Marshall Rothstein casts an eye to Supreme Court docket, including standard of review — Legal Feeds

The Honourable Marshall Rothstein C.C., Q.C.

Oct 25, 2018

The Honourable Marshall Rothstein, C.C., Q.C., a partner in Osler’s Tax Group, tells Legal Feeds in a wide-ranging interview that he thinks “our approach to standard of review has not been right for many years.” Marshall was featured in an article by Elizabeth Raymer in which he offered his insights on the Supreme Court of Canada’s (SCC) docket and the selection process for Supreme Court justices. Marshall, a former Supreme Court justice from 2006 until his retirement in 2015, discussed a 2009 Supreme Court decision in Canada (Citizenship and Immigration) v. Khosa, which, according to Legal Feeds was its “first significant guidance post-Dunsmuir regarding the implementation of the standard of review analysis.” According to the article, although Marshall concurred in the result, which allowed the appeal, he found that “the standard of review was statutorily directed by the Federal Courts Act and that the statutory direction displaced any role that Dunsmuir may have otherwise played in determining the standard of review.” Marshall explains further.

“I think that our approach to standard of review has not been right for many years,” Marshall tells Legal Feeds. “What I believe is that where a statute provides for a right of appeal of judicial review, then the standard of review on legal questions should be correctnessIn all cases, where the questions are factual or discretionary, then of course the court should give deference to the tribunal making the decision. 

“Where a statute contains a privative clause, then the court should give deference to the tribunal, because the legislature, through the private clause, has told the court to be restrained in reviewing legal questions.” Marshall also tells Legal Feeds that it’s the court’s responsibility to ensure that tribunals don’t stray from their mandate. “So, even where there’s a privative clause, courts need to have some oversight.

“There are many tribunals whose members aren’t even lawyers,” he adds. “To suggest that there should be deference to tribunals on legal standards . . . strikes a wrong note.”

Marshall also discusses a range of other topics including how he was the first Supreme Court candidate to go through the parliamentary hearing process, and how in Canada, there has “never been a political aspect to the appointment.”

For more information read Elizabeth Raymer’s feature article “Marshall Rothstein casts an eye to Supreme Court docket, including standard of review” in Legal Feeds, the blog of Canadian Lawyer and Law Times.