The Road to Dunsmuir

Re-reading administrative law’s bumpy kinky chain novel in the fading light of “a culture of justification”

Sheila Wildeman, Dalhousie University

I was asked to write something on “the background to Dunsmuir” and, more pointedly, “why it was necessary in 2008 to reformulate administrative law”.

This led me to think about the stories we tell about administrative law, against which background a judgment like Dunsmuir comes to stand out.  I mean stories in the dominant mode of administrative law scholarship: “constructive interpretation,” in Dworkin’s terms, bringing together doctrine and theory in ways that strain to make sense of this complex and variegated field and so to rationalize the distribution of power among the central institutions of government. We seek to knit up the raveled sleave of power with purpose and coherence.  We tell stories about administrative law (those of us who write and think in this tradition) in an effort not simply to tell it like it is, nor simply to predict, but to make it the best it can be.  But what moves us to tell the stories we do?  What informs our sense of (and disagreements about) what counts as a good story?

I was initially spurred to think about the stories we tell about administrative law on reading Adrian Vermeule’s Law’s Abnegation and discussing with my Jurisprudence students its thesis that American administrative law has, over time, carved out rationales not simply for judicial deference (in particular, to administrative interpretations of law) but law’s “abnegation”.  On this account, law reasons its way to its own irrelevance — or judges do. By coming to appreciate the relative advantages of administration in matters of policy, law draws back and creates a void, or rather a canvas (there is still law at the outer limits of the frame on Vermeule’s account) wherein technocratic practical reasoning may flourish free from effective judicial or legislative control.

Vermeule’s story is anchored in a strong reading of American case law, pre- and post-Chevron. It is additionally supported by a carefully crafted symbolic network which lends it a patina of mythic inevitability. Indeed, Law’s Abnegation has the special subversive force of the suppressed counterstory, presented, as it is, as an inverted version of Dworkin’s Law’s Empire.  As Vermeule points out, Dworkin’s adjudication-centred theory ignored the administrative state and its implications for the authority and responsibilities of judges. Vermeule’s counterstory seeks to correct this, taking as its central motif something like an anorexic Hercules — the judge as hunger artist, increasingly abstracted from social and constitutional significance and yet functioning thereby, in an ultimate gesture of self-sacrifice, to make room for a new order.  In Kafka’s “A Hunger Artist,” the new world trades its old fascination with the hunger artist’s self-denial for a fascination with raw animality: in Vermeule’s account, that which rules the new world is raw (or, again, thinly-delimited) administrative power.

So, it’s a good story. But what’s it got to do with DunsmuirDavid Dyzenhaus argues that Vermeule’s account of the gradual decentring of the judiciary in American public law comes close to disclosing the deep logic of deference that also informs Canadian administrative law. But Vermeule swerves from the mark, in part because of his unwillingness to surrender his story’s dramatic core: the stark distinction between formal law-at-the-limits and the value-laden discretionary judgments required of effective governance. For Vermeule, once the judiciary has embraced deference and so surrendered law-interpretation to administration, administrative “law” consists solely in formally demarcating administrative jurisdiction.  Everything of practical relevance to effective governance is “policy”. Or if the story is more complex than that (as the whole reason administration is welcomed into law-interpretation in the first place is the judiciary’s recognition of the inseparability of law and policy), it remains that judges end up with the thin part of law and administrators get the thick part.

Vermeule’s story arguably reflects an overly dramatic imagination combined with an understanding of “law” (at least, the part of law that in the end is left for judicial review) that is too thinly positivistic. In this it fails to speak to the ongoing challenges of life in “law’s empire,” wherein judges as well as administrative decision makers continue to engage in constructive or purposive interpretation across institutional divides, together with legal subjects who demand that administrative power be justified.

A more apt background story against which to read Dunsmuir is Matthew Lewans’ Administrative Law and Judicial Deference.  Lewans’s book invites comparison to Vermeule’s in its impressive scope and ambition. It is a contextualized intellectual history tracing the unfolding narrative of deference in administrative law across three jurisdictions and among the cross-pollinating disciplines of legal and political theory and legal adjudication over the course of the 20th and into the 21st century. The story that unfolds builds on Dyzenhaus’s “The Politics of Deference,” exposing in further depth and detail a pattern of common law judicial review that has for generations zigzagged wildly between the poles of judicial abdication and judicial supremacy. The underlying pathology driving this kinky common law chain novel is traced in Lewans’s work to the same dichotomy that Vermeule presents as his dramatic denouement: the unworkable divide between “law” and “policy,” and so “legality” and “the merits” — i.e., the effort of judges on review to patrol the limits of administrative power based on a thin and formal legality while (ostensibly) keeping out of the value-laden or normative dimensions of administrative justice.

Along the way we encounter plenty of good reasons for judges to defer, even on questions of law — including respect for the legislature which has conferred authority on administrative decision makers rather than courts, respect for administrative expertise regarding their statutory mandates and the institutional contexts in which those are carried out, and respect for the goals of efficiency and access to justice which urge courts to avoid unnecessary duplication of the work of administration. Just how each of these bases of respect is to be demonstrated, if not through the ultimately unworkable division of labour between law and policy or legality and the merits, is the million dollar question that comes around again in Dunsmuir.

The Background to Dunsmuir II  

With that let me turn, at last, to my assignment. In what sense was Dunsmuir “necessary”? What precipitated the Supreme Court’s third effort at a decisive shift in approach to the standards of review in so many decades? This opens the way to the question (which other posts in this series will address in more detail): how have the central moves in this doctrinal restatement weathered the decade that followed?

There was nothing in the factual or legal underpinnings of the dispute in Dunsmuir that necessarily demanded reconstruction of the governing approach to the standards of review. The case just came along, it seems, at a time when the law was straining for something like revolution.

Or that is one way of telling it. It is nonetheless of note that the judgment decided thirty years earlier and generally recognized as the seed-case for the modern approach to deference, C.U.P.E. v. N.B. Liquor Corporation, [1979] 2 S.C.R. 227 [CUPE], also arose out of a dispute around interpretation of New Brunswick’s Public Service Labour Relations Act.

CUPE was precipitated, as Michael Taggart notes in his 2005 essay, “Prolegomenon to an Intellectual History of Administrative Law in the Twentieth Century . . .” (at 265), by growing criticism from academics and the labour law community about excessive judicial interventionism in the name of individualist common law values. Dickson J in CUPE was likely cognizant of these critical voices as he fashioned an approach to review of questions of law that took account of rationales for deference grounded not simply in the formal command of the privative clause, but also, and more pragmatically, in the Public Service Labour Relations Board’s comparative familiarity with the unique context of public service collective bargaining and the complexities that context presented to maintaining equality of bargaining power. This, along with Justice Dickson’s articulation of the standard of “patent unreasonableness,” was widely recognized as a major breakthrough for deference in the law on substantive review (albeit a breakthrough hedged by continued commitment to formalistic doctrines of jurisdictional error).

Dunsmuir, on the other hand, was preceded not by an uprising against judicial interventionism (or for that matter judicial quietism), or related disproportionate burdening of a specific constituency, but rather exasperation around the inutility and incoherence of the then-prevailing “pragmatic and functional” approach to selecting the standard of review – a resolutely contextual inquiry that for all its lock-step rigidity had failed to produce clarity or certainty about how the analysis would play out in any given case or what the effect was likely to be on one’s chances. Thus where Bibeault in 1988, and then — in a more resolute break from the tendency to subordinate the pragmatic bases for deference to formalistic inquiry into the scope of a privative clause — Pushpanathan in 1998 had extended and elaborated CUPE’s express orientation to administrative capacities through crystallization of the four “pragmatic and functional” factors, and while Southam in 1997 introduced a third standard (reasonableness simpliciter) to allow increased sensitivity to conflicting signals of relative expertise, Dunsmuir arrived at the worn-out end of this pragmatic and functional trajectory.  It expressed a cooling of enthusiasm for “context” and a new resolve to lay a clearer and more efficient path through the thicket.

The majority in Dunsmuir did this, specifically, by collapsing the existing standards from three to two (conjoining the two pre-existing deferential standards), and then stipulating that either precedent or a set of categorical indicia based predominately in the nature of the question should generally decide which standard applies. (As commentators quickly pointed out, Dunsmuir’s standard of review analysis nonetheless ends in a cliffhanger, assigning the “pragmatic and functional factors” an uncertain residual role.)

The majority also sought to lend greater clarity to the significance of and distinction between the two remaining standards.  Confusion around the difference, if any, among the standards of review had been the central concern expressed in LeBel J.’s cri du coeur five years earlier in Toronto (City) v. C.U.P.E., Local 79. As LeBel J then pointed out, none of the conventional devices for distinguishing patent unreasonableness review from reasonableness simpliciter (for instance, by reference to the permitted ‘depth of probing’ or “magnitude of error”) were conceptually coherent or of any practical use to judges on review. Moreover, ever since the majority in National Corn Growers Assn v Canada (Import Tribunal) had accepted that review for patent unreasonableness may sometimes require detailed examination of the decision-maker’s reasoning and the surrounding statutory and factual context, it was no longer clear whether or how deferential review was distinguishable from review for correctness.  If deference did not simply mean “not looking” — or alternatively, ‘barely looking” — what did it mean?

The majority in Dunsmuir responded to these concerns with a few observations about its newly-unified reasonableness standard.  First, it justified deference on questions of law with the statement that “certain questions of law that come before administrative decision makers may give rise a number of possible, reasonable conclusions.” This claim represents an important acknowledgement of the continuity between law-interpretation and the creativity and choice informing discretion.  However, it remains deeply contested — not only by those who cling to a conception of law as determinate legislative intent, but also by those who adopt a Dworkinian model of constructive interpretation whereby each interpreter must strive to make the law (and persuade others that they have made the law) the best it can be. Indeed, Dyzenhaus in his “Politics of Deference” (at 304-305) argued that the “two or more reasonable answers” thesis was, at least at its inception (when it was contingent on a determination that the interpretative question fell within the scope of a privative clause) an ad hoc way of distinguishing and so preserving judicially-dominated (formal, determinate) law from the policy-driven choices associated with administration. Viewed in this way, the thesis reflects and promotes old judicial habits of carving up review into manipulable zones of supremacy and abdication.

The majority in Dunsmuir turned next to giving some more substantive guidance on how reasonableness should be assessed. It stated that reasonableness review is concerned “mostly with the existence of justification, transparency and intelligibility within the decision-making process,” while it is “also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” (Dunsmuir para 47)  Once again, just how to reconcile the expectation of justification with the acknowledgement of a “range” is not elaborated.

The majority adds to this a brief discussion of deference. It makes reference to Dyzenhaus’s now canonical statement that deference means “respect” and so “not submission but a respectful attention to the reasons offered or which could be offered in support of a decision.” (para 48) It canvases formal as well as pragmatic rationales for this respect, and on the pragmatic side relies in particular on the observation of David Mullan that “those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime.” (para 49) However, the majority adds, correctness review continues to be required “in respect of jurisdictional and some other questions of law.”  In such cases, a court need not show “deference to the decision-maker’s reasoning process,” but rather may “undertake its own analysis of the question” and substitute its decision where there is disagreement.

These statements, taken together with the Dunsmuir majority’s restatement of the standard of review analysis, arguably convey a heightened commitment to deference on questions of law in comparison with the preponderance of prior case law. Yet, as indicated by the dissonance between the court’s affirmation of tolerance for a range of reasonable interpretations and the theory of deference on which the court ostensibly relies — a point developed further in work by Mark Walters and, more recently, Jocelyn Stacey and Alice Wooley — Dunsmuir was nonetheless a missed opportunity to give fuller attention to the meaning and practice of deference.

The problem is most apparent on turning to the way the reasonableness standard was actually applied in Dunsmuir.  Here we might again contrast the judgment with that of Dickson J in CUPE.  There, Dickson J carefully considered the Board’s reasoning, quoting from its decision and then amplifying it through elaboration of its central purposive tenets (emphasizing that it must strike a “delicate balance” between maintaining public services and maintaining collective bargaining). Yet the judge also tested the Board’s reasoning against a considered view of the disputed statutory text in its wider statutory context and in light of purposive and consequential analysis.

In contrast, in Dunsmuir, the majority’s application of the newly unified reasonableness standard did little to reassure those who worried that dumping patent unreasonableness review would mean a diminishing of deference.  As David Mullan pointed out shortly after the decision was released, the majority made no discernable effort to read the decision of the arbitrator in a manner that sought or wrestled with its purposive justification. Rather, it rooted its determination of unreasonableness in a clear favouring of private law values (the common law of contract as incorporated into the Civil Service Act, one of the two statutes applicable to Dunsmuir’s case) over the public law values reflected in the other statute of relevance (the Public Service Labour Relations Act).  Arguably, the value that the arbitrator had implicitly favoured was the very one that had been at the centre of the Board’s reasoning in CUPE: maintaining equality of bargaining power in the context of public service employment (although Dunsmuir deals with the special circumstances of non-unionized public employees). It would have helped, however, if the arbitrator had been as forthcoming about his purposive reasoning as the Public Service Labour Relations Board had been thirty years before.

In short, for all that Dunsmuir did to promote reasonableness review as the likely standard on most matters including interpretation of law, and, moreover, to consolidate the governing ideas about deference including the critical point that judges should pay respectful attention to administrative reasoning while nonetheless evaluating that reasoning in light of an expectation of justification, these moves appeared to do little in practice, at least in the immediate term, to render application of the standard discernibly different from correctness review.

Fast Forward

Let us fast forward ten years to the present.  We must fly over various important developments including the unequivocal statement of a presumption of reasonableness review on questions of law arising under the home statute in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, [ATA]; the foray into “supplementing” reasons in the distinct sorts of circumstances presented in ATA and Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board); the subsequent rapid and wholesale erosion of the expectation that decision-makers give reasons on matters involving statutory interpretation, and concomitant rise in judicial willingness to supply missing reasons (in McLean, Agraira, and Tran); and the uncertain rise of common law proportionality review where administrative discretion engages Charter values (starting with Doré and trailing off into that precedent’s uncertain future).

The last development, for all its problems, arguably marks an important although partial incursion on the conventional law/merits divide and the accompanying tendency to restrict common law judicial review to a thin and formal conception of legality.  But more generally — and ironically, given what is now the near-ubiquity of the standard — the current state of the law on substantive review suggests a flight from reasonableness. This is signaled in part by a steady flow of powerful dissents calling for a resurgence of correctness review on questions of law (whether based in relative inexpertise, prospective inconsistency, formal signals like the wording of a statutory right of appeal, or some combination of these). But more worryingly, the flight from reasonableness is occurring within the standard of reasonableness itself.  It has manifested there (as indicated above) as a profound loss of interest in administrative reasoning or in the cross-institutional demands of public justification, particularly in relation to law-interpretation. This is accompanied by an equally worrying consensus around how to conduct reasonableness review on questions of law whether or not reasons are given: a schismatic approach recalling the old approaches to jurisdiction, divided between use of the “ordinary tools of statutory interpretation” to determine the range of reasonable outcomes and effective abstention from purposive oversight should that range be deemed greater than one. (See the reasons of Moldaver J in McLean at paras 37-41).

Is the flight from reasonableness Dunsmuir’s fault?  Not likely. The bigger problem is, I think, our inability to tell a different background story.

Toward a Counter-Hegemonic Culture of Justification 

My own favourite story about administrative law is guided by the regulative ideal of a culture of justification. This ideal, which gained traction in Canada around the time of Baker, has been most notably promulgated and elaborated by David Dyzenhaus. Dyzenhaus’s ouvre, from the time of “The Politics of Deference” to the present, aims to reframe judicial review from a model that divides up the administrative state into zones of exclusive judicial or administrative jurisdiction (so dotting law’s empire with pockets of ostensible abdication) to a model that places expectations on administrative decision-makers to justify their decisions in law and expectations upon judges to pay “respectful attention” to the justificatory efforts of administrators.  The effect (at least, in theory) is to render law-interpretation and application a deliberative democratic project exercised conjointly by the various institutions of government in a manner that is inclusive of legal subjects, in accordance with the core administrative law values of participation and justification.

In doctrinal terms, Dyzenhaus’s “deference as respect” requires ousting both the patent unreasonableness standard (the residue of judicial abdication) and the correctness standard (the residue of judicial supremacy) in favour of responsive engagement of judges on review.  To be clear, Dyzenhaus did not argue that there was or should be no hierarchy in this process.  The independent judiciary continues to have the last word on law’s interpretation and application. Yet the model urges a radical shift toward respectful attention.

The challenge put in play by Dyzenhaus, not fully answered in the case law or commentary, is how exactly judicial review may be conducted without reverting either to abdication or supremacy. That is, because the institutional hierarchy remains, the theory is open to the critique that it obscures the continued sway of judicial power over the vaunted autonomy or plural ecologies of administration. Dyzenhaus responds in typical (aspirational, paradoxical) fashion:

Recall that the paradox of the recognition of rationality arises because one process of reasoning and decision-making – the administrative process – is recognized by another – the judicial process – as both autonomous and subject to judicial supervision. The anger, then, is that judges, whether consciously or unconsciously, will impose their own standards of rationality on the administrative process. Deference as respect, however, seems to me to open up space for judicial sensitivity to particular tribunals’ own sense of how best they can respond to their mandates. (“The Politics of Deference” 306-7)

The question is whether this “space for judicial sensitivity” can be adequately theorized, or, more important still, operationalized in a manner that coheres with the ambitions of deference as respect.  That prospect might be pursued through further inquiry, for instance, on the sort of judicial method or behaviour (or is it an unmeasureable “attitude”?) that best signifies respectful attention to administrative reasoning — and so, for instance, how to distinguish permissible supplementation from impermissible substitution of judicial for administrative reasons. It might be pursued, too, by elaborating further guidance on the substantive bases for judicial intervention (perhaps along the lines of Paul Daly’s “indicia of unreasonableness”) and how considerations relating to relative institutional strengths or capacities (democratic accountability, non-judicial functions, etc) should inform the conduct or expectations of reasonableness review.  Are the latter sorts of considerations simply the vague backdrop for a singular methodology of review centring upon attentiveness to administrative reasoning? Or are they properly conceived in the Razian mode as “second order” reasons for refraining from acting/intervening on “first order” (substantive) reasons? Clarifying and lending structure to the relationship between the institutional reasons for deference (or non-deference) and the substantive bases for judging a decision to be reasonably justified is arguably the most significant challenge for judicial review in the decade to come.

But let’s get back to the bigger picture, or the background — arguably the best place to start in plotting a path forward.  As noted, I prefer stories that reconcile the tensions in judicial review through a commitment to a “culture of justification”. There is a fundamental optimism to such stories. They affirm the value of institutionalized processes of deliberation and argumentation across profound asymmetries of knowledge and power, placing expectations on state officials and judges alike to engage in reasoned deliberation in light of standards of fairness and justification and so in a manner that is responsive to the diverse interests and perspectives of affected legal subjects. They celebrate pluralism and difference, reimagining the sites of administration as so many participatory feedback loops informing law’s constructive interpretation, while nonetheless positioning independent adjudication as a mechanism capable of coordinating and filtering such feedback and so holding power to account.

Yet there is a postmodernist twist marking the sort of story, and so the sort of constructive interpretation on the way to a culture of justification, that to my mind best suits the purpose and the times. In this version, constructive interpretation is equal parts deconstructive. That is, it centres on an aspiration not simply to unify public law but to expose the violence done at its borders, and so to promote the airing of marginal voices.  In administrative law, as in law generally, we need a story that makes space for conflict and change by means other than a succession of violent revolutions.

How would such a story go?  We are so accustomed to falling into the familiar grooves: Dicey and Lord Hewart and The New Despotism; the functionalist critique of generalist/individualist judges and alignment of that critique with a rising tide of social welfarism and labour activism; the emergence of human rights-based social movements turning public attention to the black holes of discretion in prisons, at the sites of immigration detention and deportation, and at other sites of profound vulnerability to state power — and thereby producing a new wave of opposition to deference-as-abdication; then, efforts to reconcile the warring legitimacy claims of judicial review centrists and pluralists through appeal to a “culture of justification” and so a model of deference not as abdication or supremacy, but dialogue (or conversation). It is a complex and subtle story with plenty of sub-plots, and it takes all of one’s attention to tell it in a way that opens a path to critical understanding of the current state of the law.

There is by now an understandable fatigue with grand theories and narratives about the special complexity and nuance of administrative law – including, in particular, stylized models of reconciliation through dialogue. There is I think a generally felt urge to cut to the chase and let practical reasoning get to work on the matters directly at hand, i.e., to let judges exercise their best judgment on review on a case-by-case basis.  One would think that by now the judges have absorbed the last few decades of warnings not to overreach.

Yet the structure of the common law is such that one cannot avoid the work of constructive interpretation, and with this, efforts to achieve reflective equilibrium between principles and practice.  This is required, for instance, in order to get clear on how the institutional bases of deference should be integrated with substantive evaluation of reasonableness. It is required, moreover, in order to ensure that the institutional bases of deference do not impede robust activation of the values of participation and justification where those affected are most vulnerable to state power. Just getting down to the work of review without careful consideration of the why and how of deference risks failing to grasp or demonstrate the requisite respect, which at base means engagement of the capacity to depart one’s settled assumptions and to recognize and appreciate others’ reasons.

A related question is whether or how administrative law scholarship might do better in the way of fostering dialogue, or conversation. Specifically, what would it mean to make more space in the work of constructive interpretation for voices and approaches that now stand at the margins of the interpretive community?  One may recall Harry Arthurs’ efforts some decades back to recentre administrative law theory in sociological rather than “legalistic” approaches. What I am proposing is not that, but rather increased interaction of the social and legal, normative and critical strains of scholarship, in pursuit of what might be called counter-hegemonic constructive interpretation.

Let me elaborate. In recent years I have changed the way I present the rise of the administrative state in launching my Admin Law class. Some elements have shifted in importance while others have come to the fore. One thing I have done is to interrupt a conventional Canadian illustration, focused on the laying and regulation of the railway, with attention to James Daschuk’s Clearing the Plains: Disease, Politics of Starvation, and the Loss of Aboriginal Life. Daschuk’s book describes in detail policies and actions taken by the government of John A. Macdonald aimed at removing Indigenous communities from the planned rail corridor, by starvation if necessary.

Adopting a contrapuntal telling of the rise of the administrative state as both the evolution of forms of governance fit for a complex society and the dealing out of violence and death to those who resisted – in particular, Indigenous communities who by their very existence fundamentally disrupted the story of administrative state legitimacy — interrupts and deepens the usual tensions between centralism and pluralism at the origins of Canadian administrative law. The point is later revisited when we turn to Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, and the questions that judgment raises about whether or how Canada-centric administrative law norms and institutions may advance the ends of Indigenous self-government. The lean towards centrism that is a constant compulsion in Canadian administrative law comes under significant strain as we reexamine the contested sources of administrative law and legitimacy, and against this background, ask what it would mean to Indigenize administrative law or open the spaces of constructive interpretation to claims rooted in Indigenous sovereignty. I have relied in particular on the brilliant work of my colleague Naiomi Metallic (who has contributed to the latest edition of Administrative Law in Context) to bring these questions to the fore.

A further example of counter-hegemonic administrative law, challenging dominant strains of normative and justificatory liberal-democratic administrative law theory with a more critical and oppositional approach, is illustrated by Alyssa Clutterbuck’s “Rethinking Baker: A Critical Race Feminist Theory of Disability” (2015) 20 Appeal 51.  Clutterbuck’s reading of Baker is grounded in intersectionality theory and in a conception of administrative law and bureaucracy as state-backed violence. It refuses to engage along the old battle-lines of centrism versus pluralism and instead looks to ways in which both the centre and plurality have been constructed through exclusion. One might respond that the necessary normative obverse to such critical exposure of administrative law’s violence is a theory of administrative justice centring on inclusion. But the point of Clutterbuck’s contribution is to remain focused on how even the core administrative law ideals of participation and justification are wielded, both by administration and judges on review, to reproduce oppression. The question for those engaged in seeking out and enhancing what is best, or legitimate, in administrative law, ignore such work at their (or their normative project’s) peril.

A last example of socio-legal scholarship that both challenges and invites productive conversation with more normative and doctrinal approaches comes in recent work from Jennifer Raso.  Her “Unity in the Eye of the Beholder? Reasons for Decision in Theory and Practice,” presented at the Cambridge Public Law Conference in September 2016 and awarded the Richard Hart Prize, demonstrates that administrative regimes may function in ways that defy the normative frameworks and assumptions of judicial review. She illustrates the point with reference to the disjunction between assumptions about (unitary, justificatory) administrative reason-giving and the exigencies of bureaucratic practice, using examples from a qualitative study of social assistance casework at Ontario Works. If those of us who think about and work in administrative law are resting our evaluations of legality or legitimacy on false and outmoded (or simply lazy) understandings of the technologies of administrative power, surely that is a problem. Work like Raso’s challenges those engaged in constructive interpretation – whether academics, practitioners or judges — to reach beyond normative and doctrinal approaches and to pay closer attention to administrative systems and the practices of those within them.

Conclusion: Foregrounding the Background

At this time, even more urgently than when Dunsmuir was decided, the primary contending visions of the future of the standards of review have settled around what happens when review is focused on a contested question of law. On the one side are those pressing for greater centrism and so judicial determination of the right answer. On the other side are those who align themselves with an across-the-board recognition of administrative “expertise” and a corresponding (though, as I have noted, increasingly incoherent and schismatic) deference. A third way is dimly discernible. That way would re-imagine judicial review not as a choice between centrism and pluralism or between mutually exclusive zones of competing jurisdiction (whereby either the courts or administration rules), but rather as a dialogical practice culminating in a judgment about whether administrative power has been justified.

My hope for the next decade of administrative law is that it sets out upon this third way and so turns to the work of reconciling deference with expectations of reasoned justification. This means doubling down on the duty of administrative decision makers to engage in justificatory reasoning responsive to the arguments and broader legal interests and values of significance to those affected.  It also means doubling down on judges to ensure engagement with administrative reasons (in context), filling in gaps where there is a foundation of reasoning on point, yet refraining from gap-filling where the decision-maker was unresponsive.  Moreover, the work of reconciling deference and justification arguably requires abandoning the last formalist stronghold: the divide between law and policy, or review of legality and review of the merits.  The distinction cannot be conceptually or practically supported. It tends to mask judges’ smuggling in rather than defending their normative judgments. The consequences of this last move would include extension of proportionality-based review to all instances of discretion, not just those linked to “Charter values”.  All this underlines the importance of attending closely to the question of what (if not “not looking”) it means to show deference on review.

As we work out our positions on (and beyond) these questions about the future of judicial review post-post Dunsmuir, it is time we become more conscious of the background stories we tell. Whether or not we think about it much, we organize our constructive interpretations around distinct and sometimes clashing ideas of democracy, law and the rule of law. These, in the end, are what constitute the background to Dunsmuir, giving texture and urgency to our readings of what that judgment meant and to our fresher views about whether or why an imminent reboot of the law on the standards of review is necessary.

Also in the background — and, I have suggested, the response to this should be multiple invitations to move into the foreground – are a range of critical administrative subjects raising challenges to administrative law and the stories its high priests tell about administrative state legitimacy.  As we attempt to write a better story about administrative law, or to make the existing one the best it can be — or at least to lend that story some semblance of coherence and purpose — we should ask whether our constructive interpretations are sensitive not only to the values running through the law, but also, and more urgently, to these critical challenges and critical subjects talking back to law from the margins.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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