Dunsmuir focus feature: Introduction

It would be a gross understatement to say that the Supreme Court of Canada’s decision in Dunsmuir v New Brunswick¹ has had a significant impact on administrative law. Dunsmuir is, by far, the most cited case ever rendered by the Court,² referred to in almost 15,000 reported decisions,³ dissected in more than 500 academic articles,⁴ and discussed at length in an untold number of conferences and continuing legal education seminars.

Perhaps the breadth of judicial and academic consideration of Dunsmuir ought not to be surprising given that, through its reformulated standard of review analysis, the Court laid out a framework that purported to properly calibrate the contested distribution of decision-making power between the legislative, executive, and judicial branches of government.⁵ The Court also fundamentally altered the relationship between government employees and their employers by finding that no duty of procedural fairness is owed to dismissed employees when the law of contract otherwise applies.⁶ Given that the Supreme Court has announced its intention to soon reconsider Dunsmuir in a trilogy of cases in which it has granted leave to appeal,⁷ the need to fully understand the merits, demerits, and broader impact of the decision is even more urgent. This focus feature, which was originally germinated in a conference organized by the Canadian Institute for the Administration of Justice,⁸ represents a modest contribution to the rich scholarship that already exists on this important issue.

In his article, Matthew Lewans situates Dunsmuir in the broader context of earlier landmark decisions decided by the Supreme Court of Canada, beginning with Roncarelli v Duplessis.⁹ In so doing, he makes the compelling argument that Dunsmuir severed an important link between the principles of procedural fairness and substantive review through the duty to give reasons. Lauren Wihak and Benjamin Oliphant examine another disconnect in the law: the bases for judicial review as set out in Dunsmuir, especially the substantive reasonableness of an impugned administrative decision, and the rules that govern the admissibility of evidence on judicial review. In my own article in the focus feature, I build on a previously published article in this journal¹⁰ to empirically assess the level of deference shown by the Supreme Court to administrative decision makers in recent years and to predict where the jurisprudence may be headed next.

While the Dunsmuir decision itself may soon be supplanted by the Supreme Court of Canada’s latest effort at reformulating the standard of review analysis, it will certainly remain one of the most consequential judgments ever rendered by the Court. As such, academic and judicial efforts at fully understanding its effects will (and, indeed, should) continue in the years to come.