The Federal Court of Appeal’s decision in Wilson v Atomic Energy, 2015 FCA 17 has added a new layer to the already exceptionally nuanced standard of review analysis where the decision under review is the subject of disagreement among administrative decision-makers.
In Wilson, the Federal Court of Appeal was required to decide the appropriate standard of review of the labor adjudicator’s interpretation of section 240 of the Canada Labor Code. The parties, in line with years of jurisprudence, agreed that the Federal Court correctly determined reasonableness to be the applicable standard. Interestingly, the Federal Court of Appeal found that since the standard of review is a question of law, it was not bound by the parties’ agreement.
Generally speaking, in determining the correct standard of review, the first considerations is whether existing jurisprudence has satisfactorily established the applicable standard of review.
The Federal Court of Appeal in Wilson avoided following existing jurisprudence by re-characterizing the nature of the question being reviewed. In doing so, it relied on the discord among labor adjudicators regarding dismissals without cause under the Code. The Court did not consider the issue one of a labor adjudicator interpreting a home statute, which the jurisprudence is clear is review able on a reasonableness standard; rather, the question became the applicable standard of review of a statutory interpretation question that has been the subject of “persistent discord” (see paragraph 52).
By re-characterizing the issue, the Federal Court of Appeal effectively carved out a new niche in the standard of review analysis. While an administrative decision maker is entitled to deference when interpreting a home statute, if that interpretation is the subject of disagreement at the administrative level, the courts will not necessarily exercise great deference.
With existing jurisprudence inapplicable in determining the applicable standard of review, the Federal Court of Appeal reasoned that, on the facts, both a principled approach and the presumptions set out by the Supreme Court in Dunsmuir v New Brunswick, 2008 SCC 9 result in the applicable standard of review being correctness.
Specifically,the Court found that the rule of law considerations which promote consistency in the application of the law outweigh any deference that would normally be accorded administrative decision makers under the constitutional principle of Parliamentary supremacy. In addition, according to Dunsmuir, which created the modern standard of review analysis, if the issue is a question of law of central importance to the legal system and outside the specialized expertise of the labor adjudicator, the applicable standard of review is presumed to be correctness. The Court characterizes the disagreement among labor adjudicators concerning whether an employer can dismiss an employee without cause under the Code as a question of central importance in that it impacts the administration of justice, such that it requires uniform and consistent answers.
The Wilson decision does not open any floodgates for court intervention in administrative decisions. In this case, the Federal Court of Appeal made clear that it is not simply because some labor adjudicators did not agree on the issue that intervention was justified; in the normal course, where there is dis accord among administrative decision-makers, the courts should give them time to work out their differences. According to the Federal Court of Appeal, only where, as in Wilson, decision-makers operate independently, not bound by the decisions of their peers, and time has not resolved the dis accord, is judicial intervention warranted to end the dis accord and determine the legal issue once and for all.
Though only time will tell as to how this decision will be used, it is clear that it is an important precedent for lawyers and parties alike seeking consistency in areas of the law that administrative decision makers are unable to provide.