Standard Of Review Of Administrative Action: Coherence Post-Dunsmuir?

It was widely hoped that the Supreme Court of Canada decision in Dunsmuir v. New Brunswick, 2008 SCC 9 ("Dunsmuir") would simplify the judicial review of administrative action by limiting the scope of review to two standards: reasonableness and correctness. The divided Supreme Court of Canada opinion in Commission scolaire de Laval v. Syndicat de l'enseignement de la région de Laval, 2016 SCC 8 shows that there is still a long way to go before coherence and uniformity is brought to this area of law.

Background

In June 2009, a Quebec school board had to decide whether to dismiss a teacher on the basis of a serious criminal background. After hearing the teacher and holding a partially in camera meeting (where the public was excluded), the executive committee deliberated entirely in camera (without the teacher or the union being present). Once its deliberations were concluded, the board issued a resolution removing the teacher from his position, providing some supporting reasons.

The teacher's union filed a grievance against the dismissal, alleging, among other things, that the executive committee had not complied with its obligation to make "thorough deliberations" before dismissing an employee, as provided in the collective agreement.

To establish before the grievance arbitrator that there had been no "thorough deliberations", the union called as witnesses the three members of the executive committee who had deliberated in camera. The arbitrator rejected the school board's objection that the executive committee's motives were "unknowable" and protected by the secrecy of deliberations. He allowed that questions be asked to the witnesses on their deliberations. The school board sought judicial review of the arbitrator's ruling on the objection.

Decision of the Superior Court

Justice Michel Delorme of the Quebec Superior Court underlined the Dunsmuir's dictum that the correctness standard applied "in respect of jurisdictional and some other questions of law" (para. 50). Applying this principle, Justice Delorme held that the secrecy of an administrative tribunal's deliberation was a question of law that was outside the arbitrator's area of expertise and that was of interest to all school boards across Quebec. As a result, he applied the correctness standard and concluded that the arbitrator had erred in allowing questions on the reasons for the decision. In the judge's view, the questions put to the witnesses should have been limited to...