A standard of correctness applies to an appeal from a chambers judge’s decision on a standard of review to be applied to a tribunal’s decision. The appellate court is in the same position as the reviewing judge. In this case, the chambers judge erred in concluding that a standard of reasonableness simpliciter applied to the tribunal and the appeal was allowed.

22. October 2002 0

Administrative law – Judicial review – Standard of review of appellate court – Correctness test – Not patently unreasonable

Alberta (Minister of Municipal Affairs) v. Telus Communications Inc., [2002] A.J. No. 1068, Alberta Court of Appeal, September 4, 2002, Berger, O’Leary and Hunt JJ.A.

The Municipal Government Board (“MGB”) determined that feature software used in the switching gear of the telecommunications industry was not taxable as linear property. The chambers judge applied the criteria set out in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 and determined that the MGB’s decision should be reviewed on the standard of reasonableness simpliciter and that the MGB unreasonably limited the definition of “linear property”.

On appeal, the appropriate standard of review to apply when reviewing a chambers judge’s choice of standard of review was considered. Choice of a legal test is a question of law. It follows that a reviewing judge’s choice of the standard of review must be reviewed on appeal on a correctness basis, which has been confirmed by Housen v. Nikolaisen, [2002] S.C.J. No. 31 (at para.33), although Housen is a torts and not a judicial review case.

If the reviewing judge has selected the correct standard, the appeal court, absent any statutory limitation on the scope of appeal, will apply a standard of correctness in assessing whether the standard of review has been properly applied. The reviewing judge’s characterization and disposition of the issues concerning the jurisdiction of the tribunal are questions of law. Similarly, the reviewing judge’s decision on issues of procedural fairness in the tribunal’s proceedings are questions of law. The conclusion of the reviewing judge on either of these two matters is reviewable by a Court of Appeal on a correctness standard.

In the case at bar, the chambers judge reached the wrong conclusion that the appropriate standard of review was reasonableness simpliciter. The method of determining standard of review is the “pragmatic and functional approach”. In this case, and in most cases decided by the MGB, the standard of review will be patent unreasonableness. The MGB’s decision was not patently unreasonable.

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