West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal)is a 2018 Supreme Court of Canada decision in which the Supreme Court had to determine whether it should overturn the WCAT’s decision to expand the duty of employers to ensure that their operations are planned and conducted in accordance with safe work practices to owners. The case provides a useful context to explore the topic of “standard of review,” which is extremely divisive in Canadian jurisprudence.
Robert Danay is a lawyer with Canada’s Department of Justice who has a passion for this topic, and has researched every Supreme Court of Canada decision on the issue going back twenty years. He can be found on Twitter at @RobertDanay.
3:10 – An overview of the facts.
6:00 – What got Robert Denay into administrative law and an interest in the “standard of review.”
10:00 – What is an administrative tribunal?
11:30 – What is judicial review?
12:10 – What is standard of review?
16:50 – In the reasonableness standard, who determines what is reasonable?
18:10 – What is the trend in standard of review jurisprudence in terms of the amount of deference that should be shown to administrative tribunals?
22:30 – The Supreme Court has announced that it is looking to revisit the standard of review. What is the background of this, and what are some likely outcomes?
24:30 – What was the result of Westcoast ?
43:00 – What is Justice Rowe’s concern regarding whether administrative tribunals have an expertise in statutory interpretation? Should all administrative tribunals get the same deference?
46:00 – Why has standard of review been so challenging for the courts to develop a doctrine on?
56:00 – Justice Abella recently proposed that there only be one standard of review, and that standard of review be reasonableness. What are Robert’s thoughts about this?
1:01:30 – Where does Robert Denay think standard of review jurisprudence is going? Robert has tracked every judge’s vote on the issue going back twenty years, and so has a unique perspective on this. Does the political party that appointed the judge matter?
1:16:30 – Switching gears, what is it like working at the Department of Justice? Does Robert find working for the government constraining on the ability for him to speak freely?