Executive Summaries May 10, 2018

What We Should Retain from the Recent Decisions of the Supreme Court of Canada

Three important findings stand out in recent judgments of the country's highest court. Be aware of these key elements when you're appealing from a decision in administrative law.

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.

You would also like

BCF Recognized in the 2025 Edition of Benchmark Litigation Canada

Lexology

6 BCF Professionals Recognized in Lexology Index Canada 2024

Entrepreneurship forum

Entrepreneurship Forum: Vision 2025

BCF Stands Out in Legal 500 Canada

Tech Forum 360

Tech 360 Forum: Growth and Inflection Points

Prospera: Québec’s Economic Barometer

Canada's Best Managed Companies: BCF Recognized for 17th Consecutive Year

livres-echelle

Jean Piette contributes to a landmark case before the International Court of Justice

papier signe

Novolecs Acquires Assets of Stace in Québec

court

Victory for Ressources Utica and its Subsidiaries: The Superior Court Suspended the Application of Provisions of a Provincial Law Adopted in 2022

Victory for Développements St-Antoine as the Expropriated Party is Fully Compensated

new-partners-2024

BCF Has Appointed Three New Partners

andre-ryan-client-choice

André Ryan Wins the Prestigious Client Choice Awards for 2023

Who’s Who Legal : 5 BCF Professionals Stand Out

BCF extends its Partnership with the Canadian Association of Black Lawyers to a Third Year

Annie-Claude Trudeau and Audrée Anne Barry, Co-Authors of the 2023-2024 Annotated Code of Civil Procedure

house-near-river

Watercourses and Ditches: What are the Risks of Building your Home Close to One of Them?

newspaper

Le Devoir is now a Registered Journalism Organization

Chambers Canada Ranking: Five of our Lawyers Recognized

Photo of Julie Doré

Julie Doré Takes Over Management of The BCF Business Law Firm

Three Up-and-Coming Lawyers Join BCF

Prospera – Quebec Economic Barometer

34 Professionals Stand Out in the Canadian Legal Lexpert Directory 2023

Julien Tricart, Member of the Meritas Sports Law Group

Pride Month: Let’s Create an Inclusive Future

Distillerie des Cantons-de-l'Est inc. Wins Its Case Before the Commission de Protection du Territoire Agricole du Québec

Canada’s Best Managed Companies: BCF Recognized for 16th Consecutive Year

Carbon Neutrality in Canada – Where Are We Now?

Businesses: Why Should You Hire an Environmental Mediator?

Directors and Officers: What Is Your Environmental Liability?

Every Woman Counts

Strategic Forum on the Role Played by Businesses in the Fight Against Climate Change

BCF Partners with the Canadian Association of Black Lawyers to Promote Diversity in Québec Law Faculties

BCF's More Inclusive Approach: Improved Parental Leave

Shaun E. Finn Appointed to the Superior Court of Québec

How to Ensure a Business Succession?

Athos Commemorative Services Acquires Les Espaces Memoria Inc.

Successful Case of Disguised Expropriation in Relation to a Heritage Protection By-Law

Strategic Forum on Market Consolidation and Business Succession

Superior Court of Québec Addresses Reasonableness of Municipal Bylaws

BCF Partners with the Clinique Juridique de Saint-Michel to Promote Access to Legal Studies for Young People from Diverse Communities

The Superior Court Rules: A Municipality Cannot Prohibit Hunting on its Territory

Marie-Julie Lafleur Honoured as a Lexpert 2022 Rising Star

The Superior Court Has Invalidated a Municipal By-Law of the City of Mascouche

Must the City Pay for Storm Drain Repairs on Private Property Threatening to Collapse?

BCF Recognized in Legal 500 Canada Directory

The Illusory Discretion in Managing Culverts and Waterway Congestion

Isabelle Landry and Audrey-Anne Béland, Co-authors of the Union des Municipalités du Québec’s Guide about Tourist Accomodation

Ocean Group Acquires a Major Shipyard and Increases its Capacity

Fight Against Future Pandemics: Jean Piette Appears Before the WHO

Five of our Lawyers Stand out in the 2023 Edition of the Chambers Canada Ranking

43 BCF Professionals Stand Out with 78 Nominations in the 2023 Editions of Best Lawyers in Canada and Ones to Watch

Why Did the Superior Court of Québec Stay Some Sections of Bill 96?

Do Municipalities Have the Authority to Limit the Distribution of Printed Publicity within their Boundaries?

Can a General Contractor Significantly Increase Work Costs?

Seven New Lawyers Join BCF

Adoption of Bill 96: Be Ready

Pride Month: The Value of Diversity

BCF, the 3rd Largest Law Firm in Québec

Canada’s Best Managed Companies: BCF Recognized for 15th Consecutive Year

Expropriation Compensation: How Far Does the “Highest and Best Use” Notion Extend?

Payment on Payment Clauses: Do You Know Your Rights?

BCF Stands Out in Benchmark Litigation Canada's 2022 Edition

lexpert

22 Professionals Stand Out in the Canadian Legal Lexpert Directory 2022

Court of Appeal Rules in Favour of Ville de Mont-Saint-Hilaire’s Real Estate Developers

Is Global Welfare Contingent on Deadlines?

How to Fight Back Against Pandemics

Plan and Specification Errors: Who’s to Blame?

Favourable Decision for Québec Oil and Gas Companies

Who’s Who Legal 2021: 6 Partners Stand Out in Canada and Internationally

What Legal Recourse Do Citizens Have When Bothered by Municipal Work?

Important Victory for Développements St-Antoine in Fair and Equitable Expropriation Indemnity Case

A Major Transport Logistics Company Acquires SGT2000

"Acquisition, Expropriation and Tramway: How it Works" with Audrey-Anne Béland

Chambers Canada 2022: BCF Earned Band 1 Ranking in Québec for Corporate and Commercial Law

46 Lawyers of BCF Stand Out with 83 Recognitions in the 2022 Editions of Best Lawyers in Canada and Ones to Watch

Seven New Lawyers Join BCF

Victory in a Municipal Tax Dispute

Success in a Disguised Expropriation Case

Dismissal of a Class Action: How Far Does Police Liability Extend When Protesters Are Arrested?

Ouellet Group Acquires Roy Auto Group

Our Partners Recognized in the 2021 Edition of Benchmark Litigation Canada Rankings

"A Risk of Expropriation That is Costly" with Isabelle Landry

Reform of the Environmental Permitting Regime: What You Need to Know

What Can Be Learned from Jurisprudential Developments in Public Contracts?

escalier

BCF Welcomes Seven New Lawyers

Highlights of the By-Law for a Diverse Metropolis

Supreme Court of Canada Takes Another Step towards the Guiding Principle of Good Faith in Contract Performance

Major Renovations: Avoid Having Your Acquired Rights Go To Dust

Minor Derogations: Major Victory in the Agricultural Field

Are you Aware of the Grey Areas for Minor Variances?

An ever denser metropolis and the "Not in my backyard" syndrome

Regulations under Bill 102: A New Approach Based on the Environmental Risks of Each Project

Expropriation Demystified: What You Need To Know In Case of Expropriation Notice

Is It Possible to Successfully Challenge a COVID-19 Statement of Offence?

23 BCF Partners Ranked in the Canadian Legal Lexpert Directory

36 Lawyers of BCF Stand Out with 52 Nominations in the 2021 Edition of Best Lawyers in Canada

Isabelle Landry and Pierre Delisle, Co-Authors of Les projets immobiliers et les municipalités

Corporate Environmental Governance in Quebec: Penalties and Defences

Quebec City Tramway Project: What Are the Rights of the Expropriated?

How to Avoid Penal Liability in Your Post-COVID Activities

Bill 61 on Economic Recovery: What Are the Impacts on the Environmental Obligations of Businesses?

Criminal Offences in the Construction Industry: The Hidden Consequences of a Guilty Plea and Good Practices

Will Public Bodies Join this Era of Local Procurement?

Businesses’ Environmental Obligations at a Time of Economic Reopening

Reform of the Environmental Permitting Regime in a Context of Economic Reopening

COVID-19: Solutions to Address this Situation

COVID-19: What Are the Implications for Corporate Environmental Obligations

Frequently Asked Questions about the Tramway Project

COVID-19: Impact of Measures Imposed By the Government of Québec on Municipalities

A Major $145 Million Investment for Alliance Magnesium

Municipal Law in Your Real Estate Transactions

Tourist Accommodation and Airbnb: Where Do We Stand?

BCF Names 16 New Partners for Its 25th Anniversary

Remember to Plan for Land Rehabilitation or for Management of Contaminated Soil in Your Projects

Are You a Leader or a Follower?Results of the Innovation Survey

The Autorité des Marchés Publics: What You Need to Know Regarding Major Projects and Request for Proposals

Environmental Impacts of Major Construction Projects: 5 Takeaways to Conduct Your Major Projects with Due Diligence

Infrastructure and Major Projects: Dare to Think Big

Will Your Construction Project Be Subject to an Environmental Assessment?

Obtaining Environmental Permits: Where to Start?

Taking the Powers of Cities Into Account When Developing Your Projects

Chambers Canada 2020: BCF Recognised in Corporate and Commercial Law

Strategic Forum on Innovation

Best Lawyers in Canada: 22 BCF Lawyers Recognized

Pierre Delisle, Author of the 2nd Edition of La fiscalité locale : municipale, scolaire et régionale

16 BCF Partners Recognized in the Prestigious Canadian Legal Lexpert Directory

Cannabis and cryptocurrency businesses under the gaze of the Quebec Lobbyists Commissioner

Can Municipalities Go this Far in their Rules Prohibiting Cannabis Use?

Municipal By-Laws in the Airbnb Era

Get the latest thought leadership