Dunsmuir and Substantive Review – Implications and Impact: A Preliminary Assessment

72 Pages Posted: 7 May 2010

Date Written: August 1, 2009

Abstract

In its 2008 decision in Dunsmuir v. New Brunswick, the Supreme Court re-examined its approach to judicial review of administrative decisions to develop"a more workable and coherent" framework. It merged the deferential standards of reasonableness simpliciter and patent unreasonableness into a single reasonableness standard and emphasized the importance of precedent in determining the standard applicable to a specific category of decision-makers. The author makes a preliminary assessment of Dunsmuir’s impact on judicial review through a review of recent appellate decisions. He concludes that while Dunsmuir has simplified the standard of review analysis by encouraging courts’ reliance on satisfactory precedents and by providing them with useful guidelines to determine the appropriate standard, there is a risk that courts may uncritically adhere to inappropriate precedents or carry out unduly intrusive review by inappropriately characterizing as jurisdictional the questions before them. Substantive review retains much of its complexity, which now resides at the stage of courts’ application of the merged reasonableness standard.

Keywords: Administrative Law, Standard of Review

Suggested Citation

Heckman, Gerald, Dunsmuir and Substantive Review – Implications and Impact: A Preliminary Assessment (August 1, 2009). Available at SSRN: https://ssrn.com/abstract=1602044 or http://dx.doi.org/10.2139/ssrn.1602044

Gerald Heckman (Contact Author)

University of Manitoba ( email )

Robson Hall, 224 Dysart Rd
Winnipeg R3T 5V4, Manitoba
Canada

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