Generally, “standard of review” refers to the process by which a court will review a decision rendered by another body (lower court, tribunal, etc.), including the level of scrutiny that the reviewing court should exercise.

The Supreme Court of Canada decided in the case of Dunsmuir v. New Brunswick that there ought to be only 2 standards of review: correctness and reasonableness.

The Correctness Standard of Review

The correctness standard generally applies to jurisdictional matters and questions of law with broad application outside of the specific expertise of the decision-maker whose decision is being reviewed. When a court applies the correctness standard, it generally performs its own analysis of the question and, if it reaches a different conclusion, will substitute its view to that of the decision-maker. Therefore, on questions that attract the correctness standard, no deference is shown to the decision-maker’s reasoning process. It’s about getting to the right answer.

The Reasonableness Standard of Review

By contrast, the reasonableness standard generally applies to the following circumstances:

• when there is a privative clause;
• where the question to be decided is one of fact, discretion or policy;
• where the legal and factual issues are intertwined; and
• where the decision-maker is interpreting its own statute or statutes closely connected to its function.

The reasonableness standard is concerned mostly with the process by which the decision-maker arrived at his decision. A court reviewing a question based on the reasonableness standard will look at whether there is sufficient basis to accept the decision made as being reasonable. In doing so, the court will look at the existence of justification, transparency and intelligibility within the decision-making process. If the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law, the court will defer to that decision. Thus, the reasonableness standard recognizes the choice made by the legislature to leave some matters with administrative bodies and accepts that those bodies have particular expertise and experiences.

What Standard of Review to Apply?

The court will not always conduct an exhaustive analysis to determine what standard of review to apply. It will first look at the case law to see if prior cases have addressed the degree of deference to be accorded to the particular question. If it finds no case that satisfactorily addresses the proper standard to use, then it will analyze the relevant factors in order to ascertain the applicable standard of review.

Last updated: December 15, 2016