The Supreme Court of Canada released two decisions in December
that uphold the jurisdiction of administrative tribunals and
underline the deference our courts owe on judicial review.
The context of the first decision in Alberta (Information and Privacy Commissioner)
v. Alberta Teachers' Association, 2011 SCC 61 involves
the Commissioner's compliance with a statutory timeline to
complete the inquiry of a complaint within 90 days, unless notice
is sent to the parties of an extension and anticipated completion
date. The Alberta Teachers' Association argued that the
Commissioner lost jurisdiction by failing to extend the completion
date of inquiry within the 90 day period.
Both decisions address the proper approach to standard of review
as set down in what Justice Abella refers to as the
"transformative decision" in Dunsmuir v. New Brunswick, 2008 SCC
9 and advance the Dunsmuir goal of simplification.
Read together these decisions instruct reviewing courts that:
they show deference where a tribunal is interpreting its own
statute and related statutes also within its core function and
expertise, unless the interpretation concerns constitutional
questions, questions of law that are both of importance to the
legal system as a whole and outside the adjudicator's
specialized area of expertise, or the jurisdictional lines between
two or more competing specialized tribunals ;
true questions of jurisdiction are narrow and will be
there are not variable degrees of deference within the
reasonableness standard of review;
the "adequacy" of reasons by an adjudicator is not a
stand-alone basis for quashing a decision; a reviewing court should
not undertake two separate analysis – one for the reasons
and another for the result. Rather it is a "more organic
exercise" where the reasons must be read together with the
outcome and serve the purpose of showing whether the result falls
within a range of acceptable outcomes;
while a reviewing court should not substitute their own reasons
they may, if necessary, look to the record for the purpose of
assessing the reasonableness of the outcome and should give
respectful attention to reasons "which could be offered in
support of a decision" particularly where an issue was not
raised before the adjudicator but is implicitly or apparently
reasonable without need of remitting back to the
What is the impact of these two decisions on judicial review
post-Dunsmuir? The target for judicial review of an
administrative tribunal has been arguably narrowed by (i) a strong
presumption that a tribunal's interpretation of its own statute
or statutes closely connected to its function are subject to
deference and (ii) an instruction to reviewing courts that the
Dunsmuir analysis for reasonableness is one organic
exercise whereby an otherwise acceptable result should not be set
aside on the basis that the tribunal's articulation of reasons
is not adequate.
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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