18 August 2009

Standards of Review: Canadian-Style Deference and Lessons For The Antipodes

Tomorrow I depart for a 6 week trip abroad, courtesy of the Canadian Government (in particular, their Canadian Studies programme), to think about, chew the fat about, and write about some Canadian administrative law. Below is the project summary. More about the substance and progress when I'm over there and I've got my head around it...

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"Standards of Review: Canadian-Style Deference and Lessons For The Antipodes"

Judicial review is the main formal mechanism within Anglo-Commonwealth constitutional systems for providing "checks and balances" on administrative decision-making. Central to the operation and effectiveness of this accountability mechanism is notion of the "intensity" adopted – or in inverse Canadian parlance, "deference" applied – by the courts when reviewing or scrutinising the decisions of public bodies and officials. The question of the appropriate degree of intensity or deference is coloured by two equally important competing values. On the one hand, the courts strive to be vigilant, in order to protect the rights and interest of citizens and to uphold the Rule of Law. On the other hand, the courts also recognise the need to exercise restraint, in order to respect the constitutional allocation of power by the legislature to public bodies and officials, and to acknowledge the limits of the judicial function and procedure when reviewing the decisions and judgements made by those public bodies and officials.1 Judicial methodology or the common law doctrines applied by the courts therefore represent a mediated equilibrium or compromise between those two competing tensions.

English, New Zealand and Australian courts have traditionally given effect to this vigilance–restraint equilibrium by applying developed grounds of review which contain prescribed degrees of intensity or deference. For example, when reviewing a legality of administration under the "lawfulness" or "illegality" ground of review, the courts apply absolute vigilance and are entitled to intervene if any legal error is found.2 In contrast, when reviewing the "merits" of a decision (that is, the overall robustness of the decision, any factual findings made, the weight given to different factors, or the reasoning on which it is based), the courts are only entitled to intervene in cases where the decision is manifestly unreasonable.

In contrast, Canadian courts have for many years applied a framework where the vigilance–restraint equilibrium is settled on a case-by-case basis based on the circumstances of particular cases. Initially adopted under the "pragmatic and functional" framework3 – more recently, re-branded a "standards of review" analysis4 – the Canadian courts calibrate the degree of deference or intensity of review under a universal system based on different standards (not grounds) of review.5

The difference between the competing approaches has begun to narrow as the English, New Zealand and Australian courts have become to question the propriety of rigid grounds of review with defined degrees of deference. For example, in England and New Zealand, the courts now accept that, when reviewing the merits of a decision, the degree of unreasonableness required to justify judicial intervention may vary in the circumstances (although the precise methodology to be adopted has yet to be definitely settled).6

This year, however, the Canadian courts modified their standards of review approach,7 in the light of many years of experience and following some criticism of the regime.8 Although the basic framework was retained, the Supreme Court of Canada directed a new approach to the assessment of the reasonableness of the administrative decision under review (that is, collapsing the distinction between patent unreasonableness and reasonableness simpliciter and replacing it with a unified, but context-specific, reasonableness standard).

The purpose of the proposed project is to analyse and critique the unique features of the Canadian regime and recent developments, particularly the concerns that led to the recent change to the regime and the practical experience under the modified regime. It is proposed to undertake this analysis from a comparative perspective, that is, relating the Canadian practice and experience to the more fledgling New Zealand approach to intensity and standards of review. This comparative study will contribute to a broader project assessing whether New Zealand should adopt a formal standards of review framework and, if so, what type of standards should be adopted.9

1 See for example Michael Fordham "Surveying the Grounds: Key Themes in Judicial Intervention" in Peter Leyland and Terry Woods (eds) Administrative Law Facing the Future: Old Constraints and New Horizons (Blackstone Press, London, 1997).
2 Dean R Knight "Simple, Fair, Discretionary Administrative Law" (2007) VUWLR 91 and Michael Taggart "Administrative Law" [2006] NZ Law Rev 75.
3 CUPE, Local 963 v New Brunswick Liquor Corporation [1979] 2 SCR 227 and Canada (Director of Investigation & Research) v Southam Inc [1997] 1 SCR 748. 4 Dunsmuir v New Brunswick (2008) SCC 9.
5 See for example David Phillips Jones and Anne S de Villars Principles of Administrative Law (4 ed, Thomson Carswell, Scarborough, 2004); David J Mullan "Establishing the Standard of Review: The Struggle for Complexity?" (2004) 17 Canadian Journal of Administrative Law and Practice 59; Philip Bryden "Understanding the Standard of Review in Administrative Law" (2005) 54 Uni New Brun LJ 75; Audrey Macklin "Standard of Review: The Pragmatic and Functional Test" in Colleen M Flood and Lorne Sossin (eds) Administrative Law in Context (Edmond Montgomery Publications, Toronto, 2008) 197.
6 See for example Dean R Knight "A Murky Methodology: Standards of Review In Administrative Law" [2008] 6 NZJPIL 117 and Michael Taggart "Proportionality, Deference, Wednesbury" in Judicial Review (New Zealand Law Society, Wellington, 2007) (New Zealand); Andrew Le Sueur, "The Rise and Ruin of Unreasonableness?" [2005] 10 JR 32 (United Kingdom); Lisa Busch "Standards of Review of Administrative Decision-Making in Australian Public Law" [2006] JR 363 (Australia); 7 Dunsmuir v New Brunswick (2008) SCC 9.
8 Guy R├ęgimbald "Correctness, Reasonableness, and Proportionality: A New Standard of Judicial Review" (2005) 31 Man LJ 239; and Toronto (City) v CUPE, Local 79 [2003] SCC 63.
9 For my initial work on this broader project, see Dean R Knight, "Dunne v Canwest TVWorks Ltd: Enhancing or Undermining the Democratic and Constitutional Balance?" (2005) 21 NZULR 711, Dean R Knight "A Murky Methodology: Standards of Review In Administrative Law" [2008] 6 NZJPIL 117, and Dean R Knight, "Standards of Review in Administrative Law" (Seminar for Crown Law Office, Wellington, September 2008).

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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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