When a lower court bases its outcome on a question of the law (e.g. the interpretation of a statute, or the requirements of the common-law or the constitution), what is the standard under which that interpretation is reviewed?
Will a lower court's position on a question of law be permitted to stand as long as it is a position "open to a reasonable person"?
When an appellate court reviews a lower court's position on a question of law, the lower court's position is reviewed on a standard of correctness. See Housen v. Nikolaisen, 2002 SCC 33:
On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus the standard of review on a question of law is that of correctness ...
There are at least two underlying reasons for employing a correctness standard to matters of law. First, the principle of universality requires appellate courts to ensure that the same legal rules are applied in similar situations. ...
It is not open to the lower court to come to a conclusion that is different from that which the appellate court declares to be the correct one on a question of law. Even if lower court's interpretation would be one "open to a reasonable person," it will be overturned if it does not match that of the appellate court.
The alternative standard, reasonableness, is applicable in the judicial review many administrative tribunals and agencies, even on questions of law. That is unless the statutory scheme invites more strict review by courts or if it is a constitutional question or a general question of law of central importance to the legal system as a whole or relate to jurisdictional boundaries between administrative bodies, in which case, the administrative decision-maker's interpretation of law will still be reviewed on a correctness standard. See Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.
But even in this regime of judicial review, a decision will not be upheld simply because it was open to a reasonable person to come to the decision. The review looks like this:
A reviewing court must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable. To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision
This is significantly more robust that merely inquiring whether the outcome was open to a reasonable person.
a court conducting a reasonableness review properly considers both the outcome of the decision and the reasoning process that led to that outcome was recently reaffirmed in Delta Air Lines Inc. v. Lukács, 2018 SCC 2, [2018] 1 S.C.R. 6, at para. 12. In that case, although the outcome of the decision at issue may not have been unreasonable in the circumstances, the decision was set aside because the outcome had been arrived at on the basis of an unreasonable chain of analysis.
Decisions of lower courts are reviewed on appeal de novo, with no deference to lower court interpretations, except in the case of habeas corpus review of state court determinations of law in criminal cases, which can only be set aside if the interpretations are unreasonable.
This standard of review also applies to written contract interpretation, when the language of the contract is undisputed and unambiguous, and to any determination made by a lower court without resolving a dispute of facts in an evidentiary hearing.
“Standard of review” is not a term that is used in Australia, instead, the governing legislation would determine if an appeal were to be strict, a rehearing, or a rehearing ‘de novo’. Similarly, whether there is a right to appeal, what can be appealed, what the court may consider, and what powers they have are defined by the statute.
Note that this is the situation for appeals: merits review of administrative decisions and common law judicial review are different and are addressed later. In casual usage, the word “appeal” might be used for any of the three but formally they are different.
For this question, ‘de novo’ hearings are the easiest to deal with - the trial judge’s reasoning is immaterial as the appellate courts retries the case from the beginning.
In a strict appeal the appellate court only considers the law at the time of the original trial and the evidence that was before it. It is also limited to only those matters that the parties raise in the appeal - there might be a glaring and obvious error in the decision but if its not raised in the appeal, its not for the court to go looking for it. The standard that is applied is whatever the statute says or, if it is silent, whether the decision is correct or not on the matters in dispute in the appeal.
In a rehearing, the appellate court may consider subsequent changes in the law and may allow fresh evidence on the facts. This may mean that the decision was correct at the time but is incorrect now. Again, the statute dictates the standard to be applied with the default being correctness.
Merits review of administrative decisions are not done by the courts but by internal or external administrative review bodies. For example, each state and territory has a civil and administrative tribunal which are known by their acronyms - NCAT for NSW, VCAT for Victoria, QCAT for Queensland etc. A merits review looks at the correctness of the decision as well as considering if the decision was the “best” in the circumstances - it may overturn a correct decision for a better correct decision.
There were traditionally four grounds for applying for judicial review of a decision:
the decision was ultra vires (it was beyond the legal power or authority of the decision-maker to make the decision)
the decision was made in breach of the rules of procedural fairness (for example, if the decision-maker did not give the person concerned a fair hearing)
in the case of a court or tribunal, there was a jurisdictional error (the court or tribunal mistakenly decided that it had (or did not have) jurisdiction over a particular matter)
in the case of a court or tribunal, there was an error of law on the face of the record (there was a mistake of some kind in the record of the court’s decision, not in its reasons for decision).
Again, legislation can limit the scope of these. For example, the arbitration acts severely restrict the grounds for judicial review of an arbitration, among other things, an error of law on the face of the record is not reviewable.
