Goodbye Patently Unreasonable?

Posted by Johannes Schenk on April 11th, 2008 — Posted in Employment Law, Human Rights Law, Labour Law, Municipal Law, Professional Discipline

One of the great challenges in administrative law has been determining how far the Court that you are in should go in reviewing a tribunal’s decision. The spectrum of review ranges (used to) from correctness to reasonableness simpliciter to patentely unreasonable and turns on a number of factors that essentially balance out the type of decision being made, the kind of individual that decision will affect and the nature of the decision maker.

Still more difficult is trying to explain to clients the morass of law that has developed under the rubric of “pragmatic and functional analysis”. Any such attempt to explain is generally met with glazed eyes, “how much is this going to cost?”, and a big “but what about my problem?”. The only explanation that seems to get across is: can’t be wrong, can be a little wrong, can do anything short of advocating a flat earth society.

BC’s attempt to clean up the issue with an Administrative Tribunals Act doesn’t seem to have simplified matters when you read the resulting caselaw.

In answer take a look at Dunsmuir v. New Brunswick, 2008 SCC 9. Here the Supreme Court does away with the disctinction between patently unreasonable and reasonableness simpliciter. Yes you read that right: now we have correctness versus reasonableness.

I suspect that we will really only see change in semantics and at the end of the day whatever new or modified analysis arises will still ask the question: how far do we let this tribunal stray from where we think this matter ought to go? But then isn’t that really the question?

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