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Labor & Employment Law

: Thoughts from a Management Lawyer

The Importance of the Standard of Judicial Review

By Michael Fitzgibbon

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Yesterday I wrote about a hot-declaration or hot-cargo case out of British Columbia. I mentioned how the outcome of a judicial review application is often decided by the standard of review that the reviewing court adopts in looking into the decision of the arbitrator or labour relations board, for example.

The standard of review that the Court selects determines how deeply they will delve into the decision and whether they will defer to the tribunal, even if they disagree with the decision (the "reasonableness" standard), or whether they will substitute their own decision for that of the tribunal (the "correctness" standard). Dunsmuir and Canada (Citizenship and Immigration) v. Khosa from the Supreme Court of Canada are the cases to read on the standard of review.

The Alberta Court of Appeal in United Nurses of Alberta, Local 301 v. Capital Health Authority (University of Alberta) recently discussed the type of analysis that a reviewing court should adopt when looking at the decision of a tribunal under the reasonableness standard. The Court agreed with the the following statement of the law:

.... it submits that on judicial review the court inquires into the qualities of the decision both as to the process of articulating the reasons and to its outcomes. In other words, reasonableness is concerned with the existence of justification, transparency and intelligibility within the decision-making process and also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law: see Dunsmuir. The appellant submits that the board?s decision was reasonable as that term is understood and ought not to have been overturned.

In reviewing a decision for reasonableness, the inquiry is into both the reasons and the outcome. In this case, the Chambers judge "analysed the specific reasoning to determine whether there were sufficient defects to render the decision unreasonable." This went too deep because it required a more or less line by line analysis of the decision to determine if there was any basis for finding the decision to be unreasonable. The Court of Appeal held that this went too far and that, really, the question was "whether taken as a whole ?any of those reasons adequately support the decision?:

Guidance from the Supreme Court of Canada in Dunsmuir and Khosa reminds us that the relevant inquiry is not whether the reviewing judge agrees with the interpretation but whether the interpretation given was reasonable; that is, were the reasons intelligible and transparent and the result one of the possible legal outcomes available, not necessarily the most likely.

If on the approach of the Court of Appeal here, the decision is found to be supportable and within the range of legally permissible outcomes it will be upheld even though the Court might have come to a different decision.

Full post as published by Thoughts from a Management Lawyer on June 08, 2009 (boomark / email).