Deference: Is it Useful Outside Canada?

• Jurisdiction: South Africa
• Citation: 2006 Acta Juridica 42
• Date: 15 August 2019
• Author: David J Mullan
• Published date: 15 August 2019
• Pages: 42-61

Deference: Is it Useful Outside Canada?

DAVID J MULLAN*

Queen’s University, Kingston, Ontario

The term ‘judicial review’ embraces review of administrative decisions by

way of both application for judicial review and statutory rights of appeal. In

every case where a statute delegates power to an administrative decision-

maker, the reviewing judge must begin by determining the standard of review

on the pragmatic and functional approach.

McLachlin CJ in Dr Q v College of Physicians and Surgeons of British

Columbia

1

I BACKGROUND

Judicial deference to the decisions and actions of statutory and preroga-

tive authorities is a key principle of Canadian judicial review law. In its

current incarnation, it frequently requires reviewing courts to exercise

restraint. In those instances, the reviewing court should scrutinize the

decision or action under attack not from the perspective of whether the

statutory or prerogative authority made a correct decision but rather by

inquiring whether the decision or action was unreasonable or patently

unreasonable.

In determining whether it is an occasion for one of the two deferential

standards of review, the court evaluates the situation based on a list of

so-called ‘pragmatic and functional factors’ that the Supreme Court of

Canada has established

2

and ref‌ined over an almost twenty year period.

Initially, these pragmatic and functional factors were developed in a series

of judgments involving applications for judicial review for error of law of

privative-clause protected decisions by adjudicative tribunals.

3

Over

time, the reach of this analysis expanded dramatically. It rapidly reached

review for questions of fact

4

as well as mixed fact and law. The Court

then came to accept that it should also be used even in situations where

the route to the reviewing court was not by way of common law or

* Professor Emeritus, Faculty of Law, Queen’sUniversity.

1

2003 1 SCR 226 at para 21.

2

First used by Beetz J, delivering the judgment of the Court in Union des employés de service

local 298 v Bibeault 1988 2 SCR 1048 at para 123.

3

In fact, the foundational case preceded the coining of the term ‘pragmatic and functional’.

It was Canadian Union of Public Employees Local 963 v New Brunswick Liquor Corporation 1979 2

SCR 227. In turn, it built upon Service Employees’ International Union Local No 333 v Nipawin

District Staff Nurses’Association 1975 1 SCR 382.

4

Lester (WW) (1978) Ltd v United Association of Journeymen etc of the Plumbing and Pipef‌itting

Industry Local 740 1990 3 SCR 644.

42

2006 Acta Juridica 42

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general statutory judicial review but statutory appeal.

5

Later, the Court

specif‌ied that it was an approach that the courts must deploy for review

for abuse of discretion irrespective of whether the respondent was an

adjudicative tribunal or a Minister of the Crown.

6

At that point,

McLachlin CJ was able to accept in Dr Q v College of Physicians and

Surgeons of British Columbia that the pragmatic and functional approach

‘provided an overarching or unifying theory for review of the substantive

decisions of all manner of statutory and prerogative decision-makers’.

7

Indeed, on occasion, the Court has been prepared to be deferential to

statutory authority determination of constitutional questions including

the application of the Canadian Charter of Rights and Freedoms.

8

For a time, it also seemed as though the Court was willing to apply the

approach to procedural as well as substantive questions.

9

However, the

Court rejected this contention, holding that issues of procedural fairness

were to be evaluated on a correctness standard.

10

Nonetheless, it is also

clear that deference does intrude in the determination of procedural

fairness questions. In the leading Supreme Court judgment on procedural

fairness, Baker v Canada (Minister of Citizenship and Immigration),

11

the

Court lists f‌ive factors that reviewing courts must take into account in

evaluating the level of procedural fairness that a decision-maker must

accord those affected. The last of those factors

12

is the procedural choices

of a tribunal that has a broad statutory discretion as to the procedures that

it adopts, either in rules or a particular case, and also where the tribunal

can be expected to have considerable f‌ield expertise in the crafting of

procedures. This consideration obviously implicates deference as a

possibility in the sense that the courts will sometimes be obliged to

recognize that the decision-making authority is likely to be more

qualif‌ied than the reviewing court to determine whether fairness requires

the full panoply of procedures that an affected person is claiming and also

in striking the balance between fairness and eff‌iciency (and other broader

public policy considerations).

It is also the case that the ‘pragmatic and functional’ factors and the

principles of deference on which they are based have had spin-off effects

on adjectival aspects of the judicial review process. Canada has a very

5

Pezim v British Columbia (Superintendent of Brokers) 1994 2 SCR 557 and Canada (Director

Investigation and Research Competition Act) v Southam Inc 1997 1 SCR 748.

6

Baker v Canada (Minister of Citizenship and Immigration) 1999 2 SCR 817.

7

N 1 at para 25, citing the author of this paper in Administrative Law (2001) 108.

8

Pinet v St Thomas Psychiatric Hospital 2004 1 SCR 528 at para 27. However, compare

Multani v Commission scolaire Marguerite-Bourgeoys2006 1 SCR 379.

9

Bibeault v McCaffrey 1984 1 SCR 176.

10

Canadian Union of Public Employees (CUPE) v Ontario (Minister of Labour) 2003 1 SCR 359

at para 100.

11

N 6 at paras 23–27.

12

N 6 at para 27.

43DEFERENCE:IS IT USEFUL OUTSIDE CANADA?

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