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Dunsmuir v New Brunswick - 2008

-all exercises of public auhority must find their source in law-by acting outside their authority the ADM transfresses the principle of the ruleof law-judiciary's role: to ensure legality, fairness and reasonableness of the

administrative process and its outcomes-thus when assessing standard of review: what authority was intended to be givento the ADM? ie scope of decision making power and jurisdiction conferred bystatute

rule of law maintained by : courts having final word on jurisdiction; andlegislative supremacy assured by : standard of review being determined byreference to legislative intent

*legisl action cannot remove court's power to review for compliancew/constitutional limits

Not even with a privative clause (Executors of Woodward Estate case)-based in constitution ss96-100 therefore guaranteed inherent power of the courts(Crevier)

2 standards of review : correctness and reasonableness

STEP 1: **write** there may be case law to follow that indicates which standardto apply, and the analysis need not be repeated (Dunsmuir), [insert case law ifyou have it], otherwise.... (if not in one of these categories go to step 2)

Categories:

When to Use Reasonableness Standard: for questions of fact for questions of discretion for questions of policy where legal issues cannot be easily separatedd from the factual ones and some legal issues tribunal interpreting its own statute / statutes closely related to its function even for interpretation of an external statute (where tribunal has

developped expertise in applying the law/ rule in a specific statutory context(Toronto v CUPE) * good example: adjudication in labour law

When to Use Correctness Standard: for most legal issues for constitutional questions re division of powers (Westcoast Energy) other consitutional issues are subject to correctness review because of

special role of s96 courts as interpreters of the Constitution (Martin) for true determinations of vires / jurisdiction (ie whether tribunal's

statutory grant of power has authorised it to decide the particular matter)

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eg. United Taxi Drivers v Calgary whether municip had power to enact by-lawslimiting number of taxi plates where question is one of general law (ie not just the enabling statute) and is

of central importance to the legal system and outside expertise of the ADM.eg. Toronto v CUPE question dealt with complex CL rules and conflictingjurisprudence on the doctrines ofres judicata and abuse of process.

jurisdictional lines btw 2 or more competing specialized tribunals (ReginaPolice Assn Inc v Regina Board of Police Commrs)

STEP 2: otherwise....

Is it Correctness or Reasonableness?

**Write** ...a proper Standard of Review Analysis requires the Court to Consider:1. is there a privative cause? **Write** Parlt / Legisl is indicating need fordeference2. is there a discrete and special administrative regime?

3. does the ADM have special expertise?4. what is the nature of the question? **write** the nature of the legal question isnot one that is of central importance to the legal system and outside thespecialized area of expertise of the ADM this suggests the reasonablenessstandard should apply (Dunsmuir).

Reasonableness

Procedurally : justification, transparency, and intelligibility in decision making

pocessSubstantively : whether decision falls w/in a range of possible, acceptableoutcomes that are defensible on the facts and the law

Conclusion if this is the standard;**Write** this deferential standard requires that the courts pay respectfulattention to the reasons offered or which could be offered in support of a decision

-those working day to day to implement a stat scheme may have betterexpertise or field sensitivity to the nuances of the legislative intent

Reasonableness analysis of the d-m process: In this case the decision makingprocess was justified, intelligble and transparent

Reasonableness analysis of the decision: In this case the result was within therange of possible, acceptable outcomes which are defensible in respect of thefacts and the law

Correctness

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maintained for jurisdictional and some other questions of law-to promote just decisions-to avoid inconsistent unauthorized application the of law

*write* the standard is correctness.... [X's decision] must be the correct decisionfor the sake of consistency in applying the law. The cout must show [X] no

deferrence and undertake its own analysis of the question.

***

In this case, whether provisions combined to auth adjudicator to inquire intoemployers reasons for dismissing = question of law.so, in light of privative clause, the stat regime, and the nature of the question oflaw, was correctness required?full privative cause --> strong indic for reasonableness requirementstat regime --> Court has recognized relative expertise of adjudicator in

interpreting collective agreements and that their decisions be shown deference(CUPE; Safeway; Voice Construction; Dunsmuir)

(*Adjudicator was appointed ad hoc (may indicate non-expert) but in labourrelations context they can be assumed to have expertise if appointed under thePSLRA.) (when selected by mutual agreement of the parties more deference)

legislative purpose of the regime --> time/cost effective method for resolvingemployment disputes the remedial nature of the regime + provision for timelyand binding settlement of disputes suggests reasonableness appropriate.

Application of the Reasonableness StandardProcess: reasoning process was deeply flawedResult: construction of statute outside the range of admissable statutoryinterpretations

adjudicator's reasoning was fatally flawed: he adopted an approach that wasfundamentally inconsistent with the employment contract - which cannot beignored

***

Procedural Fairness

-public decision makers under duty to act fairly when making decisions that affectrights, privilegs or interests of an individual (Cardinal v Dir of Kent Inst)

-where a public employee is employed under a contract of employment regardless

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of their status as a public office holder, the applicable law governing theirdismissal is the law of contract, not general priniciples arising out of public law

-Knightnow stands for the principle that there is always recourse available wherethe employee is an office holder and the applicable law leaves them without anyprotection whatsoever when dismissed

-adjudicators have jurisdiction to consider PF where such a duty exists BUT theproper approach: FIRST identify the nature of the employment relationship andthe applicable law -and where relationship is contractual no public law duty of PF is engaged and norole for PF in resolving the greivance

-although the law makes a sharp distinction btw public office holder / contractualemployee in theory, in practice difficult to tell them apart

-most civil servants and public officers are employed under contract

-if the position of their employment cannot be modifie by agreement then notunder contract(eg. Ministers of the Crown, constitutionaly defined state roles)

-private employment relationships governed by law of contract

-dismissal of pubic office holder under delegated stat auth will be subject to publiclaw controls like any other admin decision (Knight) (unless there is a contractwhich means only private law rights come into play)

-where the terms of the contract of employment are expressly agreed to, it will be

assumed that proccedural fairness was dealt with by the parties --if the contract is silent then fundamental terms will be supplied by the CL-in particular that dismissal must either be for just cause or on reasonable

notice

-a public athority cannot contract out of its statutory duties must abide by statrestr on its exercise of discretion as an employer regardless of the terms of anempl contract and failure does give rise to a public law remedy

-sometimes a duty of PF is imposed on a contractual employment relationship bynecessary implication from the statute -

eg. Malloch v Abeerdeen Corp applicable statute reqd 3 weeks notice be givento a teacher of motion to discuss their dismissal this necessarily implied a rightfor the teacher to make representations at the meeting where the discussion tookplace

-there is no remedy for breach of reinstatement at CL but breach of PF does notprevent d-m from retaking the decision to dismiss (that time following the properprocedure)

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Conclusion: if civil servant and stat provides rules of contract govern dismissal (orthere is an empl contract in place) then no need to address PF unless otherprovisions in statute sugget either expressly/impliedly that certain additionalprocedures are to be followed.

In this case , employer fully wihtin their right to dismiss emplee w/ 4 months' pay

in lieu of notice w/o a hearing.

Binnie J

a labour board is better placed than the court to interpret the intricacies ofprovisions in a labour stuatue governing replacement of union workers (CUPE vNB Liquor Corp)

3 basic legal limits on administrative discretion (to which correctness standardapplies):

1. constitutional issues allocated to the courts via s96

2. whether or not the power which the ADM purports to exercise exists ANDquestions of general law the only exception being provisions of theenabling statute and closely related statutes which require the expertise ofthe administrative decision maker (eg labour board)

3. PF reqts

-future predictions of the change to 2 standards of review:

-there are degrees of deference:

-minister's decision under the Extradition Act to surrender a fugitive --> extreme

legislative end of admin decision making (Idzia v Canada)-ministerial delegate making deportation decision according to ministerialguidelines was accorded considerably less deference (Baker)-counter-terrorism measures - if the people are to accept the consequences ofsuch decisions, they must be made by persons they have elected and whom theycan remove, ie more deference (Suresh v Canada)-adjudicative tribunal called on to approve pipelines based on pubic convenienceand necessity more deference (Westcoast Energy v Canada (NEB))-decisions in the public interest - more deference-professional body determining appropriate sanction for member's misconduct less deference (Law Soc. NB v Ryan)

-the judge's role is to identify the outer boundaries of reasonable outcomes withinwhich the ADM is free to choose

(look for : relevant considerations not taken into account and irrelevantconsiderations taken into account)