What we should retain from the recent decisions of the Supreme Court of Canada

May 10th, 2018

By Simon Pelletier, Partner, Lawyer and Engineer

The analysis of the Supreme Court of Canada’s major decisions regarding administrative law in 2017 and 2018 (in part) highlights three important findings.

1. In general, judges do not agree on the applicable standard of review

Despite the implementation of a simplified approach by Dunsmuir decision, the overwhelming majority of the Supreme Court’s decisions systematically lead to the drafting of dissenting or concurring reasons regarding the standard of review applied to the facts of the case.

Indeed, all of the Supreme Court judges agreed on the standard to be applied in only 2 of the 13 decisions analyzed: Ktunaxa Nation v. Colombie-Britannique and Association des juristes de justice v. Procureur général du Canada.

The analysis of the standard to be applied results for a majority of decisions from the application of the presumption of deference established in Dunsmuir. Additionally, analysis of dissenting or concurring grounds illustrates rather that the issues of the decision maker’s jurisdiction and interpretation of the Enabling Act are regularly used as grounds in order to apply the correct decision standard.

2. Although poorly established, the method of possible outcomes in fact and law is the most widely used

The analysis of grounds regarding the reasonableness of the decision rendered results, in a large majority, from the application of the method established in Dunsmuir, namely, the method of possible outcomes in fact and law.

However, many of the grounds, whether dissenting, concurring, or even majority, differ from the reasonableness method advised in Dunsmuir and use an alternative method to establish unreasonableness.

One of the most frequently noted methods in the Supreme Court’s recent decisions consists of establishing that the interpretation given by the decision-maker is quite simply unreasonable without analyzing in fact if the interpretation might otherwise constitute one of the possible outcomes-in-law in accordance with the method established in Dunsmuir.

3. Analysis of the expertise between the decision-maker and the courts of general jurisdiction is often at the heart of dissenting grounds

It should be noted that the analysis of these decisions also highlights that certain dissenting and concurring grounds seem to provide a more in-depth analysis of the expertise required to give deference to the decision-maker. These grounds lead to an analysis of relative expertise between the decision-maker and the courts of general jurisdiction, an approach that, quite rightly, was used extensively between the years 2000 to 2007 by the Supreme Court, notably in the Pushpanathan decision.

To learn more about the analysis of the Supreme Court of Canada’s decisions, don’t hesitate to contact our Administrative, Environmental & Municipal strategic team. They will guide you in reviewing and revising administrative court decisions.