How Many Times Can You Split the Standard of Review?

One of the most significant challenges currently facing the SCC is to provide clarification on the approach the courts should take in their review of administrative decisions. While the pragmatic and functional approach developed to determine the proper standard of review has provided more flexibility to courts to review administrative decisions on an individual basis, it has also led to less consistency and more uncertainty. The SCC will have an opportunity to revisit their approach to standard of review as well as the related topic of segmentation of issues when it releases its judgment in David Dunsmuir v Her Majesty the Queen in Right of the Province of New Brunswick, a case heard in May of last year.


The case involves a non-unionized civil servant who was fired from his employment with the New Brunswick Department of Justice after two and one half years of service. The termination was without cause and the Province provided the employee with four and one half months pay in lieu of notice. Under the Civil Service Act, SNB 1984, c C-5.1, employment of non-unionized civil servants is governed by “ordinary rules of contract” and thus an employee can be terminated without cause so long as they are paid reasonable notice. However, the Public Service Labour Relations Act, SC 2003, c 22 [Labour Relations Act], also provides such employees with a grievance procedure. Through this procedure, the appellant grieved his termination, which grievance was denied, and the matter was heard before an adjudicator.

At the hearing, the Province raised a preliminary objection, arguing that since the grievor’s employment could be terminated on reasonable notice without cause, the adjudicator did not have jurisdiction to examine the reasons behind the termination but could only determine the reasonable notice period. Relying on Dr Everett Chalmers Hospital v Mills (1989), 102 NBR (2d) 1 (CA) (unreported), the adjudicator found that he had jurisdiction to inquire into the true reasons behind the termination, whether or not the termination was stated to be “without cause.”

Further, the adjudicator found that the Province’s decision to terminate the grievor’s employment had breached the duty of procedural fairness. The adjudicator reinstated the grievor to his position, relying on a provision in the Labour Relations Act which grants adjudicators to substitute a penalty where an employee was terminated for cause.


It seems clear to me that the adjudicator’s interpretation of the relevant statutory provisions makes little sense. Since the employment relationship is governed by ordinary rules of contract, when the Province terminates a civil servant’s employment without alleging cause and pays reasonable notice, this ends the matter, just as it would in any other non-union employment situation. If adjudicators were then allowed to inquire into the true reasons behind each such termination and to reinstate employees where the adjudicator found that these unstated reasons did not justify the action, this would render the statutes useless and grant these employees the protection of a collective agreement where none exists.

Both the trial judge and the New Brunswick Court of Appeal (“NBCA”) agreed that the adjudicator had incorrectly interpreted the statutory provisions and that he had exceeded his jurisdiction by examining the reasons behind the termination and reinstating the grievor to his employment. What they did differ on was the appropriate standard of review of the adjudicator’s decision. For the issue of interpretation of statutory limits of jurisdiction, the trial judge held that the appropriate standard was that of correctness while the NBCA settled upon reasonableness simpliciter.

Further, the trial judge made use of varying degrees of deference for specific issues as they arose within the decision, applying a reasonableness simpliciter for mixed questions of law and fact and patent unreasonabless for those of fact alone. While the Court of Appeal did not move its analysis beyond the interpretation issue, it also chose to apply a different standard to one particular aspect of the adjudicator’s decision: the interpretation of the NBCA’s Mills decision. While it is perfectly understandable that the Court of Appeal would have greater relative expertise than the adjudicator to the proper meaning of its own decisions, it seems a bit strange that courts can pick and choose different levels of curial deference for each specific issue or case cited within a tribunal’s decision.

It will be interesting to see what the SCC has to say on the approaches to standard of review taken by the lower courts. Perhaps this case is an opportunity for the SCC to provide a workable framework that leads to clear and consistent results.

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