The degree of deference to be shown to administrative tribunals continues to challenge the courts, particularly as more complex and intertwined issues are brought before specialized administrative tribunals. The courts are now being faced with clarifying the authority of individual administrative bodies to make determinations on matters that questionably fall within their area of expertise. Although this issue was front and centre before the Supreme Court of Canada earlier this year, it remains difficult to have any sense of clear direction with regard to the segmentation of tribunal decisions and the appropriate standard of review to be applied.
The Factual Context
The specific decision at issue before the Court involved a compliant of the Council of Canadians with Disabilities concerning personal wheelchair accessible train travel. On October 29, 2003 the Canadian Transportation Agency ordered Via Rail Canada Inc. to modify 30 of 139 newly purchased rail cars, mainly to ensure that there would be at least one personal wheelchair-accessible car on each daytime train and at least-one car with personal wheelchair accessible sleeper facilities on each over night train.1 The Federal Court subsequently determined that the Agency's interpretation of its own jurisdiction under its enabling legislation was reviewable on a standard of correctness, and in referring to the Agency’s decision, found that its order was patently unreasonable.2
The Federal Court found that the Agency was correct to conclude that it has jurisdiction under section 172 of the Canada Transportation Act3 to proceed with the Council of Canadians with Disabilities complaint. It disagreed, however, with the Agency's findings that the obstacles to passengers with disabilities in the newly purchased rail cars were undue, concluding that the decision was made without considering Via's entire network of rail cars, the interests of the non-disabled persons, and the interests of persons with disabilities other than personal-wheelchair users.
Segmentation or a Single Deferential Standard?
The Council appealed this decision to the Supreme Court of Canada, which released its decision in March 2007. In a 4/3 split, the Court upheld the Agency's order to implement the remedial measures and reviewed the Agency's decision as a whole on a standard of patent unreasonableness, recognizing that the decision was entitled to a single, differential standard of review.4 The Court recognized that the Agency's mandate included a human rights aspect and that questions of how and when the Agency can exercise its human rights expertise fell within this mandate, as conferred by Parliament. The Court rejected the Federal Court's decision, stating:
It seems to me counterproductive for courts to parse and recharacterize aspects of a tribunal's core jurisdiction, like the Agency's discretionary authority to make regulations and adjudicate complaints, in a way that undermines the deference that jurisdiction was conferred to protect. By attributing a jurisdiction-limiting label, such as "statutory interpretation" or "human rights", to what is in reality a function assigned and properly exercised under the enabling legislation, a tribunal's expertise is made to defer to a cour's generalism rather than the other way around.
I do not share the view that the issue before the Agency was, as a human rights matter, subject to review on a standard of correctness. This unduly narrows the characterization of what the Agency was called upon to decide and disregards how inextricably interwoven the human rights and transportation issues are. Parliament gave the Agency a specific mandate to determine how to render transportation systems more accessible for persons with disabilities. This undoubtedly has a human rights aspect. But that does not take the questions of how and when the Agency exercises its human rights expertise outside the mandate conferred on it by Parliament.
The human rights issues the Agency is called upon to address arise in a particular — and particularly complex — context: the federal transportation system. The Canada Transportation Act is highly specialized regulatory legislation with a strong policy focus. The scheme and object of the Act are the oxygen the Agency breathes. When interpreting the Act, including its human rights components, the Agency is expected to bring its transportation policy knowledge and experience to bear on its interpretations of its assigned statutory mandate: Pushpanathan, at para. 26 [citing Pushpanathan v. Canada (Minister of Citizenship and Immigration),  1 S.C.R. 982 at para. 26].5
The Supreme Court determined that although the Agency's decision had a number of components, each fell entirely within its expertise and mandate, thus no lesser standard of review applied to the human rights issues. In writing for the majority, Abella, J. reasoned that compartmentalizing various aspects of the jurisdiction of the Agency "has the capacity to unravel the essence of the decision and undermine the very characteristic of the Agency which entitles it to the highest level of deference from a court – its specialized expertise." 6
The joint dissent by Deschamps and Rothstein JJ, agreed with the majority interpretation "the Agency made a decision with many component parts, each of which fell squarely and inextricably within its expertise and mandate. It was therefore entitled to a deferential standard of review"7. Deschamps and Rothstein JJ went on, however to clarify when segmentation might be appropriate: "[t]he standard of review jurisprudence recognizes that segmentation of a decision is appropriate in order to ascertain the nature of the questions before the tribunal and the degree of deference to be accorded to the tribunal’s decisions on those questions."8 In other words, the segmentation of the standard of review may be appropriate in some cases. The dissent held that:
Subjecting all aspects of a decision to a single standard of review does not 9 account for the diversity of questions under review and either insulates the decision from a more exacting review where the pragmatic and functional considerations call for greater intensity in the review of specific legal questions, or subjects questions of fact to a standard that is too exacting. A tribunal's decision musttherefore be subject to segmentation to enable a reviewing court to apply the appropriate degree of scrutiny to the various aspects of the decision which call for greater or lesser deference. The dissent was well supported by precedent,10 and consistent with the Lévis (City) v. Fraternité des policiers de Lévis Inc.,11 a Supreme Court decision released only one day before Via Rail. McLauchlin C.J. along with Bastarache, Binnie and Charron JJ stated that:
[i]t is clear that the pragmatic and functional approach may lead to different standards of review for separate findings made by an arbitrator in the course of his or her decision: Toronto (City) v. C.U.P.E. Local 79, 2004 SCC 63 (CanLII),  3 S.C.R. 77, 2003 SCC 63, at para. 14; Alberta Union of Provincial Employees v. Lethbridge Community College, 2004 SCC 28 (CanLII),  1 S.C.R. 727, 2004 SCC 28, at para. 15. This will most frequently be the case when an arbitrator is called upon to construe legislation. The arbitrator's interpretation of the legislation – a question of law – may be reviewable on a different standard than the rest of the decision… Of course it may not always be easy or necessary to separate individual questions from the decision taken as a whole. The possibility of multiple standards should not be taken as a license to parse an administrative decision into a myriad of parts in order to subject it to heightened scrutiny. However, reviewing courts must be careful not to subsume distinct questions into one broad standard of review. Multiple standards of review should be adopted when there are clearly defined questions that engage different concerns under the pragmatic and functional approach.12
Lévis is distinguishable from Via Rail.In Lévis the arbitrator was interpreting laws external to the arbitrator's specific authority regarding requirements for employment of police and municipal workers, while in Via Rail the consideration of human rights issues was specifically contemplated in the Canada Transportation Act. Echoing her later comments in Via Rail, in Lévis Abella J. dissented on the issue of segmentation of the standard of review, warning that:
there is a danger that the routine segmentation of such mandates leads to an unduly interventionist approach…Similarly, legal issues ought not to be declared readily extricable when they are legitimately and necessarily intertwined with the adjudicator's mandate and expertise. In such circumstances, the decision ought to be reviewed as a whole, not as a segmented compilation subject to an increased degree of scrutiny and intervention.13
Demonstrably Unreasonable: A New Standard of Review?
The effect of Justice Abella's introduction of a new standard of review, that of "demonstrably unreasonable", remains to be seen. Whether it will bring more clarity to the standard of review analysis or simply add more confusion remains to be seen. Justice Abella herself commented that:
I appreciate that it is a conceptual challenge to delineate the difference in degrees of deference between what is patently unreasonable and what is unreasonable. Both it seems to me, speak to whether a tribunal's decision is demonstrably unreasonable, that is, such as a marked departure from what is rational, as to be unsustainable.14
The introduction of "demonstrably unreasonable" could have at least two practical effects, either to introduce a fourth, new and distinct standard, or to compress "patent unreasonableness" and "unreasonableness" under the new standard of "demonstrably unreasonable". If so, we would be left with essentially a single unreasonableness standard, and a single correctness standard. It is clear in the dissent that Dechamps and Rothstein feared that a forth standard was at risk of being created when they rejected the introduction of the terms stating:
[m]oreover, in her reasons, Abella J. introduces a new term –"demonstrably unreasonable". We must respectfully express reservations about introducing another term to an already complex area of the law which can only lead to ambiguity. We agree with the majority that it is difficult to determine the degrees of differences as between what is unreasonable and what is patently unreasonable. In an appropriate case, of which this is not one, the Court may engage in a review of the standards of unreasonableness and patent unreasonableness. Until this occurs, we do not see the need to add to the lexicon of standard of review terminology.15
It may be some time before we see any additions to the review standard's lexicon. While Abella J. stood alone on the issue of segmentation of the standard of review in Lévis, in Via Rail she had the support of the majority for a unified approach, suggesting that this issue may now play out in lower court decisions. The dissent has already been applied in the Albert Court of Appeal in Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters where, in a review of an earlier Alberta Labour Relations Board decision, the Court affirmed that direct constitutional questions engage the standard of correctness, but that a more deferential standard of review may apply to the factual underpinnings.16
It will be interesting to see whether in the future legitimately and necessarily intertwined issues before administrative tribunals will continue to be subdivided into different components with each attracting a different standard of review. The extent to which such segmentation truly aids in creating an efficient and just resolution of issues of this nature is something remains somewhat unclear. Abella J. suggests that there is a risk that something may be lost in the analysis where specific legal issues are extricated, particularly when they are legitimately and necessarily intertwined with the adjudicator’s mandate and expertise. When complex issues push the boundaries of the adjudicator’s mandate and expertise, the Court appears to be willing to at least consider that the demonstration of greater deference to a broader definition of the jurisdiction of administrative tribunals may be possible, where this is contemplated in the mandate of the tribunal. Article originally published in the Ontario Bar Association Administrative Law Bulletin, January 2008.
Article originally published in the Ontario Bar Association Administrative Law Bulletin, January 2008.
Author: Ella Forbes-Chilibeck, Copyright 2008 Nelligan O'Brien Payne
1 Canadian Transportation Agency decision No. 620-AT-R-2003.
2 Council of Canadians with Disabilities v. Via Rail Canada Inc.,  4 F.C.R. 473, 251 D.L.R. (4th) 418, 330 N.R. 337,  F.C.J. No. 376 (QL), 2005 FCA 79.
3 S.C. 1996, c. 10, s. 172(1) reads: 172. (1) The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.
4 Council of Canadians with Disabilities v. Via Rail Canada Inc.,,  S.C.J. No. 15, 2007 SCC 15.
5 Ibid. at paras. 96-98.
6 Ibid. at para. 88.
7 Ibid. at para. 100.
8 Ibid. at para. 278.
9 Ibid. at para. 278.
10 In stating their findings the dissent cited Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc.,  2 S.C.R. 100, 2001 SCC36 at para. 27; alsoLaw Society of New Brunswick v. Ryan, 1 S.C.R. 247, 2003 SCC 20; and alsoMattel v. 3894297 Canada Inc.,  1 S.C.R. 772, 2006 SCC 22.
11  S.C.J. No. 14, 2007 SCC 14.
12 Ibid. at para. 19.
13 Ibid. at paras. 111 and 112.
14 Ibid. at para. 102.
15 Ibid. at para. 279. 16  ABCA 198 at paras. 31 to 33.