P: 416.369.4336
F: 905.845.8720

First Canadian Place
100 King Street West
Suite 5700
Toronto,  Ontario
M5X 1C7


For consults or appointments please contact Francis Robinson


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

Authored April 28, 2017

Related Services:


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].


Working with Tracey as closely as I have for the last 27 years, I am in a position to comment on her speaking expertise and why she would add considerable value to any lecture, presentation or seminar. I have not only heard her present, but I have also presented with her as co-presenter. Tracey is one of those rare individuals that can create buzz and excitement as soon as she walks in the room and starts to speak. In my opinion, that’s exactly what you want at a presentation: “buzz”. You want people excited and that’s what Tracey delivers. Her presentation style is dynamic and alive and is NOT just someone reading PowerPoint slides. Once any presentation is complete, a leading indicator of the presentation’s success is the number of questions and participation from the audience. In Tracey’s presentations, the audience is so engaged that the question and discussion period will likely need to be cut off.

Stephen R. Binder, B.A. , C.A. Partner, Grant Thornton LLP Personal and business accountant and advisor since 1985

Tracey Tremayne-Lloyd Health Law