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.

Procedural Fairness for Office Holders -- Again -- in New Brunswick -- Again

In most jurisdictions, courts have had difficulty in calibrating the appropriate procedures for public office-holders. It is easy to understand why: employment -- and dismissal -- by public bodies is bound up with statute and thus presents questions that are amenable to judicial review. However, many public employees also benefit from contractual protections, just like private employees -- why, then, should they benefit from greater protection?

The Supreme Court of Canada's response to this question in Dunsmuir v. New Brunswick, 2008 SCC 9, was to focus on the existence of an employment contract: "where a dismissal decision is properly within the public authority’s powers and is taken pursuant to a contract of employment, there is no compelling public law purpose for imposing a duty of fairness" (at para. 106). Subsequently, in Canada (Attorney General) v. Mavi, 2011 SCC 30, the Court characterized Dunsmuir as creating a "rather narrow Dunsmuir employment contract exception from the obligation of procedural fairness" (at para. 51).

Privatization's Progeny: Canadian Offspring?

Term has happily come to an end up in now-icy Montréal, so I am catching up on all of the reading I missed in the last few hectic weeks. One paper I read some time ago but neglected to blog about is Privatization's Progeny by Jon Michaels.

A half-thought that occurred to me at the time was whether the process described by Michaels had an effect on the Supreme Court of Canada's 2008 decision in Dunsmuir v. New Brunswick, 2008 SCC 9.