Unjust Dismissal: Judicial Review: Standards: Deference

The review of the adjudicative award is based on the standard of reasonableness. ¹ This is the presumption whenever a court reviews administrative decisions. ²

In order for an administrative decision to be reasonable, it must be based on rational and logical reasoning, and be justified “in relation to the facts and the law that constrain the decision maker”. ³

Deference was discussed in Dunsmuir which determined this definition of the term: ⁴

It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view.  Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. [para. 48]

The same decision defined the standard of reasonableness, as follows:

[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.

In order for an administrative decision to be reasonable, it must be based on rational and logical reasoning, and be justified “in relation to the facts and the law that constrain the decision maker”. ⁵

A reasonable decision “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”  ⁶

Abella, J., in Wilson, took issue with the suggestion from the Federal Court of Appeal that, given a reasonableness standard, the adjudicative decision should be allowed only a “narrow margin of appreciation” as the statutory interpretation involves “relatively little specialized labour insight”. This grading of the reasonableness standard was illogical, she stated and unduly complicated an area of law in need of simplicity. ⁷

In the application of this standard of reasonableness, the reviewing court does not:

1. Ask what decision it would have made as the decision maker; nor
2. Does it attempt to determine the extent of the possible alternatives; nor
3. Does it sit as a court of first instance; nor
4. Does it seek to determine the correct solution.

It is a “disguised correctness review”, should the reviewing court make it own “yardstick” and use this to determine the correctness of the original decision. ⁸

This leads to what would appear to be an incongruous result. It is possible for there to be multiple and different methods of interpreting a statutory remedy. Both views may be considered reasonable. ⁹

The Supreme Court of Canada, in a 2011 decision, one which pre-dated Wilson, noted that the fact that there are two possible outcomes, both determined to have been reasonable, does not provide an impetus to declare one of these results to be wrong. ¹⁰

The adjudicator’s decision is subject to the reasonableness standard to the entirety of the decision, including applications which may be made of common law or civil law, such as that for an allegation of constructive dismissal.  ¹¹

Just Cause

The finding of an adjudicative decision on the issue of just cause is one of mixed fact and law. It is subject to review based on the standard of reasonableness.  ¹²

Mixed Fact and Law

The assertion of a review of a finding of mixed fact and law requires the revelation of a “palpable and overriding error”. This presumes that there is no extricable question of law. ¹³

Factual Issues

The standard of review of a finding of fact made at the hearing level is subject to the Federal Courts Act, s. 18.1(4) d. It must be shown that the decision was based on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before the hearing. This mandates a high degree of deference. ¹⁴

Should the first level court make its own factual determination, even in reaching a procedural fairness determination, this determination is reviewable by the Court of Appeal under the normal standard of appellate review.  Hence, the test for a review to the Court of Appeal on this issue is one that must pass the test of a “palpable and overriding error”.  ¹⁵ The first reviewing court cannot reassess the evidence to make its own conclusions, even should it disagree with findings of fact. ¹⁶

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1. 2016 Wilson v. Atomic Energy of Canada
2. 2019 Canada v  Vavilov SCC
3. 2019 Canada v  Vavilov SCC
4. Dunsmuir v New Brunswick SCC 2008
5. 2019 Canada v  Vavilov SCC
6. Dunsmuir v New Brunswick SCC 2008
7. Wilson v Atomic Energy, Abella J., SCC July 2016
8. FCA Amer v Shaw December 2023
9. Dunsmuir v New Brunswick SCC 2008
10. Newfl and Lab Nurses Union v Treasury Board
11. Yue v Bank of Montreal FCA 2016
12. Payne v. Bank of Montreal FCA 2013; Donaldson v. Western Grain
13. Northern Inter-Tribal Health Authority Inc. v. Yang  FCA March 2023
14. Colistro v BMO FCA April 2008
15. Amer v Shaw FCA
16. Amer v Shaw FCA