In the late 1990s, Supreme Court of Canada decisions made changes to two areas of judicial review: the definition of "jurisdictional error," and the proper standard of review of a discretionary decision. In both cases, the court broadened the scope of review of administrative decisions. But in 2002, the court issued a number of decisions that appear to retreat from the positions it took in the late 1990s on these issues.
In Pushpanathan v. Canada (Minister of Citizenship and Immigration),  1 S.C.R. 982, the Supreme Court decided that the Immigration and Refugee Board had erred in concluding that the appellant did not fit the definition of a refugee because he was guilty of heroin trafficking. The court examined the proper standard of review of a decision of the board, and determined that the correctness standard applied.
While the court reaffirmed the "pragmatic and functional approach" set out in U.E.S., Local 298 v. Bibeault,  2 S.C.R, 1048, it defined the term "jurisdictional error" in an interesting way: " '[J]urisdictional error' is simply an error on an issue with respect to which, according to the outcome of the pragmatic and functional analysis, the tribunal must make a correct interpretation and to which no defense will be shown." Previously, courts had concluded that when the issue related to the jurisdiction of an administrative body, it would be reviewed on the correctness standard. The Supreme Court turned that definition on its head: a jusrisdictional error was now any error reviewable on the correctness standard.
This novel approach to standard of review has some consequences that have not yet fully been explored. For example, s. 18.1(4) of the Federal Court Act lists the permissible grounds of an application for judicial review. Paragraph 18.1(4) (a) states that where a board "acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction" the Federal Court may grant relief.
In light of Pushpanathan, does this still mean review of the ground that a board acted beyond the scope of its delegated authority or review on the ground that a board erred on an issue on which it was not entitled to deference?
Another consequence is the possible impact on the standard of review of decisions traditionally viewed as "jurisdictional." Since the limits on most boards' authority rests in their constituting statutes and since most boards also have some expertise in interpreting those statues, is it possible that a board should be accorded deference when determining the scope of their delegated mandate?
In Chieu v. Canada (Minister of Citizenship and Immigration),  1 S.C.R. 84, the Supreme Court retreated from its definition of "jurisdictional error" in Pushpanathan and restored the traditional view of a jurisdictional error as an error in determining the scope of an administrative body's delegated mandate. The court also reaffirmed that such bodies generally must be correct in determining the scope of their jurisdiction, event when the other contextual factors in the pragmatic and functional approach indicate a greater level of deference. Thus, the Supreme Court went "back to basics" in its approach to jurisdictional questions.
A "discretionary" decision is one in which the administrative body was left free to make a choice among possible courses of action. The hallmark of discretionary authority is the use of the words "may" or "mat in its discretion." Traditionally, courts have accorded significant deference to discretionary decisions, only reviewing them on certain limited grounds: failure to take into account all relevant factors or taking into account irrelevant considerations; improperly fettering discretion by blindly adhering to policies or rules, or by giving decision-making power to another body; discrimination; no evidence; and bad faith or exercising discretion for improper purposes.
There was also some debate over whether there was a general residuary ground of review when the result reached was so unreasonable that no reasonable authority could ever have reached it – the so-called "Wednesbury" unreasonableness from Associated Provincial Picture Houses v. Wednesbury Corporation,  1 K.B. 223.
In Baker v. Canada (Minister of Citizenship and Immigration),  2 S.C.R. 817 the Supreme Court decided that it was no longer shackled by the traditional grounds of review of discretionary decisions, but instead decided that it would determine the appropriate standard of review of discretionary decisions using the pragmatic and functional approach. In Baker itself, the decision of the Minister not to grant an exemption from the requirement that an application for permanent residence be made from outside Canada on "compassionate and humanitarian" grounds was assessed on the reasonableness standard. In other words, was the decision of the Minister based on reasons that could survive a somewhat probing examination?
This approach brought review of discretionary decision in line with all other administrative decisions, but was nevertheless unsatisfactory in some respects. For example, was it ever possible to review a discretionary decision on the correctness standard? If a discretionary decision is, by definition, one in which the decision-maker has the authority to come to more than one conclusion, how could a court ever determine that the conclusion was "incorrect"? Also, had the Supreme Court truly jettisoned the Wednesbury reasonableness ground of review?
In Suresh v. Canada (Minister of Citizenship and Immigration),  1 S.C.R. 3, the Supreme Court decided that a convention refugee could not be deported back to Sri Lanka to face a substantial risk of torture. The Minister's decision to deport Suresh was itself quashed on procedural grounds, and the matter ordered to be reheard.
The Minister's decision was, like in Baker, a discretionary one. The Supreme Court in Suresh used the pragmatic and functional approach and decided that the decision should be reviewed on the patently unreasonable – a decision that is "clearly irrational" or not in accordance with reason – and instead adopted a definition that adhered closely to the traditional grounds for reviewing a discretionary decision. The court stated that it would set aside the Minister's decision if it is "patently unreasonable in the sense that it was made arbitrarily or in bad faith, it cannot be supported on the evidence, or the Minister failed to consider the appropriate factors."
Later, the court defined a patently unreasonable decision as "unreasonable on its face, unsupported by evidence, or vitiated by failure to consider the proper factors or apply the appropriate procedures."
These definitions of "patently unreasonable" correspond very closely to the traditional grounds of review of discretionary decisions, including the Wednesbury reasonableness standard. Thus, the court has gone "back to basics" in its analysis of the standard of review of discretionary decisions.
The latest chapter in this story occurs in Chamberlain v. Surrey School District No. 36,  S.C.J. No. 87, where the court decided that a school board could not ban a book depicting families where the parents are in a same-sex relationship. The court determined that the standard of review in that case was reasonableness. The court defined a patently unreasonable decision as "a decision that suffers from a defect that is immediately apparent or is so obvious that it demands intervention by the court upon review." – The more traditional definition. To add further confusion, the court refined the pragmatic and functional approach. It kept the traditional four factors, but said the standard to apply "depends on the amount of discretion the legislature conferred on the delegate."
However, the decision does indicate that the court may not be going "back to basics" to the extent indicated in Suresh.
Christopher Rootham is the Director of Research with Nelligan O'Brien Payne LLP where he practises labour and administrative law.
[This article is reprinted with permission and first appeared in the April 2003 issue of The Lawyers Weekly.]