Wednesday 14 May 2014

Won't Someone Please Think of the Civil Servants: John Doe v. Ontario (Finance), 2014 SCC 36

By now, it is a familiar story. The standard of review is reasonableness. An exhaustive review of the relevant statutory language and factual matrices follows. And then there is a brief conclusion: the decision is reasonable or unreasonable.

At the risk of beating a horse whose death certificate is now turning yellow and fraying at the edges, rolling everything into reasonableness, as the Supreme Court of Canada is wont to do, serves simply to obscure.

An ever-present issue in judicial review of administrative action is whether a particular question should be answered by the court or by the administrative decision-maker. This issue always has to be resolved. And the only way to resolve it is to examine the language of the statute, the institutional competence of the administrative decision-maker relative to the court and (perhaps) some other factors. Decreeing that the standard of review is reasonableness obscures this reality but it does not change it.

The latest case in point is John Doe v. Ontario (Finance), 2014 SCC 36, a case about whether drafts of government policy were exempt from disclosure under freedom of information legislation.

The decision follows the emerging pattern. The standard is said to be reasonableness and there is a brief conclusion that the decision is (in this case) unreasonable. In between, there is an elaborate discussion of the statute and facts, with an occasional mention of the decision under review. To my eye, the judicial review exercise conducted here is indistinguishable from correctness review.

Plausible instrumental reasons could be given to support imposing correctness as the standard of review in this case. Statutes across the country have similar provisions with similar statutory language. If Canadian courts are fragmented on the proper interpretation of disclosure rules, life becomes very difficult for administrative decision-makers required to apply them, and of course for those officials operating under the freedom of information regime. In short, won't someone please think of the civil servants.

This opacity is the unfortunate result of a desire to institutionalize reasonableness as the default standard of review without a proper appreciation of how it might be subverted by factors which, swept off the front steps, simply creep in again through the back door.

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