L’ARRÊT DUNSMUIR ET SES SUITES : ENFIN UNE VÉRITABLE APPROCHE PRAGMATIQUE ET FONCTIONNELLE

Abstract

In Dunsmuir, the Supreme Court overhauled the analysis involved in the standard of review. This article discusses some of the fundamental elements of that reform. The author explains how the Supreme Court came to simplify the analysis. First, the Court reduced the number of standards of review from three to two. Second, it adopted an approach based on categories of questions permitting easier identification of the appropriate standard of review. However, this reform did not detract from the quality of administrative justice. Even when applying the standard of deference, the Supreme Court did not hesitate to intervene and revise certain decisions rendered by administrative authorities, especially in matters of statutory interpretation. The author also highlights the importance of retaining some of the lessons from Dunsmuir, in particular by not acknowledging the existence of various degrees of deference to the standard of reasonableness. On this issue, the author explains the role that context plays in the application of the standard of reasonableness. Finally, the author argues for recognition of the application of the standard of correctness when it is necessary to rule on a serious and irreconcilable jurisprudential conflict prevailing within an administrative tribunal.