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Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9 (Link)


Dunsmuir was an employee on probation at the Department of Justice, His employer gave him a number of warnings and then finally dismissed him without citing the reasons for dismissal. He was given 4 months pay in lieu of reasons.


Should the reasonableness standard or the correctness standard be used to assess the decision of the administrative tribunal (adjudicator) that affirmed the decision of the employer?


the three previous standards of correctness, reasonableness simplicitur and patent unreasonableness were too complicated with too many difficulties. So now there will only be two standards: reasonableness and correctness.


Definition of new reasonableness standard: “In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.  But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

Definition of correctness standard: “When applying the correctness standard, a reviewing court will not show deference to the decision maker’s 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 tribunal’s decision was correct.”

Test to decide which standard: “In summary, the process of judicial review involves two steps.  First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question.  Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review.” At para 62


Appeal dismissed.


Useful excerpts:
• “Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority.  The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes.” At para 28
• “We conclude that there ought to be two standards of review _ correctness and reasonableness.” At para 34
• “It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view.  Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law.  The notion of deference “is rooted in part in a respect for governmental decisions to create administrative bodies with delegated powers” (Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at p. 596, per L’Heureux-Dubé J., dissenting).  We agree with David Dyzenhaus where he states that the concept of “deference as respect” requires of the courts “not submission but a respectful attention to the reasons offered or which could be offered in support of a decision”: “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law(1997), 279, at p. 286  (quoted with approval in Baker, at para. 65, per L’Heureux-Dubé J.; Ryan, at para. 49).”
• “ Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity:”
• “While we are required to give deference to the determination of the adjudicator, considering the decision in the preliminary ruling as a whole, we are unable to accept that it reaches the standard of reasonableness.  The reasoning process of the adjudicator was deeply flawed.  It relied on and led to a construction of the statute that fell outside the range of admissible statutory interpretations.” At para 72
• “Procedural fairness is a cornerstone of modern Canadian administrative law. Public decision makers are required to act fairly in coming to decisions that affect the rights, privileges or interests of an individual. “
“Its overarching purpose is not difficult to discern: administrative decision makers, in the exercise of public powers, should act fairly in coming to decisions that affect the interests of individuals. In other words, “[t]he observance of fair procedures is central to the notion of the ‘just’ exercise of power” (Brown and Evans, at p. 7?3).” At para 90

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