For next time: What is reasonable?

Litigators have strong opinions on Groia v. Law Society of Upper Canada, 2018 SCC 27. We’re raising another issue here: What does this decision do to resolve the debate between reasonableness vs. correctness as the standard of review?

Justice Moldaver writing for the majority was clear: “Post Dunsmuir jurisprudence has firmly entrenched the notion that decisions of specialized administrative bodies interpreting their own statute or statutes closely connected to their function are entitled to deference from courts, and are thus presumptively reviewed for reasonableness. That presumption applies here.”

Reasonableness applies, but in context, continues Justice Moldaver, noting particularly that Mr. Groia’s conduct took place in open court: “Turning to an analysis of the contextual factors, Dunsmuir instructs that ‘(d)eference will usually result where a tribunal is interpreting its own statute’, as is the case here. But this presumption is just that: a presumption that can be rebutted, not an inviolable command that is ‘carved in stone’ ... Dunsmuir permits — indeed, it expressly envisions — that the presumption of reasonableness will be rebutted in ‘the exceptional other case’ (Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35).”

The dissent, written by Justice Karakatsanis, also espoused that reasonableness was the standard: “The Panel set out an approach for assessing whether Mr. Groia had committed professional misconduct and faithfully applied it. Its analysis was cogent, logical, transparent, and grounded in the evidence. Its decision achieved a reasonable balance of its statutory objectives and an advocate’s freedom of expression. There is no basis to interfere.”

We have a definitive decision on the case at bar after too many years. But do we understand the reasonableness standard any better?