Iron driver: Driving home the standard of review 


January 2013

Litigation Bulletin

Reviews of the top administrative law decisions of 2012 could be forgiven for missing Construction Labour Relations v Driver Iron Inc.1 Not only was the decision given rendered in late November (when some practitioners were busy tidying up their files before December holidays rather than surveying case law), it was only four paragraphs long. Nonetheless, the decision in Driver Iron, rendered communally by "The Court" was the Supreme Court's latest comment on the standard of review applicable to administrative decisions.

The history of the matter before it reached the Supreme Court can be concisely described. A lower court judge refused to grant an application for judicial review2 of a decision of the Alberta Labour Relations Board ("ALRB").3 The appeal of the lower court's decision was heard by the Alberta Court of Appeal.4 The legal issue related to interpretation of two sections of Alberta's Labour Relations Code.5

Although the Court of Appeal acknowledged that the appropriate standard of review was deference, the Court of Appeal allowed the appeal of the lower court's decision, and returned the matter to the ALRB for a rehearing.6 It did so on the basis that the ALRB had not examined "the possible meanings" of a particular section, had not decided "which it preferred and why" and did not explain "the impact of the meaning it ascribed to that subsection" on the two other sections in question.7

The Supreme Court disagreed:

The Board did not have to explicitly address all possible shades of meaning of these provisions. This Court has strongly emphasized that administrative tribunals do not have to consider and comment upon every issue raised by the parties in their reasons. For reviewing courts, the issue remains whether the decision, viewed as a whole in the context of the record, is reasonable.8

The Supreme Court held that the ALRB's conclusions were reasonable and its decision was entitled to deference.9 The Court of Appeal had no valid grounds to review and quash the decision.10

Lest anyone believe that the Supreme Court's swift disposal of the Respondent's position was performed without context, the last five years have seen dramatic changes in Supreme Court treatment of the standard of review of administrative actions. In the 2011 decisions of Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association11 and Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board),12 the Supreme Court tinkered with the standard of review which had been freshly re-crafted in the 2008 decision of Dunsmuir v New Brunswick.13 The 2011 decisions stressed deference and reasonableness of the standard of review. They also suggested held that, broadly speaking, inadequacy of reasons was not enough to violate the standards of justification, transparency and intelligibility required in a "reasonable" decision.

In this context, the Supreme Court's citation of Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board) rather than Dunsmuir for the standard of review demonstrates that Iron Driver was another attempt to "drive home" its 2011 jurisprudence.

by Adam D.H. Chisholm

1 2012 SCC 65 [Driver Iron Inc.].

2 2009 ABQB 604.

3 2009 CanLII 87 (AB LRB).

4 2011 ABCA 55.

5 RSA 2000, c L-1.

6 2011 ABCA ¶ 23.

7 2011 ABCA ¶ 21.

8 2012 SCC 65 ¶ 2.

9 2012 SCC 65 ¶ 2.

10 2012 SCC 65 ¶ 2.

11 2011 SCC 61.

12 2011 SCC 62.

13 2008 SCC 9 [Dunsmuir]. For further discussion of the 2011 decisions, see Jeffrey W. Beedell, "administrative law – Dunsmuir simplified" (January 2012)

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 2013