Dunsmuir’s Standard of Review Analysis, One Year Later: Canada v Khosa
Last Friday, the Supreme Court of Canada (“SCC”) released their decision in Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 [Khosa]. This immigration law case gave the court an opportunity to revisit some of the principles espoused in last year’s landmark administrative law case of Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]. The facts and lower court decisions have been summarized by Jakki Warkentin here.
It should be noted that the facts and result of this case raise some poignant issues about the potential use of immigration law to achieve criminal law aims. I will not address this issue. Instead, I will restrict my focus to the topic of standard of review. Specifically at issue in Khosa is how legislated standards of review should be interpreted in light of the common law principles laid out in Dunsmuir.
Binnie J., writing for the majority, states at para 19:
Generally speaking, most if not all judicial review statutes are drafted against the background of the common law of judicial review. Even the more comprehensive among them, such as the British Columbia Administrative Tribunals Act, S.B.C. 2004, c. 45, can only sensibly be interpreted in the common law context because, for example, it provides in s. 58(2)(a) that “a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause must not be interfered with unless it is patently unreasonable”. The expression “patently unreasonable” did not spring unassisted from the mind of the legislator. It was obviously intended to be understood in the context of the common law jurisprudence, although a number of indicia of patent unreasonableness are given in s. 58(3). Despite Dunsmuir, “patent unreasonableness” will live on in British Columbia, but the content of the expression, and the precise degree of deference it commands in the diverse circumstances of a large provincial administration, will necessarily continue to be calibrated according to general principles of administrative law. … [Emphasis in original]
The provision in question in this specific case was s. 18.1(4) of the Federal Courts Act, RSC 1985, c F-7, which sets out the grounds of review under which relief can be granted. Of particular interest was the extent to which each of the subsections spelled out a standard of review. Section 18.1(4) reads:
(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
At para 28, the majority begins,
It cannot have been Parliament’s intent to create by s. 18.1 of the Federal Courts Act a single, rigid Procrustean standard of decontextualized review for all “federal board[s], commission[s] or other tribunal[s]”, an expression which is defined (in s. 2) to include generally all federal administrative decision makers. A flexible and contextual approach to s. 18.1 obviates the need for Parliament to set customized standards of review for each and every federal decision maker.
After analyzing each of the subsections, Binnie J. concluded that the subheadings are grounds of review without any implication on the standard of review to be used. At paras 50-51, he explained:
 … In some jurisdictions (as in British Columbia), the legislature has moved closer to a form of codification than has Parliament in the Federal Courts Act. Most jurisdictions in Canada seem to favour a legislative approach that explicitly identifies the grounds for review but not the standard of review[footnote omitted]. …  As stated at the outset, a legislature has the power to specify a standard of review, as held in [R. v. ]Owen, [2003 SCC 33], if it manifests a clear intention to do so. However, where the legislative language permits, the courts (a) will not interpret grounds of review as standards of review, (b) will apply Dunsmuir principles to determine the appropriate approach to judicial review in a particular situation, and (c) will presume the existence of a discretion to grant or withhold relief based on the Dunsmuir teaching of restraint in judicial intervention in administrative matters (as well as other factors such as an applicant’s delay, failure to exhaust adequate alternate remedies, mootness, prematurity, bad faith and so forth). [emphasis in original]
Rothstein J. disagreed with this assessment. In his view, the standard of review analysis should return to its roots, with a privative clause being the primary indicator of legislative intent to defer to expert decision makers. Absent such clear indication from the legislature, Rothstein J. posited that the implication is that no deference is owing.
With regard to s. 18.1(4) of the Federal Courts Act, Rothstein J. found that subsection (d) is a clear and unambiguous indication that parliament intended to show great deference to the original decision on that ground of review. Bearing this in mind, Rothstein J. took issue with the majority’s finding, arguing that “there is no justification for imposing a duplicative common law analysis where the statute expressly provides for the standard of review.” (para. 119) Furthermore, Rothstein J. explained, the remaining subheadings do not provide any indication that deference should be shown, and thus a Dunsmuir standard of review analysis should not be undertaken.
The majority, responded to Rothstein J.’s position at para. 26:
Dunsmuir stands against the idea that in the absence of express statutory language or necessary implication, a reviewing court is “to apply a correctness standard as it does in the regular appellate context” (Rothstein J., at para. 117). Pezim[ v. British Columbia (Superintendent of Brokers),  2 S.C.R. 557] has been cited and applied in numerous cases over the last 15 years. Its teaching is reflected in Dunsmuir. With respect, I would reject my colleague’s effort to roll back the Dunsmuir clock to an era where some courts asserted a level of skill and knowledge in administrative matters which further experience showed they did not possess.
The Interplay between Khosa and Dunsmuir
It is interesting to note that while Deschamps J. agreed mostly with Rothstein J.’s dissenting opinion, she did not explicitly indicate agreement with Part II of his judgment. Thus, by inference, it would seem that Rothstein J. stands alone in advocating for a return to placing a primary emphasis on the privative clause in resolving the tension between the judiciary’s constitutional supervisory role and the legislature’s objective of insulating specialized decision makers from judicial overview.
For Federal Court practitioners, the majority’s decision, in cementing the reach of Dunsmuir, provides some clarity as to the applicability of that decision. However, as Rothstein J. points out, the contextual nature that attends the application of the standard of review analysis in Dunsmuir will invariably result in some uncertainty. At para. 98, Rothstein J. explained:
How a court will weigh and balance the four standard of review factors remains difficult to predict and therefore more costly to litigate. In my view, it must be recognized that the common law standard of review analysis does not provide for a panacea of rigorous and objective decision making regarding the intensity with which courts should review tribunal decisions.
Nevertheless, given the wide swath of areas of law that Dunsmuir is intended to cover, the majority seems content on leaving the principles set out there in place. This seems to be the way the tide is shifting – Charron J., who did not sign onto the majority decision in Dunsmuir, notably signed onto to the majority decision in Khosa. Time will tell whether Rothstein J.’s views on the matter move into lockstep with the rest of the court.