin and Flood, above n. 42, 582. 99 See the judgment of Robertson J.A. in New Brunswick (Board of Management) v. Doucet-Jones

(2004) 243 D.L.R. (4th) 652 (NBCA) at [18]-[25], which explains the difficulty of defining patent unreasonableness in the face of reasonableness simpliciter.

33

Huscroft’s criticism of the original C.U.P.E. test applies with nearly equal force to

Dunsmuir. As indicated above, the effect of Dunsmuir is that the outcome of the deference

test is presumptively reasonableness. As one practitioner noted upon the release of the

decision:

Basically what they have signaled is that in 95 per cent of the cases where there is a

privative clause, some deference is owed and the test is reasonableness [...] So I

think by default ‘reasonableness’ will become the standard of review in most cases

except for those which deal with vires or initial jurisdiction.100

However, this simply returns the multifactorial approach to the problem that plagued it

after C.U.P.E. While easy cases will pass through the multifactorial approach with no

concerns, hard cases will fall at the dividing line. When decisions involve some factors

pointing to correctness and others pointing to reasonableness, how is the Court to decide

which standard to apply?

An example of such a harder case is that of Whiteley v. Shuniah (Municipality), decided

soon after Dunsmuir.101 This decision involved a challenge by a property-owner against a

municipal stop-work order, issued by the municipality’s chief building officer (CBO), after

his construction allegedly exceeded the height restrictions as provided by a building permit.

The challenge centred on the interpretation of the terms used in the permit to set the height

restrictions. The applicant argued for a correctness standard of review, the responding

municipality argued for reasonableness. Some factors – expansive appellate powers given

to the Court, the absence of a privative clause and questions of statutory interpretation –

indicated a standard of correctness was appropriate. Others – the expertise of the tribunal,

questions of mixed fact and law – indicated a standard of reasonableness. Justice Pierce

held that “While there are some factors which point to a correctness standard, I have

concluded that, on balance, the standard of review should be that of reasonableness.”102

Confronted with opposing factors, the Court was required to exercise its discretion as to

which standard applied. 100 Schmitz, above n. 66. 101 (2008) 48 M.P.L.R. (4th) 171, 74 C.L.R. (3d) 112, 169 A.C.W.S. (3d) 431 (Ontario Superior

Court of Justice). 102 Ibid., [17].

34

Whiteley was followed by a decision of the same court in Swanson v. Whitchurch-

Stouffville (Town),103 which dealt with exactly the same provision of the same Ontario

legislation. This decision instead involved a house-owner challenging two orders by the

municipality’s CBO that his property contravened bylaws and was unsafe for habitation. A

large portion of the judgment was dedicated to the determination of the standard of review

under the Dunsmuir multifactorial approach despite the pre-existing determination on this

issue about the same provision in Whitley. Justice Lauwers, like Pierce J. in Whitley,

considered the opposing factors in the legislation that indicated both reasonableness and

correctness were the appropriate standards, but held instead that a standard of correctness

was applicable instead, contrary to the same Court’s finding in Whiteley. Justice Lauwers

exercised his discretion just as Pierce J. had: “ [I]n my view, the Ontario legislature has

shown a clear intent in the language of the Act that the standard of review is to be

correctness.”104

These decisions provide a good example of how the Dunsmuir approach fails to deal with

hard cases. Confronted with opposing factors that suggest two different standards of

review, the deference test is simply reduced to judicial discretion as to which standard the

Court will apply. While judicial discretion in itself is completely unobjectionable, this

represents a failure of the approach to yield clarity in the deference test: as Swanson and

Whiteley show, two courts can go through exactly the same process under deference test

and yet arrive at very different results, leaving decision-makers such as CBOs with no

clarity as to how closely the Courts will scrutinize their decision-making processes.105

Like C.U.P.E., the Dunsmuir multifactorial approach provides little clarity when

confronted by hard cases. Unlike C.U.P.E., however, this problem is exacerbated by the

contextual nature of the standard of reasonableness, a standard that did not exist in

103 (2009) 68 M.P.L.R. (4th) 203, 89 C.L.R. (3d) 279 (Ontario Superior Court of Justice). 104 Ibid., [64]. 105 This issue was further complicated by a third decision – Anderson v. Hamilton (City) 315 D.L.R. (4th) 486, 68 M.P.L.R. (4th) 219 – which in trying to reconcile the contrasting approaches, decided upon a hybrid approach of applying a standard of reasonableness for some questions and correctness for others.

35

C.U.P.E. As discussed above, the contextual nature of reasonableness is, by itself, a cause

of complexity and lack of clarity:

It is at the stage of the courts’ application of the reasonableness standard that

substantive review retains much of its complexity. Appellate courts appear to be

gradually recognizing that, while it may not be accurate to speak of varying degrees

of deference within the reasonableness standard, the range of reasonable outcomes

is the variable in the post-Dunsmuir regime—expanding and contracting under the

influence of various contextual factors, including the familiar pragmatic and

functional factors.106

Once again, there is no fundamental problem with the standard of reasonableness having

internal flexibility, but that was not the Court’s intention.107 The Court wished to provide

clarity for decision-makers, but instead provided a multifactorial approach that is

determined largely by judicial discretion, and a standard that is internally complex and

opaque.

The rigidity of the multifactorial approach meant that the Court adjusted it to fit its

purposes until its logical and conceptual breaking point. At that stage, the Court embarked

on a process of reform, only to have its intentions repeatedly thwarted due to its insistence

upon retaining the same rigid structure. This is inherent to that structure, because the

multifactorial approach is simply not capable of accommodating contextual circumstances

in the way it needs to, with clarity and precision. Instead, the multifactorial approach

provides a limited number of permutations that forces such contextual circumstances into

outcomes that do not appropriately reflect that context.

Logically, of course, it would be possible to create a multifactorial approach with myriad

factors and perfectly calibrated outcomes. In the absence of such an approach, however,

the Court is left with an inferior version involving few factors and even fewer outcomes

that inherently fail to meet the two criteria for an effective deference test. Forcing

contextual circumstances into a rigid approach encourages the manipulation in Dayco and

106 Heckman, above n. 2, 784. 107 Klinck, above n. 65, 42.

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Mossop, and the confusion of the Southam outcomes. Accordingly, the multifactorial

approach not only does not meet the clarity criterion, but its structure is such that it also

cannot and will not meet it.

The problem of inconsistency

David Phillip Jones Q.C., in his analysis of Baker’s application of the multifactorial test,

encapsulates what this paper argues is another integral flaw. Baker involved an application

for review against a decision rejecting the applicant’s attempt to resist her deportation

from Canada on humanitarian and compassionate grounds. When applying the

multifactorial pragmatic and functional approach to determine the standard of review, the

Court was confronted with some factors indicating one outcome, and other factors

indicating another. The Court balanced these factors and arrived at an outcome of

reasonableness simpliciter. However, as Jones comments, the Court did not reveal what

this balancing process entailed:

Given that the Supreme Court of Canada did not conclude that the provision of an

appeal “on the merits” was determinative of a legislature’s intent, how did the

court weigh the four factors from the functional and pragmatic approach? Two

factors (the existence of a broad right of appeal and the committee not having

greater expertise than the court) proposed a low degree of deference, the third was

ambivalent (the purpose of the statute and of the provision in particular), and the

fourth (the nature of the problem – credibility) suggested deference. We know the

various considerations identified by the court with respect to the four factors, and

the outcome, but we do not know the weight applied to each factor. Why does the

fourth factor outweigh the others?108

This question – why and by how much one factor outweighs another is not answerable

through analyzing a judgment in Baker – and the Court is not obliged to tell us the answer.

The multifactorial approach simply mandates the Court’s consideration of each of the

factors to arrive at the appropriate outcome. There is no in-built requirement for the Court

to tell us how it did so. Accordingly, an overall rigidity of the multifactorial approach

108 Jones, D. P., ‘Two More Decisions by the Supreme Court of Canada on the Standard of Review’

(2003) 48 Admin. L.R. (3d) 71, 74-75, emphasis added.

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belies indeterminacy in the application of its factors. Whilst appearing to be a mechanistic

– almost scientific – analysis of deference, its operation nearly wholly relies upon the

discretion of the Court as to the weight of each factor in the approach.

Under the pragmatic and functional approach, the Supreme Court attempted to ameliorate

this indeterminacy in the weighting of the factors through explicitly favouring one over

another. Accordingly, while none of the factors was determinative of the issue, some, such

as the presence of a privative clause, were deemed more influential than others.109

However, this did nothing to prevent the potential for manipulation of the multifactorial

approach; potential, as Hill notes, that was eventually realized:

The problem that practitioners encountered was that this was all a sham. Since no

[sic] one of the criteria was to be considered determinative, weightings could be

assigned to allow a reviewing court to achieve whatever standard necessary to fit

the desired outcome.110

With no determinative guidance or predictability as to how the Court would treat each of

the factors, litigants were forced to argue for extreme outcomes: applicants for correctness;

respondents for patent unreasonableness. It was a situation that made a farce out of the

dependability of the multifactorial approach.111

Dunsmuir attempted to eliminate this indeterminacy through creating precedent standards,

intending to make it clear what standard would apply to a particular decision-maker. In a

review of appellate decisions during the year that that followed Dunsmuir, it was shown

that close to 40 per cent of decisions relied on existing precedent.112 Other cases, however,

took the approach in Swanson, detailed above, and refuse to apply pre-existing precedent,

instead doubting the accuracy and validity of previous assessments under the deference test

(such as that in Whiteley). Decisions such as Whiteley and Swanson provide no guidance

to practitioners and litigants. This means that at the outset of review proceedings –

109 Hill, J. L., ‘Prison Law, Judicial Review and Standards of Review: Has the Court Finally Got it

Right?’ (2008) 59 C.R. (6th) 80, 82. 110 Ibid., 84. 111 Ibid. 112 Heckman, above n. 2, 766.

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arguably when clarity is most important – the problem of indeterminacy remains. As a

result:

Given the potential for a court to disagree with counsel’s submissions on matters

such as whether the issue has been previously decided, the characterization of the

relevant issues as ones of fact, law, or mixed law and fact, and so on, prudent

practitioners will avoid risk and address all issues with a full standard of review

analysis, as least in the alternative. It also remains likely that opposing counsel will

take different views of the facts and law, necessitating each to advance full but

contrary analyses.113

Moreover, Dunsmuir’s introduction of ‘questions of true jurisdiction’ – which act as

determinative factors that lead to a standard of correctness – only increased this

indeterminacy. Decisions involving such questions will render any precedent applied to

the decision-maker irrelevant: the standard will be correctness. While many cases will not

involve such questions of jurisdiction, prudent practitioners will make contingencies

should the Court put them at issue. These are not the hallmarks of a straightforward and

clear approach.

This indeterminacy inherent in the multifactorial approach means that it is unable to meet

the clarity criterion. The effects of this indeterminacy – including the Court’s ability to

manipulate the multifactorial approach by deciding on the level of intervention it wishes to

engage in and then adjusting the factors to arrive at this result – means that it also fails the

constitutional criterion. If courts simply exercise their supervisory function to intervene

whenever they wish – rather than when they ought to – this fundamentally undermines

legislative supremacy. In this way, the multifactorial approach suffers from rigidity in form

and indeterminacy in practice, flaws which prevent it from being able to meet the criteria

for an effective deference test from a structural perspective, just as it has failed to meet

them historically.

113 Gruber, D. E., ‘Judicial Review Advocacy in the Post-Dunsmuir Era’ (2009) 22 C.J.A.L.P. 303,

311, citing Goltz, above n. 58, 259.

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The problems are unsolvable

These problems each seem surmountable: the Court simply needs to amend the

multifactorial approach to allow more flexibility and reduce its indeterminacy. However,

although linked, the problems are also mutually exclusive. Solving one exacerbates the

other, and this is the reason why the approach is structurally unable to meet both of the

criteria for an effective deference test.

The problem of rigidity is solved through either increasing the factors or outcomes or

instead by allowing greater judicial discretion. In this way, the Court would enhance the

contextual analysis of the deference test. As argued by Sossin and Flood:

In a sense, providing fixed categories of review into which all decisions must fit, no

matter the circumstances, is equivalent to simply wishing away the challenge of

complexity. In our view, rather than taming complexity [...], the better approach

for administrative law is to embrace it. To this end, we recommend broadening the

range of factors to be considered at least to include the impact on the individual,

opening up the possibility of a floating spectrum of review, and the application of

much greater judicial energy to articulating the factors that speak for and against

greater degrees of deference to different kinds of decision makers and different

kinds of decisions.114

Yet Sossin and Flood’s model goes on to abandon much of the multifactorial approach’s

structure, requiring “...a full examination of context rather than a fixed array of variables

in a set equation.”115 To improve the flexibility of the multifactorial approach whilst

retaining its structure is to invite the manipulation and confusion that plagued it after the

introduction of the pragmatic and functional approach. The retention of some fixed

variables will always allow some courts to decide an outcome and then adjusting the

factors to ensure that this outcome is reached, thereby circumventing Sossin and Flood’s

requirement of a full examination of the context and significantly increasing the

indeterminacy of the approach.

114 Sossin and Flood, above n. 42, 599. 115 Ibid., 603.

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Conversely, reducing the indeterminacy of multifactorial approach will increase its rigidity.

This is demonstrable from Dunsmuir’s use of precedent to forgo the deference test. As

Heckman notes:

While Dunsmuir directs courts to rely on precedents that determine the standard of

review in a satisfactory manner, it may be tempting for courts simply to follow

precedent without critically reassessing it in light of more recent jurisprudence.116

Bound by the rigidity of the multifactorial approach, the Court must take a less contextual

analysis. The same effect would occur if the Supreme Court tried to solve indeterminacy

problem by mandating the precise weight for each factor. Doubtless, this would improve

the transparency of the multifactorial approach, but it also would prevent true contextual

analysis. For example, should the Court prescribe the presence of a privative clause as

having more weight than other factors, then it is unclear what would happen when the

Court is confronted by a Quebecois decision, given that jurisdiction uses privative clauses

liberally, in an almost boilerplate fashion.117 As Leckey notes:

[L]egislative intent supposedly animates the pragmatic and functional approach;

where, however, the legislature has given no particular thought to the relationship

between a given tribunal and the reviewing courts, does a privative clause carry the

same weight?118

Without the ability to adjust the weight of the factors according to the circumstances and

context, the multifactorial approach would prevent that critical assessment of any

particular decision, and exacerbate the problems of rigidity discussed above.

This dichotomous situation is an unfortunate consequence of the structure of the

multifactorial approach, and is thus irresolvable. It may seem that adjusting the approach

just slightly – for example, by requiring the Court to be clear about the weight it gives

factors when reviewing a particular decision, but allowing those weightings to vary across

116 Heckman, above n. 2, 766. 117 Leckey, R., ‘Territoriality in Canadian Administrative Law’ (2004) 54 U. Toronto L.J. 327, 344. 118 Ibid.

41

other decisions – would simply fail to solve the problems inherent in the test. Much

stronger solutions are needed, but this exacerbates other problems. In this way, it seems

that the structure of the multifactorial approach is inherently problematic.

Conclusion: the multifactorial approach is flawed

This part of the paper has attempted to measure and assess the performance and structure

of the multifactorial approach against two reasonable criteria. By outlining the nature and

structure of the multifactorial approach and the history of its application, it is clear that it

is both a common denominator in the deference test since its inception in C.U.P.E. and

also the font of the problems that have plagued the test since that inception.

The multifactorial approach fails to meet the criteria from both a historical and structural

perspective. It has not properly reconciled the constitutional tension inherent in

substantive judicial review and it has failed to provide clarity to actors in the judicial

process. More importantly, however, its structure means that it cannot and will not meet

these criteria, regardless of any further amendment by the Supreme Court.

Of course, it is easy to argue that the status quo is problematic and any amendment is

futile without having to proffer a superior alternative. Accordingly, the next part will

outline a potential alternative that abandons the multifactorial approach and instead

focuses on the reasons of the decision maker as the only relevant factor. Moreover, by

contrasting this proposed solution to the multifactorial approach, it will show that the

status quo is both unnecessary and undesirable.

PART II: JUSTIFICATION AS A SUPERIOR ALTERNATIVE

This part briefly sketches the argument for a singular focus on the reasons of a decision-

maker as the basis for the deference test. It begins by determining what pitfalls an

approach must avoid to be a superior alternative, before outlining how the proposed

alternative approach has the potential to meet both the criteria required for an effective

deference test.

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Avoiding the problems of the past

Justice Dickson, in devising the multifactorial approach in C.U.P.E., gave structure to the

constitutional necessity of curial deference to administrative decision-makers. However,

this desire for structure is the likely source of the problems with the approach. I am in

agreement with T. R. S. Allan, who argues:

It is very doubtful [...] whether any general doctrine of deference could serve to

regulate the boundaries of judicial review: the appropriate level of ‘deference,’ in

the sense of the recognition of legitimate discretion, is too closely dependent on all

the circumstances. There is also great danger that such a general doctrine,

applicable to specific categories of case or types of decision maker, would deflect

judges from their responsibility for deciding the particular case on its own legal

merits.119

Allan rejects using factors external to the decision-making process as adjudicative criteria

in favour of looking at the internal context of the decision itself. The use of such external

factors is driven by the necessity to create a conceptual framework that reconciles the

constitutional tension in substantive review and escapes “the two extremes of ‘judicial

submission’ and ‘judicial supremacism’”.120 Such a framework begs for “a vocabulary

which flushes out the underlying, inescapably normative considerations which explain the

court’s inclination or disinclination to interfere with any particular decision.”121 However,

as Allan argues:

It may be, however, that only direct attention to the substantive matters at issue,

against the background of the distribution of powers to a multiplicity of courts and

agencies, can provide the requisite via media. All attempts to give doctrinal form

and force to conceptions of deference will, if taken seriously, frustrate the court’s

ability to probe the justifiability of a decision, unhampered by rules or

119 Allan, T. R. S., ‘Deference, Defiance, and Doctrine: Defining the Limits of Judicial Review’

(2010) 60 U. Toronto L.J. 41, 42-43. 120 Ibid., 52. 121 Ibid., quoting Hunt, M., ‘Sovereignty’s Blight: Why Contemporary Public Law Needs the

Concept of ‘Due Deference’’ in Bamforth N. and Leyland, P., eds., Public Law in a Multi-Layered Constitution (Oxford: Hart, 2003) 337, 352.

43

presumptions of doubtful general validity.122

Accordingly, it is the attempt to name factors and outcomes and processes that link the

two that prevents the Court from fulfilling its constitutional mandate and meeting the

criteria for an effective deference test. Allan’s perspective is that the proper interpretation

of legislative context will automatically yield the appropriate level of deference without

having to quantify or independently justify that level of deference.123 In that sense, the

most effective deference test is none at all.

Other commentators also argue that the problem is the focus on doctrinal structure and

ignorance of the decision-making context. Mullan, for example, praises the Supreme Court

for embarking on “a commendable and necessary enterprise—the development of an

appropriate state of equilibrium between the courts and the administrative process”124 and

for distilling key principles that surround the importance of deference, but argues that the

major problem is the oversimplification of those principles, and:

[T]he reduction of this set of principles to a series of rules and guidelines that will

enable lower courts (and, even prior to that, lawyers for disappointed clients) to

have a clear sense of whether a particular situation demands deference and, more

generally, what standard of review should be applied and, within the appropriate

standard of review, what outcome is indicated.125

Such rules and guidelines run into difficulty when they are applied to contexts in which

they were not designed to operate: the fundamental principles underlying them are lost in a

mass of complexity and confusion. Similarly, Taggart, in his criticism that C.U.P.E. had

“run into the sand”,126 argued that “there just has to be a shorter, straighter, and smoother

path than that taken by the Supreme Court in recent years”127 and although favouring a

retention of factors, he wished for a radical refining of the approach leading to a singular,

122 Ibid. 123 Ibid., 54-55. 124 Mullan, above n. , 96. 125 Ibid., 94. 126 See n. 50. 127 Taggart, above n. , 652.

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contextually-dependent and variable standard of review.128

Sossin and Flood’s proposed model, referred to earlier in the paper, aligns with these

perspectives. They argue that procedural review was once as complex and opaque as

substantive review, but has become considerably less so, potentially providing a model for

substantive review to follow. As they identify:

It is not clear, at first glance, why the standard of review should have evolved into

fairly rigid categories while the review for fairness has maintained its fidelity to

complexity and diversity. Concerns over consistency and predictability arise in both

settings. The stakes on judicial review are equally high for all parties where the

grounds of challenge are procedural as where they are substantive. Revealingly,

critics are quick to lament the lack of coherence in determining (and applying) the

standard of review, as discussed above, but this concern is rarely raised in the

context of procedural obligations, where the categories are less distinct and shift

more according to the circumstances.129

Accordingly, they argue for a model that is a closer approximation to that in procedural

review, allowing the relevant factors in the deference test to vary with the context. There

would be no pre-determined factors because the focus on context makes them

unnecessary.130 Instead, the Court on a case-by-case basis would determine which factors

involved in the particular decision-making process are relevant, leading in turn to a

determination of the appropriate level of deference.131 Sossin and Flood argue that such a

focus on context does not mean that the inquiry is structureless or open-ended, and “[i]t is

puzzling that incorporating deference without recourse to firm and fixed categories

appears to the Court unproblematic in the fairness setting but not tenable in the standard-

of-review setting.”132

Of course, some of the internal and contextualized factors would have the flavour of the

128 Ibid. 129 Sossin and Flood, above n. 42, 601. 130 Ibid., 602. 131 Ibid. 132 Ibid.

45

current external factors, looking to aspects of the decision-making process such as

expertise and legislative intent. However, in an applied context, those factors would be far

more nuanced and tailored to the decision-maker, and critically, they would not be

exhaustive; other factors unique to the decision-maker could arise depending on the

context.

For example, the deference test as applied to a permanent administrative decision-maker

established by statute, say the Competition Tribunal of Canada, 133 would be

fundamentally different to that applied to temporary decision-makers established by Order

in Council, say a federal commission of inquiry.134 Whereas a focus on applying a

structured deference test would apply similar factors to each decision-maker – they both

involve a specialized jurisdiction; neither enjoys the benefit of a privative clause – a focus

on context would look instead to the decision itself. It would look at the nature of the

decision, how it was made, who made it and why it was made. Such analysis would, of

course, incorporate analysis of the decision-maker’s institutional setting, but it would not

be constrained by those considerations. The benefit of such a focus on context is the

acknowledgement that decisions of commissions of inquiry are fundamentally different

from that of the Competition Tribunal. Each requires and deserves deeper analysis rather

than the one-sized-fits-all approach of the status quo.

It is clear from the analysis of the commentators above that there is a fundamental

problem with a myopic focus on structure without due regard to the context of decision-

making. Any deference test that involves a structural focus leaves it unable fulfil the

criteria for effectiveness. Any superior model must instead have a focus on contextual

analysis of decision-making and prevent any structure from undermining that focus.

Justification as a model

The model this paper proposes draws loosely on the work of Murray Hunt and David

Dyzenhaus, each of whom have developed a theory of deference based on a culture of

justification. The first part of this section will outline the model and its influences; the

133 Competition Tribunal Act R.S.C., 1985, c. 19 (2nd Supp.), s. 3. 134 Inquiries Act R.S.C., 1985, c. I-11, s. 2.

46

second part will measure it against the criteria for an effective deference test.

The influences behind the model

Hunt’s model, which he named ‘due deference’, was developed in response to the “spatial

approach” that persists in English administrative law. That jurisdiction has same

underlying constitutional tension in judicial review that is present in Canada. However,

the manifestation of that tension is not a deference test, but instead an acknowledgement

that each branch of government has certain areas of expertise where one will completely

defer to the other.135 Hunt argues that this situation ignores the context of individual

decisions and that “cases cannot be neatly classified into categories according to the kind

of subject matter they raise, and then a particular standard of review applied to them.”136

His due deference model would instead link the level of curial deference to the extent that

a decision-maker justifies its decision, with a series of factors – similar in kind to those in

the current Canadian multifactorial approach – determining the weight that the Court

places on those justificatory arguments.137 Critically, however, such an approach lacks

application pre-determined standards of deference following analysis of those factors;

curial deference vary with the context of each decision, with the focus always resting on

the justification a decision-maker offers.

Dyzenhaus takes a similar approach, building on his model of “deference as respect” that

the Supreme Court has accepted in Baker and affirmed in Dunsmuir.138 Shortly after the

Baker decision, Dyzenhaus and Fox-Decent elucidated the concept:

The idea of deference as respect not only gives the administration the opportunity

to demonstrate that it has acted in accordance with the rule of law but cedes to it

interpretative authority on that issue, in that the standard for review will not

generally be the correctness one. Our position on the rule of law is thus a default

one, in the sense that accountability to law in administrative law, the principle of

135 Hunt, above n. 121, 345-347. 136 Ibid., , 347. 137 Leckey, above n. 117 , 357-358. 138 Dyzenhaus, D., ‘The Politics of Deference: Judicial Review and Democracy’, in Taggart, M.

ed., The Province of Administrative Law (Oxford: Hart, 1997), 279, 286; cited in Baker at [65] and Dunsmuir at [48].

47

legality, imposes a duty of fairness that is substantive, unless, on review, the

executive can offer a justification why, in a particular administrative context, it is

not unfair that there be no hearing, no reasons for decision, and so on.139

Consciously or not, the Court in Baker had attempted to unite procedural and substantive

review by breaking down the distinction between the two areas.140 Yet the concept of

demonstrable justification from the decision-maker as the core of ‘deference as respect’

runs deeper than simply an attempt to harmonize procedural and substantive review.

Indeed, the concept of demonstrable justification is one of the most effective methods of

balancing the dichotomous constitutional principles of the rule of law and legislative

supremacy. As Dyzenhaus notes:

[T]he distance between the democratic vision and either judicial imperialism or

judicial supremacism, or a combination of the two, is established by the practice of

reason-giving—of justification in terms of the application of the values to the

particular problem—and by a focus by the reviewing court on reasons for the

decision, rather than on the decision in itself.141

Dyzenhaus advocates a system that acknowledges the importance of the rule of law in

protecting fundamental values such as human rights, but similarly acknowledges the

ability for the judiciary to manipulate the rule of law to unjustifiably curb the

administrative state.142 Justification, in the form of reason-giving, is the mechanism to

restrain each of those arms of government to their constitutional mandate: the

administrative state must act with the four corners of the law; the judiciary cannot usurp

the legislature’s role. Specifically, it is the concept of a ‘justifiable’ decision rather than a

‘justified’ decision that is the very embodiment of the difference between ‘deference as

139 Dyzenhaus, D. and Fox-Decent, E., ‘Rethinking the Process /Substance Distinction: Baker v.

Canada’ (2001) 51 Univ. of Toronto L.J. 193, 240. 140 Mullan, D., ‘Baker v. Canada (Minister of Citizenship & Immigration) – A Defining Moment in

Canadian Administrative Law’ (1999) 7 Reid's Adm. Law 145, 151, cited in Dyzenhaus and Fox-Decent, above n. 139 at n. 91.

141 Dyzenhaus, D., ‘Constituting the Rule of Law: Fundamental Values in Administrative Law’ (2002) 27 Queen’s L.J. 445, 499.

142 Ibid.

48

respect’ and ‘deference as submission’.143 As Dyzenhaus notes:

When a judge asks whether the decision-maker’s decision is justified, he is usually asking

whether the decision coincides with the decision that the judge would himself have given.

[...] But when the judge asks whether the decision is justifiable, he is asking whether the

decision-maker has shown it to be defensible, taking all the important considerations into

account. And that of course makes the reasons for decision very important.144

The model this paper proposes focuses on this concept of justification as manifested

through reason-giving by the administrative state. However, so as to avoid the pitfalls of

the multifactorial approach, it stands in contrast to the models of Hunt and Dyzenhaus by

abandoning any notion of factors and outcomes. It does so for the reasons advanced by

Allan, which were in fact in response to Hunt’s model: giving doctrinal form to any

deference test will undermine its purpose. Similarly, as Leckey notes after reviewing

Hunt’s model:

The factors [Hunt] proposes are not the same as the contextual factors of the

Canadian approach, but they are functionally similar. The Canadian experience

may hold a cautionary lesson for Hunt, namely, that even explicit adoption of

multiple factors does not necessarily shake the grip of the spatial metaphor. Rather,

a single factor—in Canada, it appears to be expertise—can operate in binary

fashion, overlaying the original spatial divide that it seeks to replace. A strong145

spatial pull is similarly discernible in connection with the correctness standard.

Factors and outcomes act as anchors for the judicial subversion – either explicit or implicit

– of the values underlying the deference test, and are thus unnecessary and undesirable. At

the same time, the model does not wish to abandon the concept of deference altogether, as

perhaps advocated by Allan. Instead, the model is focused on achieving deference through

an examination of the context as provided by the reasons of a decision-maker.

143 Hunt, above n. 121, 352. 144 Dyzenhaus, D. ‘Law as Justification: Etienne Mureinik’s Conception of Legal Culture’ (1998) 14

S. A. J. H. R. 11, 27-28, quoted in Hunt, above n. 121, 352. 145 Leckey, above n. 117, 358.

49

Outlining the model

As indicated, the model this paper proposes is briefly stated: ‘demonstrable justification’,

or in other words, a singular focus on a decision-maker’s reasons. Every decision from any

administrative body must have accompanying reasons that properly and cogently justify

the result of its decision. Upon substantive judicial review of that decision, the court has

only one question before it: “has the decision-maker properly justified its decision”? If the

answer is ‘yes’, in all circumstances, the Court must defer to the decision-maker. If the

answer is ‘no’ then similarly, the Court must intervene.

Of course, the devil is in the detail of this model, and specifically what it means for a

decision-maker to properly ‘justify’ its decision. Helpfully, there is already Supreme Court

precedent for what is required in this regard. In its recent decision in Newfoundland and

Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board),146 the Supreme

Court accepted Dyzenhaus’s formulation of what ‘reasonableness’ amounts to with

regards to reasons:

“Reasonable” means here that the reasons do in fact or in principle support the

conclusion reached. That is, even if the reasons in fact given do not seem wholly

adequate to support the decision, the court must first seek to supplement them

before it seeks to subvert them. 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.147

What is immediately apparent from a pure focus on the reasons of the decision maker is

that the Court must look to the context of its decision – and whatever relevant

considerations that may involve – and not apply external factors. The contextual approach

means that there will be no uniformity in sufficient and effective reasons. Instead, the

analysis will focus on whether the particular decision is justified by the particular reasons.

As the Court in N.L.N.U. stated, it is less about the form of the reasons, and more about

146 2011 SCC 62; [2011] 3 S.C.R. 708, hereafter N.L.N.U. 147 Dyzenhaus, above n. 138, 304, as cited in N.L.N.U. at [12].

50

their ability to allow the Court to understand why the decision was made.148 This focus

should also eliminate the ability of decision-makers to simply give boilerplate ‘review-

proof’ reasons, for if they do not deal with the particular decision – do not provide

adequate explanation or justification – they will not suffice. The only ‘factor’ involved in

assessing whether particular reasons are sufficient or effective is not a factor at all: it is

logic. Logic, devoid of any content, will provide the objective measure of whether a

decision is properly justified, and as a concept, it is one with which judges are familiar and

adept at applying.

The Court in N.L.N.U. went on to state that the approach of Dyzenhaus to reasonableness

is the very embodiment of what Dunsmuir envisaged as “justification, transparency and

intelligibility”.149 Under the proposed model, however, the standard of reasonableness

would no longer exist. Similarly, the standard of correctness would no longer exist,

because the concept of jurisdiction would no longer be necessary.

To provide a crude example of why this is the case, consider a Competition Tribunal

decision over the approval of a proposed merger under s. 92 of the Competition Act.150 If

in declining clearance for the proposed merger, the Tribunal provided only boilerplate

reasons that did not properly address the issue, there is no possible logical way that the

Tribunal could justify that decision upon review: it could not argue why the Court should

or should not intervene, because it would not be able properly explain why it made this

particular decision.151 Accordingly, the Court would label this unjustifiable and intervene.

This is, of course, the same result as applying the correctness standard, but it does not

require the complicated two-step multifactorial approach. Put simply, it is the one-step

analysis that Taggart envisaged: contextual analysis of the justifiability of the decision.

There are, of course, immediate objections to the model. If the model jettisons external

factors, then no longer will the presence of a privative clause – which Dunsmuir deemed a

148 N.L.N.U., [16]. 149 Ibid., [13]. 150 Competition Act (R.S.C., 1985, c. C-34). 151 For example, whether it considered the factors that it may consider under s. 93 of the

Competition Act.

51

signal of the level of curial respect that is warranted152 – hold relevance in the deference

test. It is the opinion of this paper that this may appear a significant change, but in reality,

would simply finally align theory with practice. Full privative clauses have had no

constitutional validity since the Supreme Court’s decision in Crevier153 and have had no

functional effect since its decision in Metropolitan Life, the decision which played its part

in causing the interventionist approach of the courts that Dickson J. attempted to muzzle

in C.U.P.E.154 As stated above, they are sometimes used with such ubiquity that they cease

to have legislative force. In short, they are an anachronism whose validity has long been a

legal fiction.

This is not to say that ignorance of such external factors means legislative intent is

irrelevant. Instead, legislative intent is more effectively discerned by contextual analysis of

each individual decision that is under review: the Court can hold a decision-maker to

account – to its legislated mandate and responsibilities – by looking to the justifiability of

its decision. By strictly following the Dyzenhaus approach detailed above, the Court will

far better give effect to legislative intent than it does currently by paying lip-service to the

explicit indications of that intent in privative clauses, as will be discussed below.

Similarly, the external factor of ‘the category of question’, e.g. a question of ‘true

jurisdiction’ or constitutional importance, and the pre-determined level of deference that

the factor leads to, is made irrelevant in this model. Yet once again, this is simply an

acknowledgement of changes that have already taken place. As noted above, it seems that

the Supreme Court, nervous about the licence Dunsmuir gave courts to deem particular

questions as warranting intervention, has restricted the ability of the courts to do so.155

Moreover, there simply is no practical reason why the Supreme Court will in every

decision under review have more expertise than the decision-maker in deciding, say,

constitutional issues. The recent decision of the Supreme Court in Doré appears to

152 Dunsmuir, [143]. 153 Crevier v. Quebec (Attorney General) [1981] 2 S.C.R. 220. 154 Metropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796

[1970] S.C.R. 425; Dyzenhaus and Fox-Decent, above n. 139, 201. 155 Lewans, above n. 81.

52

recognize this, holding that decision-makers’ interpretations of the Charter156 are subject to

reasonableness, not correctness.157

Of course, although decision-makers will not be able to hide behind boilerplate reasons,

over time the justification model will generate some commonality in form of the reasons

for particular decision-makers. For example, immigration decisions are unlikely to require

the same level of complexity and have more of an individualized focus as compared to

competition tribunal decisions. Different decision-makers will become aware of particular

requirements and expectations unique to their contexts over and above the general

requirement for justification.

Decision-makers that are statutorily required to take into account particular matters will

need to provide justification that addresses those matters whereas those that have a wide

discretion will have more licence in how they justify their decision. Decisions that touch

upon or potentially breach fundamental human rights – as defined by the Charter – will

need to provide the special constitutional justification that the legislature has deemed

necessary for those matters; it will be necessarily harder to justify such decisions.

The important point to note, however, is that there is no binding precedent on either the

Court or the decision-maker – neither body will be bound by analysis of previous decisions

– and what each body must do is wrestle with the particular decision and the particular

reasons at issue.

Thus to a certain extent, the model is not as radical as it appears prima facie. Much of its

operation simply gives effect to moves the Supreme Court has already made in this area.

As Allan has argued, the intention to establish due deference is a laudable goal, but one

that has always been thwarted by an insistence on establishing doctrinal form to effect that

intention.158 However, by abandoning the multifactorial approach, the problems that arise

156 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, c. 11 (U.K.). 157 Doré v. Barreau du Québec 2012 SCC 12, overruling Multani v. Commission scolaire

Marguerite-Bourgeoys, [2006] 1 SCR 256 which held that the standard is correctness. 158 To reiterate, I do not propose adopting the whole of Allan’s perspective, which would, in

addition to eliminating standards of deference, eliminate deference completely. This is for the

53

as a result are obviated: by abandoning doctrinal form and focusing on one issue, the

manipulation and confusion evaporates; simplicity and workability are achieved. This is

made clearer below by applying the two criteria for an effective deference test to the model.

Applying the criteria

The model outlined above has the structural potential to meet both criteria for an effective

deference test, and this ability stems from the fact that it so effectively meets the first

criterion of clarity.

Currently, there is no simple answer to the question of whether a court will intervene.

There is no ability for any actor in the judicial review process to confidently predict what a

reviewing or appellate court will do, because the level of curial deference is unknown from

the outset. Certainly, there is a strong likelihood that the majority of decisions are simply

assessed on a standard of reasonableness, but importantly, not certainty; it is simply too

easy for any decision to have a hidden issue that could shift the level of curial deference to

a stricter outcome. Moreover, although as N.L.N.U. demonstrates, what the Court means

by reasonableness is slowly becoming clearer, the hidden effect of external factors on the

stringency of the standard nevertheless make it difficult to predict how the Court will

apply it.

The model of demonstrable justification eliminates this uncertainty: the Court will

intervene if the decision-maker has not properly justified its decision. This intelligibility of

this test to the layperson is fundamentally important. It makes sense to any outsider that a

Court could overturn an unjustifiable decision. Unlike the current approach, it is also easy

to explain what is meant by ‘unjustifiable’: a decision that is not supported by the reasons.

Again, this is not unintelligible, because it rests not on legal nuances, but instead the extent

to which the decision-maker has properly considered and explained why it has arrived at

its decision. Of course, complex decisions about complex issues will persist, and it will still

prove difficult to categorise these as unjustifiable. Yet it will greatly assist that the process

of determining whether the most complex decisions is justifiable or not will be exactly the

simple reason that such a perspective ignores the balancing act required by the constitutional criterion.

54

same as that applied to the simplest: the decision-maker must provide reasons and those

reasons must explain the decision. Much of the confusion that stemmed from the

multifactorial approach was because of the indeterminacy of its multifaceted framework.

A one-stage analysis both symbolically and effectively reduces this inherent tendency for

confusion.

Of course, the obvious rejoinder is that one ‘catch-all’ standard in the justification model

simply creates opacity in a different guise; that the Court will simply implicitly apply the

factors in the current multifactorial approach and the whole model will lack transparency.

There are two responses to this concern. The first is the reiteration of the point made by

Sossin and Flood that the enunciation of factors and outcomes does not have an inherent

clarity; nor does context-driven analysis have an inherent opacity. The new contextual

approach in procedural review is proof of this: level of procedural review is not

determined through particular standards, but instead through contextual analysis, with

much success.159 Secondly, such a criticism misses the point of the justification model. Its

clarity derives from its process. Each actor in the review process will have a much better

idea of what is required of it: the decision-maker must supply justification and the Court

must review the sufficiency of that justification. Each actor’s performance of its role is

critically and easily assessable; any attempt at manipulation by the Court would be much

more obvious than under the multifactorial approach. This is clarity in a deference test,

and it does not rely upon labels.

The clarity of the model – to all actors in judicial review – is a key reason that gives it the

potential to meet the constitutional criterion. The analysis of the multifactorial approach

above showed that it is the ability of the Court to manipulate the multifactorial approach

that most undermines its ability to meet the constitutional criterion in practice. It is the

tendency of the Court – implicitly or explicitly – to first select the outcome and then adjust

the factors to ensure that outcome is reached that means it is not paying due deference to

legislative intention. Without any complexity to hide behind, however, the justifiability of

the Court’s decision to intervene is laid bare. The Court must defer if the reasons justify

the decision, even if it disagrees with it. There is no counterpart ability in this model for

159 Sossin and Flood, above n. 42, 603.

55

the Court to, say, simply deem an issue ‘jurisdictional’ and thus substitute its own decision.

In contrast, the risk in the current model of courts reweighing the evidence before a

decision-maker to arrive at a different result (when the weight afforded by the decision-

maker is not a matter the courts should have regard to) persists in this model. This risk

would lead to unjustified intervention by the Court under the guise of rejecting the

justification provided by the decision-maker as inadequate. However, just as there must be

a nuanced distinction in the current multifactorial approach between the Court reweighing

evidence and determining that the decision-maker’s weighting was unreasonable, so could

the same distinction be maintained in the proposed model.160 Specifically, if the Court

thinks that the decision-maker’s weighting of the evidence before it is unjustifiable, it will

similarly have to explain why this is so, and not just provide a difference in opinion. Again,

manipulation to achieve intervention is prevented by the requirement that the Court must

justify its own decision and thus from a practical perspective, the model meets the

constitutional criterion.

For the reasons that Dyzenhaus has advanced above, focusing upon the reasons also

allows the justification model to meet the constitutional criterion in theory as well as in

practice. The model strikes a path that both recognizes the constitutional imperative of the

Court’s supervisory jurisdiction and simultaneously restricts the Court to intervening only

when necessary. The justification model is far less deferential than C.U.P.E., because it no

longer depends upon the concept of jurisdiction – the Court will inquire into the decision-

making process in every circumstance. However, it is also far more deferential than

Dunsmuir because the Court’s mere opinion never trumps a decision-maker’s. The model

stems from the concept of “deference as respect”, and intends to be a vehicle to properly

give effect to that concept. For this reason, it meets the constitutional criterion.

In this interrelated fashion, it is clear that demonstrable justification – the simplicity of its

form and requirements – would perform significantly better at meeting the criteria for an

effective deference test. Moreover, in providing an alternative to the confusing and

context-deficient multifactorial approach, it shows that the status quo is what is

160 Klinck, above n. 65, 55-56.

56

frustrating the Supreme Court’s desire to bring simplicity and workability to substantive

review.

CONCLUSION

This paper has attempted to find the locus of the problems that have beset substantive

judicial review and the deference test for over thirty years. It argues that these problems all

stem from the Supreme Court’s insistence on a multifactorial approach to the deference

test, and that unless and until the Court abandons such an approach, the problems shall

persist.

Canada has a unique body of law surrounding substantive review.161 Yet it shares in

common with all other Westminster democracies a necessity to navigate a difficult path

between the rule of law and legislative supremacy, and it shares in common with all other

jurisdictions a necessity to provide clarity in the law. As embodied in the deference test,

these criteria provide the shape and form of an effective and legitimate approach to

substantive judicial review.

The multifactorial approach fails to meet both criteria. Its opacity and unintelligibility are

clear to all the actors in judicial review, and one whose severity became a talking point in

Supreme Court judgments. Yet such opacity also causes it to fail the constitutional

criterion: it was established to tame the Court yet instead eventually shielded its

interventionist activity. These problems are not simply those of application; they are of

form and substance. The structure of the multifactorial approach is such that its rigidity

and indeterminacy are inherent, which is why the Court must change its approach.

The alternative proposed by this paper is not outlandish; it is based on theories of the same

commentators that the Supreme Court has cited as having the right ideas. Its innovation is

to strip the theory from its clothing of the anachronistic multifactorial approach and focus

on its core: demonstrable justification. By implementing a single-stage focus on

justification – as manifested through a decision-maker’s reasons – the process of

161 Huscroft, above n. 83, 296.

57

substantive judicial review and the contrasting roles of the actors are brought into

immediate relief. By focusing on the context of each particular decision, the criteria for an

effective deference test are met; the superfluous structure of the multifactorial test is unable

to undermine the goal to meet them.

The tenor of Supreme Court judgments dealing with substantive review vacillates from

frustration to bemusement: it ought to have removed the confusion in this area of law long

ago. To avoid the persistence of such emotions, the Court must start anew by returning to

first principles and abandon the approach that has burdened it for so long.

58

BIBLIOGRAPHY/REFERENCE LIST

Articles/texts

• Allan, T. R. S., ‘Deference, Defiance, and Doctrine: Defining the Limits of Judicial

Review’ (2010) 60 U. Toronto L.J. 41

• Arndt, H. W., ‘The Origins of Dicey’s Concept of the Rule of Law’, (1957) 31 Austl.

L.J. 117

• Bryden, P. ‘Understanding the Standard of Review in Administrative Law’ (2005) 54

U.N.B.L.J. 75

• Dunsmuir v. New Brunswick, Standard of Review and Procedural Fairness for Public

Servants: Let’s Try Again! (2008) 21 Can. J. Admin. L. & Prac. 117

• Dyzenhaus, D. ‘Law as Justification: Etienne Mureinik’s Conception of Legal Culture’

(1998) 14 S. A. J. H. R. 11

• Dyzenhaus, D. and Fox-Decent, E., ‘Rethinking the Process/Substance Distinction:

Baker v. Canada’ (2001) 51 Univ. of Toronto L.J. 193 • Dyzenhaus, D., ‘Constituting the Rule of Law: Fundamental Values in Administrative

Law’ (2002) 27 Queen’s L.J. 445

• Dyzenhaus, D., ‘CUPE’s Spirit? Case Comment: Domtar Inc. c. Québec (Commission

d’appel en matière de lésions professionnelles)’ (1994) 15 Admin. L.R. (2d) 73

• Dyzenhaus, D., ‘Disobeying Parliament? Privative Clauses and the Rule of Law’ in

Bauman, R. W. and Kahana, T. eds., The Least Examined Branch: The Role of

Legislatures in the Constitutional State (Cambridge: Cambridge University Press,

2006), 512

• Dyzenhaus, D., ‘The Deep Structure of Roncarelli v. Duplessis’ (2004) 53 U.N.B. L.J.

111

• Dyzenhaus, D., ‘The Politics of Deference: Judicial Review and Democracy’, in

Taggart, M. ed., The Province of Administrative Law (Oxford: Hart, 1997), 279

• Elliot, D., ‘Khosa—Still Searching for that Star’ (2009) 33(2) Man. L.J. 211

• Feldman, D., ‘Judicial Review: A Way of Controlling Government?’ (1988) Public

Administration (66) 21

• Goltz. R., ‘Patent Unreasonableness is Dead. And We Have Killed It.’ A Critique of

59

the Supreme Court of Canada’s Decision in Dunsmuir’ (2008) 46 Alta. L. Rev. 253

• Gruber, D. E., ‘Judicial Review Advocacy in the Post-Dunsmuir Era’ (2009) 22

C.J.A.L.P. 303

• Heckman, G. P. ‘Substantive Review in Appellate Courts since Dunsmuir’ (2010) 47

Osgoode Hall L.J. 751

• Hill, J. L., ‘Prison Law, Judicial Review and Standards of Review: Has the Court

Finally Got it Right?’ (2008) 59 C.R. (6th) 80

• Hunt, M., ‘Sovereignty’s Blight: Why Contemporary Public Law Needs the Concept

of ‘Due Deference’’ in Bamforth N. and Leyland, P., eds., Public Law in a Multi-

Layered Constitution (Oxford: Hart, 2003) 337

• Huscroft, G., ‘A Pragmatic and Functional Approach to Re-inventing Jurisdictional

Error: Dayco (Canada) v. C.A.W.’ (1994) 14 Admin. L.R. (2d) 122, 128

• Huscroft, G., ‘Judicial Review from CUPE to CUPE: Less is Not Always More’ in

Huscroft, G., and Taggart, M. (eds), Inside and Outside Canadian Administrative

Law: Essays in Honour of David Mullan (Toronto: University of Toronto Press,

2006), 296

• Janisch, H., ‘Something Old, Something New’ (2010) 23 Can. J. Admin. L. & Prac.

219

• Jones, D. P., ‘Two More Decisions by the Supreme Court of Canada on the Standard

of Review’ (2003) 48 Admin. L.R. (3d) 71

• Kempner, S. ‘Judicial review and the control of arbitrary power: impact or ideology?’

(1996) UCL Juris. Rev. 183

• Klinck, J. A., ‘Reasonableness Review: Conceptualizing a Single Contextual Standard

from Divergent Approaches in Dunsmuir and Khosa’ (2011) Can. J. Admin. L. &

Prac. 41

• Lambert, N. ‘Dunsmuir v. New Brunswick: The Perceived Choice between Fairness

and Flexibility in Public Service Employment’ (2009) 59 U.N.B. L.J. 205

• LeBel, L., ‘Some Properly Deferential Thoughts on Deference’ (2008) 21 Can. J.

Admin. L. & Prac. 1

• Leckey, R., ‘Territoriality in Canadian Administrative Law’ (2004) 54 U. Toronto L.J.

327

60

• Lewans, M. ‘Administrative Law and Curial Deference’, Doctoral Thesis (2010),

University of Toronto

• Lewans, M., ‘Judicial Deference and Reasonableness Review after Dunsmuir’ Can. J.

Admin. L. & Prac. (forthcoming)

• Lyon, N., ‘Case Comment’ (1980) 58 Can. Bar Rev. 646

• Michell, P. ‘Just Do It! Eskridge’s Critical Pragmatic Theory of Statutory

Interpretation’, (1996) 41 McGill L.J. 5131

• Mullan, D. J. ‘Establishing the Standard of Review: The Struggle for Complexity?’

(2003) 17 Can. J. Admin. L. & Prac. 59

• Mullan, D., ‘Baker v. Canada (Minister of Citizenship & Immigration) – A Defining

Moment in Canadian Administrative Law’ (1999) 7 Reid's Adm. Law 145

• Mullan, D., ‘Judicial Deference to Executive Decision-Making: Evolving Concepts of

Responsibility (1993) 19 Queen’s L.J. 137

• Rankin, T. M. ‘The British Columbia Administrative Tribunals Act: Evaluating

Reforms to the Standard of Review and Tribunals’ Jurisdiction over Constitutional

Issues” (2005) 18 Can. J. Admin. L. & Prac 165

• Régimbald, G., ‘Correctness, Reasonableness and Proportionality: A New Standard of

Judicial Review’ (2005) 31 Man. L.J. 239

• Schmitz, C. ‘SCC overhauls judicial review’, The Lawyers Weekly, 21 March 2008,

accessible at <www.lawyersweekly.ca/index.php?section=article&articleid=638>

• Simsovic, D. J. ‘No Fixed Address: Universality and the Rule of Law’ (2001) 35 R.J.T.

739

• Sossin, L., Flood, C. M., ‘The Contextual Turn: Iacobucci’s Legacy and the Standard

of Review in Administrative Law’ (2007) 57 U. Toronto L.J. 581

• Taggart, M., ‘Outside Canadian Administrative Law’ (1996) 46 U. Toronto L.J. 649

• Underhill, M. G., ‘Dunsmuir v. New Brunswick: A Rose by Any Other Name? (2008)

21 Can. J. Admin. L. & Prac. 247

• Woolley, A., ‘The Metaphysical Court: Dunsmuir v. New Brunswick and the

Standard of Review (2008) 21 Can. J. Admin. L. & Prac. 259

61

Cases

• A.T.A. v. Alberta (Information & Privacy Commissioner) 2011 SCC 61; [2011] 3

S.C.R. 654.

• Alliance Pipeline Ltd. v. Smith 2011 SCC 7; [2011] 1 S.C.R.

• Anderson v. Hamilton (City) 315 D.L.R. (4th) 486, 68 M.P.L.R. (4th) 219

• Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817

• C.J.A., Locals 527, 1370, 1598, 1907 & 2397 v. British Columbia (Labour Relations

Board) 272 D.L.R. (4th) 253 (BCCA)

• Canada (Attorney General) v. Mossop [1993] 1 S.C.R. 554

• Canada (Attorney General) v. Mowat 2011 SCC 53; [2011] 3 S.C.R. 471

• Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R.

748

• Canadian Federal Pilots Association v. Canada (Attorney General) 2009 FCA 223

• Catalyst Paper Corp. v. North Cowichan (District) [2012] SCC 2

• Crevier v. Quebec (Attorney General) [1981] 2 S.C.R. 220.

• Dayco (Canada) Ltd. v. CAW-Canada [1993] 2 S.C.R. 230

• Doré v. Barreau du Québec 2012 SCC 12

• Dunsmuir v. New Brunswick 2008 SCC 9; [2008] 1 S.C.R. 190

• Hubble v. Labour Bd. (Man.) 43 Man. R. (2d) 33

• Khosa v. Canada (Minister of Citizenship & Immigration) 2009 SCC 12; [2009] 1

S.C.R. 339

• M.A.H.C.P. v. Nor-Man Regional Health Authority Inc. 2011 SCC 59; [2011] 3

S.C.R. 616

• Manitoba Paramedical Association v. Misericorda General Hospital 10 Man. R. (2d)

1 (Manitoba Court of Queen’s Bench).

• Metropolitan Life Insurance Co. v. International Union of Operating Engineers,

Local 796 [1970] S.C.R. 425

• Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 SCR 256

• New Brunswick (Board of Management) v. Doucet-Jones (2004) 243 D.L.R. (4th)

652 (NBCA)

62

• New Brunswick Liquor Corp. v. C.U.P.E., Local 963 [1979] 2 S.C.R. 227

• Newfoundland and Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury

Board) 2011 SCC 62; [2011] 3 S.C.R. 708

• Pezim v. British Columbia (Superintendent of Brokers) [1994] 2 S.C.R. 557

• Pushpanathan v. Canada (Minister of Employment & Immigration) [1998] 1 S.C.R.

982

• Swanson v. Whitchurch-Stouffville (Town) (2009) 68 M.P.L.R. (4th) 203, 89 C.L.R.

(3d) 279 (Ontario Superior Court of Justice).

• Toronto (City) v. C.U.P.E., Local 79 2003 SCC 63; [2003] 3 S.C.R. 77

• U.E.S., Local 298 v. Bibeault [1988] 2 S.C.R. 1048

• Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92 2004

SCC 23, [40]; [2004] 1 S.C.R. 609

• Whiteley v. Shuniah (Municipality)(2008) 48 M.P.L.R. (4th) 171, 74 C.L.R. (3d) 112,

169 A.C.W.S. (3d) 431 (Ontario Superior Court of Justice).