CIVE 463 Lecture Notes - Lecture 12: Ian Binnie, Michel Bastarache, Canadian Union Of Public Employees
25 May 2018
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Department
Course
Professor
Class 12: Three is a crowd!
• 1971, MetLife & Bell: courts are free wheeling jurisdiction branding (prior to CUPE) -
interpreting legislative schemes - questions as preliminary jurisdiction questions: if the
Boards do not get the jurisdictional question right, they cannot adjudicate on the merits
• 1979, CUPE: this jurisdictional framing has been taken place for too long - deference to
administrative bodies is important. Dickson: do not frame it as jurisdictional - can this
decision be rationally supported looking at the legislation and is it patently unreasonable.
Call for deference, courts should stop take away jurisdiction from administrative bodies.
But problem is not totally solves jurisdictional problem because does not resolve the
question of what is the difference between error of jurisdiction vs. error of law
• 1988, Bibeault: Pragmatic and functional approach - instead of first looking at if they got
jurisdiction right - look at different factors. But we are not excluding jurisdictional review
- we restrict it: only goes to the Q determinative of what the scope of the Board’s
jurisdiction is = only the provisions that are jurisdiction conferring of statute will attract
jurisdictional review.
o Still 2 standards: patent unreasonable (you can get the wrong answer as long as
the reasoning does not manifest a plain and obvious mistake = deference) and
correctness (one right answer = one of the court)
• 1997, Southam: expansion of standards: middle standard - reasonableness solicitor (right
to appeal, but the special knowledge involved is non-legal, here: competition, economy).
Decision has to stand to a probing examination of the reasoning or the outcome
• 1998: Pushpanathan: 4 factors to find the standard: privative clause, expertise, nature of
the question, Purpose of statute and provision (human rights, etc). → High-water mark of
P+F approach
• 2008, Dunsmuir: Bastarach and Lebel (J) v minority Binnie J. refers to the Diceyan
vision: parliamentary sovereignty and the rule of law - we have to take these elements
into account all the time. In Pushpanathan the point of looking at the 4 factors is to
determine the legislative intent. In Dunsmuir, the legislative intent is more to determine
the RoL situation here.
o 2 standards
o presumption or multifactor (P+F approach). Still jurisdiction questions that go to
agencies.
▪ Is there a presumption that reasonableness is the standard - and the
exception is correctness? Or still apply P+F approach
• 2012, Doré: Reasonableness standard used for constitutional matter.
Discussion
4 reasons why JRAA is so popular: enormous amount of SR cases, a lot of inconsistency in its
application, touches on fundamental issues for our legal order, highly political concept.
Question 1: Bastarache and Lebel suggest that “it is inconsistent with the RoL to retain an
irrational decision” (para 42). However, one could argue that it is contrary to the RoL to uphold
an incorrect decision, something that courts might do when the standard of review is
reasonableness. For example, when the issue is an ordinary question of law, according to
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