Criticism of the Pushpanathan standard of review test.

In Miller v. Workers’ Compensation Commission (Nfld), [1997] N.J. No. 159 (T.D.) at para. 27, Barry J. suggested that:

in attempting to follow the court’s distinctions between ‘patently unreasonable’, ‘reasonable’, and ‘correct’, one feels at times as though one is watching a juggler juggle three transparent objects. Depending on the way the light falls, sometimes one thinks one can see the object. Other times one cannot and, indeed, wonders whether there are really three distinct objects at all.”

Reed J. in Hao v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 296 (T.D.) at para. 9 acknowledged:

I have never been convinced that ‘patently unreasonable’ differs any significant way from ‘unreasonable’. The word ‘patently’ means clearly or obviously. If the unreasonableness of a decision is not clear or obvious, I do not see how that decision can be said to be unreasonable.”

In A.T.U., Local 1182 v. St. John (City), 2006 NBCA 70, Robertson J.A. concluded that disagreement among judges could be expected as:

…reasonableness is not the most objective of review standards [which] explains why reasonable people disagree as to what is reasonable.

In Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 Lebel J. (writing in a concurring judgment for himself and Deschamps J.) acknowledged the “growing criticism”:

120     Absent reform in this area or a further clarification of the standards, the “epistemological” confusion over the relationship between patent unreasonableness and reasonableness simpliciter will continue.  As a result, both the types of errors that the two variants of reasonableness are likely to catch — i.e., interpretations that fall outside the range of those that can be “reasonably”, “rationally” or “tenably” supported by the statutory language — and the way in which the two standards are applied will in practice, if not necessarily in theory, be much the same. 

121     There is no easy way out of this conundrum.  Whatever attempts are made to clarify the contours of, or the relationship between, the existing definitional strands of patent unreasonableness, this standard and reasonableness simpliciter will continue to be rooted in a shared rationale: statutory language is often ambiguous and “admits of more than one possible meaning”; provided that the expert administrative adjudicator’s interpretation “does not move outside the bounds of reasonably permissible visions of the appropriate interpretation, there is no justification for court intervention” (Mullan, “Recent Developments in Standard of Review”, supra, at p. 18).  It will thus remain difficult to keep these standards conceptually distinct, and I query whether, in the end, the theoretical efforts necessary to do so are productive….

Meanwhile, in BC, we enacted the Administrative Tribunals Act, S.B.C 2004, c. 45. It attempts to simplify standard of review by creating legislated rules.

Definitions

1. In this Act,

…

"privative clause" means provisions in the tribunal's enabling Act that give the tribunal exclusive and final jurisdiction to inquire into, hear and decide certain matters and questions and provide that a decision of the tribunal in respect of the matters within its jurisdiction is final and binding and not open to review in any court;

"tribunal" means a tribunal to which some or all of the provisions of this Act are made applicable under the tribunal's enabling Act;

Standard of review if tribunal's enabling Act has privative clause

58  (1) If the tribunal's enabling Act contains a privative clause, relative to the courts the tribunal must be considered to be an expert tribunal in relation to all matters over which it has exclusive jurisdiction.

(2) In a judicial review proceeding relating to expert tribunals under subsection (1)

(a) 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,

(b) questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly, and

(c) for all matters other than those identified in paragraphs (a) and (b), the standard of review to be applied to the tribunal's decision is correctness.

(3) For the purposes of subsection (2) (a), a discretionary decision is patently unreasonable if the discretion

(a) is exercised arbitrarily or in bad faith,

(b) is exercised for an improper purpose,

(c) is based entirely or predominantly on irrelevant factors, or

(d) fails to take statutory requirements into account.

Standard of review if tribunal's enabling Act has no privative clause

59  (1) In a judicial review proceeding, the standard of review to be applied to a decision of the tribunal is correctness for all questions except those respecting the exercise of discretion, findings of fact and the application of the common law rules of natural justice and procedural fairness.

(2) A court must not set aside a finding of fact by the tribunal unless there is no evidence to support it or if, in light of all the evidence, the finding is otherwise unreasonable.

(3) A court must not set aside a discretionary decision of the tribunal unless it is patently unreasonable.

(4) For the purposes of subsection (3), a discretionary decision is patently unreasonable if the discretion

(a) is exercised arbitrarily or in bad faith,

(b) is exercised for an improper purpose,

(c) is based entirely or predominantly on irrelevant factors, or

(d) fails to take statutory requirements into account.

(5) Questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly.

The test then in selecting an ATA standard of review depends on whether the issue in question was assigned to the “exclusive jurisdiction” of the tribunal. In Kerton v. Workers’ Compensation Appeal Tribunal, 2011 BCCA 7:

[25]           In United Brotherhood of Carpenters and Joiners of America, Local 527 v. British Columbia Labour Relations Board), 2006 BCCA 364, this Court was of the opinion that that determination should be made by applying the “pragmatic and functional approach”, taking into account four factors: the presence or absence of a privative clause; the tribunal’s expertise relative to the court; the purpose of the statute as a whole and the provision in particular; and the nature of the problem under consideration.

[26]           There is some incongruity in using these factors to determine whether a tribunal is acting within its exclusive jurisdiction for the purposes of s. 58, because the section makes explicit use of them at other stages of the analysis.  The presence or absence of a privative clause, for example, is the threshold criterion for the applicability of s. 58.  The issue of whether a question is one of fact, law, discretion, procedural fairness, or something else determines the appropriate standard of review under s. 58(2) of the Administrative Tribunals Act.  Finally the expertise of the tribunal is, under s. 58(1) determined by asking whether the tribunal is acting within its exclusive jurisdiction.  To use it as a factor in determining exclusive jurisdiction would be circular.

[28]           Most recently, in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, the Supreme Court of Canada was called upon to determine the standard of review applicable to the B.C. Utilities Commission, a tribunal protected by a privative clause, and to which s. 58 of the Administrative Tribunals Act applies.  While the reasoning of the Court is not entirely explicit, it would appear that the Court simply considered the language of the applicable privative clause to determine whether the “matters” addressed by the tribunal were within its exclusive jurisdiction.

[29]           The approach endorsed by the Supreme Court of Canada, then, is somewhat different than the one that this Court followed in United Brotherhood of Carpenters.  Rather than considering all factors in the pragmatic and functional approach to determine whether a matter is within the exclusive jurisdiction of a tribunal under its privative clause, the preferred approach is simply to examine whether the privative clause covers the “matters” in issue.  While the common law standard of review analysis is instructive, particular attention must be paid to the governing legislative provisions, such as s. 58 of the Administrative Tribunals Act.

[30]           In the case before us, the matter in issue is the extension of an appeal period under s. 243(3) of the Workers Compensation Act.  The language of s. 254 of the Workers Compensation Act manifestly places such a matter under the exclusive jurisdiction of WCAT:

254 The appeal tribunal has exclusive jurisdiction to inquire into, hear and determine all those matters and questions of fact, law and discretion arising or required to be determined under this Part ....

[31]           In the result, s. 58(2) of the Administrative Tribunals Act establishes the appropriate standard of review in this case.  The standard is one of patent unreasonableness.

Outside of BC ATA tribunals, the pragmatic and functional test for establishing the three-part standard of review continued until March 7, 2008, when the Supreme Court released Dunsmuir v. New Brunswick 2008 SCC 9.

With respect to procedural fairness for employees appointed pursuant to a statutory power, the Court largely reversed Knight and Nicholson.

[81]       We are of the view that the principles established in Knight relating to the applicability of a duty of fairness in the context of public employment merit reconsideration. While the majority opinion in Knight properly recognized the important place of a general duty of fairness in administrative law, in our opinion, it incorrectly analyzed the effects of a contract of employment on such a duty. The majority in Knight proceeded on the premise that a duty of fairness based on public law applied unless expressly excluded by the employment contract or the statute (p. 681), without consideration of the terms of the contract with regard to fairness issues. It also upheld the distinction between office holders and contractual employees for procedural fairness purposes (pp. 670-76).  In our view, what matters is the nature of the employment relationship between the public employee and the public employer.  Where a public employee is employed under a contract of employment, regardless of his or her status as a public office holder, the applicable law governing his or her dismissal is the law of contract, not general principles arising out of public law.  What Knight truly stands for is the principle that there is always a recourse available where the employee is an office holder and the applicable law leaves him or her without any protection whatsoever when dismissed.

On the topic of standard of review, Lebel and Bastarache JJ state for the majority:

[1]        This appeal calls on the Court to consider, once again, the troubling question of the approach to be taken in judicial review of decisions of administrative tribunals. The recent history of judicial review in Canada has been marked by ebbs and flows of deference, confounding tests and new words for old problems, but no solutions that provide real guidance for litigants, counsel, administrative decision-makers or judicial review judges. The time has arrived for a reassessment of the question.

The majority in Dunsmuir concluded that there will only be two standards of review: reasonableness and correctness.

[46]       What does this revised reasonableness standard mean?  Reasonableness is one of the most widely used and yet most complex legal concepts.  In any area of the law we turn our attention to, we find ourselves dealing with the reasonable, reasonableness or rationality.  But what is a reasonable decision?  How are reviewing courts to identify an unreasonable decision in the context of administrative law and, especially, of judicial review?

[47]       Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.  Instead, they may give rise to a number of possible, reasonable conclusions.  Tribunals have a margin of appreciation within the range of acceptable and rational solutions.  A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.  In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.  But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

As for the approach to determining which standard of review is applicable:

[55]      A consideration of the following factors will lead to the conclusion that the decision maker should be given deference and a reasonableness test applied:

—     A privative clause: this is a statutory direction from Parliament or a legislature indicating the need for deference.

—     A discrete and special administrative regime in which the decision maker has special expertise (labour relations for instance).

—     The nature of the question of law.  A question of law that is of “central importance to the legal system . . . and outside the . . . specialized area of expertise” of the administrative decision maker will always attract a correctness standard (Toronto (City) v. C.U.P.E., at para. 62).  On the other hand, a question of law that does not rise to this level may be compatible with a reasonableness standard where the two above factors so indicate.

[56]      If these factors, considered together, point to a standard of reasonableness, the decision maker’s decision must be approached with deference in the sense of respect discussed earlier in these reasons.  There is nothing unprincipled in the fact that some questions of law will be decided on the basis of reasonableness.  It simply means giving the adjudicator’s decision appropriate deference in deciding whether a decision should be upheld, bearing in mind the factors indicated.

[57]      An exhaustive review is not required in every case to determine the proper standard of review.  Here again, existing jurisprudence may be helpful in identifying some of the questions that generally fall to be determined according to the correctness standard (Cartaway Resources Corp. (Re), 2004 SCC 26. This simply means that the analysis required is already deemed to have been performed and need not be repeated.

[58]      For example, correctness review has been found to apply to constitutional questions regarding the division of powers between Parliament and the provinces in the Constitution Act, 1867: Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 S.C.R. 322.  Such questions, as well as other constitutional issues, are necessarily subject to correctness review because of the unique role of s. 96 courts as interpreters of the Constitution: Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54; Mullan, Administrative Law, at p. 60.

The new approach to standard of review may simplify the analysis but render the job of the reviewing judge no less complex and potentially more opaque. In this regard, Binnie J. stated:

[139]   The judicial sensitivity to different levels of respect (or deference) required in different situations is quite legitimate.  “Contextualizing” a single standard of review will shift the debate (slightly) from choosing between two standards of reasonableness that each represent a different level of deference to a debate within a single standard of reasonableness to determine the appropriate level of deference.  In practice, the result of today’s decision may be like the bold innovations of a traffic engineer that in the end do no more than shift rush hour congestion from one road intersection to another without any overall saving to motorists in time or expense.

[140]   That said, I agree that the repeated attempts to define and explain the difference between reasonableness simpliciter and “patent” unreasonableness can be seen with the benefit of hindsight to be unproductive and distracting.  Nevertheless, the underlying issue of degrees of deference (which the two standards were designed to address) remains.

[141]   ….The adjective “patent” initially underscored the level of respect that was due to the designated decision maker, and signalled the narrow authority of the courts to interfere with a particular administrative outcome on substantive grounds…. Reducing three standards of review to two standards of review does not alter the reality that at the high end “patent” unreasonableness (in the sense of manifestly indefensible) was not a bad description of the hurdle an applicant had to get over to have an administrative decision quashed on a ground of substance.  The danger of labelling the most “deferential” standard as “reasonableness” is that it may be taken (wrongly) as an invitation to reviewing judges… to reweigh the input that resulted in the administrator’s decision as if it were the judge’s view of “reasonableness” that counts.  At this point, the judge’s role is to identify the outer boundaries of reasonable outcomes within which the administrative decision maker is free to choose.

What is a question of law of general importance to which correctness will be applied?

Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 5 (Mowat) illustrates the Dunsmuir standard of review, and discussed “[a] question of law that is of central importance to the legal system. . . and outside the . . . specialized area of expertise” of the administrative decision maker.

            [16]       Dunsmuir kept in place an analytical approach to determine the appropriate standard of review, the standard of review analysis.  The two-step process in the standard of review analysis is first to “ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review” (para. 62)…. The factors that a reviewing court has to consider in order to determine whether an administrative decision maker is entitled to deference are: the existence of a privative clause; a discrete and special administrative regime in which the decision maker has special expertise; and the nature of the question of law (Dunsmuir, at para. 55).  Dunsmuir recognized that deference is generally appropriate where a tribunal is interpreting its own home statute or statutes that are closely connected to its function and with which the tribunal has particular familiarity….

[18]      Dunsmuir recognized that the standard of correctness will continue to apply to constitutional questions, questions of law that are of central importance to the legal system as a whole and that are outside the adjudicator’s expertise, as well as to “[q]uestions regarding the jurisdictional lines between two or more competing specialized tribunals” (paras. 58, 60-61; see also Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, at para. 26, per Fish J.). The standard of correctness will also apply to true questions of jurisdiction or vires. In this respect, Dunsmuir expressly distanced itself from the extended definition of jurisdiction and restricted jurisdictional questions to those that require a tribunal to “explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter”.…

With respect to the question of whether the authority to award costs reflected a question of central importance to the legal system, the Court stated:

[25]       The question of costs is one of law located within the core function and expertise of the Tribunal relating to the interpretation and the application of its enabling statute (Dunsmuir, at para. 54). Although the respondent submitted that a human rights tribunal has no particular expertise in costs, care should be taken not to return to the formalism of the earlier decisions that attributed “a jurisdiction-limiting label, such as ‘statutory interpretation’ or ‘human rights’, to what is in reality a function assigned and properly exercised under the enabling legislation” by a tribunal…. The inquiry of what costs were incurred by the complainant as a result of a discriminatory practice is inextricably intertwined with the Tribunal’s mandate and expertise to make factual findings relating to discrimination…. As an administrative body that makes such factual findings on a routine basis, the Tribunal is well positioned to consider questions relating to appropriate compensation under s. 53(2). In addition, a decision as to whether a particular tribunal will grant a particular type of compensation — in this case, legal costs — can hardly be said to be a question of central importance for the Canadian legal system and outside the specialized expertise of the adjudicator. Compensation is frequently awarded in various circumstances and under many schemes. It cannot be said that a decision on whether to grant legal costs as an element of that compensation and about their amount would subvert the legal system, even if a reviewing court found it to be in error.

Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61:

33        Finally, the timelines question does not fall within the category of a “true question of jurisdiction or vires”. I reiterate Dickson J.'s oft-cited warning in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, that courts “should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so” (p. 233, cited in Dunsmuir, at para. 35). See also Syndicat des professeurs du collège de Lévis-Lauzon v. CEGEP de Lévis-Lauzon, [1985] 1 S.C.R. 596, at p. 606, per Beetz J., adopting the reasons of Owen J.A. in Union des employés de commerce, local 503 v. Roy, [1980] C.A. 394. As this Court explained in Canada (Canadian Human Rights Commission), “Dunsmuir expressly distanced itself from the extended definition of jurisdiction” (para. 18, citing Dunsmuir, at para. 59). Experience has shown that the category of true questions of jurisdiction is narrow indeed. Since Dunsmuir, this Court has not identified a single true question of jurisdiction (see Celgene Corp. v. Canada (Attorney General), 2011 SCC 1, [2011] 1 S.C.R. 3, at paras. 33-34; Smith v. Alliance Pipeline Ltd., at paras. 27-32; Nolan v. Kerry (Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R. 678, at paras. 31-36). Although this Court held in Northrop Grumman Overseas Services Corp. v. Canada (Attorney General), 2009 SCC 50, [2009] 3 S.C.R. 309, that the question was jurisdictional and therefore subject to review on a correctness standard, this was based on an established pre-Dunsmuir jurisprudence applying a correctness standard to this type of decision, not on the Court finding a true question of jurisdiction (para. 10).

34        The direction that the category of true questions of jurisdiction should be interpreted narrowly takes on particular importance when the tribunal is interpreting its home statute. In one sense, anything a tribunal does that involves the interpretation of its home statute involves the determination of whether it has the authority or jurisdiction to do what is being challenged on judicial review. However, since Dunsmuir, this Court has departed from that definition of jurisdiction. Indeed, in view of recent jurisprudence, it may be that the time has come to reconsider whether, for purposes of judicial review, the category of true questions of jurisdiction exists and is necessary to identifying the appropriate standard of review. However, in the absence of argument on the point in this case, it is sufficient in these reasons to say that, unless the situation is exceptional, and we have not seen such a situation since Dunsmuir, the interpretation by the tribunal of “its own statute or statutes closely connected to its function, with which it will have particular familiarity” should be presumed to be a question of statutory interpretation subject to deference on judicial review.

Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35:

[11]      ...In Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 (“ATA”), at para. 39, the Court held that “[w]hen considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness.”  By setting up a specialized tribunal to determine certain issues the legislature is presumed to have recognized superior expertise in that body in respect of issues arising under its home statute or a closely related statute, warranting judicial review for reasonableness.

[12]      As stated by Binnie J. in SOCAN v. CAIP, the core of the Board’s mandate is “the working out of the details of an appropriate royalty tariff” (para. 49).  Nevertheless, in order to carry out this mandate, the Board is routinely called upon to ascertain rights underlying any proposed tariff.  In this, it is construing the Act, its home statute. 

[13]      However, as Binnie J. noted in SOCAN v. CAIP, the Act is a statute that will also be brought before the courts for interpretation at first instance in proceedings for copyright infringement.  The court will examine the same legal issues the Board may be required to address in carrying out its mandate.  On appeal, questions of law decided by the courts in these proceedings would be reviewed for correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8.

[14]      It would be inconsistent for the court to review a legal question on judicial review of a decision of the Board on a deferential standard and decide exactly the same legal question de novo if it arose in an infringement action in the court at first instance.  It would be equally inconsistent if on appeal from a judicial review, the appeal court were to approach a legal question decided by the Board on a deferential standard, but adopt a correctness standard on an appeal from a decision of a court at first instance on the same legal question. 

[15]      Because of the unusual statutory scheme under which the Board and the court may each have to consider the same legal question at first instance, it must be inferred  that the legislative intent was not to recognize superior expertise of the Board relative to the court with respect to such legal questions.  This concurrent jurisdiction of the Board and the court at first instance in interpreting the Copyright Act rebuts the presumption of reasonableness review of the Board’s decisions on questions of law under its home statute.  This is consistent with Dunsmuir, which directed that “[a] discrete and special administrative regime [emphasis in original] in which the decision maker has special expertise” was a “facto[r that] will lead to the conclusion that the decision maker should be given deference and a reasonableness test applied” (para. 55 (emphasis added)).  Because of the jurisdiction at first instance that it shares with the courts, the Board cannot be said to operate in such a “discrete . . . administrative regime”.  Therefore, I cannot agree with Abella J. that the fact that courts routinely carry out the same interpretive tasks as the board at first instance “does not detract from the Board’s particular familiarity and expertise with the provisions of the Copyright Act” (para. 68).  In these circumstances, courts must be assumed to have the same familiarity and expertise with the statute as the board.  Accordingly, I am of the opinion that in SOCAN v. CAIP, Binnie J. determined in a satisfactory manner that the standard of correctness should be the appropriate standard of review on questions of law arising on judicial review from the Copyright Board (Dunsmuir, at para. 62).

[16]      I must also respectfully disagree with Abella J.’s characterization, at para. 62, of the holding in ATA as meaning that the “exceptions to the presumption of home statute deference are . . . constitutional questions and questions of law of central importance to the legal system and outside the adjudicator’s specialized expertise”.  Dunsmuir had recognized that questions which fall within the categories of constitutional questions and questions of general law that are both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise were to be reviewed on a correctness standard (paras. 58 and 60).  ATA simply reinforced the direction in Dunsmuir that issues that fall under the category of interpretation of the home statute or closely related statutes normally attract a deferential standard of review (ATA, at para. 39; Dunsmuir, at para. 54).  My colleague’s approach would in effect mean that the reasonableness standard applies to all interpretations of home statutes.  Yet, ATA and Dunsmuir allow for the exceptional other case to rebut the presumption of reasonableness review for questions involving the interpretation of the home statute.

[17]      My colleague refers to pre-Dunsmuir decisions for the proposition that shared jurisdiction at first instance does not prevent reasonableness review of a tribunal’s decision under its home statute.  However, such precedents will only be helpful where they “determin[e] in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question” (Dunsmuir, at para. 62). 

[18]      The recent examples raised by Justice Abella where reasonableness review was applied all involved bodies with exclusive primary jurisdiction under their home statute, constituting “discrete . . . administrative regime[s]”.  Canada (CHRC) concerned the Canadian Human Rights Act, R.S.C. 1985, c. H-6, which does not create shared primary jurisdiction between the administrative tribunal and the courts.  In these circumstances, the Court simply found that the standard applicable on the facts of that case was the reasonableness standard and confirmed the presumptive rule that “if the issue relates to the interpretation and application of its own statute, . . . the standard of reasonableness will generally apply” (para. 24 (emphasis added)).  Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, involved the judicial review of a decision of a disciplinary body under a professional Code of ethics of advocates, R.R.Q. 1981, c. B-1, applicable to lawyers.  There was no question of the constitutionality of the provision in the Code of ethics.  The question, rather, was whether the adjudicator, making his fact-specific determination in the circumstances of that case, had “act[ed] consistently with the values underlying the grant of discretion, including Charter values” (Doré, at para. 24).  In any case, the adjudicator was operating as part of a discrete administrative regime with exclusive jurisdiction over disciplinary matters under the Code of ethics. 

[19]      I wish to be clear that the statutory scheme under which both a tribunal and a court may decide the same legal question at first instance is quite unlike the scheme under which the vast majority of judicial reviews arises.  Concurrent jurisdiction at first instance seems to appear only under intellectual property statutes where Parliament has preserved dual jurisdiction between the tribunals and the courts.  However, I leave the determination of the appropriate standard of review of a tribunal decision under other intellectual property statutes for a case in which it arises.  Nothing in these reasons should be taken as departing from Dunsmuir and its progeny as to the presumptively deferential approach to the review of questions of law decided by tribunals involving their home statute or statutes closely connected to their function.

[20]      It should be equally clear that the Board’s application of the correct legal principles to the facts of a particular matter should be treated with deference, as are the decisions of this nature by trial judges on appellate review.  However, I cannot agree with Abella J. that the question arising in this appeal is a question of mixed fact and law (para. 74).  The issue in this case has been argued by the parties as a pure question of law.  The Court is asked to determine whether a point-to-point transmission can ever constitute a communication “to the public” within the meaning of s. 3(1)(f) of the Copyright Act (A.F., at para. 2).  This is not a “questio[n] of mixed fact and law [that] involve[s] applying a legal standard to a set of facts” (Housen v. Nikolaisen, at para. 26); it is an extricable question of law.

So what happened to the patently unreasonable standard of review for BC ATA tribunals?

Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 appeared to suggest that statutory standards of review must continue to be “calibrated” in accordance with the common law:

[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.  That said, of course, the legislature in s. 58 was and is directing the B.C. courts to afford administrators a high degree of deference on issues of fact, and effect must be given to this clearly expressed legislative intention.

51        [W]here 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 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 the applicant’s delay, failure to exhaust adequate alternative remedies, mootness, prematurity, bad faith and so forth).

BC Courts tried to reconcile Khosa and the patent unreasonableness standard under the BC ATA.

Viking Logistics. Ltd. v. British Columbia (Workers’ Compensation Board), 2010 BCSC 1340, turned on interpreting the following provision of the Workers’ Compensation Act:

259     (1)   The commencement of a review under section 96.2 or of an appeal under this Part respecting a matter described in section 96.2(1)(b) does not relieve an employer from paying an amount in respect of a matter that is the subject of the review or appeal.

(2)   If the decision on a review or an appeal referred to in subsection (1) requires the refund of an amount to an employer, interest calculated in accordance with the policies of the board of directors must be paid to the employer on that refunded amount.

With respect to Khosa, Holmes J. held:

[44]           It is the application of the phrase “will continue to be calibrated according to general principles of administrative law” that appears to give rise to the dispute about the issue now under discussion.  The parties, and arguably the judicial decisions, reach different conclusions about whether the general principles of administrative law, against which the s. 58(2)(a) standard is to continue to be calibrated, are to include the reasoning in Dunsmuir itself, with its observations about the weaknesses in the foundation for the former “patently unreasonable” standard.

[46]           Madam Justice Adair in Pacific Newspaper Group Inc. v. Communications, Energy and Paperworkers Union of Canada, Local 2000, 2009 BCSC 1795, 176 C.L.R.B.R. (2d) 32, considered in detail the various authorities, including those to which I have referred, that considered Dunsmuir’s effect, if any, on the “patently unreasonable” standard in s. 58 of the ATA., and concluded as follows, at para. 42:

Accordingly, the content of "patent unreasonableness," and the precise degree of deference it commands, will be determined according to general principles of administrative law.  In my view, this means that I should interpret the standard in the light of the court's discussion of the standard in Dunsmuir.

[47]           As was the situation in Victoria Times, Pacific Newspaper involved the review of a discretionary decision, and thus the application of the indicia of patent unreasonableness set out in s. 58(3).  The decision thus did not, in my view, directly implicate the particular question now in issue.  Even though the analysis was guided, as Adair J. concluded it should be, by the Dunsmuir discussion of the patently unreasonable standard, it relied in the main on the application of the criteria in s. 58(3), and not on the nature or the extent of the distinction between “patently unreasonable” and reasonable simpliciter.

[48]           The respondents rely on Mr. Justice Preston’s conclusion, in Jensen v. Workers’ Compensation Appeal Tribunal, 2010 BCSC 266, [2010] B.C.J. No. 356, that Dunsmuir’s “collapse” of the patently unreasonable and reasonable standards into a single standard does not apply to the standards in the ATA.  As I read his reasons, Preston J. concluded that the ongoing calibration of the ATA’s patently unreasonable standard is not to involve an adjustment of the standard to conform with the analysis in Dunsmuir (at para. 79):

While it was not immediately clear whether, in light of Dunsmuir, the interpretation of ‘patent unreasonableness’ would be more akin to ‘reasonableness’, the debate is now settled that the ‘patently unreasonable’ standard is to be defined by the common law as it existed pre-Dunsmuir.  However, it is not frozen as such and will continue to be calibrated according to general principles of administrative law:  [references to Khosa and other authorities] . . . .  The logic underlying this analysis is that Dunsmuir does not address legislated standards of review and to import the definition of “reasonableness” from Dunsmuir into the ATA would be to ignore clear legislative intent.  . . . Furthermore, Dunsmuir had the effect of abolishing “patent unreasonableness” and therefore the definition of “patent unreasonableness” must be that immediately prior to its abolition. [underlining added]   

[49]           Preston J.’s conclusion appears to be different from that of Adair J. in Pacific Newspaper, where, as I have noted, she concluded that she “should interpret the [patently unreasonable] standard in the light of the court's discussion of the standard in Dunsmuir” (para. 42).  In his reasons in dissent in Khosa, Mr. Justice Rothstein (at paras. 104-105) seems to have read Binnie J.’s remarks similarly to Adair J., in concluding that the majority’s reasons in Dunsmuir will require an ongoing adjustment of the statutory standard, including to accord with the principles articulated in Dunsmuir.  Disagreeing with the majority reasons, Rothstein J. observed that “[i]f the reference to general principles of administrative law means there is some sort of spectrum along which patent unreasonableness is to be calibrated, that would be at odds with the B.C. legislature’s codification of discrete standards of review.”

[50]           The proximity in time between the decisions in Pacific Newspaper and Jensen suggests that the former was not brought to Preston J.’s attention before he issued the latter.   Faced with apparently conflicting decisions within the Court, each recent and carefully reasoned, I conclude that I should follow Pacific Newspaper, which was issued first:  Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590, [1954] 13 W.W.R. (N.S.) 285 (B.C.S.C.). 

[51]           I therefore conclude with Adair J. that the content of the “patently unreasonable” standard should be determined in light of the Court’s discussion in Dunsmuir.

[58]           In my view, the Dunsmuir description of the common law’s broad reasonableness standard bears on the manner in which the court will interpret and apply the statutory patent unreasonableness standard. 

[59]           From this perspective, “patently unreasonable” in s. 58(2)(a) of the ATA stands at the far end of a spectrum of “reasonableness”, requiring the greatest deference to the decision under review.    

[60]           The “patently unreasonable” standard in s. 58(2)(a) requires the tribunal’s decision to have rational support.  The decision must also, since Dunsmuir, fall within a range of outcomes defensible in respect of the facts and the law. 

The BC Court of Appeal has now distanced itself from the approach set out in Viking Logistics. At paragraph 53 of its reasons, the Court stated in Coast Mountain Bus Company Ltd. v. National Automobile, Aerospace, Transportation and General Workers of Canada (CAW-Canada), Local 111, 2010 BCCA 447:

53. I also agree with the reasons of Gray J. in Lavender Co-Operative that Bolster has not been overtaken by the decisions in Dunsmuir and Khosa. Dunsmuir dealt with standards of review at common law, and nothing said in that decision related to the interpretation of legislation mandating standards of review, which was the issue in Bolster.  Although Mr. Justice Binnie referred in Khosa to the Administrative Tribunals Act and similar legislation, he was making the point that the content of a standard of review stipulated by legislation must be interpreted in the common law context.  He was not saying that the common law meaning of a standard of review should affect the interpretation of legislation with respect to the applicable standard of review and, indeed, he observed that effect must be given to the standard of review of patent unreasonableness prescribed by s. 58 despite the fact that this standard of review no longer exists at common law after the decision in Dunsmuir.

This dispute appears to have recently been resolved in favour of simply returning to the approach under the ATA that existed prior to Dunsmuir.

In United Steelworkers, Paper and Forestry, Rubber, Manufacturing, Energy (Allied Industrial and Service Workers International Union, Local 2009) v. Auyeung, 2011 BCSC 220, the court stated:

[59]           Although there has been some debate about the extent to which recent decisions of the Supreme Court of Canada may have altered the applicability of the patent unreasonableness standard under s. 58 of the Administrative Tribunals Act, I am satisfied that the issue has now been settled by the decision of the British Columbia Court of Appeal in Coast Mountain Bus Company Ltd. v. National Automobile, Aerospace, Transportation and General Workers of Canada (CAW-Canada), Local 111, 2010 BCCA 447. The Supreme Court’s jurisprudence has not diluted or otherwise altered the patent unreasonableness standard under the Administrative Tribunals Act.

[60]           What may constitute a “patently unreasonable” decision has also been the subject of much judicial consideration.

[61]           The following authorities assist in establishing the principles which apply to my consideration of issues raised that are subject to review on the “patent unreasonable” standard.

[62]           In Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 at 963-64, Cory J. (for the majority) stated:

It is said that it is difficult to know what "patently unreasonable" means. What is patently unreasonable to one judge may be eminently reasonable to another. Yet any test can only be defined by words, the building blocks of all reasons. Obviously, the patently unreasonable test sets a high standard of review. In the Shorter Oxford English Dictionary "patently", an adverb, is defined as "openly, evidently, clearly". "Unreasonable" is defined as "[n]ot having the faculty of reason; irrational…. Not acting in accordance with reason or good sense". Thus, based on the dictionary definition of the words "patently unreasonable", it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was a loss of jurisdiction. This is clearly a very strict test.

In CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983, La Forest J. (Dickson C.J. concurring) laid out the strict test of review, at p. 1003:

Where, as here, an administrative tribunal is protected by a privative clause, this Court has indicated that it will only review the decision of the Board if that Board has either made an error in interpreting the provisions conferring jurisdiction on it, or has exceeded its jurisdiction by making a patently unreasonable error of law in the performance of its function …

It is not enough that the decision of the Board is wrong in the eyes of the court; it must, in order to be patently unreasonable, be found by the court to be clearly irrational.

[63]           A useful practical summary of the applicable principles to be applied by the court on an application for judicial review under the patent unreasonableness standard is found at para. 33 of Speckling v. British Columbia (Workers’ Compensation Board), 2005 BCCA 80 [Speckling], where Levine J.A. stated:

[33]      Having confirmed the correctness of the patently unreasonable standard of review, I agree with the chambers judge’s summary of the approach to be taken in applying that standard. He noted the following principles (at para. 8):

1.       The standard of review is that of patent unreasonableness: Canada (Attorney General) v. P.S.A.C. (1993), 101 D.L.R. (4th) 673 (S.C.C.).
2.       "Patently unreasonable" means openly, clearly, evidently unreasonable: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748.
3.       The review test must be applied to the result not to the reasons leading to the result: Kovach v. British Columbia (Workers' Compensation Board), (2000), 184 D.L.R. (4th) 415 (S.C.C.).
4.       The privative clause set out in s. 96(1) of the Act requires the highest level of curial deference: Canada Safeway v. B.C. (Workers' Compensation Board), (1998), 59 B.C.L.R. (3d) 317 (C.A.)
5.       A decision may only be set aside where the board commits jurisdiction error.
6.       A decision based on no evidence is patently unreasonable, but a decision based on insufficient evidence is not: Douglas Aircraft Co. of Canada Ltd. v. McConnell, [1980] 1 S.C.R. 245, and Board of Education for the City of Toronto v. Ontario Secondary School Teachers' Federation et al (1997), 144 D.L.R. (4th) 385 (S.C.C.).

[64]           The third point, in Speckling, that “the review must be applied to the result, not to the reasons for the result” was also recently addressed by this Court in Victoria Times Colonist v. Communications, Energy and Paperworkers, 2008 BCSC 109, aff’d, 2009 BCCA 229. Ballance J. said at para. 65:

[65] When reviewing for patent unreasonableness, the court is not to ask itself whether it is persuaded by the tribunal’s rationale for its decision; it is to merely ask whether, assessing the decision as a whole, there is any rational or tenable line of analysis supporting the decision such that the decision is not clearly irrational or, expressed in the Ryan formulation, whether the decision is so flawed that no amount of curial deference can justify letting it stand. If the decision is not clearly irrational or otherwise flawed to the extreme degree described in Ryan, it cannot be said to be patently unreasonable. This is so regardless of whether the court agrees with the tribunal’s conclusion or finds the analysis persuasive. Even if there are aspects of the reasoning which the court considers flawed or unreasonable, so long as they do not affect the reasonableness of the decision taken as a whole, the decision is not patently unreasonable.