VIII.

Review of Standard of Review

321

CASES

Alberta (Information and Privacy Commissioner) v. Alberta Teachers Association, 2011 SCC
61, [2011] 3 S.C.R. 654.
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
British Columbia (Workers Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R.
422.
Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53,
[2011] 3 S.C.R. 471.
Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339.
Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748.
Celgene Corp. v. Canada (Attorney General), 2011 SCC 1, [2011] 1 S.C.R. 3.
C.U.P.E. v. N.B. Liquor Corporation, [1979] 2 S.C.R. 227.
Dunsmuir v. New Brunswick, [2008] 1 SCR 190.
Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury
Board), 2011 SCC 62, [2011] 3 S.C.R. 708.
Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616.
Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982.
Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160.

CHAPTER TEN

Pas de Deux: Deference and

Non-Deference in Action
SHEILA WILDEMAN*
Schulich School of Law, Dalhousie University
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II. Statutory Interpretation and Substantive Review: Working Theories . . . . . . . .
III. The Standards of Review in Theory and Practice . . . . . . . . . . . . . . . . . . . . . . . . .
A. A Contested Correctness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Correctness Review in Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Correctness Review in Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Review for Reasonableness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Enduring Questions from the Pre-Dunsmuir Case Law . . . . . . . . . . . . . .
2. Reasonableness Post-Dunsmuir . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
IV. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Suggested Additional Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

323
328
332
332
332
334
342
342
350
377
379

I. Introduction
In 2008, the Canadian case law on the standards of review structuring judicial oversight of
substantive administrative decisions underwent a significant transformation. As Audrey
Macklin explains in Chapter 9, Standard of Review: Back to the Future?, for roughly the
previous 10 years, Canadian administrative law had featured three standards of review,
representing, at least in theory, three distinct judicial postures toward disputed administrative decisions. These were correctness, wherein the decision under review was said to command low or no deference; reasonableness, wherein the decision commanded some, but not
great, deference; and patent unreasonableness, wherein the decision commanded utmost

* This chapter includes revisions of my chapter from the first edition of this text, as well as reworked excerpts
from my LL.M. thesis, Romancing Reasonableness: An Aspirational Account of the Canadian Case Law on
Judicial Review of Substantive Administrative Decisions Since C.U.P.E. v. N.B. Liquor Corporation and new
material. I wish to thank David Dyzenhaus and Audrey Macklin for their invaluable contributions to my
understanding of administrative law. Thanks also to Lorne Sossin and Colleen Flood for their patient and
helpful editorial assistance.

323

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Chapter 10 Pas de Deux: Deference and Non-Deference in Action

deference. With the issuing of the Supreme Court judgment in Dunsmuir v. New Brunswick,1
the three standards were condensed into two: correctness and reasonableness, connoting, at
least on a cursory view, a simpler binary opposition of non-deference versus deference.
This development was generally (if tentatively) welcomed as advancing the cause of simplifying substantive review. In particular, Dunsmuirs judicial downsizing of the standards
of review and ostensible streamlining of the work of selecting a standard was regarded, not
least by the judges issuing the decision, as enabling a freeing-up of judicial energies in order
to engage more directly with the legal adequacy of administrative decisions. That is, the
Dunsmuir court suggested (and, in this, all three judgments concurred) that it was high time
to attenuate the long-standing preoccupation with calibrating or selecting the appropriate
standard of review that had come to dominate this area of law.2 Instead, judges and lawyers
should now turn more promptly or directly to the core work of substantive reviewthat is,
to answering the question: should the challenged decision stand or fall as a matter of law?
Yet despite this urging to get down to the work at hand, the shift in orientation that is to be
adopted in the wake of Dunsmuir forces renewed reflection on the sort of analysis that
should drive substantive review, particularly where deference is warranted.
Chapter 9 introduced the complexities of the law on identifying the appropriate standard
of review where an administrative decision is subject to judicial oversight. The present chapter revisits the law on the standards of review, shifting the focus from the application of the
selected standard to the decision under review. It inquires, in particular, into the signposts
that have been erected in and after Dunsmuir to direct the conduct of judicial review on a
correctness or reasonableness standard, although it also asks what guidance may be drawn
from the pre-Dunsmuir case law on these matters.
The question driving this chapters inquiry into the meaning and application of the standards of review is, therefore, What is required of administrative decision-makers in order to
satisfy the expectations of substantive legality? On taking up that question, we soon encounter deep tensions in this area of law. Indeed, as Audrey Macklin indicates in Chapter9, the
case law extending from C.U.P.E. v. N.B. Liquor Corporation3 in 1979 to Dunsmuir in 2008
and beyond is animated by disputes wherein the legislatively conferred authority and sectorspecific expertise of administrators may be said to have butted up against the constitutional
responsibility of a judiciary charged with ensuring that administrative action remains
within legal limits. The jurisprudence on the standards of review may be understood as a
record of the shifting ways in which the long-standing tensions in the judicialadministrative
(and moreover, judiciallegislative) relationship have been negotiated.
There is more than one approach to the study or interpretation of the underlying tensions to which I refer. The approach taken in this chapter foregrounds, even as it encourages
you to question, what may be termed a romantic account of this area of law. The romantic

1 [2008] 1 S.C.R. 190 [Dunsmuir].

2 This shift in emphasis informs all three sets of reasons, although it is brought out most clearly in the concurring opinion of Binnie J. in Dunsmuir, ibid. at para. 145. See also Alberta (Information and Privacy Commissioner) v. Alberta Teachers Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 38, Rothstein J. for the
majority [Alberta (Information and Privacy Commissioner)].
3 [1979] 2 S.C.R. 227 [CUPE].

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325

account has slowly risen to prominence over the past few decades of jurisprudence on substantive review. One can trace its (hesitant) evolution through the case law on deference,
beginning with CUPE in 1979 and stretching through a line of cases wherein the work of
substantive review has been progressively modelled not as a matter of judges patrolling the
legal limits of administrative action, but rather as an expression of a wider constitutional
project shared among the legislative, judicial, and executive/administrative branches.4 This
is the project of public justificationthat is, of ensuring that state action is grounded in, and
so may be publicly justified in light of, law.5 The romantic account of substantive review thus
expresses a model of constitutional ordering that we may refer to as constitutional pluralism,6 wherein all three branches of government participate in working out the significance
of the legal norms governing the exercise of state power. A plurality of sources of legal norms
are understood to inform this (shared) project of public justification. These encompass not
only statute law, but alsoas we shall see is stated in Baker7the Constitution (including
the Charter), the common law and international law, instruments of soft law (for example,
ministerial directives or departmental policies), and the fundamental values of Canadian
society.8 Finally, the pluralist model of constitutional ordering that informs the romantic
account of substantive review insists that the public justification of administrative action, in

4 I traced this case law in the introduction to my chapter in the previous edition of this text: A Fine Romance?
The Modern Standards of Review in Theory and Practice in Administrative Law in Context, C. Flood & L.
Sossin, eds. (Toronto: Emond Montgomery, 2008) 221 at 231-32 [A Fine Romance]. Arguably, Dunsmuir
and subsequent case lawin particular, Dor v. Barreau du Qubec, 2012 SCC 12 [Dor] (discussed in section
III.B)represent new inroads for the romantic model, although, as related herein, such developments are not
simple or uniform. The foundations for the model I am calling romantic are set out in D. Dyzenhaus, The
Politics of Deference: Judicial Review and Democracy in M. Taggart, ed., The Province of Administrative Law
(Oxford: Hart Publishing, 1997) 279.
5 That contemporary approaches to administrative law are rooted in a commitment to a culture of justification is conveyed in a statement from McLachlin C.J. in 1999 (The Hon. Justice B. McLachlin, The Roles of
Administrative Tribunals and Courts in Maintaining the Rule of Law (1999) 12 Can. J. Admin. L. & Prac.
171 at 174-75):
[S]ocieties governed by the Rule of Law are marked by a certain ethos of justification. Where a
society is marked by a culture of justification, an exercise of public power is only appropriate where
it can be justified to citizens in terms of rationality and fairness. A culture of justification shifts the
analysis from the institutions themselves to, more subtly, what those institutions are capable of doing
for the rational advancement of civil society. The Rule of Law, in short, can speak in several voices so
long as the resulting chorus echoes its underlying values of rationality and fairness.
See also D. Dyzenhaus, Law as Justification: Etienne Mureiniks Conception of Legal Culture (1998) 14
S.A.J.H.R. 11; D. Dyzenhaus & E. Fox-Decent, Rethinking the Process/Substance Distinction: Baker v. Canada (2001) 51 U.T.L.J. 193 [Process/Substance]; D. Dyzenhaus, Constituting the Rule of Law: Fundamental Values in Administrative Law (2002) 27 Queens L.J. 445 [Constituting the Rule of Law].
6 See Constituting the Rule of Law, ibid. at 487-89. Dyzenhaus refers to this model of constitutional ordering
as democratic constitutionalism and argues that it is implicit in the majority decision of LHeureux-Dub J.
in Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817 [Baker].
7 Ibid.
8 Ibid. at paras. 56, 67.

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Chapter 10 Pas de Deux: Deference and Non-Deference in Action

order to count as public justificationthat is, as legal reasons, not mere explanationsmust
take account of the important interests of, and so be undertaken in dialogue with, the individuals directly affected by state action.9
Despite the contemporary ascendance of the romantic account of substantive review and
the model of constitutional ordering it implies, there remain in the case law vestiges of the
major competing approach. This is the Diceyan model of administrative state ordering,
discussed by Mary Liston in Chapter 2, Governments in Miniature: The Rule of Law in the
Administrative State, and Genevive Cartier in Chapter 11, Administrative Discretion:
Between Exercising Power and Conducting Dialogue. That model asserts a strict separation
of powers as among the legislative, executive/administrative, and judicial branches in constituting the administrative state.10 That is, on the Diceyan model, the legislature is the
proper source of the laws conferring authority on administrative decision-makers; administrative decision-makers execute or exercise the authority so conferred; and judges apply
their law-interpretive capacities to ensure that administrative action remains within the
limits of legislative intent.11 But these strict Diceyan dividing lines are difficult to maintainparticularly (as Genevive Cartier explains in Chapter 11) when it comes to administrative discretion. In effect, the Diceyan judge is caught between conflicting signals: to
respect Parliamentary supremacy and legislative intent by ceding decision-making authority to administrative decision-makers, and to ensure that administrative decision-makers
remain within the limits of law. The result, as Dyzenhaus and others have argued, is instability between two extremes of judicial conductabdication and supremacyon review.12 The
first of these extremes seeks to express respect for parliamentary supremacy and legislative
intent through non-interference with the merits of administrative decisions, while the
second attempts to affirm the supervisory powers of the judiciary by closely hedging administrative authority within judicially ascertained legal or jurisdictional limits.
The instability between judicial abdication and judicial supremacy on review gives rise
to what we may call the skeptical account of substantive review. The skeptic (the romantics
foil) regards the standards of review and, in particular, the idea of deferential review or re 9 The approach to substantive review that I describe here is thus oriented by the overarching principles of the
rule of law (requiring that state action be grounded in law) and democracy (not merely representative democracy, but an ideal of deliberative democracy aimed at facilitating active individual participation in the
shaping of legal norms). See G. Cartier, Administrative Discretion as Dialogue: A Response to John Willis
(or: From Theology to Secularization) (2005) 55(3) U.T.L.J. 623 at 644-56, and Chapter 11 herein. See also
D. Dyzenhaus, Constituting the Rule of Law, supra note 5 at 501:
Legislatures and administrative tribunals have a role in the determination of the values considered
fundamental to the Canadian social, political and legal order, as do the parties who challenge the state
to show that its exercises of public power are accountable to those underlying values.
10 See Constituting the Rule of Law, supra note 5 at 453-57.
11 Ibid. at 454-55, citing Dickson C.J. in Fraser v. P.S.S.R.B., [1985] 2 S.C.R. 455 at 469-70 and Cooper v. Canada
(Human Rights Commission), [1996] 3 S.C.R. 854 at para. 10.
12 See D. Dyzenhaus, Formalisms Hollow Victory (2002) N.Z.L. Rev. 525 at 530-39; The Politics of Deference, supra note 4 at 280-82; Constituting the Rule of Law, supra note 5 at 448-51 and 454-58; D. Dyzenhaus and E. Fox-Decent, Process/Substance, supra note 5 at 197-200 and 204-5. See also D. Mullan, A
Proportionate Response to an Emerging Crisis in Canadian Judicial Review Law? (2010) N.Z.L. Rev. 233 at
251-53 [A Proportionate Response?].

I. Introduction

327

view for reasonableness as a grand illusion distracting us from the underlying truth of this
area of law. That truth is one of irreconcilable differences as between the legislative branch
and with it, administrative decision-makers democratically mandated to advance legislative
policyand the judicial branch, with its exclusive claim to determining the limits of law.
Moreover, beneath the cloak of substantive review doctrine, the skeptic tends to discern a
(judicial) discretion so wide that judges may, in many if not most cases, deploy their final
say however they likethat is, to overturn those decisions that conflict with their particular
values or policy preferences (including their sense of what is necessary to the coherence of
the individualist common-law traditions in which they are steeped) and to uphold the decisions that do not so conflict. In short, the skeptic regards the romantics promise of reconciliation under the shared banner of public justification as hollow.
Upon becoming better acquainted with the cases, students of this area of law may wish
to resist the totalizing perspectives of either the romantic or the skeptic. Instead, they may
opt to take a little from each. But one is a romantic at heart if, in the end, one is convinced
that the point of the law on substantive review is to ground the decisions of both administrators and judges in a common commitment to public justification: a commitment that is
reinforced, rather than undermined, by the different perspectives as well as capacities of the
diverse institutional actors of the administrative state.
Our task is to keep in mind the above-noted concerns about the constitutional relationships proper to the administrative state while attending closely to what Dunsmuir reminds
us is or should be the crowning moment of substantive review: that of applying the standard, and so bringing legal oversight directly to bear on a contested administrative decision.
As noted, historically, the application of the standard has tended to play out as the weak
final act of the substantive review judgment. For example, deferential review has often been
conducted as if it amounted to no more than a sniff test13 registering judicial intuitions that
defy public articulation. Alternatively, where a correctness standard has been applied, the
assessment of substantive legality has typically been conducted as if it were merely a matter
of making the law (particularly the enabling statute) speak for itselfthus demanding uncritical assent to judicial assertions of a plain or otherwise unitary legislative intent. Both
approaches may lead us to wonder whether other perspectives on the nature or import of
the public values engaged (most notably, the perspective of the administrative decisionmaker) are being suppressed. The attendant concern is that the substantive legality or illegality of the impugned decision has been asserted with insufficient justification. Such
charges have lent increased potency to the skeptical thesis that, at the end of the day, substantive review is a judges game.
By this chapters end, we should be in a better position to evaluate whether the developments in and since Dunsmuir regarding application of the standards of review are likely to
advance the reconciliation of the judiciary and administrative decision-makers under the
rule of law that is the romantics happy ending. Or, as the skeptic might suggest, are these
latest twists in the law on the standards of review but a further installment in a long-
running farce?

13 Or puke test: see Dyzenhaus, Constituting the Rule of Law, supra note 5 at 493 (n. 110), referring to the
position of Wilson J. in National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324.

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Chapter 10 Pas de Deux: Deference and Non-Deference in Action

The chapter proceeds as follows. Section II takes up the subject of statutory interpretation:
specifically, competing approaches to statutory interpretation as they interact with the project of substantive review. This section lays some groundwork for what follows. Section III
examines the standards of review as they have been described and, moreover, applied in the
substantive review jurisprudence since CUPE, with a particular concern to alert the student
to the state of the law post-Dunsmuir. Section III.A addresses the correctness standard,
canvassing the rationales underlying this standard and then examining some examples from
the case law in order to reflect further on those rationales. Section III.B turns to deferential
review. It first examines aspects of the case law on the now-defunct standards of patent unreasonableness and reasonableness simpliciter that arguably remain essential to our understanding of the methods and substantive expectations of deferential review. It then takes up
Dunsmuir and subsequent developments, asking how the refashioned reasonableness standard negotiates the tensions between deference to and supervision of administrative decisions. Again, the examination of judicial statements about reasonableness review is followed
by an analysis of judgments applying the standard. Section IV offers some conclusions and
raises some questions aimed particularly at the developing law on reasonableness review.

II. Statutory Interpretation and Substantive Review:

Working Theories
Assessment of the substantive legality of an administrative decision is steeped in the work
of statutory interpretation.14 Therefore, before further broaching the subject of substantive
review, it may help to briefly consider certain competing approaches to statutory interpretation. I suggest that these competing approaches imply competing models of the separation
of powersthat is, conceptions of the proper work of, and so separation or interaction of,
the legislative, executive or administrative, and judicial branches.15 Thus adoption of one or
another approach to statutory interpretation canvassed here may be significant to or determinative of the outcome of substantive review.
Let us start with the modern principle of statutory interpretation, articulated in the
second edition of Driedgers Construction of Statutes and repeatedly endorsed by the Supreme Court:
14 To a large extent judicial review of administrative action is a specialized branch of statutory interpretation:
U.E.S. Local 298 v. Bibeault, [1988] 2 S.C.R. 1048 at 1087. Beetz J. (writing for the Court) is quoting S.A. de
Smith, H. Street, & R. Brazier, Constitutional and Administrative Law, 4th ed. (Harmondsworth, UK: Penguin, 1981) at 588. Compare J.M. Keyes, Judicial Review and the Interpretation of Legislation: Who Gets the
Last Word? (2006) 19 Can. J. Admin. L. & Prac. 119.
15 This section focuses on competing ways that judges understand (or appear to understand) the project of
statutory interpretationincluding competing perspectives on the role of administrative decision-makers in
this project. Another question that we do not consider, although it is highly relevant to the project of substantive review, is whether administrators do or should approach statutory interpretation differently than judges.
See S. Slinn, Untamed Tribunal? Of Dynamic Interpretation and Purpose Clauses (2009) 42 U.B.C.L. Rev.
125. Slinn builds on Edward Rubins thesis that administrative tribunals tend to adopt dynamic interpretative
practices in response to multiple sources of shifting and contending normsnot only the judiciary, but also
the legislature, executive and the tribunals constituency. See also E. Rubin, Dynamic Statutory Interpretation in the Administrative State (2002) Issues in Legal Scholarship, online: De Gruyter <http://www.bepress
.com/ils/iss3/art2>.

II. Statutory Interpretation and Substantive Review: Working Theories

329

Today there is only one principle or approach [to statutory interpretation], namely, the words of
an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.16

General judicial acceptance of this principle tends to obscure continuing conflicts among
judges (and sometimes even among decisions of a single judge) as to the factors that should
be deemed of primary relevance when interpreting contested statutory texts.17 Here we may
roughly distinguish what may be termed positivist approaches from pragmatic or normative
approaches.18
In general terms, a positivist approach to statutory interpretation flows from the presumption that statutory language contains a singular and unified meaning that is stable over
time.19 Judges adhering to that presumption tend to accept that this stable meaning may be
ascertained through interpretive techniques proper to and perfected by the judiciary. Those
techniques may involve a strict focus on the statutory text or efforts to situate the text in its
legislative context. On either variant of this approach, the objective is to find a determinate legislative intent.20 A positivist approach to law or to law interpretation is often accompanied by a commitment to legal formalism. On this model, law is a self-contained system
of formal concepts, and legal judgment consists in solving case-specific problems by making
deductive and inductive links to that stable conceptual-legal system.21 However, the interplay of legislative and common-law systems in administrative law tends to wreak havoc with
formalism, strictly conceived.
A general criticism raised to the positivist approach to law interpretation is that it
smuggles into legal judgment contestable value-driven choices, where those choices should
16 E.A. Driedger, Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983) at 87.
17 See R. Sullivan, Statutory Interpretation in the Supreme Court of Canada (1998) 30 Ottawa L. Rev. 175
[Statutory Interpretation]; S. Beaulac & P. Ct, Driedgers Modern Principle at the Supreme Court of
Canada: Interpretation, Justification, Legitimization (2006) R.J.T. 131.
18 Sullivan, Statutory Interpretation, ibid., distinguishes textualist and intentionalist (which I am loosely calling positivist) from pragmatic (which I am calling normative) approaches to statutory interpretation.
19 See D. Dyzenhaus, David Mullans Theory of the Rule of (Common) Law in G. Huscroft & M. Taggart, eds.,
Inside and Outside Administrative Law: Essays in Honour of David Mullan (Toronto: University of Toronto
Press, 2006) 448 at 474 [Inside and Outside]: [T]he point of the positivist conception of law is to insist that
real law is the determinate content of valid law, where determinate means determinable in accordance with
tests that do not rely on moral considerations and arguments, including arguments about the principles of an
internal morality of law.
20 Compare J. Gardner, Legal Positivism: 51 2 Myths (2001) 46 Am. J. Juris. 199 at 218-22. Gardner argues that
legal positivism is not committed to either textualism or originalism in statutory interpretation. Again, see
Statutory Interpretation, supra note 17.
21 Katrina Wyman surveys the many deployments of the term formalism in legal academia in her article Is
Formalism Inevitable? (2007) 57 U.T.L.J. 685. See, especially, 688 at note 7. Compare Dyzenhaus: Formalism is formal in that it requires judges to operate with categories and distinctions that determine results
without the judges having to deploy the substantive arguments that underpin the categories and distinctions.
(Constituting the Rule of Law, supra note 5 at 450.) The (a)political implications of formalism are elaborated
by Sunstein: [F]ormalism is an attempt to make the law both autonomous, in the particular sense that it does
not depend on moral or political values of particular judges, and also deductive, in the sense that judges
decide cases mechanically on the basis of preexisting law and do not exercise discretion in individual cases.
(Cited in Wyman, ibid. at 688, note 7.)

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Chapter 10 Pas de Deux: Deference and Non-Deference in Action

be explicitly submitted for public justification.22 In administrative law, a positivist approach

may further be argued to work against deference, in that it restricts the potential for judges
to acknowledge their own value-laden presumptions in the face of the potentially competing
values or perspectives of administrative decision-makers. However, in the face of a privative
clause, the positivist approach suffers ambivalence between acknowledgment of the legislatures explicitly granting administrative decision-makers exclusive interpretive authority
over their enabling statutes and insistence that such authority is exclusive to the judiciary.23
In contrast, it is the explicit submission of the value-laden bases of legal judgment for
public justification that marks a normative approach to statutory interpretation.24 Such an
approach proceeds on the assumption that contested matters of statutory interpretation
cannot be resolved by exclusive reference to the text,25 or even by situating the text in its
social context,26 but also require judgments about the competing values or social priorities
informing alternative statutory constructions. This approach is reflected in the acknowledgment of Justice LHeureux-Dub in her judgment in the Baker case,27 discussed elsewhere
in this text, that all law interpretation involves the exercise of discretionthat is, discretion
is not the exception in law, but the rule.28 That is not to say that law is without any anchor
beyond the whim of the judge. Rather, the normative model of law interpretation implies a
conception of the rule of law in which the legitimacy of state action is contingent not on
strict adherence to legislative or majority will, but on consistency with the important public
values inscribed in our social and legal traditions.29
22 Sullivan, supra note 17 at 220-25.
23 For a compelling example of this tension, see Justice Rothsteins judgment in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 74 and, more generally, at paras. 76-98 [Khosa].
24 Sullivan, supra note 17 at 184-87 and 220-27 (on the pragmatic approach to interpretation).
25 Sullivan, ibid. at 185, makes this point, in part in light of a set of standard critiques of textualist and intentionalist approaches:
[C]ommunication through natural language is never a sure thing; rules drafted by legislatures tend to
be general and are often abstract; and legislatures cannot form intentions with respect to how these
rules should apply to every possible set of facts.
26 The point is made by Hanoch Dagan, The Realist Conception of Law (2007) 57 U.T.L.J. 607 at 649:
A prescription for sensitivity to situations and facts is vacuous without general normative commitments. These commitments are indispensible if we are to resolveas law always needs to doconflicts between the very demands and interests that case sensitivity exposes.
27 Supra note 6.
28 LHeureux-Dub writes (for the majority) in Baker, supra note 6 at para. 54:
It is, however, inaccurate to speak of a rigid dichotomy of discretionary or non-discretionary decisions. Most administrative decisions involve the exercise of implicit discretion in relation to many
aspects of decision making. To give just one example, decision-makers may have considerable discretion as to the remedies they order. In addition, there is no easy distinction to be made between interpretation and the exercise of discretion; interpreting legal rules involves considerable discretion to
clarify, fill in legislative gaps, and make choices among various options.
29 As Sullivan, supra note 17 at 227, notes, this model is supported by the following statement of McLachlin C.J.
for the Court in Reference re Secession of Quebec, [1998] 2 S.C.R. 217 at para. 67 [Secession Reference]:
[A] system of government must be capable of reflecting the aspirations of the people. But there is
more. Our laws claim to legitimacy also rests on an appeal to moral values, many of which are em-

II. Statutory Interpretation and Substantive Review: Working Theories

331

In the administrative law context, it is possible to adopt the normative model of law interpretation while insisting on correctness review of administrative efforts at law interpretation. Such insistence may be made particularly where fundamental values are at stake in
the interpretive exercisefor example, Charter rights, statutory human rights, or individual
rights at common law.30 This approach reflects a traditional understanding of judges as the
exclusive arbiters of foundational legal values. However, over the past two decades, that
traditional understanding of the role of the judge has been at least partially modified, in
light of the commitment to constitutional pluralism described above. The now-ascendant
approach in administrative law tends to recognize the normative contestability of (much)
law interpretation and to regard (many if not most) law-interpretive problems as supportive
of deference on review. As such, the modern (romantic or constitutional pluralist) model of
substantive review reflects an understanding of administrative decision-makersor, again,
many of themas aptly positioned to contribute to the shared work of determining how the
basic commitments of the social, political, and legal order should inform or interact with
the sector-specific values and policy objectives of administrative regimes.31
There are tensions in each of the approaches to statutory interpretation discussed so far,
in terms of their implications for the relationship between courts and administrative
decision-makers. A positivist insistence that there is one right answer in construing disputed statutory provisions seems inconsistent with one of the cornerstones of the law on
deference that, as Audrey Macklin recounts in Chapter 9, was identified in CUPEthat is,
the thesis that there may be more than one reasonable interpretation of disputed statutory
language.32 At the same time, a judge who adopts a positivist approach to statutory interpretationand, moreover, a strict separation of powers approach to administrative state
orderingmay resist the proposition that administrative decisions must accord with the
fundamental values underlying statutory text (absent a formal constitutional challenge).33
The constitutional pluralist, on the other hand, expresses deference by acknowledging a role
for administrative decision-makers in the project of defending and elaborating the rule of
bedded in our constitutional structure. It would be a grave mistake to equate legitimacy with the
sovereign will or majority rule alone, to the exclusion of other constitutional values.
See also Mary Listons discussion of the Secession Reference in Chapter 2 of this text.
30 See Constituting the Rule of Law, supra note 5 at 448-51, where Dyzenhaus points out that the Supreme
Courts endorsement of unwritten constitutional principles in the Secession Reference is accompanied by
other statements expressing a formalist vision of the separation of powers, whereby judges bear exclusive
responsibility for working out those principles. For a recent articulation of a formalist vision of the separation
of powers in the administrative law context, see the concurring judgment of Justice Cromwell in Alberta (Information and Privacy Commissioner), supra note 2 at paras. 90-104, especially paras. 92-94 and 102-3.
31 The presumption of reasonableness review attaching to matters involving interpretation of the home statute,
stated by the majority in Dunsmuir and confirmed by the majority in Alberta (Information and Privacy Commissioner), supra note 2, may be understood as an endorsement, or partial endorsement, of constitutional
pluralism. The Dor decision (supra note 4) further affirms the models commitments.
32 Chapter 9, section III, The Blockbuster: C.U.P.E. v. New Brunswick Liquor Corporation.
33 The latter predisposition is now significantly blocked by the decision in Dor (supra note 4, discussed in section III.B, below, and by Evan Fox-Decent and Alexander Pless in Chapter 12). At least, this is the case where
a disputed instance of law interpretation or application may be characterized as an exercise of administrative
(and, moreover, adjudicative) discretion involving Charter values.

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law. But he or she tends thereby to invest those decision-makers with a duty to consider and,
perhaps, even to attribute determinative importance to the values the judge deems essential
to the legitimate exercise of the relevant statutory powers.
Wade MacLauchlan has argued that the challenges facing substantive review on the way
to a culture of justification lie precisely in devising better ways for tribunals to inform courts
of the institutional and social policy considerations underlying their decisions. This includes instilling better practices of reason-giving among administrative decision-makers.
Such institutional developmentsaccompanied by developments in the capacity or willingness of courts to exhibit appropriate sensitivity to administrative reasoningare held out by
MacLauchlan as potentially supplanting formalist and positivist tendencies to rely on manipulable notions of legislative intent and jurisdiction in this area of law.34 As we explore in
section III, recent developments in the law on substantive review have intensified the expectation that administrative decision-makers support, or justify, their decisions, including
their interpretations of lawand that judges make special efforts to appreciate such justificatory efforts.

III. The Standards of Review in Theory and Practice

In what follows, we take up the standards of review as described and applied in the case law.
The central question we seek to explore thereby is what, if any, contribution this evolving
case law has made toward negotiating the tensions between the dual rule-of-law imperatives
placed on judges engaged in substantive reviewnamely, to respect administrative decisions and to supervise the substantive legality of those decisions.

A. A Contested Correctness
1. Correctness Review in Theory
Let us begin with the standard of review most expressive of the institutional authority of the
judiciary: review for correctness. As Audrey Macklin relates in Chapter 9, the majority in
Dunsmuir indicates that a correctness standard will presumptively apply in certain types of
cases, including those that raise constitutional questions,35 true questions of jurisdiction or
vires,36 questions about the relative jurisdictional scope of different tribunals,37 and questions of law that are of central importance to the legal system as a whole and outside the
adjudicators specialized area of expertise.38 Arguably, Dunsmuir has reduced the reach of
correctness review by (1) lending increased specificity to the broad category of questions of
34 H.W. MacLauchlan, Transforming Administrative Law: The Didactic Role of the Supreme Court of Canada
(2001) 80 Can. Bar Rev. 281 at 293-94 and 297-98. Also see B. Lahey & D. Ginn, After the Revolution: Being
Pragmatic and Functional in Canadas Trial Courts and Courts of Appeal (2002) 25 Dal. L.J. 259 at 325.
35 Dunsmuir, supra note 1 at para. 58.
36 Ibid. at para. 59.
37 Ibid. at para. 61.
38 Ibid. at para. 60.

III. The Standards of Review in Theory and Practice

333

general law previously attracting this standard and (2) indicating that a narrow approach
should be taken to the category of jurisdictional questions.
At the same time, Dunsmuir indicates that there is no need to disturb existing doctrine
on the conduct of correctness reviewno need, that is, to modify our understanding of
what it means to apply this standard from that which has held the field since CUPE. That
may strike one as unsurprising. That is, correctness may at first appear so plain in meaning
as to be beyond serious consideration for reform, or even comment. Asserting a requirement of correctness appears to amount merely to an insistence that the decision-maker get
it right, full stop. On reflection, however, the meaning of getting it right and the method
by which this is evaluated are less than transparent; indeed, in some cases, these matters
have been hotly contested.
In Law Society of New Brunswick v. Ryan,39 Iacobucci J. wrote that where a correctness
standard is imposed, the court may undertake its own reasoning process to arrive at the
result it judges correct.40 This may be contrasted to what we will see shortly has long been
a key feature of deferential reviewthat is, the requirement that judges make an effort to
consider the administrative decision-makers reasoning on its own terms. Iacobucci J.s description of correctness review in Ryan indicates, to the contrary, that the court need not put
any effort into assessing the administrative decision-makers reasons or casting those reasons in their best light.
The Dunsmuir majority confirms this point:
When applying the correctness standard, a reviewing court will not show deference to the decision makers reasoning process; it will rather undertake its own analysis of the question. The
analysis will bring the court to decide whether it agrees with the determination of the decision
maker; if not, the court will substitute its own view and provide the correct answer. From the
outset, the court must ask whether the tribunals decision was correct.41

The majority in Dunsmuir further states that the underlying rationale of the correctness
standard is to promot[e] just decisions and avoi[d] inconsistent and unauthorized application of law. 42 Arguably, one may distinguish in Dunsmuir and in the prior jurisprudence
three related rationales. The first is rooted in the idea of jurisdictionthat is, the idea that
certain matters fall within, and others outside, an administrative decision-makers assigned
area of authority. To defer to administrative decision-makers on the scope of their authority
would invite the charge that the executive/administration has been permitted to usurp the
role of the legislature. Moreover, judges of the superior courts, constitutionally vested with
superintending and reforming powers as well as independence from the executive, may be
understood as uniquely equipped to supervise tribunal jurisdiction. Closely aligned to this
is a second rationale, based in expertise. Here the claim is that an administrative decisionmaker should not command deference in matters over which it cannot claim expertise superior to that of the generalist judge. Traditionally, law interpretation was placed among
39 2003 SCC 20, [2003] 1 S.C.R. 247 [Ryan].
40 Ibid. at para. 50.
41 Dunsmuir, supra note 1 at para. 50.
42 Ibid.

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these matters. However, as noted above, that Diceyan tenet has been progressively eroded
by exceptions (even presumptions) acknowledging the law-interpretive capacities of administrative decision-makers. Finally, and typically raised in conjunction with the rationales
relating to authority and expertise, is a third rationale based in the need for consistency and
predictability in the legal system.43 Here the argument is that judges, as legal generalists with
the institutional capacity to produce binding precedents, are best placed to resolve contests
about law interpretation where this is essential to the even-handed application of law. This
rationale has purchase even (indeed particularly) where there may be a range of reasonable
alternative interpretations that fit within the administrative scheme.
Together these rationales advance a set of practical and theoretical bases for maintaining
correctness review as a fundamental feature of the law on substantive review. But if it is accepted that the modern case law on substantive review is increasingly shifting toward the
model of administrative state ordering described above as constitutional pluralism, we must
ask whether the perspectives or reasoning of administrative decision-makers are ever not of
value in informing judicial oversight, even on such questions as the scope of their authority,
or how fundamental legal (including constitutional) norms affect or interact with specific
administrative regimes. Indeed, we might consider whether the correctness standard is now
obsolete in the face of strengthened rationales for and guidance on the application of a
context-sensitive standard of reasonableness. At the same time, we must consider whether
or how the institutional values (for example, consistency) now promoted by the correctness
standard might be secured in the absence of this standard.44

2. Correctness Review in Practice

We begin this section with two touchstone cases that serve to provoke reflection on the
nature of correctness review before turning to more recent case law, including one postDunsmuir decision.
Two decisions of the Supreme Court that illustrate the tensions in correctness review are
U.E.S., Local 298 v. Bibeault,45 and Canada (Attorney General) v. Mossop.46 Bibeault, decided
in 1988, involved a school boards terminating janitorial service contracts with companies
whose workers were on strike and then contracting with another company for such services.
The question was, did this fit the criterion of alienation or operation by another of an undertaking under the successor employer provisions of Quebecs labour law? If so, the union
representing the employees of the original companies would represent those of the new company, continuity of the collective agreement would be assured, and the strike would carry on.
As Audrey Macklin explains in Chapter 9, one may detect a schism in the approach taken to
this question in the judgment of Beetz J., which, on the one hand, consolidates a set of prag 43 Cf. D. Mullan, Consistent Decision-MakingA Core Value for High Volume Jurisdiction Tribunals and
Agencies? (14 December 2010), online: Workplace Safety and Insurance Appeals Tribunal <http://www
.wsiat.on.ca/english/documents/mullan25thSymposium.pdf>.
44 See David Dyzenhaus, Constituting the Rule of Law, supra note 5 at 493-96, and Evan Fox-Decent and
Alexander Pless in Chapter 12 of this text.
45 [1988] 2 S.C.R. 1048 [Bibeault].
46 [1993] 1 S.C.R. 554 [Mossop].

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335

matic and functional queries for discerning whether deference is due and, on the other,
continues to convey a Diceyan concern to patrol the limits of administrative jurisdiction.47
It is the latter concern that animates the disposition of the case. Beetz J. concludes that
the issue is jurisdictional, meaning that no deference is due. This conclusion turns on his
determination that the statutory language includes terms of art at civil law, the interpretation of which demands general legal expertise. From there, the objective is to determine the
right answer to the question: were the successor employer provisions engaged or not?
First, Beetz J. canvasses the purpose of the disputed provision (in light of the purpose of the
statute as a whole); this is stated to be protection of the benefits resulting from certification
and the collective agreement.48 He then situates that purpose in light of the principle, derived from attention to the four corners of the statute, that collective bargaining requires a
single union, a single employer, and a single undertaking. That principle, in addition to analysis of the terms alienation and undertaking at civil law, leads Beetz J. to conclude that
a legal relationship between employers (in transferring a single undertaking) is required to
trigger the disputed provision. Against this background of analysis, Beetz J. concludes that
the alternative construction accepted by the labour commissioner and upheld by a majority
of the Labour Court gave the terms of art in question a non-legal and even uncommon
meaning49one that, moreover, was inconsistent with the purpose of the Labour Code.50
He suggests that the source of this inconsistency was a misguided desire to protect the
certification and collective agreement despite all the vicissitudes of the undertaking.51
The judgment of Beetz J. in Bibeault favours conceptual coherence as between the statute
and the civil law over the context-inflected sympathies of the tribunal. Now, few will argue
that coherence, in the law or in general, is inherently a bad thing. But on reading this case,
we may ask ourselves whether we are convinced by the construction of the statute adopted
by Beetz J. How important is it that terms of art at civil or common law are preserved from
novelor contextually informedinterpretations in administrative sectors? From Chapter
9 you have learned that, with Dunsmuir, not only is deference now arguably presumed on
questions involving interpretation of the enabling statute, but that it may also be warranted
where an administrative tribunal has developed particular expertise in the application of a
general common law or civil law rule in relation to a specific statutory context.52 In light of
this, how might a court approach the issues raised in Bibeault post-Dunsmuir?
Moving from the labour context to the human rights context, consider Mossop.53 In this
1993 decision, a majority of the Supreme Court overturned a decision of the Canadian
Human Rights Tribunal on the basis that the prohibited ground of family status (not
47 See Audrey Macklins discussion in Chapter 9, section IV, The Sequels. Also see Dyzenhaus, The Politics of
Deference, supra note 4 at 291.
48 Bibeault, supra note 45 at para. 144.
49 Ibid. at para. 180.
50 Ibid. at para. 162.
51 Ibid.
52 Dunsmuir, supra note 1 at para. 54. And see Nor-Man Regional Health Authority Inc. v. Manitoba Association
of Health Care Professionals, 2011 SCC 59.
53 Supra note 46.