Judicial Review

The recent Supreme Court of Canada decision in Dunsmuir v. New Brunswick  2008 SCC 9 is of great importance in judicial review matters.

Put simply, the Court held that there are only two standards of review: correctness and reasonableness. 

When applying the correctness standard in respect of jurisdictional and some other questions of law, a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question and 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. 

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable.  Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision making process and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.  It is a deferential standard which requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system. 

The determination of what standard to apply depends on the nature of the question decided and whether privative clauses exist. If the question decided is one within the scope of the administrative body's expertise then the reasonableness standard will apply.
James Morton

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