The Problem with the Presumption of Expertise on a Home Statute Interpretation

Authored April 28, 2017

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Judicial review of decisions made by administrative decision-makers serves as a safeguard to ensure that public decision-makers are operating, both substantively and procedurally, within the law. The scope of judicial review on substantive grounds involves quantifying the amount of deference the court will give to a public decision-maker when reviewing a decision.

The application of deference on a decision-maker’s home statute interpretation was at the centre of the Supreme Court of Canada’s debate in the July 2016 decision, Wilson v Atomic Energy of Canada Ltd, 2016 SCC 29 (an unjust dismissal complaint under the Canada Labour Code, RSC 1985, c L-2, s 240). The Court provided four sets of reasons on the meaning and application of the standard of reasonableness in administrative law. The dissent in Wilson concluded that the standard of review should be correctness, even though the decision-maker was interpreting its home statute, because in this case, to apply the reasonableness standard of review would “abandon rule of law values in favour of indiscriminate deference to the administrative state.”1

This paper will be guided by the question of whether adherence to the presumption of expertise by way of a reasonableness standard of review whenever a decision-maker is interpreting a question of law within its home statute, forsakes the rule of law and accords an indiscriminate amount of deference to the administrative decision-maker. This paper will discuss the standard of review analysis established in Dunsmuir and analyze the jurisprudence on how the courts have subsequently conducted such an analysis. The Wilson decision and dissent will then be analyzed. This will raise issues such as the importance of defence, how to quantify a decision maker’s expertise and how that impacts the amount of deference a decision-maker should be given by the courts on judicial review.

Wilson v Atomic Energy of Canada Ltd, 2016 SCC 29 ¶ 79 [Wilson].


Several years ago I was fortunate enough to have been selected as a Tremayne-Lloyd Fellow here at Western Law. I used the funds to finish a book and to begin work on a new one. It dawned on me far too late that I had never thanked you for that splendid gift. The new book is to be published by Harvard Press in 2010. The TTL Fellowships provided ritual seed capital for this project, which required me to spend a good deal of time and money at The National Archive in Washington. Again, with many thanks.

R. W. Kostal Professor of Law and History

Tracey Tremayne-Lloyd Health Law