Administrative Law Standard of Review as an Exercise in "Defaults"

Cross-referencing:  Laws of Government, Ch. 2


Since the Supreme Court's 2008 decision in Dunsmuir, the standard of review analysis in substantive administrative law has remained unsettled, to say the least.  On the one hand, the Dunsmuir decision seems to give primacy to the nature of the substantive question -- for example, error of discretion or law -- which then guides the analysis down a path of varying complexity depending on the nature of the error.  Discretion, for instance, is to be "generally" reviewed on a standard of reasonableness, while errors of law may attract either correctness or reasonableness depending on a series of considerations tied, in several instance, to the expertise of the decision maker or the signficance of the legal question to the Canadian legal system (whatever that might mean in practice).  I (and I believe others) have called these "default" assumptions that should guide review.


On the other hand, the Court did, in a throw-away paragraph, also suggest that further inquiry might be required with an eye to the old variables that were part of the pre-Dunsmuir "pragmatic and functional test".  These variables were subsequently re-invoked in the Supreme Court's Khosa decision and in a handful of other cases, suggesting that the Dunsmuir "defaults" were of little true consequence.


In February, 2011, the Supreme Court again partook in a standard of review analysis.  In Smith v. Alliance Pipeline Ltd., 2011 SCC 7, the Court seemed to put another nail in the coffin of to the still lurking pragmatic and functional test: "the extensive and formulaic inquiries of the past have now been replaced by the broader and less cumbersome approach set out by the Court in Dunsmuir" (at para. 23).  The Court then noted (at paras. 24 and 26):


reviewing judges can usefully begin their analysis by determining whether the subject matter of the decision before them for review falls within one of the non-exhaustive categories identified by Dunsmuir. Under that approach, the first step will suffice to ascertain the standard of review applicable in this case.


Under Dunsmuir, the identified categories are subject to review for either correctness or reasonableness. The standard of correctness governs: (1) a constitutional issue; (2) a question of “general law ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’” ...; (3) the drawing of jurisdictional lines between two or more competing specialized tribunals; and (4) a “true question of jurisdiction or vires” (paras. 58-61). On the other hand, reasonableness is normally the governing standard where the question: (1) relates to the interpretation of the tribunal’s enabling (or “home”) statute or “statutes closely connected to its function, with which it will have particular familiarity” (para. 54); (2) raises issues of fact, discretion or policy; or (3) involves inextricably intertwined legal and factual issues (paras. 51 and 53-54). 


Put another way, the Court applied the "defaults" and nothing but the defaults.  The result was a refeshingly succinct standard of review analysis.  With luck, this case marks a clear statement of the implications of Dunsmuir, putting to rest any doubts about that case's true impact on the standard of review analysis.