Administrative law – Dunsmuir simplified 


January 2012

Litigation Bulletin

The Supreme Court of Canada released two decisions in December that uphold the jurisdiction of administrative tribunals and underline the deference our courts owe on judicial review.

The context of the first decision in Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61 involves the Commissioner's compliance with a statutory timeline to complete the inquiry of a complaint within 90 days, unless notice is sent to the parties of an extension and anticipated completion date. The Alberta Teachers' Association argued that the Commissioner lost jurisdiction by failing to extend the completion date of inquiry within the 90 day period.

The second decision in Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 concerns the adequacy of reasons in a labour arbitrator's award.

Both decisions address the proper approach to standard of review as set down in what Justice Abella refers to as the "transformative decision" in Dunsmuir v. New Brunswick, 2008 SCC 9 and advance the Dunsmuir goal of simplification. Read together these decisions instruct reviewing courts that:

  • they show deference where a tribunal is interpreting its own statute and related statutes also within its core function and expertise, unless the interpretation concerns constitutional questions, questions of law that are both of importance to the legal system as a whole and outside the adjudicator's specialized area of expertise, or the jurisdictional lines between two or more competing specialized tribunals ;
  • true questions of jurisdiction are narrow and will be exceptional;
  • there are not variable degrees of deference within the reasonableness standard of review;
  • the "adequacy" of reasons by an adjudicator is not a stand-alone basis for quashing a decision; a reviewing court should not undertake two separate analysis – one for the reasons and another for the result. Rather it is a "more organic exercise" where the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of acceptable outcomes;
  • while a reviewing court should not substitute their own reasons they may, if necessary, look to the record for the purpose of assessing the reasonableness of the outcome and should give respectful attention to reasons "which could be offered in support of a decision" particularly where an issue was not raised before the adjudicator but is implicitly or apparently reasonable without need of remitting back to the decision-maker.

What is the impact of these two decisions on judicial review post-Dunsmuir? The target for judicial review of an administrative tribunal has been arguably narrowed by (i) a strong presumption that a tribunal's interpretation of its own statute or statutes closely connected to its function are subject to deference and (ii) an instruction to reviewing courts that the Dunsmuir analysis for reasonableness is one organic exercise whereby an otherwise acceptable result should not be set aside on the basis that the tribunal's articulation of reasons is not adequate. 

by Jeffrey W. Beedell

a cautionary note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2012