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ARTICLE · 26 JUNE 2018

Divided Supreme Court Suggests Standard Of Review Framework Is Unsettled

Osler, Hoskin & Harcourt LLP
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•The Supreme Court of Canada's (SCC) split decision in Canada v. Canada, issued June 14, 2018, indicates the SCC is not yet done refining the standard of review analysis enunciated in Dunsmuir

CanadaLitigation, Mediation & Arbitration
Tommy Gelbman
Tommy Gelbman
Sean Sutherland
Sean Sutherland
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The Supreme Court of Canada's (SCC) split decision in Canada (Canadian Human Rights Commission) v. Canada (Attorney General) (the Decision), issued June 14, 2018, is the latest indication that the SCC is not yet done refining the standard of review analysis enunciated in Dunsmuir. While the SCC was unanimous in result, the majority and two concurring opinions applied different standards based on diverging views on the framework for assessing standard of review. This Decision may be a precursor to the SCC's further anticipated development of the law arising from appeals tentatively scheduled to be heard in December 2018.

Background

The Decision arose out of two Canadian Human Rights Tribunal (Tribunal) decisions that found that legislative entitlements to registration under the Indian Act did not fall within the definition of a "service" under the Canadian Human Rights Act. On judicial review, the Federal Court and the Federal Court of Appeal upheld the Tribunal

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