The McLachlin Court and the Public Law Standard of Review
A Major Irritant Soothed or a Significant Ongoing Problem?
The first decade of the McLachlin Court has certainly produced more than its share of engagement and turmoil over the issue of standard of review. In part, the confusion that manifested itself and the time that was spent on this issue in the conduct of judicial review and statutory appeal cases was the result of the Court’s ambivalence and vacillation. At times, the Court wanted to present a united front on what were the key elements of the test for an appropriate standard of review applicable across the whole range of statutory and prerogative decision making. However, very close to the surface were some profound disagreements among its various members as to important elements of both the nature and the detail of the criteria on which they should determine whether to defer and, if so, to what extent. Indeed, the disagreements extended beyond the criteria for the identification of a standard of review to the definition and application of the selected standard.
In the wake of this experience, there is once again reason for confidence that, at least in the short term, the Court, by its judgments in Dunsmuir and Khosa, has put some of the most troubling aspects of the recent controversy behind it. In the elimination of the patent unreasonableness standard and its replacement by a contextual concept of unreasonableness review, in which the reasons offered in support of the decision under review will generally play a critical role, the Court may have provided a framework that is easier to work with both in the choice between deferring and not deferring and, thereafter, in actually conducting review when that choice produces the deferential reasonableness standard. Moreover, for those who favour a framework in which deference is the norm, the recognition of a strong presumption of respect for statutory authorities’ determination of questions of law arising out of their home or constitutive statutes, as well as other frequently encountered statutes and the common law, seems to indicate a genuine rededication to one of the key principles enunciated by Dickson J. (as he then was) in New Brunswick Liquor in 1979.
It would, however, be folly to see Dunsmuir as a complete panacea. Even with the additional layer of Khosa, it does not resolve all of the conceptual problems, let alone the questions of detail bearing upon standard of review analysis. Provided, however, there is explicit recognition of the continuing gaps in the theory and acknowledgment of disagreements over some of the detail in the form of genuine engagement among the members of the Court and a willingness to accept publicly that the Court’s previous jurisprudence is by no means consistent on important aspects of the standard of review enterprise, there is reason for optimism in the second decade of the McLachlin Chief Justiceship.
David J Mullan
David J. Mullan is Professor Emeritus, Faculty of Law, Queen’s University.