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Supreme Court of Canada rewrites law of judicial review of administrative actions


A Labour & Employment Law Update

The Supreme Court of Canada has changed the rules concerning judicial review of administrative decisions several times over the last 30 years. On Friday, March 7th, they threw up their hands and declared that they had made it too complicated and technical and they needed to simplify it. Until this decision, some decisions could be overturned if they were incorrect, some if they were unreasonable, and for others you had to show they were patently unreasonable (and there was debate about what that really was). As one judge noted, that caused a lot of unproductive debate and discussion in judicial review proceedings. From now on, after this decision, there will only be two possible categories: reasonableness and correctness. Judicial review is available on some issues if the decision is incorrect and on others if it is unreasonable. Some decisions will be entitled to more "deference" to the expertise of the administrative decision maker than others.

One example of the past application of the rules was that judicial review of Labour Relations Board decisions was almost always on the "patently unreasonable" standard whereas arbitrators' decisions on some issues could be overturned if they were incorrect and on other issues if they were unreasonable. Many trees have been killed arguing about what issue fit which of the three categories.

The Court has in one stroke changed how these cases will be argued in the future. Does it signal that courts will be more willing to interfere in decisions of quasi-judicial administrative bodies? The judges said they were not intending to do that. However, it might mean that there will be a greater willingness to overturn decisions that courts disagree with.

While rewriting the law of judicial review, the Court also made a major change in the law concerning public servants. In some cases, public servants were owed a duty of fairness and therefore could have their terminations overturned and declared void if they were not given a fair hearing before termination of their office. That has now been, with a few exceptions, thrown out the window. Public servants will now ordinarily be treated just like other employees. Their rights will be determined by the common law relating to employees generally or by individual contracts of employment or collective agreements if there are any. This is an important clarification of another confused area of public law that sometimes led to some disproportionate consequences.

It is probably encouraging that the Supreme Court of Canada is willing to change when they think they have gone in a wrong direction. However, it certainly makes it a challenge to keep up to them.

This update is a general overview of the subject matter and cannot be regarded as legal advice. Please contact Hugh McPhail at, Tom Ross at, Glenn Tait at, or any member of our Labour & Employment Practice Group for advice on this or any other labour & employment law topic.



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