The Need for Deference: Assessing Preliminary Administrative Decisions Post-Dunsmuir – Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10

Last week, the Supreme Court of Canada (SCC) released its decision in Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission) (“Halifax“), 2012 SCC 10. Writing for a unanimous Court, Justice Cromwell held that the decision by the Nova Scotia Human Rights Commission to send a complaint to a board of inquiry for determination was subject to a reasonableness standard of review, and opted not to disturb the decision on the facts of the case. In so holding, the SCC effectively overturned its previous decision in Bell v Ontario (Human Rights Commission) [1971] SCR 756 (“Bell“). Halifax exemplifies how the judiciary is adapting to the new contours of administrative law in the post-Dunsmuir era, namely the obsolete nature of the preliminary question doctrine. The deference shown by the SCC in Halifax is laudable as it recognizes the need for leeway in allowing complex legislative regimes function, and because it serves the interests of judicial economy.


The Nova Scotia Human Rights Commission (the “Commission”) enforces and administers the province’s Human Rights Act RSNS 1989, c 214 (the “Act”). The Act gives the Commission considerable discretion to carry out its mandate. When there is a complaint and the Commission is satisfied that an inquiry is warranted, it may set up a board to determine whether the Act has been a breached.

In 2006, Lucien Comeau, a francophone Acadian parent with children enrolled in a French-first-language school in Halifax, complained to the Commission that the funding arrangements for the municipality’s schools discriminated against him and his children on the basis of their Acadian ethnic origin. After a municipal amalgamation, the city of Halifax imposed a tax to allow it to meet the statutory requirement that it maintain supplementary funding to schools that had received such funding before the amalgamation. However, Halifax schools that formed part of the newly created Conseil scolaire acadien provincial (the Nova Scotia school board administering French-first-language schools) did not receive any supplementary funding, as there was no legislative requirement to provide any.

After investigating the complaints, the Commission requested the appointment of a board of inquiry to determine the matter. The city of Halifax applied for judicial review of the Commission’s decision.

At trial, the Nova Scotia Supreme Court (NSSC) set the referral decision aside, prohibiting the board from proceeding. Applying a standard of review of correctness, the NSSC relied on the SCC’s decision in the pre-Dunsmuir case, Bell, in which the Court relied upon the now passé “preliminary question doctrine” approach to administrative review. The Nova Scotia Court of Appeal reversed the trial decision, applying a reasonableness standard of review.


At the SCC, the court was asked to decide two issues. First, what is the appropriate standard of review of the Commission’s decision to refer the complaint to a board of inquiry? Second, applying that standard of review, did  the Commission err in appointing the board of inquiry?


The SCC laid out the current approach to substantive review of administrative decisions in Dunsmuir v New Brunswick Liquor Corporation 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir). In Dunsmuir, the SCC elaborated on a multi-part test to determine the appropriate standard of review of administrative decisions. Courts must first look to the relevant jurisprudence to see if previous case law has determined the appropriate standard of review in a given administrative context. In certain situations, courts will show deference to the administrative body and will automatically apply a reasonableness standard. These include circumstances in which courts are reviewing questions of fact, the empowering statute gives the decision maker procedural or substantive discretion, or the decision maker is making a pure policy decision. Likewise, certain contexts will automatically call for a correctness standard of review, namely those which concern a constitutional question relating to the division of powers, questions of “true” jurisdiction (pure questions of law relating to whether or not a tribunal has the authority to do or decide something), or the dividing line between the jurisdiction of two or more decision makers. Second, if the appropriate standard is still unclear, a court may also take into account pre-Dunsmuir factors, such as the inclusion of a privative clause, the decision maker’s expertise, and the nature of the legal question at issue.


Justice Cromwell determined that the appropriate standard of review in this case was reasonableness. In coming to this conclusion, he relied upon a number of considerations.

First, Justice Cromwell observed the dual function of the Commission as both “gatekeeper and administrator” to determine that the decision to refer a complaint to a board of inquiry is not a determination of whether the complaint falls within the Act. Accordingly, the Commission’s preliminary decision to send the complaint to a board of inquiry was not an assertion of jurisdiction that might be reviewed under a correctness standard.

Likewise, Justice Cromwell noted that the statutory provision upon which the Commission’s authority was based granted the Commission significant discretion. Section 32(1)(a) of the Act gives the Commission may appoint a board of inquiry if its is “satisfied…that an inquiry is warranted.” Thus, there is no legal threshold that must be passed for the Commission to send a complaint to a board of inquiry that might be reviewed for correctness. Such discretionary decisions are generally subject to a reasonableness standard. This deference extends to both the substance of the decision to send a complaint to a board of inquiry, as well as the decision to use a two-fold process of preliminary inquiry and final determination by a board of inquiry.

In contrast to the factors weighing in favour of a reasonableness standard, the SCC was forced to confront its 1971 decision in Bell, in which the SCC held that a decision by the Ontario Human Rights Commission (OHRC) to send a complaint to a board of inquiry to determine the matter was subject to a correctness standard and ultimately overturned the OHRC’s decision. Bell would seem to stand for the proposition that referral decisions of administrative bodies ought to be reviewed for correctness even before the (in this case) board of inquiry has addressed the ultimate issue. Since the first part of the Dunsmuir test involves ascertaining whether a court has previously determined the appropriate standard of review in a given context, Justice Cromwell was forced to take Bell head-on.

As noted, the SCC in Bell relied on the now defunct “preliminary question doctrine,” a previous approach to administrative review taken by Canadian courts in which questions which preluded a decision maker’s assertion of jurisdiction were subject to jurisdictional review on a correctness standard. As such, Justice Cromwell dismissed the substantive outcome of that case. Bell is now considered good law only for its proposition that referral decisions such as the one at issue here are subject to judicial review; the appropriate standard now is reasonableness. In Justice Cromwell’s words, “Subsequent developments in Canadian administrative law have undermined the validity of [the correctness standard applied in Bell] to the point that there are compelling reasons for no longer following it.”

Moreover, Justice Cromwell observed a number of practical considerations weighing in favour of the more deferential standard of review of reasonableness. These include the desirability of developing a full record on the issue, avoiding multiple proceedings, and concerns with compromising  “carefully crafted, comprehensive legislative regimes.” The decision also noted the Canadian judiciary’s shift (in Dunsmuir) towards according greater respect to legal evaluations made by administrative decision makers.

Ultimately then, the SCC set a high bar for judicial review of preliminary decisions, such as that made by a Human Rights Commission to send a complaint to a board of inquiry. It is, as follows, “only where there is no reasonable basis in law or on the evidence to support the Commission’s decision that an inquiry by a board of inquiry is warranted in all the circumstances would it be appropriate to overcome judicial reluctance to intervene” (emphasis added).

Having determined the appropriate standard of review to be reasonableness, Justice Cromwell next determined that the Commission had not committed an error by sending the complaint to a board of inquiry. Having effectively dismissed Bell, Justice Cromwell noted that, whatever the ultimate merit of Mr. Comeau’s complaint, the Commission had a reasonable basis in law and on the evidence that an inquiry was warranted. Of note, the SCC was careful t o articulate that it was in no way passing judgment on the ultimate issue of whether there had been a violation of the Act, and, in fact, that such considerations were irrelevant to the issue before them as to whether the Commission was wrong to have sent the matter to a board of inquiry.


Halifax illustrates the ways in which the judiciary is adapting to the new contours of substantive review of administrative decisions in the post-Dunsmuir era, specifically, in this case, through the abandonment of the preliminary question doctrine. The first part of the Dunsmuir test which ascertains the appropriate standard of review of an administrative decision involves examining the jurisprudence to see if courts have already made a pronouncement on the issue. In Halifax, the SCC had technically already determined in Bell that the appropriate standard of review was correctness. Bell, however, resulted from an antiquated approach to administrative law. In contrast, the breadth of the Commission’s discretion, the preliminary nature of the decision, the desirability of avoiding a multiplicity of proceedings, and the greater degree of deference Canadian courts now show to complex legislative regimes all suggested the decision should be reviewed for reasonableness. Accordingly, the SCC seemingly bypassed the first step of Dunsmuir in favour of the second, but produced a decision that is far more in touch with the SCC’s jurisprudence on administrative review since Dunsmuir. The deference the SCC showed in this case is laudable as it exemplifies the need for judicial leeway to allow governments to achieve complex legislative goals and serves the interests of judicial economy.

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