Dunsmuir v New Brunswick
| Dunsmuir v New Brunswick | |
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| Hearing: May 15, 2007 Judgment: March 7, 2008 |
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| Full case name | David Dunsmuir v. Her Majesty the Queen in Right of the Province of New Brunswick as represented by Board of Management |
| Citations | 2008 SCC 9, [2008] 1 SCR 190 |
| Prior history | APPEAL from Dunsmuir v. Her Majesty the Queen in Right of the Province of New Brunswick, as represented by the Board of Management 2006 NBCA 27 (23 March 2006), affirming New Brunswick v. Dunsmuir 2005 NBQB 270 (4 August 2005), quashing a preliminary ruling and quashing in part an award made by an adjudicator. |
| Ruling | Appeal Dismissed |
| Holding | |
| Correctness and reasonableness should be the only two standards of judicial review with respect to decision-making. The correctness standard will apply with respect of jurisdictional and some other questions of law, while the reasonableness standard is concerned mostly with the existence of justification, transparency and intelligibility within the decision‑making process and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. Where the question is one of fact, discretion or policy, or where the legal issue is intertwined with and cannot be readily separated from the factual issue, deference by the court will usually apply automatically with respect to the decision made. | |
| Court Membership | |
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Chief Justice: Beverley McLachlin Puisne Justices: Michel Bastarache, Ian Binnie, Louis LeBel, Marie Deschamps, Morris Fish, Rosalie Abella, Louise Charron, Marshall Rothstein |
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| Reasons given | |
| Majority | Bastarache and LeBel JJ., joined by McLachlin C.J., Fish and Abella J.J. |
| Concurrence | Binnie J. |
| Concurrence | Deschamps J., joined by Charron and Rothstein JJ. |
Dunsmuir v New Brunswick 2008 SCC 9, [2008] 1 SCR 190 is the leading Supreme Court of Canada decision on the topic of substantive review and standards of review. The decision is notable for combining the reasonableness (simpliciter) and patent unreasonableness standards of review into a single reasonableness standard.
David Dunsmuir was hired by the Department of Justice of the Province of New Brunswick as of February 25, 2002. His work was unsatisfactory to his employer and he received multiple written notices to this effect. Ultimately, his employer decided to terminate his employment as of December 31, 2004. On August 19, 2004, Dunsmuir was informed in a letter that his employment was being terminated. As his employment was not being terminated 'for cause', Dunsmuir was granted several months of paid leave with which to find a new job.
Dunsmuir grieved his dismissal in a letter sent to the Deputy Minister on September 1, 2004. When his grievance was denied, he gave notice that he would refer the grievance to adjudication. An adjudicator was selected by the agreement of both parties. The adjudicator held that Dunsmuir had been denied procedural fairness in the manner of his dismissal and that the dismissal was thus void ab initio; the adjudicator ordered Dunsmuir to be reinstated as of August 19, 2004. On judicial review to the Court of Queen's Bench, the decision was overturned. That decision eventually reached the Supreme Court of Canada.
The trial court took an application for judicial review and said the correct standard of review is correctness against the adjudicator's decision because the adjudicator did not have jurisdiction to inquire. It said that Dunsmuir received procedural fairness because of the hearing before the adjudicator and maintained the 8 month decision.
The Court of Appeal said that reasonableness was the correct standard and that the adjudicator was unreasonable because the employer dismissed the employee at pleasure, and that the common law rules did not require any more procedural fairness that Dunsmuir received.
The Court began by canvassing the recent history of administrative law decisions on the standard of review, including CUPE v. New Brunswick Liquor Corp., Crevier v. Quebec, Canada (Director of Investigation and Research) v. Southam Inc. and Pushpanathan v. Canada. The court noted the general unworkability of the current state of the judicial review of administrative decisions in Canada. In response, the court decided to dispense with having three standards of review (correctness, reasonableness (simpliciter), and patent unreasonableness). Instead, the court decided that henceforth there shall be only two standards: correctness and reasonableness. Additionally, the decision to apply a correctness standard will no longer be based on 'jurisdictional' issues.
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