The Competition Tribunal Can Be Reviewed On Correctness

The law on standard of review of administrative decisions is a constantly shifting landscape. Every few years, the Supreme Court of Canada ("SCC") rejects discernible trends and recrafts this area of jurisprudence. The SCC's decision in Tervita Corp. v. Canada (Commissioner of Competition)1 is notable for its status as rarely issued competition law merger jurisprudence. However, lawyers who argue administrative matters in Canada's courts and their clients must take notice of the decision for another reason. The SCC has compartmentalized a fresh category of decisions governed by the standard of review of correctness.

Reasonableness Appeared to Govern

Standard of review is the standard applied by the court when reviewing a decision. As an example, in Tervita, the SCC had to consider on what grounds it was appropriate for the courts to interfere with the decision of the Competition Tribunal ("Tribunal") on the proper legal tests to be applied under sections 92(1) and 96 of the Competition Act.2

Archaic distinctions in standard of review between reasonableness simpliciter, reasonableness and correctness were eliminated in 2008 by the SCC's decision in Dunsmuir v. New Brunswick.3 Since then, appeal and SCC jurisprudence has trended to affording administrative tribunals deference on a variety of decisions. Decisions were most frequently reviewed for whether they were reasonable or not. One category of decisions afforded deference, and frequently considered for reasonableness, were decisions involving a tribunal's "interpretation of its home statute".

The more strict standard review of correctness was applied to limited categories of decisions. Correctness, at least in name, was on life support.

The benefit to this approach, arising from SCC cases including Smith4 and Alberta Teachers5 and Canada v. Canada,6 was that courts and lawyers could be relatively certain that decisions made by tribunals would be afforded significant deference if questioned in court. This certainty benefitted clients as well, who could consider whether seeking relief from the court was tenable, despite the cloud of deference that would likely blanket the original decision.

Statutory Language Can Result in a Correctness Standard

Tervita lessens that certainty. In Tervita, the majority agreed that a standard of reasonableness presumptively applies. However, that presumption was rebutted. The Tribunal's decision on questions of law would be reviewed on a correctness standard...