In Catalyst Paper Corp v. North Cowichan (District), the Supreme Court of Canada applied Dunsmuir to municipal administrative actors for the first time. Catalyst is now the leading Canadian case on substantive judicial review in the municipal context. In the two years since, however, a handful of scholars, and at least one lower court, have read Catalyst as signalling a departure from the Dunsmuir framework. In their view, Catalyst fractured the reasonableness standard by reintroducing a third standard of review for municipalities.
This short paper attempts to correct that misconception. A careful reading of Catalyst confirms what municipal lawyers already know—namely, that reasonableness is a single and unified standard that “takes colour from the context.” Catalyst did not create a special standard of review for municipalities, and those challenging or defending municipal bylaws on substantive grounds should continue to rely on Dunsmuir and its progeny. As David Mullan writes, Catalyst reminds us that there are two standards of review, to be applied “no matter how awkward the fit.”
I will begin by reviewing the facts of Catalyst and identifying the problematic readings that have emerged over the past two years. I will then review how Dunsmuir unified the reasonableness standard and how “context” has become a keystone concept for the reasonableness inquiry. I will then return to the Supreme Court’s reasoning in Catalyst and explain where the problematic readings go wrong. I will conclude by considering some recent decisions from the Federal Court and Federal Court of appeal that have, in my view, drawn the correct lesson from the decision.
About the Author
Edward (Ted) Brook received his J.D. from Queen’s University in 2014 and holds a BA (Hons) from McGill University. He will be Clerking at the Ontario Superior Court (Toronto) in 2014-15.
See the article Did Catalyst (2012) really signal a break from Dunsmuir? for the full version.