Mr. Dunsmuir claims that he was terminated from his employment for cause.
Mr. Dunsmuir’s employer claims that he was terminated from his employment, not for cause, but with reasonable notice or pay in lieu.
The adjudicator appointed under the Public Service Labour Relations Act held that he had no jurisdiction to look behind the employer’s stated position, and to independently inquire into why Mr. Dunsmuir was dismissed.
The Public Service Labour Relations Act contained a full privative clause that covered arbitrators’ decisions.
All judges concur that the PSLRA arbitrator’s decision cannot stand, because it was not reasonable.
Bastarache and LeBel JJ find that the arbitrator’s decision cannot stand, because it was not reasonable.
Binnie J. finds that the arbitrator’s decision cannot stand, because it was not reasonable.
Deschamps J. finds that the arbitrator’s decision cannot stand, because it was not correct.
There are now two standards of review
Expertise is the most important factor in determining standard of review
Courts’ judicial review power is constitutionally protected
It may not be necessary to go through each step in the four part Pushpanathan test in every case
Administrative bodies must be correct in their determinations of true questions of jurisdiction, or vires.
“The … presumption should be that the standard of review of any administrative outcome on grounds of substance is not correctness but reasonableness ("contextually" applied).”
“Judicial review is an idea that has lately become burdened with law office metaphysics.”
“In practice, the result of today's decision may be like the bold innovations of a traffic engineer that in the end do no more than shift rush hour congestion from one road intersection to another without any overall saving to motorists in time or expense.”
“In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
“Far more numerous are the lesser officials who reside in the bowels and recesses of government departments adjudicating pension benefits or the granting or withholding of licences, or municipal boards poring over budgets or allocating costs of local improvements.”
The nature of the question
The presence or absence of a privative clause
The expertise of the decision maker
The purpose of the statute
What the precedent of judicial review from this particular administrative tribunal says the standard of review should be