Dunsmuir v New Brunswick - 2008

-all exercises of public auhority must find their source in law

-by acting outside their authority – the ADM transfresses the principle of the rule
of law
-judiciary's role: to ensure legality, fairness and reasonableness of the
administrative process and its outcomes
-thus when assessing standard of review: what authority was intended to be given
to the ADM? ie scope of decision making power and jurisdiction conferred by
statute

rule of law maintained by : courts having final word on jurisdiction; and

legislative supremacy assured by : standard of review being determined by
reference to legislative intent

*legisl action cannot remove court's power to review for compliance

w/constitutional limits
Not even with a privative clause (Executors of Woodward Estate case)
-based in constitution ss96-100 therefore guaranteed inherent power of the courts
(Crevier)

2 standards of review : correctness and reasonableness

STEP 1: **write** “there may be case law to follow that indicates which standard
to apply, and the analysis need not be repeated (Dunsmuir), [insert case law if
you have it], otherwise....” (if not in one of these categories go to step 2)

Categories:

When to Use Reasonableness Standard:

 for questions of fact
 for questions of discretion
 for questions of policy
 where legal issues cannot be easily separatedd from the factual ones
 and some legal issues
 tribunal interpreting its own statute / statutes closely related to its function
 even for interpretation of an external statute (where tribunal has
developped expertise in applying the law/ rule in a specific statutory context
(Toronto v CUPE) * good example: adjudication in labour law

When to Use Correctness Standard:

 for most legal issues
 for constitutional questions re division of powers (Westcoast Energy)
 other consitutional issues are subject to correctness review because of
special role of s96 courts as interpreters of the Constitution (Martin)
 for “true” determinations of vires / jurisdiction (ie whether tribunal's
statutory grant of power has authorised it to decide the particular matter)
eg. United Taxi Drivers v Calgary – whether municip had power to enact by-laws
limiting number of taxi plates
 where question is one of general law (ie not just the enabling statute) and is
of central importance to the legal system and outside expertise of the ADM.
eg. Toronto v CUPE – question dealt with complex CL rules and conflicting
jurisprudence on the doctrines of res judicata and abuse of process.
 jurisdictional lines btw 2 or more competing specialized tribunals (Regina
Police Assn Inc v Regina Board of Police Commrs)

STEP 2: otherwise....

Is it Correctness or Reasonableness?

**Write** ”...a proper Standard of Review Analysis requires the Court to Consider:
1. is there a privative cause? **Write** Parlt / Legisl is indicating need for
deference
2. is there a discrete and special administrative regime?
3. does the ADM have special expertise?
4. what is the nature of the question? **write** the nature of the legal question is
not one that is of central importance to the legal system and outside the
specialized area of expertise of the ADM this suggests the reasonableness
standard should apply (Dunsmuir).

Reasonableness

Procedurally : justification, transparency, and intelligibility in decision making

pocess
Substantively : whether decision falls w/in a range of possible, acceptable
outcomes that are defensible on the facts and the law

Conclusion if this is the standard;

**Write** this “deferential” standard requires that the courts pay respectful
attention to the reasons offered or which could be offered in support of a decision

-those working day to day to implement a stat scheme – may have better
expertise or field sensitivity to the nuances of the legislative intent

Reasonableness analysis of the d-m process: “In this case the decision making
process was “justified, intelligble and transparent”

Reasonableness analysis of the decision: “In this case the result was “within the
range of possible, acceptable outcomes which are defensible in respect of the
facts and the law”

Correctness
maintained for jurisdictional and some other questions of law
-to promote just decisions
-to avoid inconsistent unauthorized application the of law

*write* the standard is correctness.... [X's decision] must be the correct decision
for the sake of consistency in applying the law. The cout must show [X] no
deferrence and undertake its own analysis of the question.

***

In this case, whether provisions combined to auth adjudicator to inquire into

employers reasons for dismissing = question of law.
so, in light of privative clause, the stat regime, and the nature of the question of
law, was correctness required?
full privative cause --> strong indic for reasonableness requirement
stat regime --> Court has recognized relative expertise of adjudicator in
interpreting collective agreements and that their decisions be shown deference
(CUPE; Safeway; Voice Construction; Dunsmuir)

(*Adjudicator was appointed ad hoc (may indicate non-expert) but in labour

relations context they can be assumed to have expertise if appointed under the
PSLRA.) (when selected by mutual agreement of the parties – more deference)

legislative purpose of the regime --> time/cost effective method for resolving
employment disputes – the remedial nature of the regime + provision for timely
and binding settlement of disputes suggests reasonableness appropriate.

Application of the Reasonableness Standard

Process: reasoning process was deeply flawed
Result: construction of statute outside the range of admissable statutory
interpretations

adjudicator's reasoning was fatally flawed: he adopted an approach that was

fundamentally inconsistent with the employment contract - which cannot be
ignored

***

Procedural Fairness

-public decision makers under duty to act fairly when making decisions that affect
rights, privilegs or interests of an individual (Cardinal v Dir of Kent Inst)

-where a public employee is employed under a contract of employment regardless

of their status as a public office holder, the applicable law governing their
dismissal is the law of contract, not general priniciples arising out of public law

-Knight now stands for the principle that there is always recourse available where
the employee is an office holder and the applicable law leaves them without any
protection whatsoever when dismissed

-adjudicators have jurisdiction to consider PF where such a duty exists BUT the
proper approach: FIRST identify the nature of the employment relationship and
the applicable law -
and where relationship is contractual – no public law duty of PF is engaged and no
role for PF in resolving the greivance

-although the law makes a sharp distinction btw public office holder / contractual
employee in theory, in practice difficult to tell them apart

-most civil servants and public officers are employed under contract
-if the position of their employment cannot be modifie by agreement then not
under contract
(eg. Ministers of the Crown, constitutionaly defined state roles)

-private employment relationships governed by law of contract

-dismissal of pubic office holder under delegated stat auth will be subject to public
law controls like any other admin decision (Knight) (unless there is a contract
which means only private law rights come into play)

-where the terms of the contract of employment are expressly agreed to, it will be
assumed that proccedural fairness was dealt with by the parties -
-if the contract is silent then fundamental terms will be supplied by the CL
-in particular that dismissal must either be for just cause or on reasonable
notice

-a public athority cannot contract out of its statutory duties – must abide by stat
restr on its exercise of discretion as an employer – regardless of the terms of an
empl contract – and failure does give rise to a public law remedy

-sometimes a duty of PF is imposed on a contractual employment relationship by

necessary implication from the statute -
eg. Malloch v Abeerdeen Corp – applicable statute reqd 3 weeks notice be given
to a teacher of motion to discuss their dismissal – this necessarily implied a right
for the teacher to make representations at the meeting where the discussion took
place

-there is no remedy for breach of reinstatement at CL – but breach of PF does not

prevent d-m from retaking the decision to dismiss (that time following the proper
procedure)
Conclusion: if civil servant and stat provides rules of contract govern dismissal (or
there is an empl contract in place) then no need to address PF – unless other
provisions in statute sugget either expressly/impliedly that certain additional
procedures are to be followed.

In this case , employer fully wihtin their right to dismiss emplee w/ 4 months' pay
in lieu of notice w/o a hearing.

Binnie J

a labour board is better placed than the court to interpret the intricacies of
provisions in a labour stuatue governing replacement of union workers (CUPE v
NB Liquor Corp)

3 basic legal limits on administrative discretion (to which correctness standard

applies):
1. constitutional issues allocated to the courts via s96
2. whether or not the power which the ADM purports to exercise exists AND
questions of general law – the only exception being provisions of the
enabling statute and closely related statutes which require the expertise of
the administrative decision maker (eg labour board)
3. PF reqts

-future predictions of the change to 2 standards of review:

-there are degrees of deference:

-minister's decision under the Extradition Act to surrender a fugitive --> extreme
legislative end of admin decision making (Idzia v Canada)
-ministerial delegate making deportation decision according to ministerial
guidelines was accorded considerably less deference (Baker)
-counter-terrorism measures - if the people are to accept the consequences of
such decisions, they must be made by persons they have elected and whom they
can remove, ie more deference (Suresh v Canada)
-adjudicative tribunal called on to approve pipelines based on pubic convenience
and necessity – more deference (Westcoast Energy v Canada (NEB))
-decisions in the “public interest” - more deference
-professional body determining appropriate sanction for member's misconduct –
less deference (Law Soc. NB v Ryan)

-the judge's role is to identify the outer boundaries of reasonable outcomes within
which the ADM is free to choose

(look for : relevant considerations not taken into account and irrelevant
considerations taken into account)