Dunsmuir interpreted by the Supreme Court of Canada

The crucial Supreme Court of Canada decision in Dunsmuir v. New Brunswick, 2008 SCC 9 made clear that there was deference required to administrative decisions and that there were only two standards of review: correctness and reasonableness.

Last week's decision in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 explains and clarifies Dunsmuir.

A summary of the Court's decision follows:

Dunsmuir recognized that, with or without a privative clause, a measure of deference has come to be accepted as appropriate where a particular decision has been allocated to administrative decision makers in matters that relate to their special role, function and expertise.  A measure of deference is appropriate whether or not the court has been given the advantage of a statutory direction, explicit or by necessary implication.   

A legislature has the power to specify a standard of review if it manifests a clear intention to do so.  However, where the legislative language permits, the court (a) will not interpret grounds of review as standards of review, (b) will apply Dunsmuir principles to determine the appropriate approach to judicial review in a particular situation, and (c) will presume the existence of a discretion to grant or withhold relief based in part on Dunsmuir including a restrained approach to judicial intervention in administrative matters. 

Dunsmuir establishes that there are now only two standards of review:  correctness and reasonableness.  The relevant factors include:  (1) the presence of a privative clause; (2) the purpose of the IAD as determined by its enabling legislation — the IAD determines a wide range of appeals under the IRPA and its decisions are reviewable only if the Federal Court grants leave to commence judicial review; (3) the nature of the question at issue before the IAD — Parliament has provided in s. 67(1)(c) a power to grant exceptional relief and this provision calls for a fact dependent and policy driven assessment by the IAD itself; and (4) the expertise of the IAD dealing with immigration policy.  These factors must be considered as a whole, bearing in mind that not all factors will necessarily be relevant for every single case.

Where the reasonableness standard applies, it requires deference.  Reviewing courts ought not to reweigh the evidence or substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within a range of reasonable outcomes. 
James Morton
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