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otherwise defined in the Canadian Human Rights Act) could not be interpreted to extend
protection to a same-sex couple. The majority, as well as two judges dissenting on the result,
adopted a correctness standard of review.54 (Here we encounter the not-uncommon phenomenon of judges agreeing on a correctness standard and then disagreeing on what the
right answer is upon applying that standard.) LHeureux-Dub J. wrote a dissenting judgment adopting a patent unreasonableness standard.
The concurring majority judgments in Mossop express two variants of what I have described as a positivist approach to statutory interpretation. Lamer C.J. (Sopinka and Iacobucci JJ. concurring) grounds his analysis in legislative intent. This analysis is framed by a
gesture toward the parallel universe of normative jurisprudence available only to claimants
invoking the Charter.55 That is, given that Mr. Mossop had opted to base his claim exclusively in arguments from statutory interpretation, Lamer C.J. suggests that the Court is
bound by contextual indicia that family status was not intended to encompass same-sex
relationships. Here he emphasizes the absence of sexual orientation from the statutes prohibited grounds of discrimination at the time the proceedings arose, even in the face of a
recommendation by the Canadian Human Rights Commission that it be added. The failure
of Parliament to act on the commissions recommendation, he reasons, amounted to its
refusal to do so. Lamer C.J. states the principle driving his analysis as follows:
Absent a Charter challenge of its constitutionality, when Parliamentary intent is clear, courts
and administrative tribunals are not empowered to do anything else but to apply the law. If
there is some ambiguity as to its meaning or scope, then the courts should, using the usual rules
of interpretation, seek out the purpose of the legislation and if more than one reasonable interpretation consistent with that purpose is available, that which is more in conformity with the
Charter should prevail.56

In this case, however, Lamer C.J. determined that the legislative intent was clear, so that no
recourse to the Charter as an interpretive aid could be made.
In his concurring judgment, La Forest J. (writing for himself and Iacobucci J.)57 also focuses on legislative intent. However, his judgment is more insistently fixed on the statutory
text and, specifically, the word family. He describes his approach as consistent with the
ordinary rules of statutory interpretation, which demand that one give to the words used in
a statute their usual and ordinary sense having regard to their context and to the purpose of
the statute.58 In applying this principle, however, La Forest J. emphasizes not the clear purpose of the Canadian Human Rights Actthat of eradicating discriminationbut the usual
and ordinary sense of the word family. His conclusion is that the dominant and thus
54 Audrey Macklin discusses the rationale behind selection of a correctness standard in Mossop in Chapter 9,
section V, Pragmatic and Functional Redux: Pushpanathan v. Canada (under heading V.B, Expertise; see also
heading V.D, The Nature of the Problem).
55 Canadian Charter of Rights and Freedoms, part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [the Charter].
56 Mossop, supra note 46 at 581-82.
57 The fact that Iacobucci J. concurs with the opinions of both Lamer J. and La Forest J. on the correct approach
to statutory interpretation alerts us to the compatibility of these approaches.
58 Supra note 46 at 585.

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ordinary sense of the word, or that which represents the consensus of the Canadian public,
is the traditional family. This is the meaning that therefore must be understood to have been
Parliaments intent both when the statute was enacted and at the time the dispute arose.
LHeureux-Dub J. is alone in arguing that a patent unreasonableness standard (at the
time, the only alternative to correctness review) should apply. However, her disposition of
the matter is endorsed in the separate dissenting reasons of McLachlin and Cory JJ., who
determine that a correctness standard is in order. This seems to indicate that for McLachlin
and Cory JJ., the judgment of LHeureux-Dub J. represents the best account of the right
answer to this interpretive dispute.59 Thus, while our objective in this section is to consider
correctness review, it is worth contrasting the approach taken by LHeureux-Dub J. to that
of the majority.
The judgment of LHeureux-Dub J. is not the superficial gloss endorsed by some early
on as the proper model of patent unreasonableness review.60 And yet it distinguishes itself
from the approach of the majority in two key ways. First, it takes an emphatically normative
approach to statutory interpretation. LHeureux-Dub J. expresses the distance between her
approach and that of the majority as follows:
Even if Parliament had in mind a specific idea of the scope of family status, in the absence of
a definition in the Act which embodies this scope, concepts of equality and liberty which appear in human rights documents are not bounded by the precise understanding of those who
drafted them. Human rights codes are documents that embody fundamental principles, but
which permit the understanding and application of those principles to change over time. These
codes leave ample scope for interpretation by those charged with that task.61

The point here is that, at least with human rights statutes, it is essential to orient interpretive judgment with reference to human rights principles (in this case, equality or non-
discrimination). These are asserted in this passage not as statute-specific but as fundamental.
As such, they may be curtailed only by the most explicit expressions of legislative intent.
Thus it seems that there is, if not a right answer in this case (and perhaps, for LHeureuxDub J., there is), then at least a right and a wrong way of going about resolving the question.
Both the reliance of La Forest J. on an unexamined consensus and the reliance of LamerC.J.
on legislative intent as inferred from legislative history come in for criticism as insupportably prioritizing the will of an ostensibly unitary majority over the human rights principles
engaged by this instance of interpretation. In contrast, LHeureux-Dub J.s judgment reflects
a commitment to a model of the rule of law known as common-law constitutionalism.62

59 The implications of this are the subject of careful analysis in Dyzenhaus, Constituting the Rule of Law, supra
note 5 at 464-68.
60 See the judgment of Wilson J in National Corn Growers, supra note 13.
61 Mossop, supra note 46 at 621.
62 See the discussion of normative approaches to statutory interpretation in section II, above. For an illuminating account of historical and contemporary features of common-law constitutionalism, see M.D. Walters,
Common Public Law in the Age of Legislation: David Mullan and the Unwritten Constitution in Inside
and Outside, supra note 19 at 421, and The Common Law Constitution in Canada: Return of Lex Non
Scripta as Fundamental Law (2001) 51 U.T.L.J. 91.

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Under this model, statutes are understood not as closed systems but as requiring interpretation in light of the animating principles and values of the wider social and legal tradition.
The second major difference between LHeureux-Dub J.s judgment and that of the majority (and here she also differs from her fellow dissenters) is, of course, her selection of a
patent unreasonableness standard. Thus, while the tradition of common-law constitutionalism tends to place the burden of identifying and prioritizing fundamental values on the
shoulders of judges alone, LHeureux-Dub J. indicates through her adoption of deference
that the tribunal has a legitimate role in this enterprise. This is confirmed in her method of
reasoning, which throughout draws on and amplifies the evidence and argument accepted
by the tribunal. That is, the decision of the tribunal is drawn on not simply as a base of fact
or policy separable from legal analysis, but as an exercise in statutory interpretation, which
is itself a model of the interdependency of facts and values in legal judgment. As such,
LHeureux-Dub J. demonstrates both a respect for Parliaments will to assign the tribunal
the role of administering this statute, and a commitment to the idea (again, cast as a principle of law) that in administering the statute, the tribunals task is to transcend narrow
constructions of parliamentary will.
In agreeing with LHeureux-Dub J.s disposition of the case, McLachlin and Cory JJ. indicate their support for the idea that the statutory text must be read in light of social context
(and thus changing social conceptions of family), and with particular sensitivity to the ways
that human rights principles inflect and are inflected by that text and context. Yet according
to LHeureux-Dub J., this sensitivity is best served by careful attention to the reasons of the
tribunal. In light of the fact that the other dissenters select a correctness standard, a question
that arises is whether they are to be understood to say that the right answer would have
been secured absent the tribunals reasons or, alternatively, that in this case, correctness review is compatible witheven in some measure dependent onattentiveness to tribunal
reasoning.63
Since Mossop and, moreover, the introduction of review for reasonableness (as an alternative to deference attuned only to patent unreasonableness), the Court has indicated
an increased willingness to accept that deference to human rights tribunals on matters involving interpretation of human rights statutes may, at least in some circumstances, be warrantedfor instance, where the matter is fact-intensive or goes to tribunal processes.64 At
the same time, it has shown some willingness to defer to decisions affecting human rights
even where the administrative decision-maker is not a human rights tribunal.65 This trend
receives further support with Dor,66 which, as discussed in the next section, states that the
63 See Dyzenhaus, Constituting the Rule of Law, supra note 5 at 467-68.
64 Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at para. 45 [Pushpanathan]. More recent consideration of this question is found in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471 [Mowat] at paras. 19-27. See Audrey
Macklins discussion of the issue in Chapter 9, section V, Pragmatic and Functional Redux: Pushpanathan v.
Canada (under heading V.B, Expertise) and section VI, Dunsmuir: And Then There Were Two (under heading VI.D, What Is a Question of Central Importance to the Legal System as a Whole (and Outside the
Decision-Makers Area of Expertise)?).
65 For example, see Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R.
650. The decision is characterized not as law-interpretive but rather as a highly discretionary application of
legal standards to the facts.
66 Supra note 4.

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exercise of adjudicative discretion involving the balancing of Charter values with other legal
values should generally attract deference.
It is not at all clear, however, that a decision like the one engaged in Pushpanathan v.
Canada (Minister of Citizenship and Immigration)67 would attract deference after Dor. In
Pushpanathan, the Court applied a correctness standard of review to a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, involving
interpretation of a provision of the Immigration Act excluding from refugee status persons
who have been guilty of acts contrary to the purposes and principles of the United Nations. The language had been incorporated from a UN convention. Here, the central matter
in dispute was constructed not as an exercise of discretion (despite the necessary operation
of discretion or of value-laden judgment in interpreting the provision), but rather as interpretation of a general legal principleand the board was found not to have applicable
experience or expertise. On applying a correctness standard, both the majority and dissenting judgments of the Supreme Court of Canada undertook an independent analysis of the
interpretive problem. That is not to say that either took a positivistic, as opposed to normative, approach. Indeed, the selection and application of correctness review in this case is
rooted less in the thesis that the question gives rise to one right answer than the thesis that
judges hold a unique institutional capacity to adjudicate general legal principles of broad
importance, in particular those affecting fundamental human rights.68 Notably, the majority
and dissent arrived at diverging interpretations based on diverging opinions about the
proper balancing of competing values and objectives.
Correctness review has also continued to be applied in ways that suggest a more positivistic understanding of the enterprise of statutory interpretation. We may ask how the
Dunsmuir majoritys statement that a tribunal engaged in interpretation of its enabling statute will typically attract deference 69 would affect the analysis in the pre-Dunsmuir case,
Barrie Public Utilities v. Canadian Cable Television Assn.70 There, Gonthier J. for the majority characterized the phrase the supporting structure of a transmission line as a matter of
pure statutory interpretation 71 attracting correctness review. He then proceeded to identify the plain meaning of this phrase. Yet the contrary interpretation (favoured by the Canadian Radio-television and Telecommunications Commission) arguably reflected cogent
policy goals consistent with its mandate. Bastarache J., in dissent, criticized the majoritys
approach in comments that drew on the reasons of LHeureux-Dub J. for a unanimous
Court in Domtar Inc. v. Quebec (Commission dappel en matire de lsions professionnelles):72
Substituting ones opinion for that of an administrative tribunal in order to develop ones own
interpretation of a legislative provision eliminates its decision-making autonomy and special
expertise. Since such intervention occurs in circumstances where the legislature has determined
67 Supra note 64.
68 I discuss these judgments further in A Fine Romance?, supra note 4 at 231-32.
69 Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to
its function, with which it will have particular familiarity (Dunsmuir, supra note 1 at para. 54). See also the
majority judgment in Alberta (Information and Privacy Commissioner), supra note 2.
70 2003 SCC 28, [2003] 1 S.C.R. 476 [Barrie Utilities].
71 Ibid. at para. 16.
72 [1993] 2 S.C.R. 756 [Domtar].

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that the administrative tribunal is the one in the best position to rule on the disputed decision,
it risks, at the same time, thwarting the original intention of the legislature. For the purposes of
judicial review, statutory interpretation has ceased to be a necessarily exact science and this
Court has, again recently, confirmed the rule of curial deference set forth for the first time in
Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp.73

If statutory interpretation is not an exact science, then on what grounds can courts
continue to apply correctness review to disputes of this sort, as such giving no credence or
weight to tribunal interpretations? Again, as with Bibeault, we may ask whether or how Barrie Utilities might have been differently decided after Dunsmuir.
The post-Dunsmuir judgment of the Supreme Court in Northrop Grumman Overseas
Services Corp. v. Canada (Attorney General)74 offers a final example of a dispute about statutory interpretation that was resolved on a correctness standard. There the question was
whether the Canadian International Trade Tribunal (CITT) had authority to hear a complaint brought by a non-Canadian corporation, Northrop Grumman Overseas. The corporation wished to argue that Public Works and Government Services Canada had not evaluated its bid for a procurement contract in accordance with the Agreement on Internal Trade
(AIT). The statute governing the tribunals authority, the Canadian International Trade Tribunal Act,75 contemplated complaints from potential suppliers of procurement contracts
under the AIT where certain threshold conditions were met. The question was: did those
with standing before the CITT include non-Canadian corporations like Northrop Grumman? The CITT departed from its own precedents to decide that it could hear the complaint.
On its analysis of the text and purposes of the CITT Act and Regulations in addition to the
AIT, it determined that there was no basis on which to conclude that the potential suppliers who may make complaints under the AIT were restricted to Canadian suppliers.76
Both the Federal Court of Appeal77 and the Supreme Court of Canada78 applied a correctness standard to the CITTs decision, in light of past jurisprudence of the federal court
and, more generally, a determination that the matter went to the tribunals jurisdiction.79

73 Barrie Utilities, supra note 70 at para. 128 (per Bastarache J.), quoting Domtar, supra note 72 at 775.
74 2009 SCC 50, [2009] 3 S.C.R. 309.
75 R.S.C. 1985, c. 47 (4th Supp.).
76 Northrop Grumman Overseas Corp. v. Department of Public Works and Government Services (12 September
2007), PR-2007-008, online: Canadian International Trade Tribunal <http://www.citt-tcce.gc.ca/procure/
Determin/archive_pr2h08r_e.asp>.
77 Canada (Attorney General) v. Northrop Grumman Overseas Services Corp., 2008 FCA 187, [2009] 1 F.C.R. 688.
78 Supra note 74.
79 Ibid. at para. 10. Rothstein J., writing for the Court, justifies selection of a correctness standard, first on the
basis that recent case law from the Federal Court establishes that a CITT decision on whether something falls
within its jurisdiction will attract correctness review. This is followed by the more categorical statement: The
issue on this appeal is jurisdictional in that it goes to whether the CITT can hear a complaint initiated by a
non-Canadian supplier under the AIT. Accordingly, the standard of review is correctness. See David Mullans
critique of the courts reliance on identification of a jurisdictional question to justify correctness review in this
case, rather than identifying the concern for consistency as determinative (given that different panels of the
tribunal had come to conflicting conclusions): D. Mullan, Consistent Decision-Making, supra note 43 at 11.

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Both courts concluded that the tribunals decision should be quashed. They supported this
result by way of close analysis of provisions of the AIT and the associated statutory instruments. In particular, the reviewing courts determined that article 502(1) of the AIT, which
states that the AIT applies to procurement contracts within Canada, specifically contemplates contracts between governmental parties and suppliers with a base of operations in
Canada. This interpretation was attentive to an express purposes clause in which the section
addressing procurements is described as seeking to establish a framework that will ensure
equal access to procurement for all Canadian suppliers.80 Justice Rothstein, writing for the
Supreme Court, additionally took account of the consequences for Canadas international
trading relationships if foreign corporations were to gain rights under the AIT despite exclusion of those same rights from the international trade agreements negotiated with their
home nations.81
One may be persuaded by the careful construction of the text of the CITT and AIT undertaken by the Federal Court of Appeal and Supreme Court of Canada, which is supported by
analysis of the adverse consequences for Canadas international trading interests if the tribunals interpretation were to be accepted. However, comparison of the way correctness review
was conducted by the Court of Appeal and Supreme Court of Canada is arguably instructive. The Court of Appeal extensively details the tribunals reasoning prior to launching into
an examination of the AIT and relevant statutory instruments.82 Subsequently, in disposing
of the case, it specifically addresses the aspect of the tribunals reasoning that, it holds, was
in errorcharacterizing that error as a failure to consider a key element of the statutory
scheme.83 In this, the judgment of the Court of Appeal has some appearance of entering into
a dialogue with the tribunal. In contrast, the Supreme Court references the arguments
brought by the disappointed party without noting the reasoning of the tribunal in any detail.
Moreover, neither court directly addresses the tribunals purposive thesis that the economic
objectives of the Act may be best satisfied by recognizing the standing of non-Canadian
suppliers.84 To simply enter into an independent analysis in the absence of direct engagement
with the tribunals reasoning is, of course, strictly in accord with the law on correctness review. Moreover, such an approach may be particularly appropriate to the Supreme Courts
decision in this case, given that it adopts the reasoning of the Court of Appeal in significant
part. However, the question to consider in comparing these judgments is whether the Court
of Appeal takes the insights of the tribunal more seriously in its analysisand, moreover,
whether such an approach (which, again, is in tension with the basic tenets of correctness
review) is to be preferred, precisely because it enables the parties, the wider public, and the
tribunal itself to evaluate whether and how the decision to quash was justified.
Examination of how correctness review was applied in the above cases reveals tensions
between a positivist approach to statutory interpretation, which looks to the text (or sometimes text and context) as a closed system indicative of a determinate legislative intent, and
80 Northrop Grumman, supra note 74 at paras. 22-24.
81 Ibid. at paras. 41-42.
82 Supra note 77 at paras. 13-24 (FCA).
83 Ibid. at paras. 79-81.
84 See the tribunal judgment, supra note 76 at para. 30.

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a normative approach, which views problems of statutory interpretation in light of background assessments not only of social facts but also of competing value-laden purposes.
Arguably the latter approach, taken seriously, begins to erode the idea that courts need not
give any weight or respect to the justificatory efforts of tribunals, even on matters traditionally reserved for correctness review. This proposition is further supported by the observation that it may be difficult, if not impossible, ever to achieve a surgical separation of fact
and law or policy and law.
The bedrock of correctness review is the concept of jurisdiction: the idea that administrative decision-makers do not enjoy unlimited authority and, moreover, do not enjoy authority (or final authority) on questions going to the scope of their mandate. Further, as we
have seen, the correctness standard of review reflects the rule-of-law concern for stability in
law, particularly in matters of general legal (including constitutional) significance. Yet for all
that, the standard sits uneasily with the aspiration of integrating the work of administrative
tribunals more fully into the constitutional order. For signals that this is indeed an aspiration that is proper to the modern jurisprudence on the standards of review, we must now
turn to the alternative to correctness review: review for reasonableness.

B. Review for Reasonableness

Let us consider, then, what it means to express deference on review. More fully stated, the
question pursued in the jurisprudence examined in this section is whether or how the imperatives of deference and supervision may be integrated where judges are tasked with reviewing the substantive legality of administrative decisions. This is the question at the heart
of reasonableness review, one that has driven successive transformations in this area of law
over the past three decades as courts have struggled to strike a principled balance between
these imperatives.

1. Enduring Questions from the Pre-Dunsmuir Case Law

To begin with the pre-Dunsmuir deferential standardspatent unreasonableness and reasonableness simpliciter 85we know now that we must view with suspicion the case law that
sought to distinguish between these standards by reference to the depth of probing or magnitude of error allowable under each. Such reasoning came in for authoritative criticism in
Dunsmuir, as both conceptually empty and practically unhelpful. However, the pre-Dunsmuir jurisprudence may nonetheless assist in alerting us to two main areas of controversy
about deference on substantive review that remain alive today: (1) controversies about the
method or conduct of judicial reasoning on review that is most consistent with deference,
and (2) controversies about the substantive indicia of reasonableness or unreasonableness.
a. The Conduct of Deferential Review
The majority in Dunsmuir endorses, as fundamental to the law on deference, the statement
from the 1979 decision in CUPE that statutory language may accommodate more than one
85 For a more expansive examination of these standards, see A Fine Romance?, supra note 4 at 233-47.

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343

reasonable interpretation. That thesis is essential to a further proposition that has driven the
last few decades of jurisprudence on the standards of reviewnamely, that there may be
good reasons for courts to defer to tribunals interpretations of law where those interpretations fall within the ambit of reasonableness. The question is: how are the limits of reasonableness to be discerned, consistent with deference?
Cases decided after CUPE at times manifested tensions in the impulse toward deference,
as courts ostensibly deployed the standard of patent unreasonableness yet engaged in what
appeared to be a search for the right answer to the matter in dispute.86 Nonetheless, a basic
principle of deference that prevailed both in the law on patent unreasonableness and reasonableness simpliciter was that the reviewing judge must not measure the decision against
his or her sense of the correct decision.87 That, however, raised the question of how to
adjudge the legality of the decision under review, if not in light of the judges opinion of the
correct decision.
One response, which persisted until the shift to a single reasonableness standard in Dunsmuir, was to fix on the depth of probing allowable on patent unreasonableness as opposed
to reasonableness review. This metaphor flourished despite the fact that, even before the rise
of the reasonableness simpliciter standard in the mid-1990s, the case law had rejected the
idea that deference meant refraining from careful engagement with administrative reasons.88 That is, it was generally agreed that courts need not restrict their inquiries to, for
example, the basic defensibility of the decision-makers construction of the statute, absent
consideration of how the law was applied in the case at hand. Still, the jurisprudence remained uncertain on how exactly to express deference, if not by not looking at the decision or aspects of it or by refusing to test it against the full set of statutory and evidentiary
materials on the record.
A methodological alternative to independently seeking the right answer on reasonableness reviewone that anticipates the developments we will see in Dunsmuiris stated in
Ryan, wherein Iacobucci J. urges judges to stay close to the reasons for an administrative
decision, while searching for a line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.89
Here Iacobucci J. revives the principle, reaching back to CUPE, that a decision may satisfy
the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling.90 This is bolstered by the further

86 See the examples rehearsed in the judgment of LeBel J. in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63,
[2003] 3 S.C.R. 77 at paras. 96-99. The cases discussed include Canada Safeway Ltd. v. RWDSU, Local 454,
[1998] 1 S.C.R. 1079 and Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644.
87 Ryan, supra note 39 at para. 50. I discuss the case law supporting this point in more detail in A Fine Romance?, supra note 4 at 233 and 236.
88 See National Corn Growers, supra note 13, and the discussion of that case in A Fine Romance?, supra note
4 at 236-38.
89 Supra note 39 at paras. 49 and 55.
90 Ibid. at para. 55.

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statement that judges should assess the basic adequacy of a reasoned decision, and so
refrain from seiz[ing] on one or more mistakes or elements of the decision which do not
affect the decision as a whole.91
At the same time, Iacobucci J. in Ryan puts to rest the proposition that with the inception
of the reasonableness standard, further and finer gradations of deference are implicitly
registered on the spectrum of the standards of reviewmirrored, perhaps, by distinctions
in the allowable depth of probing or magnitude of error. The persistence of the controversy was understandable. For if the reasonableness standard was forged in an attempt to
better calibrate reviewing practices to the diversity of administrative contexts, then more
standards would seem to mean even finer calibration. In Ryan, Iacobucci J. suggests that
increasing efforts at fine-tuning when identifying the standard would only distract judges
from the central work of explaining why the decision was not supported by any reasons
that can bear a somewhat probing examination.92
Two cases, both of which were decided under the patent unreasonableness standard, illustrate the challenge of adopting a mode of reasoning on review that avoids measuring the
contested decision against the courts independent determination of the correct answer. The
first (and arguably more successful) is Justice Dicksons judgment in CUPE.93 The dispute
about statutory interpretation at the heart of the case is discussed by Audrey Macklin in
Chapter 9, and I will not take up the details here.94 Instead I wish to briefly outline the reasons for claiming that Dickson J.s judgment for the Court is exemplary of deference. What
is exemplary about the judgment, I suggest, is its evaluation of the decision under review,
not simply in light of the statutory purposes, but in light of the tribunals own reasoning
about those purposes.95 That is, Dickson J. does not embark on a wholly independent assessment of the statutory scheme or the factors of mandatory relevance to the dispute. Rather,
like LHeureux-Dub J. in Mossop, he repeatedly refers to, and may be said to amplify, the
tribunals purposive construction of the contested provision of the statute even as he inquires into the supportability of its interpretive conclusion. The importance of this approach
becomes clear as Justice Dickson explains that a generalist judge (or one who draws too
heavily upon private sector experience) might find the tribunals conclusions counterintuitive without the scaffolding of the tribunals reasons, which canvass the historical trade-offs
informing the regulation of public service labour relations.96 In short, Justice Dickson
grounds his analysis in a careful appraisal of the tribunals reasons. And so this judgment
remains a touchstone of what we have termed a constitutional pluralist orientation to the
project of statutory interpretation on review.

91 Ibid. at para. 56. See also Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R.
157 at paras. 48-49.
92 Ryan, supra note 39 at para. 46.
93 Supra note 3.
94 See Audrey Macklin, Chapter 9, section III, The Blockbuster: C.U.P.E. v. New Brunswick Liquor
Corporation.
95 I discuss the judgment in more detail in A Fine Romance?, supra note 4 at 235-36.
96 CUPE, supra note 3 at 242.

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We may contrast this to another CUPE case, decided in 2003: C.U.P.E. v. Ontario (Minister of Labour)often referred to as the Retired Judges case.97 The decision of the majority in
this case arguably stands as an example of the interpretive attitude of judicial supremacy,
discussed in section II. According to the majority, the decision of the Ontario Minister of
Labour to appoint only retired judges as the third members of tripartite hospital labour
arbitration panels was patently unreasonable, because that decision failed to reflect consideration of labour relations experience and general acceptability within the labour relations community. On a purposive and historical analysis of the statutory scheme, these two
factors were identified as having mandatory relevance to the exercise of the ministers broad
statutory discretion. Yet the majoritys extensive analysis of the statutory scheme, performed
in an effort to discern the limits of the ministers discretionary powers, is conducted prior
to, and wholly independent of, its formal adoption of a deferential standard or its application of that standard to the impugned decision. In other words, the majority independently
ascertains, if not the correct answer to the matter in dispute, then the construction of the
statute that is determinative of the result. Is this consistent with deference?98
Bastarache J.s dissent in Retired Judges directs criticism at the excessive probing required to identify the majoritys factors of mandatory relevance. Bastarache J. also argues
that the majoritys conclusion that the minister failed to consider certain factors is but a
weak cover for its impermissible reassessment of the relative weight accorded by the minister to these and other factors.99 We inquire further into this form of critique in a moment,
in taking up the substantive indicia of unreasonableness. The main point for now is that the
majority judgment in the Retired Judges case sits uneasily, not only with the traditional bar
on revisiting administrative assessments of the weight accorded factors of relevance to their
decisions, but with the methodological imperative of deference established abovethat is,
that judges stay close to the reasons of the decision-maker on review. We must acknowledge, however, that the latter imperative is far more likely to be satisfied where the decision
under review is adjudicative or otherwise supported by formal reasons than in circumstances like those in Retired Judges, where the reasons were in effect judicially reconstructed
in light of the legislative history and statements from members of the executive, along with
responses given in the cross-examination of the ministers senior advisor.100
b. Substantive Indicia of (Un)reasonableness
We have seen that, from its inception in the mid-1990s, the law on reasonableness simpliciter
review urged judges to attend closely to administrative decision-makers reasons on review.
97 2003 SCC 29, [2003] 1 S.C.R. 539 [Retired Judges].
98 I discuss the case further in A Fine Romance?, supra note 4 at 238-40. For a trenchant critique of the majority judgment, emphasizing the importance of the legislatures having left the disputed decision to the
ministers opinion, see G. Huscroft, Judicial Review from CUPE to CUPE: Less Is Not Always More in
Inside and Outside, supra note 19 at 296. See also L. Sossin, Empty Ritual, Mechanical Exercise or the Discipline of Deference? Revisiting the Standard of Review in Administrative Law (2003) 27 Advocates Q. 478,
especially at 504-5.
99 Retired Judges, supra note 97, per Bastarache J. at paras. 35-36.
100 Ibid. at paras. 181-82.

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Indeed, it may be said that what animates the subtle interposition of reasonableness simpliciter between correctness and patent unreasonableness review is a confidence in reason. This
confidence is expressed, on the one hand, in the idea that judges are capable of appreciating
the reasons of administrative decision-makers (though they must work to do so, by turning
their mind to the statutory and wider institutional rationales for deference) and, on the other
hand, in the idea that administrative decision-makers can communicate the reasonableness
of their decisions to reviewing judges (though they too must work at this, by articulating
their decisions in a manner that is sensitive to the demands of public justification).
This is confirmed in statements from Iacobucci J. in Canada (Director of Investigation
and Research) v. Southam101 on the links between deference, expertise, and reason-giving.
He writes: In the final result, the standard of reasonableness simply instructs reviewing
courts to accord considerable weight to the views of tribunals about matters with respect to
which they have significant expertise.102 Yet to this Iacobucci J. appends an extended citation to the effect that unless experts are able to explain to a fair-minded but less well-
informed observer, the reasons for their conclusions, then they are not very expert and
no deference is commanded.103 That is, the expert status of a tribunal will not serve as a
stand-alone justification for deeming a decision reasonable, absent reasons verifying the
application of expertise to the matter at hand.
But apart from the imperative of staying close to administrative reasons on review,
what guidance does the pre-Dunsmuir case law provide on the substantive indicia of reasonableness, or more pointedly, unreasonableness? Again we may draw on Iacobucci J.s judgment in Southam, where he states:
[A] court reviewing a conclusion on the reasonableness standard must look to see whether any
reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or the logical process by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence. An example of the latter kind would be a contradiction in the premises or an invalid
inference.104

This description of reasonableness simpliciter review plays up a concern to identify decisions that have no basis in evidence or that fail to adhere to basic principles of practical
reasoning or logic. Yet it arguably leaves out the sort of cases that have proven most challenging and controversial. That is, the case law on both patent unreasonableness and review
for reasonableness simpliciter (and more recently, Dunsmuir reasonableness) has brought
the challenges of deference into clearest focus where what is in issue is the decision-makers
construction of the values or ends to be advanced under the enabling statute. Just how the
substantive limits of legality are to be identified in such cases is a central problem for reasonableness review.

101 [1997] 1 S.C.R. 748 [Southam].

102 Ibid. at para. 62.
103 Ibid., citing R.P. Kerans, Standards of Review Employed by Appellate Courts (Edmonton: Juriliber, 1994) at 17.
104 Southam, supra note 101, at para. 56.

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In Ryan, Iacobucci J. emphasizes (as Dickson J. had in CUPE) that, [u]nlike a review for
correctness, there will often be no single right answer to the questions105 attracting review
for reasonableness. Here he directly engages problems of statutory construction hinging on
the prioritization of competing statutory purposes:
For example, when a decision must be taken according to a set of objectives that exist in tension
with each other, there may be no particular trade-off that is superior to all others. Even if there
could be, notionally, a single best answer, it is not the courts role to seek this out when deciding
if the decision was unreasonable.106

This statement affirms the principle, long accepted in the case law (but, as we will see,
increasingly subject to erosion or exceptions), that deferential review must avoid secondguessing administrators with respect to the weight or priority they assign to competing
statutory purposes.107 That is, traditionally, deference has been understood to mean that
reviewing judges are prohibited from revisiting the relative weight placed by administrative
decision-makers on the competing factors of relevance to their decisionsalthough they
may insist, as a matter of law, that the decision-maker consider all factors of mandatory relevance (typically identified through a purposive construction of the statutory scheme). In
this, failing to consider a relevant factor has taken on the character of an objective legal
defect, while judgments about the weight to be accorded competing values, interests, or
other considerations relevant to the statutory mandate have been deemed matters not of law
but of discretion or policy, rightly falling to the administration. In Southam, Iacobucci J.s
refusal to revisit the weight placed by the tribunal on competing elements of a multi-
factored economic analysis stands as a compelling illustration of how the prohibition may
play out in practice.108 But is the prohibition on revisiting the weight accorded by administrative decision-makers to the factors relevant to their decisions consistent with your intuitions about the substantive qualities of reasonableness in law or, for that matter, with the
developing law on substantive reasonableness?
The prohibition was significantly called into question in Baker. There, the majority judgment of LHeureux-Dub J. exposed the potential for conflict between this imperative of
deference as traditionally understood and the commitment to ensure that administrative
decisions and decision-makers are fully integrated into the work of advancing the rule of
law. You will recall that, on applying a reasonableness standard to the ministers (or rather,
the ministers delegates) exercise of discretion in that case, LHeureux-Dub J. determined
that the notes of a junior officer, deemed to be the reasons for the decision, were inconsistent with the values underlying the grant of discretion.109 Moreover, LHeureux-Dub J.
indicated that the values that underlie or set reasonable limits to discretionary powers issue
105 Supra note 39 at para. 51.
106 Ibid.
107 The most recent incursion on this principle, as discussed further below, is Dor, supra note 4.
108 See my discussion of Southam (supra note 101) in A Fine Romance?, supra note 4 at 242-43.
109 Baker, supra note 6 at para. 65. The legal and factual background to the case, along with a more complete
analysis, is provided by Genevive Cartier in Chapter 11, Administrative Discretion: Between Exercising
Power and Conducting Dialogue.

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not only from a decision-makers enabling legislation and associated regulations, but also
from instruments of soft law (for example, departmental policies and guidelines), the common law (the principles of administrative law), the Constitution (the principles of the rule
of law and the principles of the Charter), international law, and even what are tantalizingly (and, depending on ones perspective, perhaps worryingly) held out as the fundamental values of Canadian society.110 LHeureux-Dub J. concluded that the sources relevant to
the case at hand (the statute, an international convention ratified but not incorporated into
domestic legislation, and ministerial guidelines) established that the rights, interests, and
needs of children and special attention to childhood are important values that should be
considered in reasonably interpreting the humanitarian and compassionate considerations that guide the exercise of the discretion.111 Because the officers notes failed to reflect
that the decision-maker was alive, alert, or sensitive to the interests of Ms. Bakers children,112 the decision failed to meet the standard of reasonableness simpliciter.
Following the ruling in Baker, commentators and courts alike were concerned to settle
the matter of whether this decision was a straightforward example of the tradition of vitiating a discretionary decision for failure to consider a relevant factor at all (the childrens interests). Or was it a departure from the traditional approach, amounting to a revisiting of
the weight placed on a particular factor (those interests)? The comments of LHeureuxDubJ. left some uncertainty. At one point she wrote that the officers notes were completely dismissive of the interests of Ms. Bakers children. But in the next sentence, she
wrote, the failure to give serious weight and consideration to the interests of the children
constitutes an unreasonable exercise of the discretion.113 Further uncertainty arose from
LHeureux-Dub J.s suggestion that, depending on the circumstances, a discretionary decision-maker may be accorded deference in connection with the factors he or she deems
relevant to a given decision, and not merely in connection with the weight he or she gives
to mandatory relevant factors.114 This represents an even more radical departure from the
traditional approach to substantive review (even on a deferential standard)antithetical to
the constitutional traditionalists view of the mandate of courts to patrol the limits of administrative jurisdiction.
In Suresh v. Canada (Minister of Citizenship and Immigration),115 the Court responded to
some of these uncertainties. Baker, it stated, does not authorize courts reviewing decisions
on the discretionary end of the spectrum to engage in a new weighing process, but draws
110 Baker, supra note 6 at paras. 56 and 67.
111 Ibid. at para. 73.
112 Ibid.
113 Ibid. at para. 65. See the discussion of how these statements might be reconciled, in D. Mullan, Deference from
Baker to Suresh and BeyondInterpreting the Conflicting Signals in D. Dyzenhaus, ed., The Unity of Public
Law (Portland, OR: Hart Publishing, 2004) 21 at 31-37 [The Unity of Public Law]. Among the more convincing
interpretations is that the factor in question (the childrens interests) read in light of the statute, the applicable
ministerial guidelines, and international law, necessarily carries with it elements of weight or degree.
114 Baker, supra note 6 at para. 56: In fact, deferential standards of review may give substantial leeway to the
discretionary decision-maker in determining the proper purposes or relevant considerations involved in
making a given determination.
115 2002 SCC 1, [2002] 1 S.C.R. 3 [Suresh].

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on an established line of cases concerning the failure of ministerial delegates to consider and
weigh implied limitations or patently relevant factors.116 Here the possibility that certain
factors may be deemed by courts to demand prioritization (or serious weight and consideration) in light of statutory or other legal sources in particular cases is left open. The Court
in Suresh does not address the proposition advanced by LHeureux-Dub J. in Baker that
some discretionary decision-makers may receive deference in relation to the factors they
deem to be relevant to their decisions.
The multiple, complex messages in Bakerendorsing, on the one hand, the idea that
deference may even be directed at decision-makers assessments of statutory purposes and
so to their assessments of the considerations that are of mandatory relevance to their decisions, and on the other, the idea that those decision-makers must conform with the values
underlying the grant of discretion, even necessarily placing significant weight on one or
another of these where the reviewing judge deems that to be required by the statutory text
or contextexpress a tension that is basic to reasonableness review on the romantic account. That is, this tension is inherent in the idea of deference as respect advanced by
David Dyzenhaus and explicitly endorsed by LHeureux-Dub J.117 Such respect places confidence in the capacity of decision-makers to discern the limits of their legal mandates in a
nuanced, context-sensitive fashion, while at the same time insisting that this capacity be
demonstrated in their decisions. In other words, deference under this standard carries with
it an expectation that decision-makers can and will identify, and evince appropriate sensitivity to, the values (including the significant individual interests) that should inform the
exercise of their statutory powers. But, we may ask: is this really so different from correctness review? Is this just an old-time assertion of the courts jurisdictionand so of judges
(historically prioritizing individual rights over the public purposes driving administrative
mandates) having the last word on matters given to tribunals to decide? If not, how exactly
is it different?
On the romantic account of substantive review, the decisions of judges on review must
also be publicly justified. To that end, would it not be better that judges background assessments of weight, where these assessments differ from those of administrative decisionmakers, be explicitly stated and subjected to public scrutinythus alleviating the possibility
of their covert operation? On turning to post-Dunsmuir developments, we will see that,
with Dor,118 the Supreme Court has unleashed a new set of possibilities for revisiting the
weight accorded to competing legal values on reasonableness reviewat least, where the
decision is constructed as an exercise of adjudicative discretion and where Charter values
are understood to be engaged.
In sum, although the logic of reasonableness simpliciter was drawn out of the law on patent unreasonablenessa line of case law ostensibly tolerant of administrative decisions that
were unreasonable, though not patently sothe cases elaborating the new standard introduced new expectations of judicial attentiveness to administrative reasoning, along with
116 Ibid. at para. 37.
117 Deference as respect requires not submission but a respectful attention to the reasons offered or which could
be offered in support of a decision: Baker, supra note 6 at para. 65, citing The Politics of Deference, supra
note 4 at 286.
118 Supra note 4.

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new expectations that administrative decision-makers publicly justify their decisions. Arguably, these central features of reasonableness review begin to erode the logic underpinning
the formal non-engagement with tribunal reasons that characterizes correctness review.119

2. Reasonableness Post-Dunsmuir
a. Dunsmuir Reasonableness in Theory
As Audrey Macklin has explained in Chapter 9, Dunsmuirs collapsing of patent unreasonableness and reasonableness simpliciter into a single standard of deferential review marks an
effort to simplify this area of law and, at the same time, to set it on a more principled foundation. In place of the prior case laws shaky gestures to depth of probing and magnitude of
error, the Dunsmuir majority makes tentative attempts to offer clearer guidance about what
it means to express deference on review. Yet the majority does not pull the essential features
of the revised reasonableness standard out of thin air, but rather builds on the foundations
of the prior case law on deference, including Justice Iacobuccis descriptions of reasonableness review in Southam120 and Ryan121 and Justice Dicksons judgment in CUPE.122 Those
judgments centred on the idea that judges applying a reasonableness standard should
closely attend to administrative reasoning, and that the decision should stand unless it cannot be rationally supported by the relevant legislation123 or the evidence.
The question is whether Dunsmuir or the subsequent case law adds anything to the law
on deferential review that might ease the historical tensionsat times wild mood swings
affecting this area of law. I refer to the aforementioned instability in the case law applying a
deferential standard as between attitudes of judicial supremacy (setting strict limits of legality within which administrative reasoning is closely hedged) and attitudes of judicial abdication (for example, refusing to peer too deeply into the reasoning or evidentiary record, or
to revisit administrative assessments of the relative weight of competing factors, including
statutory objectives or legal values). Ultimately, we may be forced to conclude that the jury
is still out on the success of Dunsmuir and the subsequent case law in negotiating these extremes. At the same time, read in light of the romantics concern that the law on substantive
review should help coordinate the work of judges and administrative decision-makers in a
culture of justification, the principles of reasonableness review asserted in and after
Dunsmuir are arguably a step in the right direction.

119 See D. Dyzenhaus, David Mullans Rule of (Common) Law in Inside and Outside, supra note 19 at 474-75.
Dyzenhaus argues that reasonableness simpliciter shears the correctness standard off the continuum of the
standards of review. Also see Constituting the Rule of Law, supra note 5 at 495.
120 Supra note 101.
121 Supra note 39.
122 Supra note 3.
123 CUPE, ibid. at 237, cited in Dunsmuir, supra note 1 at para. 35.