Dunsmuir v. New Brunswick, 1 S.C.R. 190; 2008 SCC 9, is the leading Supreme Court of Canada

Supreme Court of Canada

The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

 decision in Canadian administrative law

Canadian administrative law

Canadian administrative law is the body of law that addresses the actions and operations of governments and governmental agencies. That is, the law concerns the manner in which courts can review the decisions of administrative decision-makers such as a board, tribunal, commission, agency or minister...

 on the topic of substantive review and standards of review. The decision is notable for combining the reasonableness (simpliciter) and patent unreasonableness standards of review into a single reasonableness standard.

Facts

David Dunsmuir was hired by the Department of Justice of the Province of New Brunswick as of February 25, 2002. His work was unsatisfactory to his employer and he received multiple written notices to this effect. Ultimately, his employer decided to terminate his employment as of December 31, 2004. On August 19, 2004, Dunsmuir was informed in a letter that his employment was being terminated. As his employment was not being terminated 'for cause', Dunsmuir was granted several months of paid leave with which to find a new job.

Dunsmuir grieved his dismissal in a letter sent to the Deputy Minister on September 1, 2004. When his grievance was denied, he gave notice that he would refer the grievance to adjudication. An adjudicator was selected by the agreement of both parties. The adjudicator held that Dunsmuir had been denied procedural fairness in the manner of his dismissal and that the dismissal was thus void ab initio; the adjudicator ordered Dunsmuir to be reinstated as of August 19, 2004. On judicial review to the Court of Queen's Bench, the decision was overturned. That decision was then appealed to the Supreme Court of Canada.

Trial Court

The trial court took an application for judicial review and said the correct standard of review is correctness against the adjudicator's decision because the adjudicator did not have jurisdiction to inquire. The Court of Appeal said that Dunsmuir received procedural fairness because of the hearing before the adjudicator and maintained the 8 month decision.

Court of Appeal

The Court of Appeal said that reasonableness was the correct standard and that the adjudicator was unreasonable because the employer dismissed the at pleasure employee and that the common law rules did not require any more procedural fairness that Dunsmuir received.

Statement of the Law

The court begins this decision by canvassing the recent history of administrative law decisions on the standard of review, including CUPE (1979), Crevier v. Quebec

Crevier v. Quebec

Crevier v. Quebec, [1981] 2 S.C.R. 220 is a leading Supreme Court of Canada decision in administrative law. The Court had to decide whether a Quebec-created Professionals Tribunal was unconstitutional due to being a "s. 96 court" according the Constitution Act, 1867, whose members can only be...

, Southam v. Canada

Canada (Director of Investigation and Research) v. Southam Inc.

Canada v. Southam Inc., [1997] 1 S.C.R. 748 is a leading decision of the Supreme Court of Canada on judicial review...

 and Pushpanathan v. Canada. The court notes the general unworkability of the current state of the judicial review of administrative decisions in Canada. In response, the court decided to dispense with having three standards of review (correctness, reasonableness (simpliciter), and patent unreasonableness). Instead, the court decides that henceforth there shall be only two standards: correctness and reasonableness. Additionally, the decision to apply a correctness standard will no longer be based on 'jurisdictional' issues.

The court emphasized the use of precedent to simplify the issue of standard of review. To determine the standard of review, courts are to look first to the existing jurisprudence to determine the level of deference given to a decision maker over a particular question. If the existing jurisprudence is not determinative of the matter, a court should rely on the following factors to determine which standard to use:

• A privative clause: this is a statutory direction from Parliament or a legislature indicating the need for deference.
• A discrete and special administrative regime in which the decision maker has special expertise (labour relations for instance).
• The nature of the question of law. A question of law that is of “central importance to the legal system . . . and outside the . . . specialized area of expertise” of the administrative decision maker will always attract a correctness standard (Toronto (City) v. C.U.P.E., at para. 62). On the other hand, a question of law that does not rise to this level may be compatible with a reasonableness standard where the two above factors so indicate.

Application to the Facts

When this new analytical framework was applied to the facts of the Dunsmuir case, the court determined that a reasonableness standard was the correct standard on which to judge the administrative decision. The standard of reasonableness means the decision maker must be given deference. The court also ruled that the decision failed to meet this standard; it was unreasonable.

External links

• Full decision on CanLII
  CanLII
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