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Appeal - Standard of Review (SOR) - for SOR Errors!. Canada (Attorney General) v. Robinson
In Canada (Attorney General) v. Robinson (Fed CA, 2022) the Federal Court of Appeal cited case authority for the standard of review for standard of review errors:[26] The first question before us is whether the judge adopted the correct standard of review; the second is whether he applied it correctly (Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Northern Regional Health Authority v. Horrocks, 2021 SCC 42, 462 D.L.R. (4th) 585 at para. 10). . Northern Regional Health Authority v. Horrocks
My favourite! - SOR for SORs ...!
In Northern Regional Health Authority v. Horrocks (SCC, 2021) the Supreme Court of Canada considers the 'standard of review' for 'standards of review', that is - what standard applies when the court below selects the wrong 'standard of review' [SS: it's correctness]:[10] A reviewing judge’s selection and application of the standard of review is reviewable for correctness. This standard traces back to Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, where LeBel J. explained:The proper approach to this issue was set out by the Federal Court of Appeal in Telfer v. Canada Revenue Agency, 2009 FCA 23, 386 N.R. 212, at para. 18:Despite some earlier confusion, there is now ample authority for the proposition that, on an appeal from a decision disposing of an application for judicial review, the question for the appellate court to decide is simply whether the court below identified the appropriate standard of review and applied it correctly. The appellate court is not restricted to asking whether the first‑level court committed a palpable and overriding error in its application of the appropriate standard. In Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23, at para. 247, Deschamps J. aptly described this process as “‘step[ping] into the shoes’ of the lower court” such that the “appellate court’s focus is, in effect, on the administrative decision” (emphasis deleted).
The issue for our consideration can thus be summarized as follows: Did the application judge choose the correct standard of review and apply it properly? [Text in brackets in original; paras. 45-47.] This approach accords no deference to the reviewing judge’s application of the standard of review. Rather, the appellate court performs a de novo review of the administrative decision (D. J. M. Brown, with the assistance of D. Fairlie, Civil Appeals (loose-leaf), at §14:45).
[11] The approach to appellate review prescribed in Agraira is different than that set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Where Housen applies, the degree of deference accorded to the original decision‑maker depends on the type of error at issue: errors of law are reviewed on the correctness standard, while errors of fact and mixed fact and law attract the palpable and overriding error standard. The NRHA invites the Court to reconsider Agraira, saying that a de novo review of administrative decisions renders the first level of review a “necessary but feckless step in the judicial review of an administrative decision” (A.F., at para. 6). In its submission, no principled reason precludes applying the standards of review stated in Housen to an appeal from a judicial review decision.
[12] I would decline the invitation to reconsider Agraira, which is a recent decision of the Court and remains good law. Of course, there may be good reason to apply the Housen standard where a reviewing judge acts as a decision-maker of first instance (the Hon. J. M. Evans, “The Role of Appellate Courts in Administrative Law” (2007), 20 C.J.A.L.P. 1, at pp. 30-34; Brown, at §14:46; Syncrude Canada Ltd. v. Canada (Attorney General), 2016 FCA 160, 398 D.L.R. (4th) 91, at para. 29), but this does not provide a reason for applying Housen to the selection and application of the standard of review. In any event, however, this point makes no difference to NRHA’s appeal. As indicated, the adjudicator’s finding that she had jurisdiction is reviewable for correctness. And if the adjudicator was bound to correctly determine her own jurisdiction, it follows that the reviewing judge was also bound to apply the same standard in reviewing the adjudicator’s decision. Concluding otherwise would allow an incorrect determination of jurisdictional lines to stand, which would undermine the values of certainty and predictability that justified the application of the correctness standard in the first instance. Even under Housen, no deference would have been owed to the reviewing judge’s analysis.
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