University of Toronto Law School Faculty Blog

Discussion of Dunsmuir v. New Brunswick

On June 4, 2008, a Roundtable was held at the Faculty of Law, University of Toronto on the Dunsmuir v. New Brunswick decision from the Supreme Court of Canada (handed down in March of 2008).  The aim of the Roundtable was to explore the implications of this decision for the development of Administrative Law, and in particular the Court's wide-ranging discussion of the standard of judicial review of administrative action, deference, and the applicability of procedural fairness to public office holders.

The background material for the Roundtable, including the Dunsmuir case, the facta filed at the Supreme Court, and some early commentaries are available for download at: http://www.law.utoronto.ca/conferences/dunsmuir.html.

Below, we have prepared a summary (in PDF format) of the themes, ideas and arguments raised during the Roundtable in the hopes that it will serve as a catalyst for further discussion and debate.  We invite comments on any aspect of the discussion which might interest readers of this blog.

• Summary of the Roundtable on Dunsmuir (PDF)

Report on "The Future of Administrative Justice" symposium

A symposium on "The Future of Administrative Justice" was hosted by the Faculty of Law in January 2008. It explored the future of administrative justice by bringing together academics, participants in the tribunal sector and government policy makers to dialogue about improvements to administrative tribunals in Ontario and other jurisdictions.

A 28-page report on the symposium has now been released (May 2008), which summarizes the presentations and the roundtable discussion that wrapped up the day.

• Future of Administrative Justice Symposium Report (PDF)

The keynote address was given by Lord Justice Robert Carnwath, Senior President of Tribunals, England and Wales. Read the keynote address (PDF).

The symposium was also recorded on video, and the each session of the symposium can be viewed online from the symposium web page. The web page also includes other useful papers and background material.

• Watch the webcast of the symposium "The Future of Administrative Justice"

Dunsmuir: Can the Standard of Review be Solved?

On Friday, March 7, 2008, the Supreme Court released Dunsmuir v. New Brunswick (2008 SCC 9), a stark reversal of the last decade of administrative law jurisprudence on the issue of the standard of review. This decision seeks to quiet the steady drumbeat of criticism of the Court's Standard of Review jurisprudence while remaining true to the culture of deference. The centrepiece of the judgment is the collapsing of the standard of patent unreasonableness and the standard of reasonableness simpliciter into a single standard of reasonableness. While this move responds to the concern over arcane and artificial distinctions between shades of unreasonableness, it is unlikely to solve the standard of review dilemma, for the reasons explored below [note, a version of this comment was posted under the title "Dunsmuir: Plus ça change" with TheCourt.ca]

Veils, Isotopes and the Meaning of “Independence”

There have been a considerable number of allegations of late that the Federal Government has been improperly interfering with independent Federal Agencies, Board and Commissions (or, for short, Federal ABCs). From a dispute about veiled women voting to a dispute about shutting down a nuclear facility, both the diversity and the importance of independent administrative ABCs has been on display. But just how independent are they? When we refer to a body as at “arm’s length” from the Government, does that imply it still may be within the Government’s grasp. Below I suggest these administrative bodies may not be as independent as we think they are, but that their vulnerability to government interference is precisely what is intensifying public scrutiny of government and enhancing public support for administrative justice.

Tea and oranges that come all the way from China

Had Suzanne heard the news in recent months she'd probably think twice before serving Leonard Cohen tea and oranges that came all the way from China.  With reports about recalled toys, pet food poisoning and the FDA ban on certain imports of seafood from China, there is no exotic romance in such tea and oranges anymore.  No wonder American politicians and government officials step in to protect consumers against such safety dangers.  As Hillary Clinton said "I don't want to eat bad food from China or have my children having toys that are going to get them sick."  Nor do I. 

How the Supreme Court of Canada Missed the Point about Human Rights Jurisdiction…

Administrative law is often obscure but the Supreme Court over the past year or two has been embroiled in a particularly technical administrative law question around which tribunals have jurisdiction over which kinds of disputes and whether more than one tribunal may have jurisdiction over the same dispute. Like many technical questions in administrative law, however, there is a basic question of fairness and justice underlying the debate. The stakes for Canadians who encounter the justice system (and far more of this group do so before administrative tribunals than before courts), could not be higher.

Human Rights Reform in Ontario: A Time for Change

For over fifteen years, there has been a growing dissatisfaction with the human rights process in Ontario.  This dissatisfaction has been expressed by members of equity seeking communities, by human rights advocates and by lawyers practicing in the area of human rights. During that time, there have been four government-initiated reviews of human rights enforcement systems in Canada, one specifically directed at the Ontario legislation, one dealing with the very similar federal human rights complaint system, and two reviewing the systems in other provinces. Despite the fact that each of these reviews made very similar recommendations for reform of the human rights complaint process, to date no major reform has been undertaken in Ontario. That is, until now.

Is Administrative Law Only for Losers? Lessons from Gomery

Administrative Law (and the same might be said of Constitutional Law) is for losers. People who receive decisions from government that they like do not challenge them in Court. Principles of fairness and reasonableness are developed in the context of procedural fairness to losers in public decision-making - the student expelled from school, the professional denied a license to practice, the company fined for regulatory infractions, the vanquished in a labour dispute. This is, in some respects, as it ought to be. Persuading losers that an adverse decision was fair and reasonable is one of the central characteristics of the rule of law. But seen from another perspective, that of the integrity of public decision-making, whether a decision is positive or negative for a particular party is beside the point.