Authors: Khurrum Awan, Nathanial Day
A recent judgment of the British Columbia Court of Appeal has reaffirmed that, in some instances, judicial review for reasonableness may result in a finding that the relevant tribunal could only have reached one acceptable outcome.
The Ordinary Range of Reasonable Outcomes on Judicial Review
In New Brunswick (Board of Management) v Dunsmuir, the Supreme Court of Canada indicated that the reasonableness standard of review was animated by the principle that “certain questions that come before administrative tribunals do not lend themselves to one specific particular result”.[1] Therefore, the reasonableness standard implied that “[t]ribunals have a margin of appreciation within the range of acceptable and rational solutions”.[2] Subsequently, in Canada (Minister of Citizenship and Immigration) v Khosa, the Court noted that reviewing courts could not substitute their own view of a preferable outcome, but rather had to determine if the outcome fell within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.[3]
More recent jurisprudence, including the BC Court of Appeal’s judgment in Trinity Western University v The Law Society of British Columbia, indicates that the “range of acceptable and rational solutions” may reduce itself to a single reasonable option.[4]
Restriction of the Range of Reasonable Outcomes
TWU v LSBC involved a Charter challenge commenced by the Trinity Western University against the Law Society of BC’s refusal to accredit its proposed law school on the basis that the “Community Covenant”, which students were required to sign, discriminated against members of the LGBTQ community. The BC Court of Appeal found that the Law Society’s decision had not reasonably balanced its statutory objective of protecting the rights and freedoms of all persons against Trinity Western’s Charter right to freedom of religion.
In considering whether the Law Society’s decision was reasonable the Court noted that, even where the standard of review is calibrated at “reasonableness”, the range of reasonable outcomes “can be exceedingly narrow indeed, effectively amounting to one correct answer”.[5] Trinity Western’s application before the Law Society lent itself to only one reasonable result: a granting of accreditation to the law school.[6] The Law Society’s decision to refuse accreditation had minimal impact on improving access to the legal profession, but severely impacted Trinity Western’s freedom of religion by inter alia preventing its graduates from practicing law in BC. [7] Its decision was thus unreasonable. [8]
The BC Court of Appeal’s reasoning reaffirms brief comments made by some Justices of the Supreme Court of Canada in a handful of earlier cases. For instance, in McLean v British Columbia (Securities Commission), Justice Moldaver noted that particular legislative provisions may not always permit multiple interpretations. In such instances, the range of reasonable outcomes will necessarily be limited to a single interpretation which the administrative decision-maker must adopt.[9]
Implications for Judicial Review – A Single Standard of Judicial Review?
Some commentators have suggested that when the range of reasonable outcomes is reduced to one, the reviewing court is effectively applying a correctness standard since all applications of the correctness standard similarly result in a single answer.[10]
Most notably, in the Supreme Court of Canada’s recent judgment in Wilson v Atomic Energy of Canada Ltd., Justice Abella noted that the occasional reduction of the range of reasonable outcomes to a single solution raises the issue of “whether we need two different names for our approaches to judicial review, or whether both approaches can live comfortably under a more broadly conceived understanding of reasonableness”.[11] The post-Dunsmuir jurisprudence indicated that courts were now struggling with the distinction between reasonableness and correctness.[12] Justice Abella thus proposed that the correctness and reasonableness simpliciter standards of review delineated in Dunsmuir be collapsed into a single reviewing standard of reasonableness which embraces a spectrum of deference, including instances where only a single outcome is acceptable from an administrative tribunal.[13]
However, Justice Abella’s comments were in obiter, and the remaining Justices of the Court indicated that they were not prepared to endorse any particular proposal to reform the current standard of review framework since it was unnecessary to decide the issue before the Court.[14] Nonetheless, it is our view that Justice Abella’s proposal for a single standard of review may be revisited by the Supreme Court if the right mix of facts and law presents itself to the Court.[15]
Regardless of whether the Supreme Court of Canada eventually adopts a single, flexible standard of judicial review, it is our view that the case for distilling the range of reasonable options to a single outcome, in appropriate instances, is sound. It would appear incoherent and contrary to the rule of law if, in very clear circumstances, different tribunals could reach differing conclusions – and all of those conclusions were found to be defensible in law.
A good illustration is provided by the litigation arising in various provinces from Trinity Western’s applications to accredit its law school. As we outlined in an earlier blog on the constitutional aspects of the litigation referenced above, the Ontario Court of Appeal found that the Law Society of Upper Canada’s (“LSUC”) refusal to accredit Trinity Western was reasonable.[16] The LSUC had adequately balanced Trinity Western’s and its students’ freedom of religion against its statutory objective of promoting a legal profession to which entry was based on merit and not on discriminatory classifications. The net result is that the Ontario and BC Courts of Appeal have reached conflicting conclusions on what a reasonable balancing of constitutional rights entails. In the authors’ view it would be incoherent and contrary to the rule of law if, on issues involving the balancing of fundamental constitutional rights, varying balances could be found reasonable. In our view, only one acceptable solution can be found reasonable in such instances. That is likely to be the case if the Supreme Court of Canada grants leave to Trinity Western University to appeal the Ontario Court of Appeal’s judgment in Trinity Western University v The Law Society of Upper Canada.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.
[1] New Brunswick (Board of Management) v Dunsmuir, 2008 SCC 9 at para 47, [2008] 1 SCR 190.
[2] Ibid.
[3] Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59, [2009] 1 SCR 339.
[4] Trinity Western University v The Law Society of British Columbia, 2016 BCCA 423, 2016 CarswellBC 3008 (WL) [TWU v LSBC]
[5] Ibid at para 130.
[6] Ibid at paras 191-192.
[7] Ibid at paras 168, 192.
[8] Ibid at para 192.
[9] British Columbia (Securities Commission) v McLean 2013 SCC 67 at para 38, [2013] 3 SCR 895.
[10] Dr. Paul Daly, “The “Range” of Reasonable Outcomes: a Spectrum or an Accordian?”, Adminstrative Law Matters (31 March 2014), online: Blogspot <http://administrativelawmatters.blogspot.ca/2014/03/the-range-of-reasonable-outcomes.html>; Mark Hines, “Standard of review in copyright cases: Rogers seemed like a good idea at the time”, Lexology (December 20, 2013), online: Lexology http://www.lexology.com/library/detail.aspx?g=8c14db78-dd9e-4d46-a192-6b9edaba7e70.
[11] Wilson v Atomic Energy of Canada Ltd., 2016 SCC 29 at para 24, 399 DLR (4th) 193.
[12] Ibid at para 26.
[13] Ibid at paras 28-35.
[14] Ibid at paras 70, 72, and 78.
[15] See Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47 at para 20, 402 DLR (4th) 236.
[16] Trinity Western University v The Law Society of Upper Canada, 2016 ONCA 518 at para 145, 131 OR (3d) 113.