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Repudiating the Supreme Court on the Standard of Review

Repudiating the Supreme Court on the Standard of Review

It is sometimes surprising how our Supreme Court – often unanimous in the face of some of this country’s most significant controversies – has been riddled with sharp divisions when it comes to deciding what standard of review must be applied to a given administrative decision. Late last year, a striking concurrence from the Alberta Court of Appeal even went as far as to plainly rebuke the Supreme Court’s jurisprudence on this issue.

In Gareau Community League v. Edmonton (City), 2017 ABCA 374, the question posed was highly similar to the issue already decided in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., [2016] 2 SCR 293, 2016 SCC 47. Namely: in the presence of a statutory right of appeal allowing questions of law to be appealed (but only with leave), should correctness review apply?

In Capilano, the Supreme Court had held, five judges to four, that deferential review was to be preferred. After all, the administrative decision-maker was still interpreting provisions of its home statute. While Capilano likely should have commanded deferential review in Gareau – given how similar the statutory rights of appeal are – a majority of the Alberta Court of Appeal still insisted on correctness review.[1]

In his concurrence, Justice Slatter flatly refused to follow the Supreme Court’s recent guidance. He noted again and again that the Court “remains sharply divided on this issue”, and that the Court has itself signalled that an overhaul of the standard of review analysis is overdue.[2]

But there is more. Justice Slatter notes that while the result in Capilano “may be justified by a conventional application of the Dunsmuir analysis”, the outcome is itself “difficult to justify when measured in light of the applicable legal principles”.[3]  

Taking aim squarely at the Court’s jurisprudence, Justice Slatter insists that the “[r]hetoric about deference has overtaken the analysis”, leading to a certain “[r]igidity”. The so-called rebuttable presumptions in Dunsmuir, “such as the one that interpretations of the tribunal’s home statute are reviewed for reasonableness, are turning into conclusive presumptions”, while the four “categories calling for a correctness review are shrinking”. Also, on his reading, while the Supreme Court has accepted that clear signals of legislative intent can rebut the presumption of deference, the Court has already “refused to apply that concept in a most obvious circumstance”.[4]  

Equally troubling, in his view, is that administrative decision-makers’ “expertise” is regularly assumed to be all-encompassing, when in fact “the interpretation of statutes is not at the core of tribunal expertise”. Superior courts, for their part, have “generally greater, but at least equal expertise”.[5] More to the point, Justice Slatter all but accuses the Court of ignoring the importance of statutory rights of appeal, and for what they signal about the legislature’s intent:[6]

If legislative intent is the basis of judicial review and the related standard of review, why is the existence of a statutory right of appeal of so little consequence? Why would the Legislature allow for appeals only on “questions of law or jurisdiction”, and only after appeals are screened, if it was not intended that the Court of Appeal would actually engage those issues of law? The fact that appeals are twice constrained (by limiting them to questions of law, and by requiring permission to appeal) itself reflects the balancing that the Legislature thought was appropriate between the roles of the subdivision and development appeal boards and the Court of Appeal.

Finally, he goes on to slam the Court for refusing to accept that correctness review is appropriate when there are multiple administrative decision-makers interpreting the same statute in the absence of any kind of unifying institutional framework in which consensus can be forged on controversial issues. In his words, “[i]t is part of the legitimate role of appellate courts to ensure that the same legal rules are applied in similar situations”.[7]

This kind of judicial rebuke of the Supreme Court’s jurisprudence is rare enough. It is especially surprising to find it in a concurring judgment in a case where – all three judges agreed – the applicable standard of review has no actual bearing on the result. Justice Slatter’s putdown does seem to signal some kind of crisis of confidence in this controversial area of administrative law. His reasons, as brazen as they are, might provide some cover for other judges to follow suit.

[1] The Alberta Court of Appeal’s judgment is split into three reasons, with Watson and Slatter JJ.A. concurring with Strekaf J.A. in the result, but each insisting separately on the importance of correctness review.
[2] Gareau, at paras. 79 and 84-88.
[3] Gareau, at para. 88.
[4] Gareau, at para. 93.
[5] Gareau, at para. 94.
[6] Gareau, at para. 95.
[7] Gareau, at para. 95.

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