Perhaps The Patent Unreasonableness Standard Is Not Quite Dead?

In Dunsmuir v.New Brunswick, 2008 SCC 9, at para. 34, the Supreme Court of Canada determined that there should now only be two standards of review of an administrative tribunal – correctness and reasonableness. The two variants of reasonableness review, reasonableness simpliciter and patent unreasonableness, are now collapsed into a single form of “reasonableness” review: Dunsmuir at para 45.

Despite that fairly clear direction by the Supreme Court, the issue of what deference ought to be given to administrative decisions seems to still raise issues. Thus, in today’s decision in Mulligan v. Laurentian University, 2008 ONCA 523 the Court of Appeal seems (perhaps only seems) to be applying a standard of more that mere reasonableness to an academic decision. (If reasonableness is to be decided on a case by case basis with more and less deference given depending on the decisionmaker how does that differ from having differing standards for review?). Perhaps that is sensible but it does suggest the concept of reasonableness simpliciter and patent unreasonableness is not yet quite irrelevant.

The Court holds:

[20] Third – however the funding policy is characterized,- the standard of review to be applied is whether the University acted reasonably in making the discretionary admission decision that it did: Dunsmuir v. New Brunswick, 2008 SCC 9. In this regard, it has long been accepted that courts should be reluctant to interfere in the core academic functions of universities: see Baxter v. Memorial University of Newfoundland, 1998 St. J. No. 2430 (unreported); O’Reilly v. Memorial University of Newfoundland [1998] N.J. No. 235; Dawson v. The University of Ottawa, [1994] O.J. NO. 1148 ( Div. Ct.).

[21] Here, the decision whether to admit the appellants to the Department of Biology M.Sc. Program was a decision going to the core of a university’s functions. As the Divisional Court observed: “The decision to admit or not is discretionary; one made daily in an academic environment.” We are satisfied that the decision was made reasonably – particularly given the need for the Department to respond to the concerns registered by OCGS regarding its graduate program – and that the Divisional Court did not err in affording that decision considerable deference, as do we.