April 15, 2008
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The Supreme Court of Canada recently revamped the law of judicial review and the application of procedural fairness, in its landmark decision and Dunsmuir v. New Brunswick. The decision, released March 7, 2008, considers two key issues involved in judicial review applications – the standard of review, and the issue of procedural fairness for public office holders on their dismissal.

The case involved an individual, David Dunsmuir, who was employed by the New Brunswick Department of Justice as Clerk of the Probate Court of New Brunswick, which was a statutory office. Dunsmuir’s employment was terminated effective December 31, 2004. Cause was not alleged, he was provided with 4 months’ notice and removed from his statutory office by order of the Lieutenant-Governor in Council without benefit of any hearing. At adjudication, the adjudicator determined Dunsmir was entitled to procedural fairness in the employer’s decision to terminate. As he was not afforded this, his termination was deemed void. On appeal, the Adjudicator’s decision was overturned at all levels of Court.

In its decision, the Supreme Court first reviewed the issue of judicial review and determined that there should be only two standards of review. The Court confirmed that the standard of ‘correctness’ was to remain as one standard. However, the Court collapsed the standards of ‘reasonableness simpliciter’ and ‘patent unreasonableness’ into the single standard of ‘reasonableness’. Courts will continue to assess the correctness of administrative decisions that do not require deference; however, the courts will now assess decisions requiring deference within a broad range of reasonableness. The standard of reasonableness is concerned with whether the decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law.

The Court then considered the public law duty of procedural fairness as it applied to employment law. The Court confirmed that while the duty of procedural fairness continues within administrative law, it is no longer applicable where an employee has private law remedies. Essentially, where the relationship with employer is governed by a contract or is contractual in nature, the plaintiff is not entitled to the duty of procedural fairness. It is therefore essential to first consider the nature of the relationship with the public authority to determine whether procedural fairness, in fact, is required. If the relationship is contractual in nature and remedies are available, the duty of procedural fairness will not apply. With respect to government employees, the Court stated:

Where a public employee is employed under a contract of employment, regardless of his or her status as a public office holder, the applicable law governing his or her dismissal is the law of contract, not the general principles arising out of the public law.

Ultimately, the Supreme Court’s decision is certain to have an impact on the courts’ approach to judicial review. The decision confirms that virtually all public employment is contractual in nature and the dismissal of a public employee will be typically be viewed as an normal employment law dispute. Only public office holders who are not protected by a contract of employment and are serving “at pleasure” or find themselves by statute required to receive procedural fairness will be entitled to a duty of procedural fairness in their termination.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law