Post Dunsmuir Standard of Review

Posted by Johannes Schenk on November 27th, 2008 — Posted in Human Rights Law, Labour Law, Municipal Law, Professional Discipline

What’s a poor boy to do (or lawyer to do) when faced with Dunsmuir and the standard of review and the ATA standards of review. Well naturally you would rely on this case, Lavigne v. British Columbia (Workers Compensation Review Board), 2008 BCSC 1107, wherein the Court states:

89 Accordingly, if the wording of s. 58(2)(a) of the ATA is to apply then the standard of review of the WCAT decision of October 28, 2003 is patent unreasonableness where findings of fact or law or the exercise of discretion are involved.

90 I recognize that the Supreme Court of Canada in Dunsmuir v. New Brunswick, [2008] SCC 9, March 7, 2008, collapsed the common law two standards of review of patent unreasonableness and reasonableness simpliciter, on judicial reviews, into one standard of “reasonableness”, leaving only the two standards of reasonableness and correctness, but the court did not suggest that the patent unreasonableness standard never existed. In fact it was its very existence that required the court to deal with it in its decision.

91 While the court said that the new standard of reasonableness for judicial review would apply even where an administrative tribunal has a strong privative clause, the court did not specifically deal with the situation where the privative clause is backed by a provincial statute such as the ATA that specifically assigns the standard of patent unreasonableness to tribunals which are making findings of fact or law or exercising discretion in matters where they have exclusive jurisdiction under privative clauses.

92 The court did say that the courts can rely on jurisprudence that has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category or question.

93 There were cases in this court prior to Dunsmuir that applied the standard of patent unreasonableness in the ATA to decisions of WCAT (Basura v. British Columbia (Workers’ Compensation Board), [2005] B.C.J. No. 590, Daniel v. British Columbia (Workers’ Compensation Appeal Tribunal), 2007 BCSC 1005, and Wyant v. British Columbia (Workers’ Compensation Board), [2006] B.C.J. No. 986), and there is at least one decision in this court that has continued to apply the standard in the ATA after Dunsmuir (see Carter v. Travelex Canada Ltd., 2008 BCSC 405).

94 However, in Howe v. 3770010 Canada Inc., 2008 BCSC 330, the learned trial judge determined that she could not use the definition of “patently unreasonable” found in s. 58(3) of the ATA because it was restricted to discretionary decisions of the tribunal.

95 Instead, she determined that it was necessary to look to the common law for the definition of “patently unreasonable” and she referred to Dunsmuir where “reasonableness” became the standard. She then applied that standard of reasonableness to the tribunal’s decision in her case.

96 This decision did not consider the fact that s. 58(2)(a) mandates a standard of patent unreasonableness for findings of fact or law or an exercise of discretion even if there is no definition of it for those purposes found in the section.

97 I accept that the learned trial judge was correct in looking to the common law for the definition of patently unreasonableness, but I conclude that its definition must be as it existed prior to the new standard of reasonableness established by Dunsmuir. The words of s. 58(2)(a) requiring a standard of “patently unreasonable” cannot be ignored.

98 Having the luxury of two competing decisions of this court to choose to follow, I choose to follow the Carter decision and apply the standard of patent unreasonableness to the October 28, 2003 decision of WCAT here, regardless of the decision in Dunsmuir, along with the ATA standard of fairness for natural justice and procedural fairness.

99 It may be the case that the ATA can be considered as part of the existing jurisprudence that the Supreme Court of Canada in Dunsmuir said can be used by the courts to determine the degree of deference to be accorded to a tribunal, but it is unnecessary to decide that here.

100 The WCAT review decision of February 8, 2007 will be considered on the correctness standard of whether it was correct in concluding that the WCAT decision of October 28, 2003 was not patently unreasonable and was procedurally fair.

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