The Standard of Reasonableness in Canadian and UK Judicial Review (1) – Adrienne Copithorne
4 February 2020
Stratas JA has said, “Administrative law matters”. Every individual’s life is affected, in some cases profoundly, by administrative decisions. Judicial oversight of administrative decisions engages questions of importance and sensitivity in democracies where separation of powers is an intrinsic principle. In the view of the Supreme Court of Canada, the act of judicial review by a court is a constitutional function that ensures executive power is exercised according to the rule of law. At the same time, review must be exercised without undermining the democratic legitimacy of the executive or the intention of the legislature. The standards applied by courts to determining the lawfulness of administrative decisions are therefore of central importance to the proper functioning of our country.
Disclaimer here, to apply to this and the next post. The views expressed here are purely in a personal capacity, as I am now counsel with the UK charity, Justice.
This and the following post will consider what a ‘reasonableness’ standard of review means in the contexts of Canadian and UK administrative law. The standard has recently been given new emphasis by the handing down of the judgment of the Supreme Court of Canada in Vavilov  SCC 65 in which the court restated its conception of reasonableness and how a decision should be analysed in light of that standard.
In the UK, a series of cases has revealed that jurisdiction’s Supreme Court grappling with reasonableness primarily in its relationship with the other standard of review, proportionality. As this essay will show, both Canadian and UK courts have struggled ever since the advent of judicial oversight of administrative decisions to formulate a standard of reasonableness which ensures unlawful decisions do not stand but does not allow the court to remake the decision that is the proper remit of the administrator.
The Wednesbury unreasonableness standard
A quick refresher for those who need reminding of the roots of English law on judicial review. In the case which established the reasonableness standard in UK law, Associated Provincial Picture Houses v Wednesbury Corporation Ltd  1 KB 223 the Court of Appeal framed the decision in question in terms of a lawful exercise of discretionary power. The municipal corporation had issued a licence to the plaintiff which contained a condition that children may not be admitted to the cinema on Sundays. The plaintiffs complained that the condition was outside the scope of the municipal corporation’s power – “ultra vires”. The Court held that the condition in question did not appear unlawful on its face in that the corporation held the power to place conditions on the licence. Lord Greene MR noted that as the court was not acting as a court of appeal and the discretion enjoyed by the defendant could only be reviewed to ensure it was exercised on a principled basis. This principled basis he summarized as: having looked to the statute conferring the discretion and the subject matter of the decision, the decision maker must have taken all relevant matters into account and disregarded all irrelevant matters”. Finally, the discretion must be exercised “reasonably”:
It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word “unreasonable” in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably.” Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v. Poole Corporation  Ch 66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.
In Lord Greene’s formulation, “reasonableness” comprises not just principles of rationality or logic but “as a general description of things that must not be done”. In the case before him, however, the judge considered that only one aspect of reasonableness, i.e. whether a decision was so unreasonable no reasonable decision maker could have arrived at it, was at play. The decision clearly was not that unreasonable on the facts before the court. The judge went on to consider the role of the court in such an assessment:
It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming, and, in this case, the facts do not come anywhere near anything of that kind. I think Mr. Gallop in the end agreed that his proposition that the decision of the local authority can be upset if it is proved to be unreasonable, really meant that it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether. If it is what the court considers unreasonable, the court may very well have different views to that of a local authority on matters of high public policy of this kind. Some courts might think that no children ought to be admitted on Sundays at all, some courts might think the reverse, and all over the country I have no doubt on a thing of that sort honest and sincere people hold different views. The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another. It is the local authority that are set in that position and, provided they act, as they have acted, within the four corners of their jurisdiction, this court, in my opinion, cannot interfere.” (emphasis added)
The standard, which came to be known as “Wednesbury unreasonableness” was most famously summarized by Lord Diplock in the 1984 case of Council of Civil Service Unions v Minister for the Civil Service  UKHL 9:
It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.
Lord Diplock went on to say:
Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system.”
While this is no doubt true, the corollary is that Wednesbury unreasonableness as formulated by Lord Diplock is an exceedingly high hurdle for a plaintiff to surmount. It would be rare for a decision arrived at by reasonably competent administrators to be “outrageous” or to “defy logic”. The conflict with “accepted moral standards” would also largely fall away as a ground with the growing openness of society to a diversity of views on such issues. Conceived as a check on discretionary power, but an exceedingly loose one, Wednesbury unreasonableness seemed destined to be identified in only a very small number of cases. While this might respect the principle of separation of powers, in that the discretionary power given to administrative decision makers would have almost free rein, it would also mean little opportunity for those affected by these decisions to challenge them, even when they were unreasonable, if they were capable of being given any reasonable interpretation by a judge.
In a prescient comment, Lord Diplock noted the principle of “proportionality” as a potential further head of review as it had already been adopted by the administrative law systems in other member states of the EEC (which was what the EU was then called). As will be set out below, proportionality has come to rival reasonableness as an organizing principle of judicial review in UK law.
The development of reasonableness in the Canadian context
As Canada has drawn its common law tradition from the UK, the growth of judicial review followed a similar track in both countries. The courts took a comparable approach to judicial review in that a decision by an administrative body had to be characterized as “unreasonable” before it could be remedied by the courts. However, the court would start with the “prior question” of whether the decision complained of was outside the jurisdiction of the decision maker, if it was, then the court would find it to be unlawful. “Jurisdiction” came to be interpreted in a very broad sense as any decision which could be said to contain a legal error. Even though many cases involved privative clauses which appeared to oust the jurisdiction of the court entirely, the courts would intervene if the decision impugned could be characterized as so lacking in any rational basis or tainted by bad behaviour on the part of the tribunal that it could be said to be outside the decision maker’s jurisdiction in a very broad sense, such that errors of reasonableness and excess of jurisdiction blended. In the 1979 decision of CUPE v NB Liquor Board,  2 SCR 227, Dickson CJ described the standard of patent unreasonableness in terms reminiscent of Wednesbury, namely as including:
… acting in bad faith, basing the decision on extraneous matters, failing to take relevant factors into account, breaching the provisions of natural justice or misinterpreting the provisions of the Act so as to embark on an inquiry or answer a question not remitted to it.”
The judge went on to ask:
Put another way, was the Board’s interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?”
CUPE marked the start of what became known as the “pragmatic and functional” approach to judicial review in Canadian law. Unlike previous courts, which adopted a more formalistic approach to separating questions of law and policy, Dickson J proposed that some statutes were capable of being read in more than one way and that contextual considerations would inevitably come into play in the choice of interpretations. Deference should no longer be an “all or nothing” approach depending on whether an excess of jurisdiction could be detected.
First, a court should exercise some degree of deference when assessing the decision maker’s interpretation of the law, whenever that decision maker can be considered an expert tribunal on that particular, specialized body of law. Second, deference should also be exercised when the decision lies within particular spheres where it can be presumed that Parliament intended the executive to have a greater degree of latitude, such as when claims touch on issues of international relations or “high politics”. The flip side of that is that where claims involve questions of fundamental rights of individuals, with significant consequences for the claimants, courts may take a bolder stance in ensuring the executive power is exercised within appropriate limits.
Following many years of complaints by practitioners and academics that the structure of the pragmatic and functional approach lacked clarity, the Supreme Court attempted a fundamental review in the case of Dunsmuir v New Brunswick  SCC 9. The Court considered that the tripartite formulation for the standard of review of “patent unreasonableness”, “unreasonableness simpliciter” and correctness lacked clarity, with the division between the two forms of unreasonableness particularly hard to pin down. The Court decided to collapse the two unreasonableness categories into one and maintain correctness for some claims.
The Court said in regard to ‘reasonableness’:
Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
The Court then went on to recommend that a reviewing court should first consider what standard of review similar cases have attracted in the past; then carry out a contextual analysis to determine the standard of review that should be applied. The analysis could include the following factors: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue; and; (4) the expertise of the tribunal. The Court described this ‘standard of review analysis’ as striving “to determine what authority was intended to be given to the [administrative] body in relation to the subject matter”, so as not to allow it to overreach its lawful powers. The Court noted that the previous contextual approach “provided great flexibility but little on-the-ground guidance”, which its revision was intended to provide.
However, even at the time of the judgment it was doubted whether the majority’s judgment represented that practical guidance. The problem was two-fold: (1) while the judgment goes into considerable detail as to how to determine when correctness or reasonableness applied, each category was highly nuanced and contextual; (2), once reasonableness was determined as the applicable standard, there was little discussion as to how a court should determine if a decision was sufficiently unreasonable to require the court to grant a remedy.
Binnie J articulated these issues in his dissent, stating that the “present difficulty” did not lie in the component parts of judicial review, which had been well-established for decades, but the “current methodology for putting those component parts into action”. The judge pointed out that the current methodology was so context specific and subjective that a lawyer could not advise a client even as to what standard of review would likely apply if he or she were to bring a claim. Although he agreed with the majority that there should be one category of reasonableness, it did not assist much if that only shifted the debate into the shades of deference within one category rather than between two.
In the view of Binnie J, a presumption of reasonableness should apply unless the plaintiff could demonstrate the claim rested on an error of law which had not been ‘confided’ to the decision maker or could not be so confided within the bounds of the constitution. When the presumption of reasonableness was not rebutted, the indicia identified in previous cases would apply (i.e. were all relevant matters taken into account, was the decision within the scope of the decision maker’s discretion, was the decision rational in light of its context) to assess the reasonableness of the decision. Reasonableness does not equate to rationality as it is possible for a decision that was rational on its face to nonetheless be unreasonable in light of the wider context, such as the purpose of the grant of statutory power underlying the decision. These considerations demonstrate a concern for the ease of application of the standard in future cases, both for lawyers advising their clients and for judges determining judicial reviews.
In the next post on this topic, I explore the restatement of reasonableness in Vavilov.
Adrienne Copithorne is counsel with the Canadian Government Department of Justice. Views expressed are purely personal and not those of the Department of Justice or the government of Canada.