Determining the appropriate standard of review of a delegate’s decision is a crucial, and potentially confusing, aspect of administrative law, but something that must be performed at the beginning of every appeal or application for judicial review. This post provides an overview of the issues surrounding this complex area of the law.
Administrative Law
BY: David Philip Jones, Anne S. de Villars and Dawn M. Knowles
IV.1-11: Standard of Review
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IV.1: General Principles
See Canadian Abridgment: ADM.IV.1 Administrative law | Standard of review | General principles
Standard of review refers to the degree of intensity with which the courts will examine the decision of a delegate, whether on an appeal or an application for judicial review. In other words, it refers to the extent to which the court will defer to the decision of the delegate.1
Determining the appropriate standard of review is a discrete step which must be performed at the outset of every administrative law case, whether an application for judicial review or appeal.2 It is not sufficient for the reviewing court to simply conclude that the delegate's decision was correct or incorrect. Nor is it sufficient for the court to decide first what it wants to do with the application for review and then ex post facto identify a standard of review which would achieve this result.3
Standards of review analysis applies both to appeals and to applications for judicial review.4
IV.2: Two Standards of Review: Reasonableness and Correctness
See Canadian Abridgment: Canadian Abridgment: ADM.IV.2 Administrative law | Standard of review | Correctness; ADM.IV.3 Administrative law | Standard of review | Reasonableness; ADM.IV.4 Administrative law | Standard of review | Miscellaneous law
There are two common law standards of review: correctness and reasonableness.1 Reasonableness is one standard, not a spectrum, and there are not varying degrees of reasonableness.2
The meaning of reasonableness is whether the outcome falls within a range of possible acceptable outcomes which are defensible in respect of the facts and law. So long as the process and outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome if the reasonableness standard applies.3
To be reasonable, a decision must relate to a matter within the delegate's statutory authority and the delegate must apply the correct legal tests to the issues before it.4
Sometimes the applicable standard of review is prescribed by statute. Some statutes stipulate a third standard, "patently unreasonableness" which is even more deferential than the standard of reasonableness.5
Where jurisprudence has already determined in a satisfactory manner the standard of review applicable to a particular delegate's decision on a particular matter, it is not necessary for the court to undergo a new standards of review analysis. The court can simply apply the standard set out by precedent. However, the issue and statutory context in the present case must be the same as in the precedent.6
Where the statute is silent on standard of review, and precedent has not already identified the correct standard of review, a court must undergo a full standard of review analysis which entails considering various factors to determine the applicable standard of review to be applied in the particular circumstances.7
The principal factors to be considered in determining the applicable standard of review in a particular case are: (1) whether there is a privative clause or right to an appeal; (2) the comparative expertise of the court and the delegate about the particular matter; (3) the purpose of the delegate's enabling statute and the particular provision in question; and (4) the nature of the particular problem, that is, whether it is a question of law, fact, or mixed law and fact. These four factors are often collectively referred to as the Pushpanathan factors.8
In determining the proper standard of review, the central question is the intention of the legislature, not only its intention in conferring the particular jurisdiction on the particular delegate in question but also its intention about what the court is to do when it is reviewing the particular matter in question.9
In general, the correctness standard will be applied to jurisdictional questions and questions of law.10 However, it is not always easy determining whether a question is "jurisdictional" in order to invoke the correctness standard.11
Correctness will usually apply to questions regarding the division of powers between Parliament and the provinces, and other constitutional and Charter questions, true questions concerning a delegate's jurisdiction, questions regarding the jurisdictional lines between two or more competing specialized delegates and questions of general law that are both of central importance to the legal system as a whole and outside the delegate's specialized area of expertise.12
The reasonableness standard generally will be applied to questions of fact, discretion and policy, as well as questions where the legal and factual issues are intertwined and cannot be readily separated.13
In addition, a reasonableness standard will usually apply where a delegate is interpreting its own enabling statute or statutes connected to its function or has expertise in the application of a general common law or civil law rule in relation to its specific statutory context.14
However, in each case the standard of review analysis, using the four Pushpanathan factors, must be conducted and there are no hard and fast rules about what standard will apply in any given case.15
Once the court conducts the standards of review analysis and determines a particular standard of review, it must actually apply that standard. For instance, it cannot conclude reasonableness is the proper standard and then go on to actually apply the correctness standard.16
IV.4: Distinction Between the Standard to be Applied by the Delegate at First Instance and the Standard of Review to be Applied by the Courts
See Canadian Abridgment: ADM.IV.4 Administrative law | Standard of review | Miscellaneous
There may be a difference between the standard which must be applied by the delegate in doing its job and the standard of review which must be applied by the reviewing court.1
IV.5: Standard to be applied by Higher Court to Lower Court’s Choice of Standard
See Canadian Abridgment: ADM.IV.4 Administrative law | Standard of review | Miscellaneous
The choice of standard of review is to be done correctly by the chambers judge; no deference is to be shown by a higher court to the standard selected by the lower court judge. In addition, a higher court can substitute its own view of how the applicable standard is to be applied.1 No deference is to be shown by the higher court to these determinations by the lower court.
IV.6: Different Judges May Select Different Standards or Apply Same Standard Differently
See Canadian Abridgment: ADM.IV.1 Administrative law | Standard of review | General principles
There are many examples of cases where various judges disagree about the applicable standard of review1 and where judges agree on the standard but apply the standard differently to reach different results.2
IV.7: Different Standards of Review May Apply to Different Issues
See Canadian Abridgment: ADM.IV.1 Administrative law | Standard of review | General principles
Different standards of review may apply to different issues in the same case.1
IV.8: The Application of the Standard of Review Analysis to Discretionary Decisions
See Canadian Abridgment: ADM.IV.4 Administrative law | Standard of review | Miscellaneous; ADM.VI.6 Administrative law | Discretion of tribunal under review | Miscellaneous
It is not entirely clear whether a standard of review analysis is required by courts reviewing discretionary decisions, although most cases support the principle that a standard of review analysis is required.1
IV.9: The Standard May Change Over Time
See Canadian Abridgment: ADM.IV.1 Administrative law | Standard of review | General principles
The appropriate standard of review for a particular statutory provision may change over time, given supervening events.1
IV.10: Standards of Review and Administrative Appellate Bodies
See Canadian Abridgment: ADM.IV.4 Administrative law | Standard of review | Miscellaneous; ADM.XII.10.h Administrative law | Practice and procedure | Practice on appeal | Under statutory review provisions
It is not clear whether the standards-of-review analysis is required when a statute provides for an appeal from a delegate's decision to another administrative body rather than to a court. Some cases conclude the standards of review analysis is required and that deference may or may not be owed to the lower delegate. According to these cases, the appellate body must conduct the standards of review analysis to determine if deference is owed to the lower delegate in the circumstances.1
According to this line of cases, whether or not a standards of review analysis is required to be conducted by the administrative appellate body depends in part on the exact nature and scope of the appeal granted by the legislation and whether the appeal is a complete hearing de novo. The mere fact that legislation provides a right of appeal does not mean that an appellate administrative body should always and necessarily apply the correctness standard, rather than in at least some circumstances deferring to the initial delegate.2
In particular, some courts have identified certain factors which should be considered in determining whether the administrative appellate body should defer to the initial decision including: (a) the respective roles of the statutory delegates, as determined by interpreting the enabling legislation; (b) the nature of the question in issue; (c) the interpretation of the statute as a whole; (d) the respective expertise and advantageous position of the delegates; (e) the need to limit the number, length and cost of appeals; (f) preserving the economy and integrity of the proceedings before the initial delegate; and (g) other factors that are relevant in the particular context.3
However, other cases suggest that deference to the lower decision-maker is never owed and, therefore, the standards of review analysis is not required. This line of cases essentially takes the position that correctness is always the proper standard when an administrative appellate body is reviewing the decision of a lower decision-maker so that no analysis is required.4
IV.11: The Distinction Between the Standard of Review and the Content of the Duty of Fairness
See Canadian Abridgment: ADM.IV.4 Administrative law | Standard of review | Miscellaneous; ADM.III.1.b Administrative law | Requirements of natural justice | Right to hearing | Duty of fairness
It is also not clear whether a standards of review analysis is required for questions relating to whether there has been a breach of procedural fairness. The test in procedural fairness cases is whether a reasonable person, reasonably apprised of the facts, would reasonably apprehend that the procedure used was not fair. Cases are not clear or consistent on whether fairness can be equated with "correctness" or "reasonableness" and whether there is justification for deferring to a delegate's use of an unfair procedure.1
The issue of whether a decision is reasonable often overlaps with the issue of whether a delegate's reasons are adequate. However, the two concepts are not the same. To be reasonable, a decision must meet the standard of justification, transparency and intelligibility. On the other hand, reasons are inadequate where there is no line of analysis within them that could reasonably lead the delegate from the evidence to the conclusion it arrived at. That is, taken as a whole, the reasons must be tenable, grounded in the evidence, and supporting of the decision.2
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