Standard of Review: Plus Ça Change?

In my recently published article, "The Unfortunate Triumph of Form over Substance in Canadian Administrative Law", I argued that Dunsmuir did not make administrative law any simpler.

It is always gratifying to be proved right, so it is with (gloating!) pleasure that I note the decision in Manitoba v. Russell Inns Ltd. et al., 2013 MBCA 46. As Beard J.A. noted, determining the appropriate standard of review is no easy task. Assigning a decision to one of the post-Dunsmuir categories is not self-evident. As she put it:

38               There is a significant amount of academic commentary accumulating that questions whether this revised procedure has simplified the determination of standards of review or merely substituted one complex system for another.

Beard J.A. made some other helpful observations:

52               In summary, true jurisdiction is a very narrow concept.  If the legislation (usually the home statute) gives the adjudicator the authority to decide or to act, the manner in which it makes that decision or exercises that authority is not a question of “true jurisdiction” for the purposes of determining the applicable standard of review.  As stated in ATA, the party seeking to invoke the category of true jurisdiction must be required to demonstrate why the court should not review the tribunal’s interpretation of its home statute on the deferential standard of reasonableness (at para. 39).  This is a significant evolution from the concept of “true jurisdiction” as set out in Dunsmuir.

  ...As in this case, the question of law at issue will often have more than one aspect, such that it can be described in such a way as to appear to affect the legal system as a whole.  The Supreme Court of Canada has taken a narrower view of these questions, as was demonstrated in Mowat and  Nor-Man.

At issue here was the power to grant an interim award of costs, not something which is easy to categorize post-Dunmsuir:

70               If viewed as a question of costs, the granting of costs is clearly dealt with in the Act, which would indicate that the ground relates to the interpretation of the home or related statutes rather than to true jurisdiction.  If viewed as a question of the granting of interim orders, there is nothing in the Act regarding interim orders, which would indicate that the ground may relate to true jurisdiction rather than to the interpretation of the home or related statutes.  However, in determining the true nature of the question, close attention must be paid to the admonition adopted by Bastarache and LeBel JJ. in Dunsmuir that “reviewing judges must not brand as jurisdictional issues that are doubtfully so” (at para. 59).

71               If one accepts Manitoba’s characterization of the question as the power to grant an interim order, the interim order at issue is about costs, so that it still relates to the interpretation of a power in the home or a related statute.  As the LVAC has the statutory power to grant costs, the question of the authority to order the payment of those costs on an interim basis must still relate to the “how and why” of the exercise of a statutory power, taking it out of the realm of a question of true jurisdiction.  Thus, I find that this ground of appeal does not raise a question of true jurisdiction or vires.

73               This ground of appeal in this case raises a question of procedure and remedial authority, which is clearly a question of law.  It is, however, limited in scope and effect to the granting of relief under the Act in relation to an expropriation of property.  It could not be said that it goes to any legal principle underlying the legal system, and it certainly could not be said that it raises any issue of general importance to the legal system as a whole.  It is an issue of the interpretation of the provision of a specific statute and nothing more.  Thus, this ground of appeal does not raise a question of general law of central importance to the legal system.

 The conclusion of the authority that it could award interim costs was unreasonable:

142            It is clear that there is no provision in the Act that permits the LVAC to make any order for the interim payment of costs related to a compensation proceeding, and neither party offered any basis, outside of the wording of the Act, to support such a power.  While the evolving law related to the jurisdiction of administrative tribunals may provide such a power on an inherent basis, that question was not before us.  (See, for example, the comments of Abella J., speaking for herself, in R. v. Caron, 2011 SCC 5 (CanLII), 2011 SCC 5 at paras. 52-55, 2011 SCC 5 (CanLII), [2011] 1 S.C.R. 78.)

143            The only provision in the Act that is relevant to the determination of these costs by the LVAC is s. 15(7) and, under that provision, the LVAC is clearly limited to dealing with these costs only after the final compensation payable has been determined by the LVAC or settled by the parties.  Its implicit decision that it could make such an order on an interim basis is not supported on any reasonable reading of the legislation.

Beard J.A.'s thoughtful judgment is well worth reading in its entirety.