Judicial Review 'Through The Looking Glass': Issue-By-Issue Analysis

Introduction

Over the last decade, the Supreme Court of Canada has struggled with the right way to approach its "prodigal child": the standard of review.1 The Court's 2008 decision in Dunsmuir made two significant changes to standard of review analysis. First, it eliminated the standard of patently unreasonable, leaving only two: correctness and reasonableness.2 Second, it made reasonableness the presumptive standard.3 The Dunsmuir decision did not address whether the same standard of review had to apply to every issue before the Court. The Court's decision in Canadian Broadcasting Corp. v SODRAC 2003 Inc.4 addressed this issue and includes a colourful dissent. The majority held that an issue-by-issue analysis of an administrative board's decision was necessary to determine what standard should be applied to each issue. However, Justices Abella and Karakatsanis disagreed with the majority's approach. While each judge wrote her own dissent, both agreed that the process of reviewing individual issues when applying a standard of review analysis was burdensome and unnecessary. Abella J.'s dissent is particularly aggressive, as she suggested that issue-by-issue review of the standard of review promulgates complexity that the Dunsmuir decision was intended to eliminate.

The Majority's Decision

The decision in Canadian Broadcasting Corp. v. SODRAC 2003 Inc.5 focuses on whether payments must be made to reproduce certain works subject to the Copyright Act. Much of the decision, however, relates to how standard of review analysis is to be performed. The majority of the court, led by Rothstein J., began its review of the Copyright Board's decision by confirming that reasonableness is the presumptive standard.6 After analyzing each issue before the court, the majority applied the reasonableness standard to four of the five issues in question. The Court held that, because of the unusual statutory regime, one issue was a legal question for which the proper standard to apply was correctness.7

Dissenting Decisions

Both dissenting judges agreed it was problematic to apply different standards of review to different issues in administrative decisions. However, they differed significantly in their other concerns.

(a) Justice Abella's Dissent

Abella J. branded the majority's approach as a complicating change in the Court's "tectonic" shift in its approach to standard of review.8 Abella J. expressed concern that the majority's approach erodes the simple...