For Canadian legal watchers, specifically administrative law aficionados, 2019 has been a year of frustration and “confusion and contestation.” On one hand, we await guidance from the Supreme Court in Vavilov and Bell/NFL regarding the standard of review of administrative action. In other ways, we have seen interesting trends from the Supreme Court on other issues, including statutory interpretation more generally. And what’s more, we have also seen developments in other administrative law topics that have evaded general commentary.
While I cannot review all of the developments here, I want to focus on three sets of cases that bring to bear interesting debates over the role of interpretive principles in Canadian administrative law. Each case or set of cases, in their own way, demonstrate that much of the law of judicial review is fought on the terrain of statutory interpretation; or at least, that is the way it should be. Normatively, I think these cases and their circumstances demonstrate that the Supreme Court, in its upcoming review of Dunsmuir, should be focusing on giving effect to the legislature’s meaning in particular provisions when it delegates power to administrators. Right now, the doctrinal mechanisms employed by the Court fail to focus on what the legislature actually meant when it delegates power; for example, they fail to give effect to signs that the legislature might have intended a broader curial review, instead presuming deference. This is a problem from the perspective of the hierarchy of laws. Court-made tests can be ousted by the legislature. It is this hierarchy that the Court has ignored.
On to the cases:
- Vavilov and Bell/NFL
I have summarized and analyzed Vavilov and Bell/NFL in a series of posts over the last year: see Vavilov, Bell/NFL, and further analysis. My general take on these cases is that they have been built up to be far more than what they turn out to be. This is true for a number of reasons. First, the Court is institutionally ill-positioned to affect broad change to all of the problems plaguing Canadian administrative law. The problems are wide-ranging, and could be implicated by the facts of the various cases, but it is unlikely that a deeply-fractured court will agree on these matters. Think about it: all under the auspices of the standard of review, the amount of discord in the court’s cases outline the range of problems courts will have to address. Will the Court follow on cases like Tervita and Rogers, giving more weight to legislative signals implying that the legislature wanted broader curial review? Or will the Court double down on the presumption of reasonableness, entrenched in Edmonton East and CHRC? What about the role of reasons—will the Court hold fast to Newfoundland Nurses and Agraira (at paras 57-58) which permit supplementation of reasons where they are non-existent, or will it go further than Delta Airlines, where the Court held that lower courts cannot cast aside decision-maker reasons in favour of their own?
This plethora of interpretive problems poses a larger problem for the Court: how will it deal with its own precedent? As I note here, the Court seemed reticent to revisit its own precedents. But to my mind, this was the entire point of calling for submissions on the nature and scope of the judicial review superstructure. And if adherence to precedent is an issue for the Court, it should consider that two common exceptions to stare decisis include workability and reliance interests. In truth, it is hard to rely on something unworkable. Most would agree that Canada’s current approach to judicial review of administrative action is unworkable. The Court should not stand on precedent in dealing with this mess.
Perhaps most difficult of all the issues is the role of statutory interpretation principles in combination with a regime of deference. I have written about this issue before, but to my mind, this is the core issue raised by Vavilov et al. The dominant approach, as of now, is that courts should defer to interpretations of law, regardless of the grant of authority passed from the legislature to particular decision-makers.
This, to my mind, is a mistake. Courts should be carefully parsing statutory grants of authority, according to the ordinary tools of statutory interpretation, to determine the range of options open to the decision-maker at hand. Each grant of authority will be different; so the range of options may be different in each case. Sometimes, the range of options will be just one: McLean. Justice Stratas’ opinion in Hillier outlines this approach well: see paras 13-17. Other cases have outlined different approaches: see Mason and Simon Fraser. The point is that, ultimately, the interpretive task—focusing on what the legislature meant when it delegated power to the administrator– must be first and foremost when courts are determining the extent of deference owed. Courts should not be focusing on “expertise,” “access to justice,” or other policy considerations in determining the amount of deference owed to a decision-maker. Instead, as I noted in my paper Two Myths of Administrative Law:
The answer goes back to the fundamental basis of the administrative state, namely, its genesis in statute. Considerations that are not rooted in statute could point to an answer on the standard of review that undermines what the legislature specified in statute. For example, if expertise is considered a reason for deference, but there is no indication of expertise rooted in statute…a court could apply a deferential standard of review where the legislature impliedly indicated that it preferred a less deferential standard of review.
2) Telus v Wellman/ Rafilovich
The Supreme Court’s recent statutory interpretation cases also have a bearing on administrative law. If, as I advocate (and as affirmed by Stratas JA in Hillier) the Court indeed focuses on the rules of statutory interpretation as the methodology by which we conduct reasonableness review–to determine the range of options–then it matters what the Court actually says about statutory interpretation.
Both Rafilovich (which I first analyzed here) and Telus v Wellman (which I first analyzed here) present a defensible approach to statutory interpretation that should be deployed in administrative law cases. The basic idea is this: when courts are interpreting statutes, under the dominant “purposive” approach to interpretation, courts must be careful not to use purpose to override clear text (see Hillier, at para 25; Cheema, at paras 74-75). This means that the selection of the appropriate purpose matters. As I wrote in my piece “Statutory Interpretation from the Stratasphere” Adv Q., courts must be careful not to select a purpose at a higher level of abstraction, or that is far removed from the interpretive provision at hand, when interpreting statutes. In Telus, the issue was whether a general principle of access to justice should lead to one interpretive outcome over another; Moldaver J for the Court held that a rarefied idea of access to justice should not “be permitted to distort the actual words of the statute, read harmoniously with the scheme of the statute, its object, and the intention of the legislature, so as to make the provision say something it does not…the responsibility for setting policy in a parliamentary democracy rests with the legislature, not the courts…[i]t is not the role of this Court to re-write legislation” (Telus v Wellman, at para 79). In Rafilovich, the Court was faced with two duelling purposes stated at the same level of abstraction. The Court chose the purpose most local to the text that had to be interpreted; not some overall, abstract purpose that might have a greater bearing on other parts of the statute. In analyzing Rafilovich, I wrote:
In this case, the most local purposes to the dispute at hand were the purposes speaking of access to justice and the presumption of innocence, assuming these purposes were identified correctly. Why must these purposes be prioritized over the general purpose? Because of the principle of democracy. The use of different language to express Parliament’s law in the legal fees provisions should lead to different interpretive outcomes. By this, I mean that ensuring crimes does not pay may be an overall purpose of the proceeds of crime provision, but Parliament clearly used different language and a different approach in the legal fees provisions. This different approach must, consequently, reflect different legislative purposes, as the legislative history in the case outlines (see para 39 et seq—though I cringe at the reliance on legislative history writ large). The court must give “purpose and meaning to each provision” (at para 20).
Why does this matter for administrative law? If courts use the principles of statutory interpretation to discern the scope of deference owed to a particular decision-maker in the context of a particular legal provision, the selection of the wrong purpose may distort the range of deference owed. For example, if a court selects a highly abstract purpose to interpret particular text, the range of reasonable outcomes may actually be greater for a decision-maker than what the text of the statute might allow. As I wrote in my Stratasphere piece.
If a court abstracts a statutory purpose which is not substantially reflected in text, a broader foundation for deference may result. Because the text, context, and purpose of a statute control the range of reasonable outcomes available to a decision-maker, a purpose which is excessively broad will permit more reasonable options for a decision-maker, beyond what the actual text of the statute provides. In an extreme example, if a court claims that a statute is designed to affect the “public interest,” almost any interpretation rendered by the decision-maker would satisfy the reasonableness standard, because the term “public interest” permits many reasonable outcomes, as defined by the court. Characterization of purpose at this level is contrary to the comments in Williams and Cheema, which ask courts to identify the range of reasonable outcomes defined by the legislature. Otherwise, courts put the cart before the horse. Text is the method by which purpose is achieved by the legislature; purpose defined by the court does not dictate text.
Taken together, Rafilovich and Telus v Wellman pull back on the more extravagant interpretive approaches endorsed by the Supreme Court in its administrative law cases. A classic example is West Fraser. On land owned by West Fraser, a worker employed by an independent contractor suffered a fatal accident. The British Columbia Workers’ Compensation Board [Board] fined West Fraser for breach of a regulation it created, according to a broad statutory power under the British Columbia Workers Compensation Act to create such regulations for health and safety purposes. The legal basis for the fine was a provision of the Board’s enabling statute, which allowed the Board to “impose on an employer an administrative penalty” for breach of regulations. Whether the Board could impose a fine on an owner, when the relevant provision of the statute only indicates that employers could be fined, was a key question on appeal.
The majority opinion, written by then-Chief Justice McLachlin, held that the Board was entitled to extend the fine to West Fraser as an owner. This conclusion flowed directly from the framing of the enabling statute’s purpose at a high level of abstraction. Chief Justice McLachlin wrote that the statute was “meant to promote workplace safety in the broadest sense.” In light of this broad purpose, the Chief Justice also addressed external factors to the statute, including the reason the regulation was adopted: as a “response to a concern in the province about the growing rate of workplace fatalities in the forestry sector.” In whole, Chief Justice McLachlin’s opinion implicitly said that any interpretation with some connection to a “health and safety” purpose would be reasonable.
This seems wrong, in face of what Telus v Wellman and Rafilovich teach. At the very least, there is a tension in the case law. In my view, the tension should be resolved in favour of what Telus v Wellman and Rafilovich have to say. This simply follows on what I said above; administrative law is really just a specialized branch of statutory interpretation, nothing more or less (Bibeault, at para 120). If that is the case, the legislature is the keeper of the keys, and the court’s job is to survey the bounds of this delegated power. Focusing on the text and properly-interpreted purpose is the key issue, particularly because the principles of interpretation—used to ascertain what the legislature meant—are the only tools we have for the job (see Mason, at para 20).
3) The Court of Quebec
The need to focus on legislative meaning does not just arise in the abstract. Indeed, it also influences specific problems in administrative law in different jurisdictions. Consider the case of the Court of Quebec. The Court of Quebec is a statutory court, with appeal powers over various administrative decision-makers in the province of Quebec. In what I call the Quebec Reference, the issue facing the Court was whether it was unconstitutional for the Court of Quebec, sitting in direct appeal of these decision-makers, to apply the principles of deference—the argument was made that doing so usurps the s.96 powers of the superior courts.
The Court ultimately held that there was no constitutional problem with the application of deference. It did so, in part, because of Supreme Court precedent which held that the Court of Quebec is required to apply principles of deference (Proprio Direct, at para 20), and more generally, that rights of appeal do not mean that broader curial review should follow (Dr. Q, at para 34; Saguenay, at para 38). But as I argued here (and as I will argue in an upcoming CJALP piece in 2020), the jurisprudential requirement of deference removes a “core” part of the superior court’s jurisdiction—the “exercise of a superintending and reforming power over the provincial courts of inferior jurisdiction and provincial bodies” (MacMillan Bloedel, at paras 34-35). The jurisdiction is abrogated, because if the Court of Quebec applies deference, then the task of the Superior Court is merely to determine whether the Court of Quebec’s decision is reasonable. This creates a “double deference” problem: see Prof. Daly’s post, here. Under these circumstances, the court jurisdiction of the superior court is imperilled.
There are a number of solutions to this problem. One, advocated by Professor Daly, is to treat the Court of Quebec as a generalist, appellate tribunal—under such circumstances, it would not apply the principles of judicial review. But this runs directly into Supreme Court precedent that treats the Court of Quebec as a judicial tribunal required to apply principles of deference (see Proprio Direct, at paras 17-20; not to mention existing jurisprudence at the Quebec Court of Appeal).
In my view, the Court of Quebec saga illustrates the problems with the Supreme Court’s failure to give effect to the legislature’s intent when it created the Court of Quebec. This is a recurring problem in the Court’s administrative law jurisprudence writ large; as I noted above, the same problem occurs when the Court applies the standard of review of administrative action. When a legislature creates a statutory court, and nourishes it with rights of appeal, it does so for a reason; one can impute an intent to the legislature that it intended to supply the relevant standard of review. In such cases, there is no reason to apply the common law position of deference because statutes override the common law. This was basically the position of Rothstein J, in Khosa. In that context, the Supreme Court majority held that the ordinary principles of judicial review apply when the Federal Court reviews decisions of federal decision-makers. But the Court gave no effect to the Federal Courts Act, which establishes certain grounds of review that could also be said to imply standards of review (see s.18.1(4)). Rothstein J noted that “a common law standard of review analysis is not necessary where the legislature has provided for standards of review” (Khosa, at para 99). Instead, where the legislature has done so, the common law idea of deference melts away. It is for the legislature, not the court, to evaluate expertise by including a privative clause if it sees fit to mandate deference.
Had Rothstein J’s position been adopted, we would have no problem with the Court of Quebec, because it would not be applying principles of judicial deference—it would apply appeal principles. For this reason, the saga of the Court of Quebec actually illustrates the perversity of the Supreme Court’s reversal of the hierarchy of laws. Because of its failure to give effect to legislative meaning, it has presumed a standard of deference that apparently goes across all decision-makers, failing to take account of the statutory contexts of each particular decision-maker. This, for the reasons I’ve outlined above, seems plain wrong.
While I cannot survey every development in administrative law/interpretation in this post, and while I barely scratched the surface of the topics I did cover, I have tried to showcase three groups of cases that outline a core difficulty in the Canadian law of judicial review: the failure of the Supreme Court to give effect to legislative meaning. This problem stretches across areas of administrative law. One hopes that the Trilogy will solve this problem, but my hopes are decidedly low.