Farewell to Patently Unreasonable: Dunsmuir v. New Brunswick

It might seem like an ordinary day to you, but for Canadian administrative law nerds, everything has changed. Huge news today from the Supreme Court of Canada in Dunsmuir v. New Brunswick: All nine judges agreed that it is time for the "Patently Unreasonable" standard of review to be banished! There are only 2 Standards of Review! "Reasonableness.and Correctness" (With a 3-judge minority preferring "Deference and No Deference").

...it would be unpalatable to require parties to accept an irrational decision simply because, on a deferential standard, the irrationality of the decision is not clear enough.

Furthermore, they all agreed that the "pragmatic and functional approach" is out. We now have a contextual "standard of review analysis" from the 5-judge majority decision written by Justices LeBel and Bastarache. It uses the same factors that the pragmatic and functional approach used, but now they are not an exclusive list and one of the factors can be determinative.

All 9 judges wanted the standard of review question to be more straight-forward so that people challenging administrative decisions will better know what to expect and not have to pay such huge legal bills. Fortunately for us lawyers, we should still be kept busy with water muddied by the minority opinion from Justices Binnie calling for a "wider reappraisal" that accomodates "a lot of variables" and another from Justice Deschamps calling for clearing away "superfluous discussions and processes".

I always wonder what the tone of debate is between the justices when they don't all sign on to the same decision. I have a feeling that it might be at it's most heated when they agree on whether the appeal is upheld or not, like they did in this case (poor Mr. Dunsmuir won't be getting his job back), but don't agree on how to get to that answer.

One of the clues I go by to tell how heated things are is how often the writer of the judgment feels a need to mention that their opinion is held "with respect". In this case, Justice Binnie writing only for himself used the phrase twice. But the more telling quote may be:

Asking courts to have regard to more than one variable is not asking too much, in my opinion. In other disciplines, data are routinely plotted simultaneously along both an X axis and a Y axis, without traumatizing the participants.

I think it is a safe bet that the Justice and not one of his clerks wrote those sentences.