Standard of review of administrative action: coherence post-Dunsmuir?
It was widely hoped that the Supreme Court of Canada decision in Dunsmuir v. New Brunswick, 2008 SCC 9 (“Dunsmuir”) would simplify the judicial review of administrative action by limiting the scope of review to two standards: reasonableness and correctness. The divided Supreme Court of Canada opinion in Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8 shows that there is still a long way to go before coherence and uniformity is brought to this area of law.
In June 2009, a Quebec school board had to decide whether to dismiss a teacher on the basis of a serious criminal background. After hearing the teacher and holding a partially in camera meeting (where the public was excluded), the executive committee deliberated entirely in camera (without the teacher or the union being present). Once its deliberations were concluded, the board issued a resolution removing the teacher from his position, providing some supporting reasons.
The teacher’s union filed a grievance against the dismissal, alleging, among other things, that the executive committee had not complied with its obligation to make “thorough deliberations” before dismissing an employee, as provided in the collective agreement.
To establish before the grievance arbitrator that there had been no “thorough deliberations”, the union called as witnesses the three members of the executive committee who had deliberated in camera. The arbitrator rejected the school board’s objection that the executive committee’s motives were “unknowable” and protected by the secrecy of deliberations. He allowed that questions be asked to the witnesses on their deliberations. The school board sought judicial review of the arbitrator’s ruling on the objection.
Decision of the Superior Court
Justice Michel Delorme of the Quebec Superior Court underlined the Dunsmuir’s dictum that the correctness standard applied “in respect of jurisdictional and some other questions of law” (para. 50). Applying this principle, Justice Delorme held that the secrecy of an administrative tribunal’s deliberation was a question of law that was outside the arbitrator’s area of expertise and that was of interest to all school boards across Quebec. As a result, he applied the correctness standard and concluded that the arbitrator had erred in allowing questions on the reasons for the decision. In the judge’s view, the questions put to the witnesses should have been limited to allegations of breaches of natural justice in the decision-making process, if any.
Decision of the Court of Appeal
In a unanimous decision on the standard of review (but a divided opinion on the merits), the Court of Appeal upheld the Superior Court’s conclusion that the correctness standard applied.
Justices Marie-France Bich and Manon Savard, writing for the majority, emphasized that the correctness standard, per Dunsmuir, only applied to a question of law if two cumulative criteria were met: (i) the question is of interest to the justice system as a whole; and (ii) it is not within the administrative body’s specialized area of expertise.
In the present case, although the Court of Appeal conceded that questions of evidence are generally within the arbitrator’s area of expertise, the precise circumstances called upon the arbitrator to apply broader principles, such as the secrecy of deliberations and immunity of disclosure. Because these principles are important for administrative tribunals and courts alike, the Court of Appeal concluded that these evidentiary questions did not fall within the arbitrator’s specialized area of expertise.
On the merits, Justices Bich and Savard held that questions asked to the executive committee members with regard to their deliberation should only be limited by the principle of relevance. They held that the arbitrator was correct is dismissing the objection, reversed the Superior Court and reinstated the arbitrator’s decision. Justice Guy Gagnon, dissenting on this question, opined that only questions addressing issues of natural justice should be allowed. He would have maintained the Superior Court’s decision.
Decision of the Supreme Court of Canada
In a divided opinion, Justice Clément Gascon, writing for the 6 majority judges, reversed the Superior Court’s and the Court of Appeal’s conclusion and held that the standard of review applicable to the arbitrator’s dismissal of the objection was that of reasonableness.
For the majority, “[w]hether the examination of the members of the Board’s executive committee should be allowed is ultimately an evidentiary issue” (para. 30). Because the arbitrator has full authority over evidence and procedure in an inquiry into a grievance, any reviewing court should show deference to his ruling and the reasonableness standard should apply.
In addition, the majority of the Supreme Court disagreed with the Court of Appeal’s conclusion that the “unknowability” of motives and the secrecy of deliberations were questions that were not within the arbitrator’s area of expertise. For the majority, the application of these principles in a labour law context could not be said to be detrimental to consistency in the country’s fundamental legal order. In essence, Justice Gascon held that the reasonableness standard was the norm and there were no exceptional circumstances warranting the application of the correctness standard.
Dissenting on the question of the standard of review, Justice Suzanne Côté emphasized that notwithstanding the evidentiary nature of the question put before the arbitrator, which is generally within his area of expertise, principles such as the “unknowability” of motives and deliberative secrecy affect the administration of justice as a whole. Although acknowledging that questions of law justifying the application of the correctness standard were rare, Justice Côté’s view, like that of the Quebec Court of Appeal, is that it should apply where the question falls outside the arbitrator’s specialized area of expertise, such as in the case at hand. Drawing an analogy with professional secrecy, Justice Côté stated that certain areas cannot have been intended by the legislator to fall within an administrative tribunal’s expertise; in her view, reviewing courts should not show deference on general questions of law.
On the merits, however, the Supreme Court was unanimous in dismissing the appeal and upholding the arbitrator’s dismissal of the objection.
In a controversial and unprecedented paper published in February 2016, Justice David Stratas of the Federal Court of Appeal openly criticized the Supreme Court for its incoherence and inconsistency in the field of judicial review of administrative law post-Dunsmuir and invited the Supreme Court to provide sufficient guidance in its subsequent rulings. Although the Supreme Court decision Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval has helped reiterate that the reasonableness standard is the rule and the correctness standard the exception, the divided opinion tends to lend credit to his criticism.
Date of Decision: April 22, 2016
 Stratas, David, The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency (February 17, 2016). Available at SSRN: http://ssrn.com/abstract=2733751 or http://dx.doi.org/10.2139/ssrn.2733751
correctness reasonableness Supreme Court of Canada