By Andrew Wray, Christian Vernon and Niiti Simmonds
The case comments and tables below represent our survey of recent cases that have considered the standards of review applicable to Ontario administrative decision-makers, and other current issues in administrative law.
We have done five successive updates of the case comments and tables, covering the periods from March 2008 to March 2011. Within each update, we reviewed all of the recent Ontario court decisions at the time that had considered and applied the Supreme Court’s reasons in Dunsmuir and the “standard of review analysis” formulated in that decision.
Post-Dunsmuir – Greater Certainty?
Dunsmuir has created greater certainty in the standard of review context. Dunsmuir has narrowed the circumstances where jurisdictional arguments might hold sway, and it has shifted the attentions of litigators and courts to the application of the standards of review, as opposed to the determination of the applicable standard of review. In all but the most contested or novel cases, parties are often agreeing on the standard of review by the time a hearing takes place. The correctness standard is being applied sparingly, and primarily in circumstances where previous jurisprudence has established that correctness is the proper standard to apply, or where the question before the court is clearly one of law that has relevance for the legal system as a whole.
The application of the reasonableness standard has also become clearer with the courts’ developing jurisprudence around the two-part test that was briefly set out in paragraph 47 of Dunsmuir, and which was foreshadowed in Law Society of New Brunswick v. Ryan. Courts are now emphasizing two dimensions of the reasonableness inquiry: (1) the transparency, intelligibility, and justifiability of the process of reasoning, and (2) the range of possible acceptable outcomes, defensible in respect of the facts and the law. Our Court of Appeal has been cautioning lower courts not to engage in correctness analyses when the reasonableness standard is applicable. Ideally, if the standard is reasonableness, a reviewing court will not engage in an analysis of how it would have decided the case, even as a hypothetical alternative, although there continues to be many decisions where the Court has wrongly done so. The Court of Appeal has also clarified that the first stage of the reasonableness analysis, relating to the process of reasoning, is distinct from the procedural fairness and natural justice requirement that reasons be adequate.
Method and Summary of Findings
In preparing the first chart we examined more than 90 decisions released by Ontario courts in 2008. In preparing the second update we reviewed an additional 37 decisions of the Ontario Superior Court, the Divisional Court, and the Court of Appeal. These were all decisions that discussed the Supreme Court’s reasons in Dunsmuir, as well as its more recent decision in Khosa, and which engaged in some discussion of the standard of review analysis, or the application of the standards of review by the courts in Ontario. In our third update, we reviewed 20 standard of review decisions released by Ontario courts from November 2009, through to the end of January, 2010. In our fourth update, we reviewed an additional 20 standard of review decisions released by Ontario courts from February 2010, through to October 2010. In this, our fifth and final update, we have reviewed 46 decisions released since October 2010 which offer some further insight into the standard of review exercise.
Our primary conclusion drawn from our first update was that less time was being spent on the standard of review analysis than was the case pre-Dunsmuir. The more substantive question of whether a particular decision was in fact reasonable or correct, was becoming more predominant in argument and judicial reasoning. In other words, cases where there was a real issue as to which standard should be applied appeared to be arising less frequently than has historically been the norm. Parties appeared to be focusing their arguments more on the application of a given standard, than on what the standard should be.
Our prior reviews of decisions discussing either Khosa or Dunsmuir confirmed that this trend continued. In many cases the standard of review was not in dispute between the parties, and the bulk of the court’s focus was on applying the applicable standard. When the standard was reasonableness, Ontario courts appeared to be more or less consistently applying the two-stage analysis described in paragraph 47 in Dunsmuir and expanded upon in Khosa, and parties were seen to be directing their arguments to this analysis.
The current review surveyed 46 cases released by Ontario courts since October 2010. A selection of significant cases arising since 2009 has been summarized below. This final review confirmed the trend towards greater certainty that was observed in prior reviews. The elimination of the patent unreasonableness standard has simplified the standard of review analysis and has made the results of that analysis more predictable.
This paper is set up in two parts. The first part highlights some interesting points of law which have arisen in Ontario administrative law decisions over the past three years. These points are not strictly related to the standard of review analysis, but are worth mentioning nonetheless because they either clarify an ambiguity in the law, or highlight the need for further clarification and rationalization in the law. The second part of the paper consists of five successive surveys of how Ontario courts have treated the standard of review issue following the Supreme Court’s decisions in Dunsmuir and Khosa. These surveys are presented in the form of a chart for ease of reference.
Current Issues from Recent Ontario Decisions which Cite either Khosa or Dunsmuir
The End of “Patent Unreasonableness” as a Legislated Standard in Ontario
Toronto (City) Police v. Phipps,2010 ONSC 3884,  O.J. No. 4283 (Div. Ct.)
The Divisional Court’s holding in Toronto (City) Police v. Phipps confirms that even where the Legislature has prescribed at “patent unreasonableness” standard, the content of this standard will mirror the general principles of administrative law enunciated in Dunsmuirand Khosa, and decisions of the Tribunal will be reviewed for reasonableness.
Section 45.8 of the Ontario Human Rights Code provides that decisions of the Tribunal are final and “shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.” This provision was enacted in December 2006, prior to the Supreme Court’s decision in Dunsmuir.
In Phipps, the Divisional Court explained that the content of the above legislated provision must be interpreted in light of the general principles of administrative law. The general principles of administrative law now state that there are only two standards of review with respect to decisions of administrative tribunals: reasonableness and correctness. The standards of patent unreasonableness and reasonableness have now been merged.
According to the Divisional Court in Phipps, the legislated patent unreasonableness standard amounts to a signal from the Legislature that the Human Rights Tribunal is to be afforded the highest degree of deference available in administrative law. This does not mean, however, that a decision of the Tribunal will be upheld if it is irrational, but not “clearly irrational,” as the Supreme Court has concluded that the distinction between reasonableness and patent unreasonableness, as applied by judges, is illusory. Moreover, it is well established that “it would be inconsistent with the rule of law to uphold an irrational decision just because the irrationality of the decision was not clear enough.”
In Phipps, the Divisional court explained, at para. 41, that “reading the words of s. 45.8 of the Code purposively and in light of general principles of administrative law, it would follow that the highest degree of deference is to be accorded to decisions of the Tribunal on judicial review with respect to determinations of fact and the interpretation and application of human rights law, where the Tribunal has a specialized expertise.” “In other words, decisions of the Tribunal on liability and on remedy must be respected unless they are not rationally supported – in other words, they are unreasonable.”
Reasons: Adequacy versus Intelligibility
College of Veterinarians of Ontario v. Hanif, 2011 ONSC 1155,  O.J. No. 890 (Div. Ct.) and Audmax Inc. v. Ontario (Human Rights Tribunal), 2011 ONSC 315,  O.J. No. 210 (Div. Ct.)
These decisions from the Divisional Court serve as a reminder that a Tribunal’s reasons can be challenged from both a substantive review perspective (using Dunsmuir) and from a procedural fairness perspective (using, for example, the Supreme Court’s reasoning inBaker ).
From a substantive review perspective, when the Tribunal decision is owed deference and reviewed for reasonableness, the reviewing court will examine the Tribunal’s reasoning process to determine whether it is transparent, intelligible, and justifiable. The reviewing court will then examine whether the Tribunal decision falls within the range of possible acceptable outcomes, defensible in respect of the facts and the law. A Tribunal decision will be set aside as unreasonable, where it fails to meet the Dunsmuir requirement of transparency, intelligibility and justifiability.
However, the rules of natural justice and procedural fairness also require, at a minimum, that a party whose rights, privileges and interests are affected by an administrative decision making process be provided with adequate reasons for a decision. The right to adequate reasons is an aspect of procedural fairness. Moreover, a Tribunal must be correct in its grant of procedural fairness, and no deference is owed to an administrative decision maker on questions of natural justice and procedural fairness.
In Audmax, the Divisional Court found that the Tribunal’s reasons were unreasonable from a substantive review perspective, as they did “not disclose a rational basis” for the conclusions reached by the Tribunal. In addition, the Court found that the reasons were inadequate and therefore failed to afford the parties with the minimum requirements of procedural fairness. As the Court explained at paragraph 58, “the reasons are not adequate to explain the basis for the decision or to permit meaningful appellate review, and therefore also constitute a breach of principles of procedural fairness and natural justice.” This case is a rare example of a decision that failed both the Dunsmuir judicial review analysis and the test for procedural fairness.
Further Confirmation that Questions of Jurisdiction Have Been Narrowed byDunsmuir
Religious Hospitaliers of Saint Joseph of the Hotel Dieu Hospital of Kingston v. Ontario Public Service Employees Union Local 465,  O.J. No. 4629 (Div. Ct.)
Dunsmuir clarified that only true questions of jurisdiction would be exempt from the standard of review analysis. In the past, some Applicants have been successful in characterizing borderline issues as jurisdictional in the hopes of persuading a reviewing court to give less deference to a particular decision than it might otherwise warrant. The Court of Appeal’s recent decision in Religious Hospitaliers of St. Joseph now confirms that jurisdiction really only means jurisdiction. In this case the union representing hospital administrative and service staff was seeking a wage increase, but the hospital was reluctant to increase wages by the amount that was sought. The matter went to an Arbitration Board. The Board ruled in the hospital’s favour in terms of the quantum of the wage increase, but the Board also ruled that the increase was to be retroactive. The retroactivity of the award was seen by the Hospital to be an excess of jurisdiction because it said the Board had no mandate to make such an award, which effectively rewrote the collective agreement.
 As to the nature of the question, retroactivity is not a jurisdictional issue in the narrow sense described in Dunsmuir and interpreted in Nolan, because the Board had the authority to deal with retroactivity. According to the Act, the Board had the authority to deal with the matters in dispute between the parties, as well as matters “necessary to conclude a collective agreement.” Subsection 10(13) permits it to deal with retroactivity with respect to matters in dispute.
This decision limits the application of much of the older jurisprudence which had expansively interpreted the concept of jurisdiction. The signal from the Court of Appeal in this case is that statutory grants of authority to administrative decision-makers will be interpreted generously where possible. In the future, Applicants would be hard-pressed to persuade a court that a primarily substantive issue has the requisite jurisdictional content to be reviewed as a true jurisdictional issue. The Courts appear to be increasingly wary of jurisdictional arguments insofar as they sometimes seek to permit a “backdoor” correctness analysis.
End of the “Right to be Wrong”
Taub v. Investment Dealers Assn. of Canada,  O.J. No. 3552 (QL), 2009 ONCA 628 per Feldman J.A.
In the past year the Court of Appeal has explicitly put an end to the notion that an administrative decision-maker that is owed deference has the “right to be wrong.” Justice Feldman has written that if the standard of review is reasonableness, and the decision is found to be unreasonable, then it is wrong. If the decision is reasonable, then it is not wrong.
 It has been said that where the standard of review is not correctness, on issues within its expertise an administrative tribunal has “the right to be wrong”: e.g. Air Canada v. International Assn. of Machinists and Aerospace Workers,  O.J. No. 1053 (Div. Ct.), at para. 11. In my view, Dunsmuir has made it clear that if this was ever true, it no longer is. Where there is a question that is reviewable on the reasonableness standard, a decision that is found to be unreasonable will in virtually every case for that reason be wrong. If a decision deserves deference because of the process by which it was reached and because the result is a reasonable one, then it will not be wrong. As I stated above, the administrative law concept of deference is not accorded on the basis of deference to an exercise of quasi-judicial discretion, but on the basis of respect for an experienced decision-maker with particular expertise who has engaged in a process and reached an outcome that has been demonstrated to warrant that deference.
This particular clarification would be welcomed by many litigants and lawyers alike who have been puzzled by the “right to be wrong” concept for a number of years.
Reasonableness Two-Stage Analysis from Dunsmuir and Khosa Must be Employed in Every Case
Taub v. Investment Dealers Assn. of Canada,  O.J. No. 3552 (QL), 2009 ONCA 628 per Feldman J.A.
One of the implications of Dunsmuir that we found in our previous survey of Ontario judicial review decisions was that the courts appeared to be concentrating their analysis on the application of the standard of review, as opposed to determining the standard of review itself. This emphasis on applying the standard of review was expanded upon inKhosa between paragraphs 59 through 67, where Binnie J., writing for the majority, applied a two-step analysis wherein a decision could only be found to be reasonable, (1) if the process of reasoning by which that decision was made exhibits justification, transparency and intelligibility, and (2) if the decision itself falls within the range of reasonable, acceptable outcomes, defensible in respect of the facts and the law.
In Taub the Ontario Court of Appeal has confirmed this two-step approach and has applied it to a contentious discipline decision of the Investment Dealers Association (“IDA”). At issue was whether the IDA had the power to discipline a former member who had voluntarily surrendered his membership prior to its discipline committee ruling on an allegation of professional misconduct. This was a question of law that dealt with areas within the expertise of the Ontario Securities Commission (“OSC”). The Court of Appeal reversed the Divisional Court’s decision that the OSC had acted unreasonably, finding that the Divisional Court was correct in deciding that the reasonableness standard applied, but that the Divisional Court incorrectly applied that standard because it did not employ the two-step approach:
 In this case, the majority of the Divisional Court, having concluded that the issue of statutory interpretation before the tribunal was a question of law within the unique expertise of the OSC and was therefore reviewable on the standard of reasonableness, concluded that the OSC’s interpretation was unreasonable. However, it did so neither by assessing the process of reasoning used by the OSC to reach its decision, nor by considering whether its interpretation was within a range of reasonable interpretations of the statutory provision in issue. Instead, the majority conducted its own analysis of the provision and came to its own conclusion about its correct interpretation. Some examples of the language used by the majority demonstrate its approach. For example, at para. 35 the majority states: “The court must decide whether the wording of s. 21.1(3) of the Securities Act is limiting, in the sense that it prescribes whom a self-regulated organization may regulate.” And at para. 47 it states: “In view of our conclusion that the Securities Act does not authorize self-regulatory bodies recognized under the Act to discipline former members … .”
 In other words, the majority employed the approach that the Supreme Court described in Dunsmuir is only to be used when reviewing an administrative decision on the standard of correctness, where no deference is accorded and where the court conducts its own analysis of the issue in order to come to the correct decision. In taking this approach, the majority erred in law.
Following Taub, it is now relatively clear that the two-step approach will be the focal point of the reasonableness analysis. Counsel should begin crafting their judicial review arguments in ways that will put this approach at the forefront, especially given that the majority of administrative law decisions will continue to be reviewed on the reasonableness standard. Where the standard is correctness, of course, the correctness standard of review would apply and the Court is still required to substitute its decision for the decision of the administrative decision-maker.
Further Confirmation of Importance of Process of Reasoning and Range of Outcomes Analysis
Abdoulrab et al. v. Ontario Labour Relations Board et al. (2009), 95 O.R. (3d) 641 (C.A.)
The decision of the Court of Appeal in Abdoulrab is particularly helpful from a practical standpoint in terms of understanding how to frame arguments about the process of reasoning and the range of possible acceptable outcomes when a decision is reviewable on the reasonableness standard. In this decision the concepts of “process of reasoning” and “range of outcomes” are fleshed out in greater detail. The range of outcomes can be informed by the statutory or legal framework, precedents or established practice from previous cases, and of course, by the facts in evidence in a particular case. It is presumed in the very concept of the reasonableness standard of review that there will be a range of reasonable decisions, and that at least 2 or more different outcomes will be acceptable.
A common argument that was forwarded by Applicants in reasonableness cases was that the facts in evidence supported a completely different outcome than the one reached by the administrative decision-maker, and that the decision under review was actually outside the range of acceptable outcomes based on the facts alone. The argument can be framed in terms of exploring the possible logical conclusions that could be drawn from the facts in evidence, and then showing how the administrative decision-maker’s conclusion was not among the possible outcomes. The subtle aspect of making the “unreasonableness” argument is in not inviting the court to reweigh the evidence, but rather inviting the court to logically consider what conclusions can be legitimately drawn from the evidence that was accepted and given weight at the original hearing.
Summary Chart of Recent Ontario Court Decisions interpreting Dunsmuir andKhosa
Decisions from October 2010 to March 2011
The decisions summarized below represent the application of the standard of review analysis by Ontario courts which interpret or apply the Supreme Court’s reasons inDunsmuir and Khosa. There were 46 such decisions released in Ontario during this period, the most significant of which are summarized below:
Standard of Review Issue
Dunsmuir or KhosaTreatment
|Audmax Inc. v. Ontario (Human Rights Tribunal), 2011 ONSC 315,  O.J. No. 210 (Div. Ct.)||Human Rights Tribunal of Ontario||The Applicant sought to challenge the adjudicator’s finding that the respondent was subject to discrimination in the course of and in the termination of her employment with the Applicant.The Applicant argued that the adjudicator’s finding of discrimination was unreasonable, not supported by the evidence, and that the reasons of the adjudicator were inadequate.The Applicant also argued that its right to procedural fairness was breached when: 1) the adjudicator failed to advise the applicant on its options for securing the evidence of an absent witness; and 2) the adjudicator refused to consider or admit unsworn and previously undisclosed evidence.
|The Court held that the adjudicator’s decision was reviewable on a reasonableness basis, notwithstanding the fact that the Human Rights Code authorized judicial review only where the Tribunal decision in question was “patently unreasonable.”The Court observed that following Dunsmuir,Khosa, and jurisprudence from the Ontario Court of Appeal (Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 436) there is only one reasonableness standard. The Court explained that by using the language of “patently unreasonable,” the Legislature was signalling that the Tribunal should be reviewed on the highest deferential standard, which is reasonableness. The Court further affirmed that there is no spectrum or continuum of deference within the reasonableness standard.The finding that the respondent was subject to discrimination was unreasonable. From a substantive review perspective, the Court found that the adjudicator’s decision was unreasonable as the reasoning process itself was flawed and illogical. The reasons given were neither transparent nor intelligible; further, the reasons did not disclose a rational basis for the adjudicator’s conclusion that the respondent was subject to discrimination. The Court further concluded that the inadequacy of the reasons also violated the principles of procedural fairness.
The Court held that the adjudicator breached the principles of procedural fairness by failing to assist the unrepresented Applicant with fairly presenting its case, such as by advising the applicant that it could request an adjournment. In addition, the adjudicator should have, at a minimum, reviewed and considered the late evidence provided by the applicant at the hearing.
|Toronto (City) Police v. Phipps,2010 ONSC 3884,  O.J. No. 4283 (Div. Ct.)
See also Knoll North America Corp. v. Adams, 2010 ONSC 3005,  O.J. No. 5611 (Div. Ct.)
|Human Rights Tribunal of Ontario||What standard of review applies to a decision of the Human Rights Tribunal of Ontario, finding that the respondent, Phipps, was subject to racial discrimination by Shaw, a Toronto Police officer?Does the pre-Dunsmuir patent unreasonableness jurisprudence apply in light of s. 45.8 of the Ontario Human Rights Codewhichprovides that decisions of the Tribunal are final and “shall not be altered or set in an application for judicial review or in any other proceeding unless the decision ispatently unreasonable?”What standard of review applies to the Tribunal’s finding that the Toronto Police Services Board is jointly and severally liable for Officer Shaw’s discriminatory conduct?||The Code provision respecting patent unreasonableness was enacted prior to the Supreme Court’s findings in Dunsmuir. At the time of enactment, patent unreasonableness was the most deferential common law standard.Following Dunsmuir, the content of the patent unreasonableness standard in s. 45.8 of the Code must be determined in light of general principles of administrative law. The general principles of common now state that any distinction between reasonableness and patent unreasonableness is illusory, and that the standards of reasonableness and patent unreasonableness have now merged.Decisions of the Human Rights Tribunal of Ontario will be reviewed on a reasonableness basis. The use of the language “patent unreasonableness” is a signal from the legislature that the Tribunal must be afforded the highest degree of deference available in administrative law, i.e. reasonableness.
Both standards, correctness and reasonableness, apply to the Tribunal’s decision on joint and several liability of the Toronto Police Services Board. A reasonableness standard applies to the Tribunal’s interpretation and application of the applicable Human Rights Code provisions respecting acts of officers (s. 46.3(1)). The Tribunal is entitled to deference when interpreting its own enabling statute. As the ultimate issue of liability also involved the interpretation of another statute, the Police Services Act, in which the Tribunal has no expertise, a correctness standard will apply to this aspect of the decision only. The Tribunal must correctly interpret the PSA.
If the Tribunal errs in interpreting the PSA in the course of deciding the application of s. 46.3(1) of the Code, then its decision is not entitled to deference. Conversely, if the Tribunal correctly interprets the PSA, then its determination onCode liability must stand, provided it is reasonable.
Here, the Tribunal correctly interpreted thePSA. The Tribunal was also correct and reasonable in its interpretation of theCode. The Tribunal correctly concluded that the Toronto Police Services Board is liable for the discriminatory acts of individual officers.
|First Ontario Realty Corp. v. Deng, 2011 ONCA 54,  O.J. No. 260||Landlord and Tenant Board||What standard of review is applicable to a decision of the Landlord and Tenant Board interpreting its “home statute,” theResidential Tenancies Act?In its decision, the Board was required to interpret and determine the meaning of “services and facilities” under the Act, and to determine what, if any, rent reduction the tenants were entitled to for the landlord’s reduction of services or facilities.||A reasonableness standard applied as the Board was tasked with interpreting its own statute and regulations. The question of law at issue was not one of general importance to the legal system; therefore, the Board was owed a degree of deference. The Divisional Court erred in finding that the appropriate standard of review was correctness.The Court declined to follow pre-Dunsmuircase law which had applied a correctness standard to decisions of the Board on questions of law.The Court held that the Board’s interpretation of the Act was reasonable, and that its “legal conclusion was within the range of reasonable outcomes defensible upon the facts and the law.”
The Board’s conclusion that the tenant was entitled to a rent reduction was unreasonable. The Board failed to take into consideration the fact that the Landlord had agreed to improve the remaining lawns and gardens in exchange for their reduction in size. Further, the Board’s manner of calculating the tenants’ rent reduction was unreasonable, at it adopted an alternative method of calculating the quantum of rent reduction that was not contemplated by the Act.
|College of Veterinarians of Ontario v. Hanif,2011 ONSC 1155,  O.J. No. 890 (Div. Ct.)||Discipline Committee of the College of Veterinarians||What standard of review is applicable to the Discipline Committee’s findings on professional misconduct?The College submitted that the findings of the Disciplinary Committee were unreasonable and that the reasons for decision were inadequate.||The Court held that the standard of review to be applied was reasonableness with respect to all issuesexcept the adequacy of reasons.Reasonableness applied with respect to various alleged deficiencies in the Committee’s reasons, such as 1) the misapplication of the doctrine of corroboration, 2) the making of inconsistent findings of fact and credibility without explanation, 3) the failure to make findings at all in relation to some of the allegations and 4) the failure to consider relevant and material evidence.The Discipline Committee’s reasons failed the Dunsmuir test of justification, transparency and intelligibility. The Discipline Committee’s findings on credibility were conclusory in manner and did not refer to material parts of the evidence. The conclusions of the Discipline Committee do not consistently flow from the evidentiary findings that were made.
Procedural fairness and natural justice require that a Tribunal’s reasons for decision be adequate. Reasons must be adequate in order to fulfil the minimum requirements of procedural fairness. Issues of procedural fairness are not subject to deference and are reviewed on a correctness basis.
The deficiency in the reasons rose to the level of a denial of natural justice. The Discipline Committee’s decision should be set aside as a result of a failure to afford procedural fairness.
|Arulappu v. Ontario (Real Estate and Business Brokers Act, Registrar),  O.J. No. 627(Div. Ct.)||License Appeal Tribunal||What standard of review is applicable to a decision of the License Appeal Tribunal to revoke the appellant’s registration as a broker?Both parties conceded that the standard of review was reasonableness.The appellant argued that the Tribunal failed to address a live issue, namely whether the appellant’s registration could be renewed, subject to conditions.||The Court agreed with the parties that the applicable standard of review was reasonableness.The Tribunal’s main findings were clearly within the range of possible reasonable outcomes.Unfortunately, however, the Tribunal failed to consider a live issue before it, which was dealt with in the parties’ submissions before the Tribunal. Nowhere in the reasons was this issue dealt with. This omission renders the decision as a whole unreasonable.
The Tribunal decision was set aside and remitted back to a differently constituted Tribunal for a rehearing.
|Ontario (Ministry of Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2011 ONCA 32,  O.J. No. 150||Information and Privacy Commissioner||What is the standard of review for the IPC’s interpretation of the term “correctional records” in FIPPA?This section creates an exemption to the general entitlement to access for “correctional” records. The Commissioner ruled that records from pre-trial custody are not “correctional.”The parties conceded before the Court of Appeal that the applicable standard of review is reasonableness.||The Court of Appeal agreed with the parties that the applicable standard of review to the adjudicator’s interpretation of FIPPA is reasonableness.The adjudicator’s interpretation of “correctional records” fell outside the range of possible, acceptable outcomes that are defensible in respect of the facts and law. In determining whether records are correctional records within the meaning of the FIPPA, the adjudicator created an artificial and unworkable distinction between pre- and post-sentencing records.|
|Ottawa (City) v. Ontario (Information and Privacy Commissioner),2010 ONSC 6835,  O.J. No. 5502 (Div. Ct.)||Information and Privacy Commissioner||The City of Ottawa sought judicial review of a decision of the IPC ordering disclosure of emails of a City employee. The emails, sent from the employee’s work email address pertained to the employee’s private volunteer activities and were unrelated to his work at the City of Ottawa.What standard of review is applicable to the decision of the IPC?||The standard of review was correctness. The Court held that at the heart of the issue was a jurisdictional question, namely “did the Act have any application to the documents in question?” The legal question was also one of broad significance.The Court further noted that pre-Dunsmuir, courts reviewed IPC decisions on the basis of correctness. The Court observed that this pre-Dunsmuirjurisprudence was applicable, as it was not the intention of the Supreme Court inDunsmuir to alter the level of deference previously afforded to administrative tribunals.Although the Court found that a correctness standard applied, the Court explained that, in the alternative, the decision was unreasonable.
The Commissioner erred in failing to consider whether disclosure of the disputed documents would advance the purposes of freedom of information legislation, which are to shed light on government practices and to promote democracy by increasing citizens’ access to government documents. The personal emails at issue were not subject to information and privacy legislation.
|Sazant v. College of Physicians and Surgeons of Ontario, 2011 ONSC 323,  O.J. No. 192 (Div. Ct.)||Discipline Committee of the College of Physicians and Surgeons of Ontario||The appellant sought to challenge the findings of the Disciplinary Committee, which found that he had engaged in professional misconduct of a sexual nature. Among other grounds, the appellant argued that the Committee erred in relying on evidence obtained in violation of theCharter.The appellant submitted that the Health Professions Procedural Code violated theCharter, as it authorized a College investigator to issue a summons and compel evidence without prior judicial authorization.The appellant further argued that the Committee erred in finding that the summons power was constitutional,and in finding that it had jurisdiction to hear the constitutional challenge.
Several other challenges were brought against the Committee’s findings of fact, imposition of penalty, and interim ruling on whether the proceeding constituted an abuse of process.
|The constitutionality of the College’s investigative summons power, and the jurisdiction of the College to rule on the constitutional challenge are “true questions of jurisdiction” or “questions of law of central importance to the legal system.” Therefore, a correctness standard will apply.Deference is warranted with respect to the Committee’s findings of fact and the exercise of its discretion to grant or refuse a stay. The Committee must apply the correct legal principles and test on the abuse of process/stay motion. However, deference is owed to the facts found by the Committee related to the prejudice to the appellant and impact of the delay on the hearing process.The remaining issues were questions of fact, discretion or policy, or were questions where the legal issue could not be disentangled from the related facts. These issues attract a reasonableness standard under Dunsmuir.
The Committee had jurisdiction to hear the appellant’s Charterchallenge. The Committee’s empowering statute granted it both the power and duty to decide questions of law.
The Court concluded that the investigator’s ability to issue a summons was constitutional.
The Committee’s refusal to grant the stay was reasonable. The Committee’s factual findings, its finding that the appellant was guilty of professional misconduct, and its conclusions on penalty and costs were reasonable.
|Sisulak v. Ontario (Ministry of Community Safety and Correctional Services), 2011 ONSC 1486,  O.J. No. 1009 (Div. Ct.)||Public Service Grievance Board||What standard of review is applicable to a decision of the Public Service Grievance Board?The Board determined that it did not have jurisdiction to entertain the Mr. Sisulak’s grievance, as Mr. Sisulak did not have the requisite 12 months of employment to bring a grievance. Mr. Sisulak argued that he was entitled to proceed with his grievance as a result of legislative amendments waiving the 12 month requirement.The parties disagreed on the applicable standard of review.||The applicable standard of review was correctness.The Court held that the issue was a true question of jurisdiction or vires. The question before the Board was whether its statutory grant of power gave it the authority to decide the issues raised in the grievance. The court noted that the power of the Board to entertain the grievance depended on whether the matter was governed by an earlier repealed legislation, or whether it was governed by a later amended legislation. The Board was required to engage in an interpretive exercise, relying in part, on the provisions of theLegislation Act.The Board had no jurisdiction to entertain the grievance. The amended legislation did not have retroactive effect and the provisions in force at the time of the dismissal governed the grievance proceeding.|
|Sinai v. Carr,  O.J. No. 4909 (Div. Ct.)||Commission of Inquiry and Order in Council||The Applicant, a former Justice of the Peace, applied for judicial review of the report of the Commissioner and the Order in Council, removing him from office following allegations of judicial misconduct.What standard of review is applicable to the Commissioner’s report and the Order in Council?||The Court agreed with the parties that the applicable standard of review for the Commissioner’s findings was reasonableness. The Court reviewed the reasons and findings of the Commissioner to determine whether they fell within the range of possible, acceptable outcomes defensible in respect of the facts and the law.The Court disagreed with the applicant that the Commissioner’s recommendation to remove him from office was unreasonable. The Commissioner’s decision was reasonable as it considered the recommendations other than removal from office, considered mitigating factors, such as the Applicant’s health issues, and addressed the issue of proportionality. As the Commissioner’s findings were reasonable, so too was the Order in Council.The Court admitted fresh evidence from the Applicant related to his good character. The Court found that the fresh evidence did not lead to a finding that the penalty imposed by the Commissioner was unreasonable.|
|Municipal Property Assessment Corp. v. BCE Place Ltd., 2010 ONCA 672, 103 O.R. (3d) 520||Assessment Review Board||What standard of review is applicable to the Assessment Review Board’s decision on a question of law?||The Court of Appeal agreed with the Divisional Court that the applicable standard of review was correctness. The Divisional Court’s interpretation of the legislation was correct.The Court of Appeal held that pre-Dunsmuir jurisprudence has determined the applicable standard of review in a satisfactory manner. Decisions of the Board will be reviewed on a correctness basis, even where the question of law pertains to the Board’s home statute, and is not one of general importance to the legal system. Deference is not owed to decisions of the Board as there is a statutory right of appeal and Board decisions are not protected by a privative clause. Further, the Board did not apply any particular specialized expertise, but approached the matter as would a court.It was unnecessary for the Divisional Court to return the case to a differently constituted panel of the Board. The Board heard evidence and submissions over a 62 day period. The matter should be returned to the same panel of the Board.|
Decisions from January 2010 to October 2010
The decisions summarized in the chart below represent the application of the standard of review analysis by Ontario courts which interpret or apply the Supreme Court’s reasons inDunsmuir and Khosa. There were 20 such decisions released in Ontario during this time frame, and the most significant of these decisions are summarized below:
Standard of Review Issue
Dunsmuir or KhosaTreatment
|Barrington v. Institute of Chartered Accountants of Ontario,  O.J. No. 1136||Institute of Chartered
Accountants of Ontario – Appeals Committee
|The Applicants sought to challenge decisions of the ICAO’s Discipline Committee and Appeal Committee, with respect to liability and penalty regarding 3 Members of the Institute, who had been charged with a number of instances of professional misconduct.The Applicants argued for excess of jurisdiction and the correctness standard, the Respondents argued for the reasonableness standard.The Applicants also argued that the Committees lacked jurisdiction to award costs.
Applicants also raised natural justice arguments regarding the case disclosed to them not reflecting the offences they were ultimately convicted of.
|The Court observed that the pre-Dunsmuir standard applicable to penalty decisions of the ICAO was reasonableness: John Doe v. ICAO (2005), 200 O.A.C. 293 (Div. Ct.). The Court reviewed the pragmatic functional analysis done in that case, noting the absence of a privative clause, the nature of the question before the appeal committee (mixed fact and law), this being a disciplinary body of a self-governing profession,The Court held that reasonableness applied to “the enunciation and application of the test for professional misconduct.” “Correctness applies, on the other hand, to general questions of law outside of the Committees’ expertise.”The Court found a denial of natural justice insofar as two of the charges did not sufficiently particularize the issues underlying the offences. The charges did not mention a particular “put agreement” but the “put agreement” was the focus of the evidence on those charges and the basis of conviction.
In reviewing the ICAO’s conclusions that the Members had committed “professional misconduct” the court applied para. 47 of Dunsmuir, noting, “In a conclusory way, the DC stated… that the breaches that were proven by the particulars of charges 1(iv) and 2(viii) and those in the other charges, were “significant enough in and of themselves” to individually constitute professional misconduct.” The Court found that the process of reasoning was flaws because the ICAO had conflated “errors of judgment” with “professional misconduct.”
The Court found that the question of whether the DC had authority to order costs was a true jurisdictional question. Concluding that it had no such authority pursuant to the SPPA, which trumped the costs provisions of the CA Act.
|Utilities Kingston v. IBEW, Local 636,  O.J. No. 1482||labour arbitrator||What is the standard of review applicable to a decision of a labour arbitrator to substitute suspension in place of termination where employees had fabricated receipts for expenses?Arbitrator’s reasons articulated a test for fraud – should correctness be applied to the legal test?||Standard is reasonableness, and in applying the standard the court articulated its approach as follows: “In coming to that conclusion, my focus is on the path taken by the arbitrator to reach the result she did, rather than on the result itself It may well be the case that termination of all three employees is too extreme a penalty; it may even be the case that a five-day suspension can be seen as appropriate.”Although fraud is a concept with relevance for the legal system as a whole, the unreasonableness of this decision did not stem from an incorrectly articulated test for fraud, but rather from the Arbitrator’s process of reasoning with regard to the test for fraud and its application to the facts of this case. The Arbitrator’s decision on penalty was similarly unreasonable because the process of reasoning was not clear.|
|Chaudhari v. Ontario (WSIAT),
 O.J. No. 612
|Workplace Safety and Insurance Appeals Tribunal||The Applicant sought a review of the WSIAT’s decision upholding a decision of the WSIB denying him part of his Loss of Earnings benefit. The Applicant argued that the policy on “self-directed vocational rehabilitation programs” was beyond the jurisdiction granted by statute, or was not correct in law.||The issue was found to be a question of law, but one within the expertise of the WSIAT, and therefore reviewable on the reasonableness standard. “Substantial deference” was to be afforded to the WSIAT’s decisions on questions of law within its area of expertise.There was no jurisdictional issue because the WSIB has a general mandate to create specific programs to further the aims of the statute. That is what was done in this case in the “vocational rehabilitation program.”The WSIAT’s interpretation of its home statute was reasonable, it was supported by a line of reasoning: per the Court, “The law demands non-interference unless the decision under review is manifestly unreasonable and unsupportable by any line of reasoning.”|
|Fawcett v. Canadian Chiropractic Examining Board,
 O.J. No. 3955
|Canadian Chiropractic Examining Board||Case of first impression: what is the standard of review applicable to examination procedure and fee decisions made by the CCEB?Student delayed from writing qualifying exam due to late payment of fees.Is the CCEB subject to judicial review?||This matter was heard by a single judge as an urgent application under the JRPA.The Court found that the CCEB was not a statutory decision-maker subject to judicial review. It is a private corporation. However, the Court also found that if a standard of review were to apply to the CCEB, that standard would be reasonableness. Both parties conceded the standard would be reasonableness, and given the lack of an authorizing statute and the nature of the question falling within the policy and operational decision-making of the institution, standard should be reasonableness.Application dismissed.|
|Kawartha Pine Ridge District School Board v. Grant et al., 2010 ONSC 1205||Child and Family Services Review Board||Student suspended then expelled for conduct off school property – School Board’s expulsion quashed by Child and Family Services Review Board after CFSRB held hearing de novo.What standard of review is applicable to decisions of CFSRB? Case of first impression.||Application was moot by time court considered it, but because expulsion cases will often be moot by the time they reach court, the court exercised discretion to hear the Application to give guidance on suspension and expulsion decisions.Because the standard applicable to the CFSRB has not been determined before, the court applied the full “standard of review analysis” pursuant toDunsmuir.Section 311.7(5) of the Education Act provides that a decision of the Tribunal on an appeal from a decision of a school board to expel a student is final. This suggests heightened deference.
The purpose of the tribunal. It typically deals
The nature of the question before the Tribunal. In this case, the Tribunal was required to interpret provisions of the Education Act, including s. 310(1), and to apply the legislative provisions to the facts before it. In determining whether to uphold an expulsion decision, the Tribunal must consider mitigating and other factors prescribed by the regulation. This involves questions of mixed fact and law.
Expertise of the Tribunal. Members of the Tribunal are required by the CFSA to possess certain prescribed qualifications, including either a degree, diploma or certificate granted by a post-secondary institution and at least one year’s experience working in or volunteering in children’s services or social services, or at least five years’ experience working in or volunteering in children’s services or social services.
Standard of review = reasonableness.
In the result, the tribunal’s decision was found to be reasonable, the process of reasoning was sound and the outcome was within the range of acceptable outcomes.
|Ministry of the Attorney General v. Toronto Star et al., 2010 ONSC 991||Information and Privacy Commissioner||Ministry of the Attorney General sought to judicially review decision of IPC/O compelling the Ministry to produce records, an affidavit, and an index to the IPC in order for the IPC to conduct an inquiry under s. 52(4) ofFIPPA to determine whether these records are excluded from disclosure under s. 65(5.2) of FIPPA.The interpretation of s. 65(5.2) was at issue, as was the decision under s. 52(4), as was whether the application was premature.||The application was found not to be premature because although the order under s. 52(4) was interlocutory it raised a significant question of the access to records relating to an ongoing complex criminal investigation.The inquiry under s. 65(5.2) was found to be reviewable on standard of correctness. This section excludes the jurisdiction of the IPC for records relating to an ongoing prosecution. The Court finds that this particular section does not fall within IPC’s area of expertise, but is more related to the administration of criminal justice, which is an area within court’s expertise. Court also looks at pre-Dunsmuirjurisprudence: Ontario (Minister of Health) v. Big Canoe,  O.J. No. 1277 where a standard of correctness was applied to a similar provision. Therefore, standard of correctness applies.The decision to make an interlocutory order under s. 52(4) was found to be unreasonable due to “jurisdictional errors.” This was framed as a reasonableness analysis in the reasons, but the reference to jurisdiction was not explained with regard to Dunsmuir.
Application granted, order quashed.
|(CAW-Canada, Local 1451 v. Kitchener
 O.J. No. 3041
|labour arbitrator||Application by union for judicial review of arbitral decision denying union’s claim for statutory severance pay, separate from pension entitlements granted upon severance||The court found that the Arbitrator was entitled to deference pursuant to pre-Dunsmuirjurisprudence. The arbitrator’s decisions fell within range of possible acceptable outcomes and exhibited a clear process of reasoning. Sufficient reasons provided for refusal to apply old case law after legislative changes. Arbitrator came to reasonable conclusion that employees who received pension benefits upon plant closure were not entitled to severance pay as well, where value of pensions and ancillary benefits together exceeded their severance entitlements and compared favourably to what they would have received but for plant closure.|
|Ottawa-Carleton District School Board v. Ontario Secondary
School Teachers’ Federation, District 12,
 O.J. No. 4142
|labour arbitrator||Union challenged Board’s hiring of independent contractors, alleged that they should be inside bargaining unit – were performing bargaining unit work, etc.The Board argued that the question of whether or not the workers were employees of the Board is a question of law – many of the cases cited by the arbitrator were income tax cases – outside expertise of arbitratorBoard submitted that general legal issues were bound up in specific labour law question.||Preliminary issue of dismissal for delay – 7 month delay in bringing application found not to be inordinate in this complex case, there was a reason for the delay (extensive preparation), and no prejudice.Court applied principles from Toronto (City) v. C.U.P.E., Local 79,  3 S.C.R. 77, in finding that in the labour context questions of general legal relevance are often bound up in labour relations questions, and that the standard of review should still be reasonableness even though general concepts of law are implicated.In the result, it was found to be central that the arbitrator consider whether the intention of the parties was to create an employment relationship. The court found that the arbitrator had confused “desire” and “intention” and that his process of reasoning was flawed on this basis.
Matter remitted for re-hearing before different arbitrator.
|Toronto Hydro-Electric System Limited v. Ontario Energy
99 O.R. (3d) 481 (C.A.)
|Ontario Energy Board (appeal by Board from decision of Divisional Court in favour of THESL)||-Was Board’s decision to require THESL to obtain approval of its independent directors before paying dividends outside its jurisdiction?- If not outside jurisdiction, what is standard of review and was decision reasonable?||Following Dunsmuir, the courts holds that questions of jurisdiction must be narrow – an administrative decision-maker has jurisdiction to decide a matter where it is reasonably ancillary to statutory grant of decision-making power, or where statute grants discretionary decision-making power – this decision was not outside OEB’s jurisdiction:“Courts should hesitate to analyze the decisions of specialized tribunals through the lens of jurisdiction unless it is clear that the tribunal exceeded its statutory powers by entering into an area of inquiry outside of what the legislature intended.”The OEB’s decision was reviewable on the reasonableness standard because the OEB is a specialized tribunal, considering a question of mixed fact and law. The Court of Appeal parted from the analysis of the Divisional Court on the significance of questions of corporate law in this matter, stating that, “It is the regulator’s duty to use its expertise to apply corporate law principles within the context of its objectives; this implies a reasonableness standard.”
The OEB’s decision was found to be reasonable within the meaning of s. 47 of Dunsmuir. The court engaged in a process of reasoning analysis, citingRyan and Via Rail, and engaged in a possible outcomes analysis.
Decisions from November 2009 through January 2010
The decisions summarized in the chart below represent the application of the standard of review analysis by Ontario courts which interpret or apply the Supreme Court’s reasons inDunsmuir and Khosa. There were 20 such decisions released in Ontario during this time frame, and these decisions are summarized below:
Standard of Review Issue
Dunsmuir or KhosaTreatment
|Hydro One Inc. v. Ontario (Superintendent of Financial
Services),  O.J. No. 52
|Financial Services Tribunal||What is the meaning of a “significant” reorganization layoff under s. 69(1)(d) of thePension Benefits Act?Assuming that its interpretation of s. 69(1)(d) was correct, was the Tribunal’s application of a “subset” analysis regarding a particular class of plan members reasonable in this case?||The Tribunal must be correct in interpreting the statutory language of s. 69(1)(d). Whether a “subset” analysis is appropriate to determine the significance of a layoff is a question of pure statutory interpretation and not a question where the Tribunal would have greater expertise than the Court. In the result, the Tribunal’s interpretation was correct.The Tribunal’s application of its “subset” analysis was reasonable. It was supported by the facts in evidence and the Tribunal’s decision exhibited a transparent, intelligible, and justifiable process of reasoning. The outcome fell within the range of reasonable outcomes per para. 47 in Dunsmuir, and the Court of Appeals’ reasons in Taub v. Investment Dealers Association.|
|Ontario (Ministry of Community Safety and Correctional
Services) v. Ontario (Information and Privacy
Commissioner),  O.J. No. 5455*[*Set aside, in part, on appeal:Ontario (Ministry of Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2011 ONCA 32,  O.J. No. 150]
|Ontario Privacy Commissioner||What is the standard of review for the Commissioner’s interpretation of the term “correctional” in s. 49(e) of FIPPA? This section creates an exemption to the general entitlement to access for “correctional” records. Commissioner ruled that records from time on remand not “correctional.” Also found that information at issue not “supplied in confidence.” The Applicant (MCSCS), argued that all records maintained by detention facilities are correctional in nature.||The court looked first to prior jurisprudence, as directed byDunsmuir, to determine whether the issue had been addressed before. Prior decisions found that the IPC/O had specialized expertise in interpreting privacy statutes. Although the interpretation of s. 49(e) is question of law, the standard remains reasonableness.In applying the reasonableness standard, the court uses the two-step process from para. 47 of Dunsmuir, citing also the Nova Scotia Court of Appeal’s decision in Maritime Paper Products Ltd. v. Communications, Energy and
Paperworkers’ Union, Local 1520, 278 N.S.R. (2d) 381 (C.A.). The Court surveyed the multiple reasons offered by the Commissioner for its decision, concluding that the process of reasoning met the threshold. The result was found to lie within the range of defensible outcomes.
|Religious Hospitaliers of Saint Joseph of the Hotel Dieu
Hospital of Kingston v. Ontario Public Service Employees Union
Local 465,  O.J. No. 4629
|An Arbitration Board appointed under theHospital Labour Disputes Arbitration Act||Is the Board’s decision to order a pay-increase on a retroactive basis – when neither party had put retroactivity in issue – an excess of jurisdiction?||No, Dunsmuir instructs reviewing courts to only treat as jurisdictional, issues pertaining to true jurisdiction. Evidence, reasoning, and other substantive issues are not jurisdictional. The issue of retroactivity was reasonably connected to the Board’s award.The reasonableness standard applies to the retroactivity aspect of the Board’s award. This award was unreasonable, largely because the process of reasoning on this point was not transparent.|
|Ottawa (City) v. Minto Communities Inc.,  O.J. No. 4913||Ontario Municipal Board||The Board’s interpretation of s. 2(1) of the Planning Act which requires the Board to “have regard to” decisions of a municipal council.Ottawa’s position was that this was a pure question of law relating to OMB’s appellate jurisdiction and that standard should be correctness.||The Court looked first at previous jurisprudence as instructed byDunsmuir. The standard of review was settled in previous jurisprudence. ThePlanning Act is the OMB’s home statute and the standard for OMB interpretations of that Act is accordingly reasonableness.On the issue of whether the Board itself is bound byDunsmuir to show deference to the Ottawa City Council, the Court declined to rule in the City’s favour, stating that clearer evidence of legislative intent would be required to show that the OMB was meant to act like a reviewing court regarding municipal planning decisions. The OMB has its own expertise in planning.|
|Antrim Truck Centre Ltd. v. Ontario (Minister of
Transportation),  O.J. No. 156
|Ontario Municipal Board||What is the standard applied to OMB decisions regarding “injurious affection”?What is the standard applied to OMB decision on whether there is a requirement to
balance the public interest against the individual interest in determining whether an actionable claim in nuisance has been established.
|Deciding a question of “injurious affection” involves articulating the common law of nuisance. This is a question of law with general application for the legal system. Previous jurisprudence has established that standard for OMB decisions on pure questions of law is correctness, standard on mixed questions is reasonableness.Court holds that standard for articulating common law nuisance in this case is correctness, but standard for application of test to facts is reasonableness.Whether actionable claim for nuisance exists is a question of law is outside the expertise of the tribunal and
engages the standard of correctness. The actual balancing of public and private interests should be reviewed on reasonableness standard.
|Bot Construction Ltd. v. Ontario (Ministry of Transportation),  O.J. No. 5309||Ministry of Transportation||Application of reasonableness standard to MTO’s decision not to revisit awarding of contract to particular contractor after dispute arose concerning compliance of successful bid with tender terms.||The Court of Appeal reverses the Divisional Court’s decision allowing the Application for judicial review. The Court of Appeal finds that although the Divisional Court correctly articulated the two-step analysis for a reasonableness review, it did not apply the analysis in this case. On the facts of this case the Court of Appeal finds that the MTO’s investigative response to complaints of unfairness in tendering process fell within the range of acceptable outcomes, and was defensible in terms of facts and law. The Application for judicial review was denied.|
|Ottawa (City) v. TDL Group Corp.,  O.J. No. 4816||This was an application for leave to appeal a decision of the OMB to the Divisional Court.||What is the applicable standard of review for a Board’s decision re: grandfathered non-conforming use under s. 34(9)(a) of the Planning Act?||This is a pure question of law and one that does not arise often before the OMB, however it is a matter of interpreting one of the OMB’s home statutes, and the OMB has expertise in the area. Prior jurisprudence also suggests standard should be reasonableness. Standard found to be reasonableness on the leave application issue of whether there was reason to believe that the decision was unreasonable. Leave denied.|
|Trinaistich v. Crowell,  O.J. No. 4830||Chief of Police of the Halton Regional Police Service||Does the Chief of Police have jurisdiction to suspend without pay?||This case turned on whether the Applicant was sentenced to “a term of imprisonment” within the meaning of the Police Services Act. If so, the Chief would have jurisdiction to suspend without pay, if not then he would have no such jurisdiction. This was found by the Court to be a true question of jurisdiction within the narrow meaning ofDunsmuir. The Chief was found to have no expertise in interpreting the Police Services Act, and was therefore required to be correct in interpretation of whether or not the individual officer was in fact sentenced to a term of imprisonment.|
|Ontario (Motor Vehicle Dealers Act, Registar) v.
Unity-A-Automotive Inc.,  O.J. No. 5198
|License Appeal Tribunal||What standard of review applies to Tribunal’s determination of mixed fact and law relating to whether Licensee will carry on business in legal manner pursuant toMVDA?Applying reasonableness standard to a decision finding that Licensee met the requirements of the Act to continue to operate as a dealer.||The Court looked to previous jurisprudence to find that the standard for such a question is one of reasonableness.Following Dunsmuir the Court considered the “existence of justification, transparency and intelligibility within the decision-making process” and “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” In finding that the decision of the LAT was not reasonable, the Court emphasized that the outcome did not fall within the range of reasonable outcomes because the evidence accepted by the Tribunal did not permit the conclusion that the Licensee understood his obligations under the MVDA.|
|Simcoe (County) v. Ontario Public Service Union,  O.J. No. 5221||Labour Arbitrator, M.R. Gorsky||What standard of review applies to decision of Arbitrator to return vision-impaired paramedic to active “attend-only” duty on basis that there was no undue hardship in having an on-duty paramedic who could not drive?Applying reasonableness standard.||Parties agreed that standard should be reasonableness.Arbitrator’s decision unreasonable because he failed to apply the correct legal test for undue hardship which was a “contextual inquiry.”Also unreasonable because outcome not defensible in respect of facts – there was uncontroverted evidence which suggested that not adhering to Class “F” license standard for all paramedics would put patient safety at risk, and no evidence to suggest that it was not a risk.|
|United Food and Commercial Workers Union, Local 1977 v. Zehr’s Markets, a Division of Zehrmarket Ltd.,  O.J. No. 13||Labour Arbitrator, Christopher Albertyn||What standard of review applies to Arbitrator’s decision re: ESA, 2000?Application of reasonableness standard to Arbitrator’s decision that employer’s calculation of holiday pay after introduction of Family Day holiday during term of Collective Agreement was consistent withESA, 2000.||Previous jurisprudence established that standard of review for decisions of Labour Arbitrators re: greater benefit of ESA,2000 v. Collective Agreements is reasonableness. Parties agreed on reasonableness standard.The union argued that the decision of the Arbitrator was unreasonable because it was not logically consistent and misapplied the law. The Court concluded that “The Arbitrator’s decision falls within a range of acceptable and defensible outcomes and the
reasons meet the test of justification, transparency and intelligibility.”
|Ceretti (Litigation guardian of) v. Hamilton Health
Sciences – McMaster Children’s Hospital,  O.J. No. 60
Sciences-McMaster Children’s Hospital
|Was procedural fairness denied?What standard applies to policy decisions or exercises of discretion based on mixed fact and law?Applying the reasonableness standard.||The Applicant argued that the hospital’s decision to discharge an autistic child from a particular treatment program was done without procedural fairness, and was unreasonable in any event.Standard of review of reasonableness was applied to merits of decision because the discharge decision was based on mixed fact and policy.Duty of procedural fairness was met by virtue of parental involvement in decision-making process. Parents also signed agreement regarding the process.
Decision was reasonable: with range of acceptable outcomes defensible in facts and law, and process of reasoning was clearly explained. Outside reviewers involved in Dr.’s decision-making, decision based on objective lack of progress of child in program.
|Personal Insurance Co. v. Allstate Insurance Co.,  O.J. No. 5021||Arbitrator appointed under theInsurance Act||What is standard of review for Arbitrator’s decision in priority dispute re: whether injured person was a “dependant” within meaning ofSABS, taking into account status as student and athletic scholarship?Personal argues for correctness, Allstate argues for reasonableness.||Court refers toDunsmuir as well as to recent decision of D.M. Brown J. in Zurich Insurance Company v. The Personal Insurance Company. Conclusion is that this is a mixed question of fact and law – simply because the question of whether receipt of athletic scholarship makes one a dependant had never been raised before does not make it a question of law – issues of fact also relevant to this determination, such as structure of scholarship, etc. Because issued of mixed fact and law, standard determined by previous jurisprudence to be reasonableness. Court finds that decision would be correct in any event.This decision does not explicitly engage in the two-step standard of review analysis set out in para. 47 ofDunsmuir.|
|Anderson v. Hamilton (City),  O.J. No. 5556||Decision of the Property Standards Committee||What is the standard of review applicable to decision of Committee re: obligation to repair retaining wall that was built on property, but has subsided onto adjacent property?Does Court have de novo jurisdiction to make substantive order re: repair of retaining wall?||Court does not havede novo jurisdiction, – the City has the power to make such orders.Court finds standard of reasonableness on questions of fact and correctness on questions of law – there is a statutory right of appeal – previous jurisprudence conflicting – deference to expertise in planning held by members of Committee and Planning Compliance OfficersCourt concludes no right to introduce new evidence on appeal because the appeal is effectively a judicial review on the reasonableness standard.|
|Heinekamp v. Livermore,  O.J. No. 140||Decision of the Consent and Capacity Board||Standard of review of Board’s decision that Applicant not capable.Applicant alleged error in law based on conflation of two parts of test for capacity. Also alleged error in mixed fact and law for misapprehension of evidence.||Standards established by prior jurisprudence:Starson v. Swayze – reasonableness for questions of fact and mixed questions, correctness for questions of law. On legal test, Board set out two separate prongs of test and considered each separately – this approach was found to be correct.On reasonableness argument, Court does not use Dunsmuirpara. 47 two-stage approach, but rather assesses reasonableness on the “somewhat probing” standard, stating that “reasonableness is satisfied if a decision is supported by a tenable explanation.” Court finds that decision is “reasonable and correct.”|
Decisions from January 2009 through November 2009
The following survey represents our summary of 2009 Ontario court decisions that have interpreted or applied the standard of review analysis developed in both Dunsmuir andKhosa. One clear trend in these cases is that Ontario courts have latched on to the two-step reasonableness analysis from paragraph 47 in Dunsmuir. Not every decision makes a reference to the process of reasoning, or the range of possible acceptable outcomes, but the majority do engage in that analysis. The Court of Appeal has directed that the analysis always be done (Taub v. Investment Dealers Association, supra).
Standard of Review Issue
Dunsmuir or KhosaTreatment
|142445 Ontario Ltd. v.
IBEW Local 636,  O.J. No. 2011
|Motion to vary decision of motions judge.||What is the standard of review for a motions judge considering evidence or issues by a party regarding the evidence.||Khosa cited for the proposition that it is not the role of the reviewing court to reweigh the evidence. The Div. Court upholds the applicability of the decision in Keeprite, (1980), 29 O.R. (2d) 513, as to the admission of affidavit evidence on judicial review.|
|Abdoulrab et al. v. Ontario Labour Relations Board et al.(2009), 95 O.R. (3d) 641||Ontario Labour Relations Board||The standard was accepted to be reasonableness, but the core dispute was whether the Div. Court properly applied the reasonableness standard.||The Court of Appeal considered Khosa,Dunsmuir and the two-stage reasonableness analysis, and concluded that when the reviewing court is considering the reasonableness standard, it is not open for it to state its own views as to how far the administrative decision deviates from the correct decision. There should be no statement made as to the correct decision – or else the “right to be wrong” concept becomes reanimated. The inquiry is limited strictly to assessing the process of reasoning, and the range of acceptable outcomes.|
|Barbulov v. Cirone,
 O.J. No. 1439
|Consent and Capacity Board||Well-accepted that standard is reasonableness for reviewing Consent and Capacity decisions – issue is how to apply reasonableness in this case.||Justice Brown cites at length from Khosaand Dunsmuir and applies the two stage analysis, looking at process of reasoning, justifiability, and transparency, and looking at range of outcomes. The conclusion is that the decision of the CCB in this case was not defensible in respect of the facts in evidence, and did not fall within the range of acceptable outcomes. No comment on the correct outcome.|
|Bot Construction Ltd. v. Ontario (Ministry of
 O.J. No. 3590
|Contract tender decision of the Ministry of Transportation||Is the decision an exercise of statutory grant of authority? If so what is the standard of review? Procedural fairness aspect?||The decision under review involved the procedure for a contract put out for tender. The allegation was that the bidders were not given equal opportunity when the Ministry concluded that a particular bid which objectively deviated from the tender requirements was a valid bid. The Ministry accepted the deviant bid. Agreement that reasonableness applied to findings of fact, but dispute as to interpretations of law. Applicant arguing for correctness, but Court finding reasonableness applies based on lack of privative clause, fact that decision-maker not a tribunal, absence of appeal rights, etc.|
|Clifford v. OMERS,
 O.J. No. 3900
|OMERS tribunal – appeal from judicial review decision of Div. Court||Procedural fairness in adequacy of reasons. Standard of review on questions of law, questions of fact, mixed questions.||The Court of Appeal’s reasons highlight the distinction between sufficiency of reasons as a stand-alone procedural fairness issue, and the transparency and justifiability in the process of reasoning as the first stage in the two-step reasonableness analysis. Procedural fairness still requires correctness and adequacy of reasons is still a procedural fairness issue. Process of reasoning as part of the reasonableness analysis is separate. The Court talks about “sufficiency of reasons in a functional sense” when referring to the standard of review.|
|Elementary Teachers’ Federation of Ontario v. Ontario (Minister of Labour),  O.J. No. 719||Minister of Labour’s delegate||Issue was reasonableness of Minister’s decision to make an order rescinding earlier order that created a “Multi-Site Committee” for occupational health and safety. Agreed standard was reasonableness.||Court does not accept procedural fairness arguments based on no consultation, absence of written reasons, etc. On reasonableness score, Court citesMills in particular for this proposition which interprets two-step reasonableness process fromDunsmuir in a very particular way:“Where for example, the decision-maker is a Minister of the Crown and the decision is one of public policy, the range of decisions that will fall within the ambit of reasonableness is very broad.”|
|Imperial Oil Ltd. v. Communications, Energy and Paperworkers
Union of Canada, Local 900,  O.J. No. 2037
|Board of Arbitration pursuant to Collective Agreement||Standard of review applicable to final award. Standard of review applicable to questions of jurisdiction, questions of hearing procedure.||The Board’s final award is generally subject to the reasonableness standard – deference required and well established in case law. Board has significant expertise in interpreting collective agreements. Imperial raised objection that Div. Court relied on facts not in evidence – Court of Appeal finds that the impugned paragraphs were not findings of fact from an evidentiary perspective, but were rather comparative analyses of fact scenarios from jurisprudence that was put before the Court by both parties. The Court of Appeal agreed that if the Div. Court had amended the collective agreement, this would constitute a jurisdictional issue and correctness would apply, but found that the Div. Court did not in fact amend the collective agreement.|
|Municipal Property Assessment Corp. v. BCE Place Ltd.,  O.J. No. 3338*[*Affirmed, in part, on appeal: Municipal Property Assessment Corp. v. BCE Place Ltd., 2010 ONCA 672, 103 O.R. (3d) 520]
|Appeal from decision of Ontario Assessment Review Board||Standard of review applicable to statutory interpretations of Board||The interpretation of “current value” and “fee simple if unencumbered” in the Assessment Actwas central to Board’s decision. Board has no special expertise in statutory interpretation – standard also previously found to be correctness – this is an appeal with leave – no privative clause – correctness standard applied. Board found to be incorrect in its interpretation|
|National Automobile, Aerospace, Transportation and
General Workers Union of Canada, Local 222 v. Johnson
Controls Inc.,  O.J. No. 1055
|Labour Arbitrator||Standard of review applicable to Labour Arbitrator’s interpretation of the Employment Standards Act||Previous jurisprudence establishing patent-unreasonableness standard, now the standard post-Dunsmuir is reasonableness. The Arbitrator’s conclusions in interpreting the ESAfell within a range of possible acceptable outcomes and were therefore reasonable.|
|Nishnawbe Aski Nation v. Eden,  O.J. No. 3203||Coroners||Standard of review of decision of Coroner to refuse to issue summons.||This was an Application for judicial review of the decisions of two coroners who refused to issue a summons to a government employee. The Applicants wanted to question the employee as to the representation of Aboriginal persons on the jury roll. The issues as framed by the Applicants were true jurisdictional issues, and issues of statutory interpretation in which the correctness standard would apply. In the end the Coroner’s decision was seen as correct because the Coroner had no power over the jury roll – in effect this Application was brought against the wrong party.|
|Ottawa Fertility Centre Inc. v. Ontario Nurses’ Assn.,  O.J. No. 3439||Ontario Labour Relations Board underPublic Service Labour Relations Transition Act||Standard of review for a final decision of the board on a successor employer / related employer application.||Decision was that standard of review had already been decided to be reasonableness – a deferential standard – but that in any event, presence of strong privative clause, expertise of Board, etc., militated toward deference. Reasonableness applies to interpretation and application of s. 2 ofAct and to exercise of discretion under s. 9. In applying reasonableness standard two stage test not used – but Court satisfied that decision fell within range of outcomes defensible in fact and law. No explicit commentary on process of reasoning.|
|Schuit Plastering & Stucco Inc. v. Ontario (Labour
Relations Board),  O.J. No. 2082
|Ontario Labour Relations Board||Standard of review for statutory interpretation and exercise of discretion on certification application and request for reconsideration.||Employer argued that it was not the true employer and that certification decision was outside Board’s jurisdiction. Court found that Board was given broad discretion to make orders re: certification having regard to all circumstances and that there was no jurisdictional issue. Standard of review on exercise of discretion is reasonableness – Board protected by two strong privative clauses, having extensive expertise. Board has discretion to permit process to move forward when Respondent has not complied with deadlines. The decision fell within a range of possible, acceptable outcomes defensible in respect of the facts and law.|
|Scott v. Ontario (Racing Commission),  O.J. No. 2858||Ontario Racing Commission||Standard of review on findings of fact, interpretation of law, procedural decision re: admission of evidence. Charter rights implicated re: admission into evidence of statement made by Applicant to police officer.||The standard of review of the ORC’s
findings was reasonableness, but correctness applied to questions of law where a court has more expertise, including questions involving the Charter. There is no privative clause or statutory right of appeal, and the ORC is expert in horse racing issues. The correctness standard was not engaged because no Charter issue arose – admissibility of statement was reasonable in light of procedural standards of ORC, as was conclusion that statement was voluntary. Standard of review on penalty was reasonableness.
|State Farm Mutual Automobile Insurance Co. v. Ramalingam,  O.J. No. 3491||Director’s Delegate of the
Financial Services Commission of Ontario
|Standard of review for decision of Director’s Delegate.||Director’s Delegate decisions underStatutory Accident Benefits Schedulenot subject to right of appeal, and protected by privative clause. Delegate has discretion whether to adjourn hearing to permit further medical examinations – reasonable not to permit adjournment in this case. This was not a question of natural justice and correctness standard did not apply.|
|Toronto Police Services Board v. Information and Privacy
Commissioner/Ontario et al. (2009), 93 O.R. (3d) 563 (C.A.)
|IPC/O||Standard of review of statutory interpretation of term “record” inMFIPPA. Police contesting whether “record” includes records that need to be digitally altered through process that is not normally used by them in order to be released.||The standard of review is reasonableness, given that the IPC/O was interpreting its core legislation, it has expertise in such interpretation, etc. Parties did not dispute standard of review before Court of Appeal, although it was disputed at Divisional Court. Court applied two-step reasonableness analysis, “consideration will be given to the qualities underlying the Adjudicator’s decision-making process and whether his decision fell within a range of possible, acceptable outcomes given the particular factual and legal context.” The Adjudicator’s reasons were found to be clear and found to address the issue of how “records” are produced. Principle of statutory interpretation also showed that Adjudicator had broad discretion to give effect to purpose of Act. Decision to order release of records within range of acceptable outcomes.|
|Woodbine Entertainment Group v. Hamather,  O.J. No. 431||Ontario Racing Commission||Standard of review of ORC decision to quash decision of race track not to allow a particular owner’s horses to compete.||No issue with regard to correct standard of review – reasonableness. The Div. Court applied the two-stage test from Dunsmuir and found that the process of reasoning met the reasonableness threshold, and the outcome fell within the range of acceptable outcomes. The ORC has the discretion to enforce the public interest in fair racing, and this includes overruling overzealous anti-doping measures taken by individual race tracks.|
|Yar v. College of Physicians and Surgeons of Ontario,  O.J. No. 1017||Discipline Committee of College of Physicians and Surgeons||Standard of review applicable to questions of fact, jurisdiction, and mixed questions. Allegation of procedural defects: insufficient notice given, inadmissible evidence considered.||The Applicant framed her Application in terms of jurisdictional and natural justice issues, and argued for a standard of correctness on the issues she raised. The reasons of the Div. Court set out the applicability of the reasonableness fromDunsmuir, and then proceeded to find that all of the Applicant’s issues were not jurisdictional, and that reasonableness standard was applicable. In the result, decisions found to be reasonable, and to fall within range of acceptable outcomes.|
|Yazdanfar v. College of Physicians and Surgeons of Ontario,  O.J. No. 2478||Executive Committee of College of Physicians and Surgeons||Standard of review applicable to interim order to restrict practice pending outcome of Discipline Committee hearing||No issue as to standard applied = reasonableness. Applicant argues “defensible in facts and law” aspect of two-stage Dunsmuirtest – says no factual foundation for interim order. Court finds that test for interim injunction does not apply to interim orders of the Exec. Committee – also finds that record before committee sufficient to reach conclusion that there was “some evidence” to satisfy s. 37 interim restriction test. Restrictions found to take into account public safety and interest of MD.|
Decisions from March 2008 through January 2009
The decisions summarized in the chart below represent the application of the standard of review analysis by Ontario courts following the Supreme Court’s release of its reasons inDunsmuir in March 2008.
Standard of Review Issue
|Li v. College of Physicians and Surgeons of Ontario, 2008 CanLII 37613 (ON S.C.D.C.)||College of Physicians and Surgeons||Standard of review applicable to penalty decision. Penalty involved ‘permanent’ restriction of practice to male patients. Penalty jurisdiction underHealth Professions Procedural Code.Also raised issue of severity.||Court commented that normally penalty decisions are reviewed on reasonableness standard, but that because penalty jurisdiction here is set out specifically in statute, and because this is a statutory appeal, College must be correct in terms of the nature of the penalty. Does not appear to rely on past jurisprudence.With respect to the complained of harshness of the penalty (alternative ground of appeal), College need only be reasonable.|
|Toronto Police Association v. Toronto Police Services Board, 2008 CanLII 56714 (ON S.C.D.C.)||Labour Arbitrator||Relates to the interpretation of privacy legislation with respect to the disclosure of mental health records.||The standard of review is correctness since the issue involves a matter of interpretation of general law not within the particular expertise, knowledge or experience of an arbitrator appointed under thePolice Services Act.|
|Whitely v. Shuniah,  O.J. No. 2823||Municipality of Shuniah, Chief Building Inspector||Appeal pursuant to s. 25 of theBuilding Code Act, 1992.Decision with respect to statutory definition of ‘ground level.’ Factual decision on ground level in this case. Definition of ‘single storey’ in context of dispute.||Whitely argued that standard should be correctness, municipality argued for reasonableness.Conflicting pre-Dunsmuirjurisprudence: Craft-Bilt Materials Ltd. v. Toronto (City),  O.J. No. 4710, 2006 CarswellOnt 7451 and Runnymede Development Corp. v. 1201262 Ontario Inc.,  O.J. No 981De novo analysis: Considers absence of privative clause, expertise of building inspector, nature of question not relevant to legal system as a whole. Mixed fact and law. Reasonableness is appropriate standard. Holds that Dunsmuirsignals move toward enhanced deference unless question touches on issue of law outside expertise, jurisdiction, or constitutional issues.|
|Taub v. Investment Dealers Association of Canada, 2008 CanLII 35707 (ON S.C.D.C.)||Investment Dealers Association of Canada andOntario Securities Commission||Review of discipline imposed on former member. Question of statutory interpretation and contract interpretation.Applicant argued for correctness, respondent for reasonableness.||Court noted that previous jurisprudence would still apply, but none was cited. The implication being that there was no established jurisprudence to rely on. Majority undertook full standard of review analysis, looking at all former “pragmatic and functional factors.”Noted statutory right of appeal, interpretation of home statute, expertise, not question of general legal significance = standard of reasonableness.In dissent, Carnwath J. agreed with standard but differed in result.|
|Flora v. Ontario (Health Insurance Plan, General Manager), 2008 ONCA 538 (CanLII)||OHIP (Health Services Appeal Review Board)
|Issue was whether treatment received by Appellant was an “insured service” under a Regulation s. 28.4(2) made under the Health Insurance Act. Mixed fact and law. No privative clause, statutory appeal. Board experienced, question within field of experience.||This decision relies to some extent on existing standard of review jurisprudence with respect to reviewing Health Services Board decisions, but also undertakes a fulsome standard of review analysis on its own. Comes to the same conclusion that the Divisional Court reached by applying thePushpanathan pragmatic and functional factors. Standard of review here is reasonableness, some deference is owed.|
|Darragh v. Normar Developments, Inc.,  O.J. No. 2586||Landlord and Tenant Board||Statutory appeal from decision of Landlord and Tenant Board.Pure question of law regarding interpretation ofResidential Tenancies Act, andLandlord and Tenant Act.Parties originally agreed that the standard of review would be correctness.||Majority raised point thatDunsmuir did not specifically refer to statutory appeals, but applied the new standard of review analysis given the scope of the majority judgment in Dunsmuir.Ultimately found that standard on this issue should be correctness, relied to some extent on older jurisprudence, but also considered expertise, nature of question, and other factors.|
|Toronto (City) v. Wolf, 2008 CanLII 39430 (ON S.C.D.C.)||Ontario Assessment Review Board||What is the standard of review for the Board’s decision that the City did not comply with notice requirements under theAssessment Act?||“This appeal raises a question of law or specifically, an issue of statutory interpretation that does not engage the Board’s expertise. The Board is not protected by a privative clause and there is a right to appeal, with leave, on a question of law, pursuant to s. 43.1(1) of the Act. The standard of review in these circumstances is correctness.”|
|Lafarge Canada Inc. v. Ontario (Environmental Review Tribunal),  O.J. No. 2460.||Environmental Review Tribunal||Tribunal granted leave to a group of concerned citizens and advocacy groups to appeal decisions of Ministry regarding Certificates of Approval granted to Lafarge for use of alternative fuels in its facility.Applicant argued that Tribunal committed jurisdictional error with respect to leave test and that standard should be correctness. Respondent submitted reasonableness.||Did not rely on previous jurisprudence. There was a weak privative clause. Tribunal is a specialized body, with expertise in environmental law and policy. Tribunal was interpreting the leave provision and applying it to the facts of the case. The statute was an environmental statute with which the Tribunal has familiarity. There were questions of mixed fact and law. Therefore, the Tribunal’s leave decision is entitled to some deference.This was not a question of true jurisdiction; it was a question of law. Also, not a question of law relevant to legal system as a whole. Standard should be reasonableness.|
|Jacobs Catalytic v. International Brotherhood of Electrical Workers, 2008 CanLII 26686 (ON S.C.D.C.)||Ontario Labour Relations Board||Dispute with respect to Board’s interpretation of collective agreement. Issue related to assignment of fire restoration work to outside contractor. Nature of work at issue, jurisdiction at issue, application of doctrine of estoppel at issue.Counsel for one party submitted that standard should be correctness on estoppel issue because it is an issue of law with general application.||Standard of review analysis performed here does not rely on previous jurisprudence.The Court examined two privative clauses, nature of question mixed fact and law. Board had experience in applying estoppel doctrine, also this was not a pure question of law of general application, but a mixed question. Labour Board has significant experience interpreting collective agreements and relevant statutes = reasonableness standard. Ultimately Board’s decision found to be reasonable.|
|Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 436 (CanLII)||WSIB Appeals Tribunal||Issue involved determination of whether back injury linked to workplace incident.||This was a significant early decision interpreting Dunsmuirbecause it suggested that well-established pre-Dunsmuir patent unreasonableness standards would now be simply re-termed “reasonableness.” It also confirmed that Ryan v. Law Society of New Brunswick was still good law and that there was to be no sliding scale of deference within the reasonableness standard.Did not address how single reasonableness standard could encompass old “patently unreasonable” jurisprudence alongside old “reasonableness simpliciter” jurisprudence, without spectrum of deference.|
|University of Windsor Faculty Association v. University of Windsor, 2008 CanLII 23711 (ON S.C.D.C.)||Labour Arbitrator||Issue involving the University’s posting of student evaluations of teacher performance on web. Union claimed collective agreement andFIPPA violated. Arbitrator disagreed.||Both parties agreed that standard was reasonableness for interpretations of collective agreement. Court cites para. 57 inDunsmuir for relying on old jurisprudence. Says that level of deference has not changed from old jurisprudence. Labour arbitrators have experience in interpreting collective agreements.With respect to FIPPA, however, the Court noted that this was a question of law of general significance. But the Court also noted the strong privative clause. The Court did not decide the standard of review question, but rather concluded that the Arbitrator was correct in any event. The Court here did do a fulsome standard of review analysis however. Some impact may be seen here from dicta inDunsmuir relating to true jurisdiction and pure questions of law with general significance for legal system as a whole.“ However, we conclude it is unnecessary for us to resolve this matter based on the unusual facts of this case. Our conclusion on the correctness of the Arbitrator’s decision persuades us to review her decision by the standard of correctness.”|
|1673233 Ontario Inc. (c.o.b. Eurohaven Spa) v. Brampton (City), 2008 CanLII 64379 (ON S.C.D.C.)||City of Brampton||Procedural Fairness, Natural Justice, or Duty of Fairness – what is the standard of review?||Dunsmuir does not alter the pre-existing jurisprudence which has established that a denial of procedural fairness or natural justice does not require a standard of review analysis. The standard is always correctness.|
|LimestoneDistrict SchoolBoard v. O.S.S.T.F., 2008 CanLII 63992 (ON S.C.D.C.)||Labour Arbitrator||Parties did not contest standard of review. Both agreed that it would be reasonableness.||Prior to Dunsmuir the standard of review for labour arbitration decisions was patent unreasonableness. Now this is cut down to reasonableness. No difference in amount of deference.|
|Smyth v. Perth and Smiths Falls District Hospital, 2008 ONCA 794 (CanLII)||An Arbitrator under theArbitration Act, 1991, S.O. 1991, c. 17||Whether correctness standard applied by Applications judge appropriate for question of true jurisdiction with respect to the Arbitrator’s power under an Arbitration agreement.||Quotes Dunsmuir: “[a]n exhaustive review is not required in every case to determine the proper standard of review.” This was a question of true jurisdiction = correctness standard.|
|Inforica Inc. v. CGI Information Systems and Management Consultants Inc., 2008 CanLII 60706 (ON S.C.)||An Arbitrator under theArbitration Act, 1991, S.O. 1991, c. 17||Is this a true jurisdictional question? What is the standard of review for private arbitration decisions?||Dunsmuir does not alter the usual approach to true jurisdictional questions: correctness. In any event private arbitration decisions of this nature are reviewed on the correctness standard – depends on contractual context.|
|Ontario Public Service Employees Union v. Ontario (Ministry of Labour), 2008 CanLII 59106 (ON S.C.D.C.)||Labour Arbitrator||Parties agreed that standard would be reasonableness on review of penalty.||Arbitrators have broad discretion with respect to penalty, and are owed great deference. Dunsmuir has not changed this.|
|Hamilton (City) v. United Carpenters and Joiners of America, Local 18,  O.J. No. 4806||Ontario Labour Relations Board||Is the Board’s practice of deeming management to accept content of application where employer doesn’t respond reasonable?
Is the Board’s practice with respect to delay a natural justice issue?
|Board’s decision with respect to matters within its expertise is reviewable on reasonableness standard. No decline in deference from pre-Dunsmuirjurisprudence. Decision with respect to delay is reviewed on correctness standard as a natural justice issue.|
|Lombard Canada v. Kent & Essex Mutual Insurance Co.,||An Arbitrator under theArbitration Act, 1991, S.O. 1991, c. 17||Interpretation of insurance policy and related regulation.||Standard of review was reasonableness.|
|Horochowski v. Ontario English Catholic Teachers’ Association, 2008 CanLII 55139 (ON S.C.D.C.)||Ontario Labour Relations Board||What is the standard of review for the board’s decision? What is standard of review on procedural fairness.||Cuts down patent unreasonableness standard to reasonableness on substantive questions.Procedural fairness not subjected to standard of review analysis – must be correct.|
|Ontario Nurses’ Association v. Rouge Valley Health System,  O.J. No. 4566||Board of Directors of Rouge Valley Health System||Administrative exercise of statutory discretion re: consolidation of mental health program.||Decision is one within the discretion or policy role of the board = reasonableness standard.|
|Hamilton Street Railway Co. v. Amalgamated Transit Union, 2008 CanLII 56007 (ON S.C.D.C.)||Labour Arbitrator||Arbitrator performing “core function” – interpreting Collective Agreement.||Decision within Arbitrator’s expertise, not jurisdictional, older jurisprudence = patent unreasonableness standard. Now, standard cut down to reasonableness. Same deference.|
|Conway v. Darby, 2008 CanLII 54773 (ON S.C.)||Consent and Capacity Board||Statutory appeal from a decision of Consent and Capacity Board on a determination of capacity||Pre-Dunsmuir standards set out in Starson v. Swayze, 2003 SCC 32, still apply, standard = reasonableness.|
|Lester v. Ontario Racing Commission, 2008 CanLII 48813 (ON S.C.D.C.)||Ontario Racing Commission||Judicial review of penalty decisions of ORC with respect to cheating.Natural justice raised.||ORC has broad mandate and expertise in regulating racing. Standard of review is reasonableness on penalty decisions – already established. There is no standard of review analysis for natural justice.|
|TTC Insurance Co. v. Watson, 2008 CanLII 49337 (ON S.C.D.C.)||Director’s Delegate of Financial Services Commission of Ontario||What is the standard of review for decisions of the Director’s Delegate relating to area of expertise?||Pre-Dunsmuir standard of review of decisions of the Director’s Delegate was “patent unreasonableness” when the decision was related to the domain of expertise: Liberty Mutual Insurance Co. v. Young,  O.J. No. 952.Standard of review post-Dunsmuir cut down to reasonableness. No difference in amount of deference given.|
|Gore Mutual Insurance Co. v. Co-Operators General Insurance Co., 2008 CanLII 46914 (ON S.C.)||An Arbitrator under theArbitration Act, 1991, S.O. 1991, c. 17||Arbitrator’s decision interpretingStatutory Benefits Accident Scheduleand facts of case.||The parties disagreed on the standard of review, one argued correctness, the other argued reasonableness. In the end Perell J. found that the Arbitrator’s decision was both correct and reasonable and did not decide which standard of review ought to be applied.|
|Toronto Hydro-Electric System Ltd. v. Ontario (Energy Board),  O.J. No. 3904.||Ontario Energy Board||Issue in this case was decided to not be a matter of discretion or fact, but rather of jurisdiction and law outside area of expertise.||Pre-Dunsmuirjurisprudence held that a board’s decisions with respect to the extent of its powers do not attract deference. Here: “no reason to depart from the standard of correctness, nor does the decision in Dunsmuirlead to a different conclusion.”|
|Thunder Bay Regional Health Sciences Centre v. Ontario Public Service Employees Union, 2008 CanLII 48154 (ON S.C.D.C.)||Labour Arbitrator||Standard of review for decision of an arbitrator awarding specific work under a collective agreement. Interpretation of agreement and statutory interpretation. Mixed fact and law.||Standard, as in pre-Dunsmuirjurisprudence, is deferential, but no longer ‘patent unreasonableness.’ Deference now contained within ‘reasonableness’ standard. But Arbitrator’s decision ultimately found to be unreasonable. Parties agreed that standard should be reasonableness.|
|ADGA Group Consultants v. Lane, 2008 CanLII 39605 (ON S.C.D.C.)||Human Rights Commission||Standard of review for questions of fact, mixed law and fact, and law.||Pre-Dunsmuirjurisprudence applied. Questions of fact and mixed fact and law are reviewed on reasonableness standard. Questions of law outside area of expertise on correctness standard.|
|Bajor v. Ontario (Labour Relations Board), 2008 CanLII 37608 (ON S.C.D.C.).||Ontario Labour Relations Board||Primary issues in the case were findings of pure fact, and interpretations of the Employment Standards Act. Dr. Bajor wanted correctness standard applied.||Pre-Dunsmuir deference to labour arbitrators and labour boards, referenced here to para. 54 of Dunsmuir, was adopted. The standard should be reasonableness.|
|Igbinosun v. Law Society of Upper Canada, 2008 CanLII 36158 (ON S.C.D.C.)||Law Society Discipline Committee and Appeal Panel||Committee interpreting provisions of its home statute, imposing a penalty, making findings of fact, mixed fact and law.Appellant raised issues of procedural justice and natural fairness.||As established in Evans,Dunsmuir does not change standard of deference to Law Society Discipline Committees. Reasonableness is the deferential standard. Questions of law outside area of expertise (i.e. home statute) are reviewable on the correctness standard.Procedural justice and natural fairness do not attract standard of review analysis.|
|Jeremiah v. Ontario (Human Rights Commission), 2008 CanLII 46915 (ON S.C.)||Human Rights Commission||Review of Commission’s decision not to deal with complaint due to delay.||Dunsmuir does not change older jurisprudence which mandates a high level of deference to the OHRC (patent unreasonableness). Standard will now be reasonableness, but high deference remains.Only true jurisdictional questions under. s. 34(c) of the Human Rights Code will be reviewed on correctness standard. The decision not to deal with a particular part of the complaint may have been a jurisdictional decision, but the OHRC was correct in any event.|
|Law Society of Upper Canada v. Evans, 2008 CanLII 34276 (ON S.C.D.C.)||Law Society Discipline Committee and Appeal Panel||Involved a decision of first impression: whether to restore membership to former judge found guilty of serious misconduct.||“I do not see Dunsmuiras having any impact on the well-established standards for review of decisions from the Society’s Appeal Panel. The Appeal Panel is entitled to deference on its findings of mixed fact and law and on its interpretation of the Act and this Court should only intervene if the Appeal Panel’s decision is unreasonable. However, on questions of law outside that area of expertise, the Appeal Panel is required to be correct.”|
|Watt v. Classic Leisure Wear, 2008 CanLII 32818 (ON S.C.D.C.)||Ontario Municipal Board (Review Board)||Question involved whether Board has jurisdiction to determine right of way, access and egress issue. Statutory appeal with leave.||On a narrow jurisdictional issue like this the Board is required to be correct. In this case the Board correctly asserted jurisdiction over the issue.|
|Greater Essex County District School Board v. Ontario Secondary School Teachers’ Federation, District 9, 2008 CanLII 32805 (ON S.C.D.C.)||Labour Arbitrator||Primarily interpretation of collective agreement. Mixed law and fact. Arbitrator references other collective agreements as interpretive aid regarding collective agreement at issue.||Parties agreed that standard would be reasonableness. Not much analysis in majority judgment. In dissent, Swinton J. also accepted that standard was reasonableness, but reached conclusion that Arbitrator’s decision was ultimately not within “range of acceptable outcomes.”|
|Walsh v. Hamilton (City) Chief Building Official, 2008 CanLII 32325 (ON S.C.)||Chief Building Inspector||Mixed question of law and fact regarding interpretation of building code definition, and nature of contested structure.||“Dunsmuir also held that an exhaustive analysis to determine the proper standard is not required where the jurisprudence has already determined in a satisfactory manner the applicable standard. In this case, the appropriate standard has been previously discussed in Runnymede,1218897 and
Rotstein, supra. These cases held that a standard of reasonableness is applicable when deciding questions of mixed law and fact…”
|Mulligan v. Laurentian University, 2008 ONCA 523 (CanLII)||Laurentian University, Oversight Committee and Dean||Decision whether to admit students to program who did not meet funding requirements, but who met academic standards.||Adopted longstanding, pre-Dunsmuirjurisprudence indicating high level of deference to discretionary decisions going to the core of university administration. Decision was reasonable and no denial of natural justice occurred.|
|Venneri v. College of Chiropractors of Ontario, 2008 CanLII 27824 (ON S.C.D.C.)||Discipline Committee of College of Chiropractors||Questions of mixed fact and law relating primarily to professional misconduct with respect to patient consent. Appellant also raised natural justice with respect to notice and adequacy of reasons.||Parties agreed on reasonableness, court cited pre-Dunsmuirjurisprudence such asDr. Q. for reasonableness standard for professional conduct decisions.Already well established that standard of review analysis does not apply to natural justice – decision-maker must be correct.|
|Lonergan v. Ontario (License Appeals Tribunal), 2008 CanLII 27477 (ON S.C.D.C.)||License Appeals Tribunal||Exercise of discretion, and findings of fact and credibility.||This was a very brief endorsement. Court cited Dunsmuir but relied on previous jurisprudence: “Cecillo v. Tarion Warranty Corp. O.J. No. 1692 (Div. Ct.), dictates that the applicable standard of review is correctness on questions of law and, on questions of fact or mixed fact and law, reasonableness simpliciter.|
|Cotton v. College of Nurses of Ontario, 2008 CanLII 26674 (ON S.C.D.C.)||College of Nurses, Board of Inquiry||Decision of Board to compel Applicant to submit to medical examination regarding fitness to practice. No reasons given, question of natural justice.||The parties agreed that for non-procedural questions the appropriate standard of review was reasonableness. No further analysis done.On questions of natural justice, a standard of review analysis is not performed, decision must be correct.|
|Clifford v. Ontario (Attorney General), 2008 CanLII 26256 (ON S.C.D.C.)||OMERS Appeal Subcommittee||Issue involved pension entitlement of wife and alleged co-habiting partner of deceased firefighter. Mixed question of law and fact regarding spousal status.Also raised issues of natural justice, reasonableness apprehension of bias.||Dunsmuir has “no impact” on standard of review for questions of fact or mixed fact and law. Pre-existing jurisprudence cited, parties also agreed that standard should be reasonableness.Natural justice demands that decision-maker be correct with respect to procedure. Reasonableness of decision could not be assessed due to inadequacy of reasons. Decision quashed and sent back.Dissent relied on previous jurisprudence as well in setting standard of review at reasonableness. Came to different conclusion on procedural fairness.|
|Shooters Sports Bar Inc. v. Ontario (AGCO), 2008 CanLII 25052 (ON S.C.D.C.)||Alcohol and Gaming Commission, Registrar||Statutory appeal only permitted on question of law.||Pre-Dunsmuirjurisprudence consistently held this board to standard of correctness. No privative clause, only questions of law may be appealed.Dunsmuir has no impact on standard of review.|
|Canadian General-Tower Ltd. v. United Steel, Paper and Forestry, Rubber, etc. Intl. Union, Local 862, 2008 ONCA 404 (CanLII)||Labour Arbitrator||Question relating to definition of “temporary layoff” under collective agreement for purposes of supplementary unemployment benefit.Employer argued for a correctness standard because it said that Arbitrator was interpreting the EIRegulation – statutory interpretation of general significance.||This case was on appeal from a decision of the Divisional Court which had been rendered pre-Dunsmuir and which had applied the patent unreasonable standard.Pre-existing jurisprudence indicates that standard of review is patent unreasonableness. Court here finds that standard should be reasonableness, citing older jurisprudence, and citing some of the P & F factors. This case involved interpreting a collective agreement, not a question of general legal significance. Court does not address “spectrum of deference” issue within single reasonableness standard.|
|Wolfe v. Ontario (Provincial Police), 2008 CanLII 23503 (ON S.C.D.C.)||Ontario Civilian Commission on Police Services||Finding of discreditable conduct and imposition of penalty.||Pre-Dunsmuir standard cited. Reasonableness continues to be the applicable standard post-Dunsmuir.|
|Visic v. Ontario (Human Rights Commission), 2008 CanLII 20993 (ON S.C.D.C.)||Human Rights Commission||Commission decision not to refer complaint to tribunal. Complaint involving law school’s refusal to remove first year marks from transcript when student withdrew for medical reasons.||“ …That is to say, the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded (seeDunsmuir, para. 62). This jurisprudence is sufficient to determine the standard of review – which is that of reasonableness.”|
|Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819,  O.J. No. 1353||Ontario Labour Relations Board||Dispute relating to late filing of employer’s response to certification application from Union. Employer sought judicial review of labour board decision.||Appeal dismissed as moot, however Court of Appeal interpretedDunsmuir in the labour relations context for the first time as follows:“ In the nomenclature of old, Board decisions were not to be set aside unless they were patently unreasonable or clearly irrational. Dunsmuir v. New Brunswick,  S.C.J. No. 9, 2008 SCC 9, has simplified the standard of review… However, both the result and the reasoning inDunsmuir affirm a continuing stance of deference in the field of labour relations… The majority in Dunsmuirnotes that an exhaustive analysis is not required in every case to determine the proper standard of review: if the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded a decision maker with regard to a particular category of question, the search for the appropriate standard is over.”|