The SCC provides a helpful summary of the development of judicial review through the 60s, 70s and 80s in National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, as follows:

3     It is by now almost universally acknowledged that the impact of A.V. Dicey's description of the "rule of law" on the early history of Anglo-Canadian administrative law was remarkably influential: see, for example, W. Wade, Administrative Law (6th ed. 1988), c. 2; P. P. Craig, Administrative Law (1983), at p. 29; Evans et al., op. cit., at p. 13; R. Dussault and L. Borgeat, Traité de droit administratif (2nd ed. 1989), vol. III, at p. 42; and H. W. Arthurs, "Rethinking Administrative Law: A Slightly Dicey Business" (1979), 17 Osgoode Hall L.J. 1, at p. 7. Dicey's account of the "rule of law" was most succinctly stated in the Law of the Constitution (1885) in which he argued that the term had three meanings: see the Law of the Constitution (10th ed. 1959), at pp. 202-3. First, "regular law" was supreme and individuals should not be subject to "arbitrary power". Second, the state's officials were as much subject to the "ordinary" law of the land administered by "the ordinary law courts" as other citizens: "the "rule of law" in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals". Third, "the principles of private law have with us been by the action of the courts and Parliament so extended as to determine the position of the Crown and of its servants; thus the constitution is the result of the ordinary law of the land".

4     Of particular relevance to this appeal are the first two propositions: that "regular law" is supreme and that the state's officials are subject to the jurisdiction of the "ordinary" courts in the same way as any individual. In a particularly incisive article Craig has described the rationale that shaped these propositions and that led Dicey to contend that administrative tribunals should be subject to the jurisdiction of courts: see Craig, "Dicey: Unitary, Self-Correcting Democracy and [page1333] Public Law" (1990), 106 L.Q.R. 105. Mr. Craig observes at p. 113:

It is apparent that the execution of the legislative will may require the grant of power to a Minister or administrative agency. Herein lies the modern conceptual justification for non-constitutional review. It was designed to ensure that the sovereign will of Parliament was not transgressed by those to whom such grants of power were made. If authority had been delegated to a Minister to perform certain tasks upon certain conditions, the courts' function was, in the event of challenge, to check that only those tasks were performed and only where the conditions were present. If there were defects on either level, the challenged decision would be declared null. For the courts not to have intervened would have been to accord a "legislative" power to the Minister or agency by allowing them authority in areas not specified by the real legislature, Parliament. The less well-known face of sovereignty, that of parliamentary monopoly, thus demanded an institution to police the boundaries which Parliament had stipulated. It was this frontier which the courts patrolled through non-constitutional review.

5     As guardians of the rule of law it was incumbent on the courts to ensure that any person or body relying on power delegated by the legislature abide by the terms and conditions on which that power was granted. Thus, ministers, agencies and administrative tribunals would have to be able to justify their actions by pointing to specific legislative authority in the same way that any citizen would have to be prepared to show that his or her acts were lawful. Many a scholar and judge embraced this logic with open arms. No one more so than Lord Hewart of Bury who drew a contrast between the "rule of law" and administrative law principles in The New Despotism (1945), at p. 37:

Between the "Rule of Law" and what is called "administrative law" (happily there is no English name for it) there is the sharpest possible contrast. One is substantially the opposite of the other.

It is a system which is fundamentally opposed to the English conception of the "Rule of Law", especially as regards exemption from the jurisdiction of the ordinary [page1334] legal tribunals, in the case of public officials acting in performance or purported performance of their official duties.

6     Not surprisingly, the notion that emanations of the state which had received delegated power might be subject to a different standard of review from that imposed on lower courts initially found little favour in the courts. However, as time passed this changed. It came to be recognized that the process of running a modern administrative state required (1) that officials be allowed a certain degree of discretion; and (2) that the countless decisions administrative tribunals are called upon to make should not be subject to the same extensive form of review as the decisions of courts: see, for example, Sir I. Jennings, The Law and the Constitution (5th ed. 1959), at pp. 42-62.

7     Mr. Craig explains that the flaws in classic "rule of law" thinking became more evident as the administrative state evolved:

The philosophy implicit within this traditional model is suspect and only partially evident. Underlying the model is an implicit dislike or distrust of the role adopted by the state which was producing this plethora of administrative institutions and agencies. The vigorous assertion of the supremacy of the ordinary law, and the protection of traditional private rights must be seen against this setting. Control or containment of the bureaucratic organs of the state was at the centre of this philosophy. The emphasis is upon the preservation of administrative power within its proper boundaries. In this endeavour external control through the courts was viewed as the main vehicle for the vindication of private autonomy. The idea that there is an interest in securing the efficacious discharge of regulatory legislation was no part of this model, except in so far as it was viewed as a natural correlative of the proper maintenance of external judicial supervision delimiting the boundaries of the legislative will....

8     Evidence of a continuing judicial reluctance to accept the proposition that tribunals should not be subject to the same standard of review as courts is seen in some of the judgments of this Court in the late 1960's and early 1970's.... It seems to me that these decisions reflect a lack of sympathy for the proposition that if administrative tribunals are to function effectively and efficiently, then we must recognize (1) that their decisions are crafted by those with specialized knowledge of the subject matter before them; and (2) that there is value in limiting the extent to which their decisions may be frustrated through an expansive judicial review.

What C.U.P.E. Set Out to Achieve

9     Canadian courts have struggled over time to move away from the picture that Dicey painted toward a more sophisticated understanding of the role of administrative tribunals in the modern Canadian state. Part of this process has involved a growing recognition on the part of courts that they may simply not be as well equipped as administrative tribunals or agencies to deal with issues which Parliament has chosen to regulate through bodies exercising delegated power, e.g., labour relations, telecommunications, financial markets and international economic relations. Careful management of these sectors often requires the use of experts who have accumulated years of experience and a specialized understanding of the activities they supervise.

10     Courts have also come to accept that they may not be as well qualified as a given agency to provide interpretations of that agency's constitutive statute that make sense given the broad policy context within which that agency must work. Evans et al. point out, for example, that "[o]ne of the most important developments in contemporary public law in Canada has been a growing acceptance by the courts of the idea that statutory provisions often do not yield a single, uniquely correct interpretation, but can be ambiguous or silent on a particular question, or couched in language that obviously invites the exercise of discretion": see Evans et al., op. cit., at p. 414. They then note:

In administrative law, judges have also been increasingly willing to concede that the specialist tribunal to which the legislature entrusted primary responsibility for the administration of a particular programme is often better equipped than a reviewing court to resolve the ambiguities and fill the voids in the statutory language. Interpreting a statute in a way that promotes effective public policy and administration may depend more upon the understanding and insights of the front-line agency than the limited knowledge, detachment, [page1337] and modes of reasoning typically associated with courts of law. Administration and interpretation go hand in glove.

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227:

Section 102(3)(a) of the Public Service Labour Relations Act, R.S.N.B. 1973, c. P—25 stated:

102(3) Where subsection (1) and subsection (2) are complied with employees may strike and during the continuance of the strike

(a) the employer shall not replace the striking employees or fill their position with any other employee, and

(b) no employee shall picket, parade or in any manner demonstrate in or near any place of business of the employer.

Dickson J. observed at p. 230 that "[o]n one point there can be little doubt -- section 102(3)(a) is very badly drafted. It bristles with ambiguities".

Dickson J. then went on to dismiss the preliminary or collateral theory as too easy to manipulate so as to avoid the operation of the privative clause. At page 233, he writes:

With respect, I do not think that the language of "preliminary or collateral matter" assists in the inquiry into the Board's jurisdiction. One can, I suppose, in most circumstances subdivide the matter before an administrative tribunal into a series of tasks or questions and, without too much difficulty, characterize one of those questions as a "preliminary or collateral matter". As Wade sug­gests in his Administrative Law (4th ed., 1977) at p. 245, questions of fact will naturally be regarded as "the primary and central questions for deci­sion", whereas the "prescribed statutory ingredi­ents will be more readily found to be collateral". This is precisely what has occurred in this case, the existence of the prohibition described in the statute becoming the "collateral matter", and the facts possibly constituting breach of the prohibition, however interpreted, the "primary matter for enquiry". Underlying this sort of language is, however, another and, in my opinion, a preferable approach to jurisdictional problems, namely, that jurisdiction is typically to be determined at the outset of the inquiry.

The question of what is and is not jurisdictional is often very difficult to determine. The courts, in my view, should not be alert to brand as jurisdic­tional, and therefore subject to broader curial review, that which may be doubtfully so.

In this context, Dickson J. noted at pp. 235-36 that the rationale for protecting the Board's decisions as falling within the jurisdiction (and thus the protection of the privative clause) given to it by the Legislature was "straightforward and compelling" because:

The labour board is a specialized tribunal which administers a comprehensive statute regulating labour relations. In the administration of that regime, a board is called upon not only to find facts and decide questions of law, but also to exercise its understanding of the body of jurisprudence that has developed around the collective bargaining system, as understood in Canada, and its labour relations sense acquired from accumulated experience in the area.

The usual reasons for judicial restraint upon review of labour board decisions are only reinforced in a case such as the one at bar. Not only has the Legislature confided certain decisions to an administrative board, but to a separate and distinct Public Service Labour Relations Board. That Board is given broad powers -- broader than those typically vested in a labour board -- to supervise and administer the novel system of collective bargaining created by the Public Service Labour Relations Act. The Act calls for a delicate balance between the need to maintain public services, and the need to maintain collective bargaining. Considerable sensitivity and unique expertise on the part of Board members is all the more required if the twin purposes of the legislation are to be met.

Although protected by a privative clause, the Board could “exceed” or “lose” its jurisdiction if its decision was so patently unreasonable that it could not be rationally supported by the relevant legislation such that it demands intervention from the court. Jurisdiction could also be lost (at page 237) where the tribunal was:

... acting in bad faith, basing the decision on extrane­ous matters, failing to take relevant factors into account, breaching the provisions of natural justice or misinter­preting the provisions of the Act so as to embark on an inquiry or answer a question not remitted to it.

The SCC addressed whether a decision is “jurisdictional” and thus subject to review for correctness in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048.

Beetz J. stated at paragraph 115 and 116:

115. 115. In its decision a tribunal may have to decide various questions of law.  Certain of these questions fall within the jurisdiction conferred on the tribunal; other questions however may concern the limits of its jurisdiction.

116. 116. It is, I think, possible to summarize in two propositions the circumstances in which an administrative tribunal will exceed its jurisdiction because of error:

1. if the question of law at issue is within the tribunal's jurisdiction, it will only exceed its jurisdiction if it errs in a patently unreasonable manner; a tribunal which is competent to answer a question may make errors in so doing without being subject to judicial review;

2. if however the question at issue concerns a legislative provision limiting the tribunal's powers, a mere error will cause it to lose jurisdiction and subject the tribunal to judicial review.

In an effort to narrow the ability of the Courts to simply label every action by a statutory decision maker as “jurisdictional” and thus review it for correctness, Beetz J.

developed the “pragmatic and functional test” for identifying which types of questions were “within jurisdiction” and which were not, as follows:

122. 122. The formalistic analysis of the preliminary or collateral question theory is giving way to a pragmatic and functional analysis, hitherto associated with the concept of the patently unreasonable error.  At first sight it may appear that the functional analysis applied to cases of patently unreasonable error is not suitable for cases in which an error is alleged in respect of a legislative provision limiting a tribunal's jurisdiction.  The difference between these two types of error is clear:  only a patently unreasonable error results in an excess of jurisdiction when the question at issue is within the tribunal's jurisdiction, whereas in the case of a legislative provision limiting the tribunal's jurisdiction, a simple error will result in a loss of jurisdiction.  It is nevertheless true that the first step in the analysis necessary in the concept of a "patently unreasonable" error involves determining the jurisdiction of the administrative tribunal.  At this stage, the Court examines not only the wording of the enactment conferring jurisdiction on the administrative tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal.  At this initial stage a pragmatic or functional analysis is just as suited to a case in which an error is alleged in the interpretation of a provision limiting the administrative tribunal's jurisdiction:  in a case where a patently unreasonable error is alleged on a question within the jurisdiction of the tribunal, as in a case where simple error is alleged regarding a provision limiting that jurisdiction, the first step involves determining the tribunal's jurisdiction.

The next significant development in the standard of review analysis was the introduction of a third standard – that of reasonableness simpliciter in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 SCR 748.

Iacobucci J. for the court reviewed the pragmatic and functional factors and gave particular attention to the absence of a privative clause on the one hand and the significant expertise of the Competition Tribunal on the other and created a new reasonableness standard of review:

54. 54. In my view, considering all of the factors I have canvassed, what is dictated is a standard more deferential than correctness but less deferential than “not patently unreasonable”.  Several considerations counsel deference: the fact that the dispute is over a question of mixed law and fact; the fact that the purpose of the Competition Act is broadly economic, and so is better served by the exercise of economic judgment; and the fact that the application of principles of competition law falls squarely within the area of the Tribunal’s expertise.  Other considerations counsel a more exacting form of review: the existence of an unfettered statutory right of appeal from decisions of the Tribunal and the presence of judges on the Tribunal. Because there are indications both ways, the proper standard of review falls somewhere between the ends of the spectrum.  Because the expertise of the Tribunal, which is the most important consideration, suggests deference, a posture more deferential than exacting is warranted.

55. 55. I wish to emphasize that the need to find a middle ground in cases like this one is almost a necessary consequence of our standard-of-review jurisprudence.  Because appeal lies by statutory right from the Tribunal’s decisions on questions of mixed law and fact, the reviewing court need not confine itself to the search for errors that are patently unreasonable.  The standard of patent unreasonableness is principally a jurisdictional test and, as I have said, the statutory right of appeal puts the jurisdictional question to rest.  See Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, at p. 237.  But on the other hand, appeal from a decision of an expert tribunal is not exactly like appeal from a decision of a trial court.  Presumably if Parliament entrusts a certain matter to a tribunal and not (initially at least) to the courts, it is because the tribunal enjoys some advantage that judges do not.  For that reason alone, review of the decision of a tribunal should often be on a standard more deferential than correctness.  Accordingly, a third standard is needed.

Iacobucci J. then attempted to articulate the distinction between unreasonableness “simpliciter” and patent unreasonableness:

56. 56. I conclude that the third standard should be whether the decision of the Tribunal is unreasonable.  This test is to be distinguished from the most deferential standard of review, which requires courts to consider whether a tribunal’s decision is patently unreasonable.  An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination.  Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it.  The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.  An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence.  An example of the latter kind of defect would be a contradiction in the premises or an invalid inference.

57. 57. The difference between “unreasonable” and “patently unreasonable” lies in the immediacy or obviousness of the defect.  If the defect is apparent on the face of the tribunal’s reasons, then the tribunal’s decision is patently unreasonable.  But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable.  As Cory J. observed in Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at p. 963, “[i]n the Shorter Oxford English Dictionary ‘patently’, an adverb, is defined as ‘openly, evidently, clearly’”.  This is not to say, of course, that judges reviewing a decision on the standard of patent unreasonableness may not examine the record.  If the decision under review is sufficiently difficult, then perhaps a great deal of reading and thinking will be required before the judge will be able to grasp the dimensions of the problem.…  But once the lines of the problem have come into focus, if the decision is patently unreasonable, then the unreasonableness will be evident.

In Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982, the SCC took the opportunity to consolidate and summarize the approach to analysing standard of review.  

26        The central inquiry in determining the standard of review exercisable by a court of law is the legislative intent of the statute creating the tribunal whose decision is being reviewed.  More specifically, the reviewing court must ask:  “[W]as the question which the provision raises one that  was intended by the legislators to be left to the exclusive decision of the Board?” (Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890, at para. 18, per Sopinka J.).

27        Since U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, this Court has determined that the task of statutory interpretation requires a weighing of several different factors, none of which are alone dispositive, and each of which provides an indication falling on a spectrum of the proper level of deference to be shown the decision in question.  This has been dubbed the “pragmatic and functional” approach.  This more nuanced approach in determining legislative intent is also reflected in the range of possible standards of review.  Traditionally, the “correctness” standard and the “patent unreasonableness” standard were the only two approaches available to a reviewing court.  But in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, a “reasonableness simpliciter” standard was applied as the most accurate reflection of the competence intended to be conferred on the tribunal by the legislator.  Indeed, the Court there described the range of standards available as a “spectrum” with a “more exacting end” and a “more deferential end” (para. 30).

1)  Factors to Be Taken into Account

29        The factors to be taken into account in determining the standard of review have been canvassed in a number of recent decisions of this Court, and may be divided into four categories.

(i)   Privative Clauses

30        The absence of a privative clause does not imply a high standard of scrutiny, where other factors bespeak a low standard.  However, the presence of a “full” privative clause is compelling evidence that the court ought to show deference to the tribunal’s decision, unless other factors strongly indicate the contrary as regards the particular determination in question…. At the other end of the spectrum is a clause in an Act permitting appeals, which is a factor suggesting a more searching standard of review.

31        Some Acts will be silent or equivocal as to the intended standard of review.  The Court found in Bradco that the submission of a dispute to a “final settlement” of an arbitrator was “somewhere between a full privative clause and a clause providing for full review by way of appeal” (pp. 331 and 333).  Sopinka J. went on to examine other factors to determine that some degree of deference was owed to the arbitrator’s ruling.  In essence, a partial or equivocal privative clause is one which fits into the overall process of evaluation of factors to determine the legislator’s intended level of deference, and does not have the preclusive effect of a full privative clause.

(ii)   Expertise

32        Described by Iacobucci J. in Southam, supra, at para. 50, as “the most important of the factors that a court must consider in settling on a standard of review”, this category includes several considerations.  If a tribunal has been constituted with a particular expertise with respect to achieving the aims of an Act, whether because of the specialized knowledge of its decision-makers, special procedure, or non-judicial means of implementing the Act, then a greater degree of deference will be accorded.  In Southam, the Court considered of strong importance the special make-up and knowledge of the Competition Act tribunal relative to a court of law in determining questions concerning competitiveness in general, and the definition of the relevant product market in particular.

33        Nevertheless, expertise must be understood as a relative, not an absolute concept.  As Sopinka J. explained in Bradco, supra, at p. 335:  “On the other side of the coin, a lack of relative expertise on the part of the tribunal vis-à-vis the particular issue before it as compared with the reviewing court is a ground for a refusal of deference” (emphasis added).  Making an evaluation of relative expertise has three dimensions:  the court must characterize the expertise of the tribunal in question; it must consider its own expertise relative to that of the tribunal; and it must identify the nature of the specific issue before the administrative decision-maker relative to this expertise.  Many cases have found that the legislature has intended to grant a wide margin for decision-making with respect to some issues, while others are properly subject to a correctness standard.  Those cases are discussed in the fourth section below, the “Nature of the Problem”.  The criteria of expertise and the nature of the problem are closely interrelated.

34        Once a broad relative expertise has been established, however,  the Court is sometimes prepared to show considerable deference even in cases of highly generalized statutory interpretation where the instrument being interpreted is the tribunal’s constituent legislation….

35        In short, a decision which involves in some degree the application of a highly specialized expertise will militate in favour of a high degree of deference, and towards a standard of review at the patent unreasonableness end of the spectrum.

(iii)  Purpose of the Act as a Whole, and the Provision in Particular

36        As Iacobucci J. noted in Southam, supra, at para. 50, purpose and expertise often overlap.  The purpose of a statute is often indicated by the specialized nature of the legislative structure and dispute-settlement mechanism, and the need for expertise is often manifested as much by the requirements of the statute as by the specific qualifications of its members.  Where the purposes of the statute and of the decision-maker are conceived not primarily in terms of establishing rights as between parties, or as entitlements, but rather as a delicate balancing between different constituencies, then the appropriateness of court supervision diminishes.  Thus, in National Corn Growers, supra, at p. 1336, Wilson J. characterized the function of the board in question as one of “management”, partially because of the specialized knowledge of the members of the board, but also because of the range of remedies available upon a determination, including the imposition of countervailing duties by the Minister (at p. 1346).  In Southam, the Court found (at para. 48) that the “aims of the Act are more ‘economic’ than they are strictly ‘legal’” because the broad goals of the Act “are matters that business women and men and economists are better able to understand than is a typical judge”.  This conclusion was reinforced by the creation in the statute of a tribunal with members having a special expertise in those domains.  Also of significance are the range of administrative responses, the fact that an administrative commission plays a “protective role” vis-à-vis the investing public, and that it plays a role in policy development; Pezim, supra, at p. 596.  That legal principles are vague, open-textured, or involve a “multi-factored balancing test” may also militate in favour of a lower standard of review (Southam, at para. 44).  These considerations are all specific articulations of the broad principle of “polycentricity” well known to academic commentators who suggest that it provides the best rationale for judicial deference to non-judicial agencies.  A “polycentric issue is one which involves a large number of interlocking and interacting interests and considerations” (P. Cane, An Introduction to Administrative Law (3rd ed. 1996), at p. 35).  While judicial procedure is premised on a bipolar opposition of parties, interests, and factual discovery, some problems require the consideration of numerous interests simultaneously, and the promulgation of solutions which concurrently balance benefits and costs for many different parties.  Where an administrative structure more closely resembles this model, courts will exercise restraint.  The polycentricity principle is a helpful way of understanding the variety of criteria developed under the rubric of the “statutory purpose”.

(iv) The “Nature of the Problem”:  A Question of Law or Fact?

37        As mentioned above, even pure questions of law may be granted a wide degree of deference where other factors of the pragmatic and functional analysis suggest that such deference is the legislative intention, as this Court found to be the case in Pasiechnyk, supra.  Where, however, other factors leave that intention ambiguous, courts should be less deferential of decisions which are pure determinations of law.  The justification for this position relates to the question of relative expertise mentioned previously. 

38        Keeping in mind that all the factors discussed here must be taken together to come to a view of the proper standard of review, the generality of the proposition decided will be a factor in favour of the imposition of a correctness standard.  This factor necessarily intersects with the criteria described above, which may contradict such a presumption, as the majority of this Court found to be the case in Pasiechnyk, supra.  In the usual case, however, the broader the propositions asserted, and the further the implications of such decisions stray from the core expertise of the tribunal, the less likelihood that deference will be shown.  Without an implied or express legislative intent to the contrary as manifested in the criteria above, legislatures should be assumed to have left highly generalized  propositions of law to courts.

What about the standard of review for discretionary decisions? The leading case is Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

The Immigration Act provided the Minister (or delegate) the following discretion:

114. . . .

(2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person’s admission should be facilitated owing to the existence of compassionate or humanitarian considerations.

L’Heureux-Dube for the majority, described the SOR for discretion as follows:

(1) The Approach to Review of Discretionary Decision-Making

51        As stated earlier, the legislation and Regulations delegate considerable discretion to the Minister in deciding whether an exemption should be granted based upon humanitarian and compassionate considerations…. This language signals an intention to leave considerable choice to the Minister on the question of whether to grant an H & C application.

53        Administrative law has traditionally approached the review of decisions classified as discretionary separately from those seen as involving the interpretation of rules of law.  The rule has been that decisions classified as discretionary may only be reviewed on limited grounds such as the bad faith of decision-makers, the exercise of discretion for an improper purpose, and the use of irrelevant considerations:  see, for example, Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, at pp. 7-8…. In my opinion, these doctrines incorporate two central ideas -- that discretionary decisions, like all other administrative decisions, must be made within the bounds of the jurisdiction conferred by the statute, but that considerable deference will be given to decision-makers by courts in reviewing the exercise of that discretion and determining the scope of the decision-maker’s jurisdiction.   These doctrines recognize that it is the intention of a legislature, when using statutory language that confers broad choices on administrative agencies, that courts should not lightly interfere with such decisions, and should give considerable respect to decision-makers when reviewing the manner in which discretion was exercised…. 

55        The “pragmatic and functional” approach recognizes that standards of review for errors of law are appropriately seen as a spectrum, with certain decisions being entitled to more deference, and others entitled to less….  In my opinion the standard of review of the substantive aspects of discretionary decisions is best approached within this framework, especially given the difficulty in making rigid classifications between discretionary and non-discretionary decisions.  The pragmatic and functional approach takes into account considerations such as the expertise of the tribunal, the nature of the decision being made, and the language of the provision and the surrounding legislation.  It includes factors such as whether a decision is “polycentric” and the intention revealed by the statutory language.  The amount of choice left by Parliament to the administrative decision-maker and the nature of the decision being made are also important considerations in the analysis….

(2) The Standard of Review in This Case

58        The first factor to be examined is the presence or absence of a privative clause, and, in appropriate cases, the wording of that clause: Pushpanathan, at para. 30.  There is no privative clause contained in the Immigration Act, although judicial review cannot be commenced without leave of the Federal Court -- Trial Division under s. 82.1.  As mentioned above, s. 83(1) requires the certification of a “serious question of general importance” by the Federal Court -- Trial Division before that decision may be appealed to the Court of Appeal.  Pushpanathan shows that the existence of this provision means there should be a lower level of deference on issues related to the certified question itself.  However, this is only one of the factors involved in determining the standard of review, and the others must also be considered.

59        The second factor is the expertise of the decision-maker.  The decision- maker here is the Minister of Citizenship and Immigration or his or her delegate.  The fact that the formal decision-maker is the Minister is a factor militating in favour of deference.  The Minister has some expertise relative to courts in immigration matters, particularly with respect to when exemptions should be given from the requirements that normally apply.

60        The third factor is the purpose of the provision in particular, and of the Act as a whole.  This decision involves considerable choice on the part of the Minister in determining when humanitarian and compassionate considerations warrant an exemption from the requirements of the Act.  The decision also involves applying relatively “open-textured” legal principles, a factor militating in favour of greater deference….

61        The fourth factor outlined in Pushpanathan considers the nature of the problem in question, especially whether it relates to the determination of law or facts.  The decision about whether to grant an H & C exemption involves a considerable appreciation of the facts of that person’s case, and is not one which involves the application or interpretation of definitive legal rules.  Given the highly discretionary and fact-based nature of this decision, this is a factor militating in favour of deference.

62        These factors must be balanced to arrive at the appropriate standard of review.  I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language.  Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as “patent unreasonableness”.  I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.

The last case to consider in the evolution of the pre-Dunsmuir SOR is Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226. This case is of significance because it instructs courts how they are to apply the standard of review analysis to judicial review either by way of the JRPA or by statutory appeal. The case is also interesting because we see the explicit transition to constitutional imperatives as the basis for judicial review and reading down of privative clauses.

8          Since this case turns on the respective roles of an administrative tribunal and the courts, it is necessary to consider in turn the legal principles that guide the Committee, the reviewing judge, and the Court of Appeal.

20        This brings us to the second erroneous assumption – that because the Act grants a right of appeal, the matter could be dealt with without recourse to the usual administrative law principles pertaining to standard of review.

21        In a case of judicial review such as this, the Court applies the pragmatic and functional approach…. The term “judicial review” embraces review of administrative decisions by way of both application for judicial review and statutory rights of appeal.  In every case where a statute delegates power to an administrative decision-maker, the reviewing judge must begin by determining the standard of review on the pragmatic and functional approach…. In this way, the pragmatic and functional approach inquires into legislative intent, but does so against the backdrop of the courts’ constitutional duty to protect the rule of law.

22        To determine standard of review on the pragmatic and functional approach, it is not enough for a reviewing court to interpret an isolated statutory provision relating to judicial review.  Nor is it sufficient merely to identify a categorical or nominate error, such as bad faith, error on collateral or preliminary matters, ulterior or improper purpose, no evidence, or the consideration of an irrelevant factor.  Rather, the pragmatic and functional approach calls upon the court to weigh a series of factors in an effort to discern whether a particular issue before the administrative body should receive exacting review by a court, undergo “significant searching or testing” (Southam, supra, at para. 57), or be left to the near exclusive determination of the decision-maker.  These various postures of deference correspond, respectively, to the standards of correctness, reasonableness simpliciter, and patent unreasonableness.

(3)   A Review of the Pragmatic and Functional Factors

27        The first factor focuses generally on the statutory mechanism of review. A statute may afford a broad right of appeal to a superior court or provide for a certified question to be posed to the reviewing court, suggesting a more searching standard of review….  A statute may be silent on the question of review; silence is neutral, and “does not imply a high standard of scrutiny”: Pushpanathan, supra, at para. 30.  Finally, a statute may contain a privative clause, militating in favour of a more deferential posture.  The stronger a privative clause, the more deference is generally due.

28        The second factor, relative expertise, recognizes that legislatures will sometimes remit an issue to a decision-making body that has particular topical expertise or is adept in the determination of particular issues.  Where this is so, courts will seek to respect this legislative choice when conducting judicial review.  Yet expertise is a relative concept, not an absolute one.  Greater deference will be called for only where the decision-making body is, in some way, more expert than the courts and the question under consideration is one that falls within the scope of this greater expertise: see Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, 2002 SCC 11, at para. 50….

29        Relative expertise can arise from a number of sources and can relate to questions of pure law, mixed fact and law, or fact alone.  The composition of an administrative body might endow it with knowledge uniquely suited to the questions put before it and deference might, therefore, be called for under this factor: Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, at pp. 591-92.  For example, a statute may call for decision-makers to have expert qualifications, to have accumulated experience in a particular area, or to play a particular role in policy development: Mattel, supra, at paras. 28-31.  Similarly, an administrative body might be so habitually called upon to make findings of fact in a distinctive legislative context that it can be said to have gained a measure of relative institutional expertise: e.g., Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554….

30        The third factor is the purpose of the statute.  Since the conceptual focus of the pragmatic and functional approach is upon discerning the intent of the legislature, it is fitting that reviewing courts are called upon to consider the general purpose of the statutory scheme within which the administrative decision is taking place.  If the question before the administrative body is one of law or engages a particular aspect of the legislation, the analysis under this factor must also consider the specific legislative purpose of the provision(s) implicated in the review.  As a general principle, increased deference is called for where legislation is intended to resolve and balance competing policy objectives or the interests of various constituencies: see Pushpanathan, supra, at para. 36, where Bastarache J. used the term “polycentric” to describe these legislative characteristics.

31        A statutory purpose that requires a tribunal to select from a range of remedial choices or administrative responses, is concerned with the protection of the public, engages policy issues, or involves the balancing of multiple sets of interests or considerations will demand greater deference from a reviewing court….

32        In contrast, a piece of legislation or a statutory provision that essentially seeks to resolve disputes or determine rights between two parties will demand less deference.  The more the legislation approximates a conventional judicial paradigm involving a pure lis inter partes determined largely by the facts before the tribunal, the less deference the reviewing court will tend to show.

33        The final factor is the nature of the problem….

36        Applying the pragmatic and functional approach in this case, the four factors lead to a standard of reasonableness simpliciter.  The fact that the statute provides a broad right of appeal and that the Committee is no more expert than the courts on the issue in question suggests a low degree of deference.

37        An assessment of the purpose of the statute and the provision in particular yields an ambivalent result.  On one hand, the legislature’s intent for the legislation as a whole was to assign to the College the role of balancing competing interests and multiple policy objectives, like the protection of the public, education and qualification of members, the setting of standards of ethics and practice, and the administration of privacy regimes: the Act, s. 3.  This purpose suggests considerable deference.  However, the discrete issue of adjudicating a claim of professional misconduct — the particular issue that the statute puts before the Committee — is quasi-judicial in nature, and therefore militates against deference.  In the result, the purpose analysis counsels neither for great deference, nor for exacting scrutiny.

38        Finally, however, the need for deference is greatly heightened by the nature of the problem — a finding of credibility.  Assessments of credibility are quintessentially questions of fact.  The relative advantage enjoyed by the Committee, who heard the viva voce evidence, must be respected.

39        Balancing these factors, I am satisfied that the appropriate standard of review is reasonableness simpliciter….  

43        The role of the Court of Appeal was to determine whether the reviewing judge had chosen and applied the correct standard of review, and in the event she had not, to assess the administrative body’s decision in light of the correct standard of review, reasonableness.  At this stage in the analysis, the Court of Appeal is dealing with appellate review of a subordinate court, not judicial review of an administrative decision.  As such, the normal rules of appellate review of lower courts as articulated in Housen, supra, apply.