The Standard of Review: Simplifying Reasonableness by Tom Hakemi


The Supreme Court of Canada recently undertook a major reassessment of the approach courts should employ in reviewing the decisions of administrative tribunals. The Supreme Court's decision will have an impact on a wide variety of administrative tribunals, including securities commissions and labour relations boards.

The Supreme Court had previously held that the appropriate standard of review was to be found on a spectrum. At one end, deference to the decision below was lowest, and the reviewing court would reverse the decision below if it found that it was incorrect. This was known as the "correctness" standard of review. At the other end of the spectrum, where the level of deference was highest, the appeal court would not reverse the decision below unless it found the decision to be "patently unreasonable." Between the correctness standard of review and the patently unreasonable standard lay the standard of "reasonableness simpliciter," where deference was moderated.

In Dunsmuir v. New Brunswick, the Supreme Court departed from this earlier jurisprudence and acknowledged that,

"[T]he system of judicial review in Canada has proven difficult to implement." After considering "both the number and definitions of the various standards of review, and the analytical process employed to determine which standard applies in a given situation," the Court concluded that,

"There ought to be only two standards of review: correctness and reasonableness."

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