Over on Administrative Law Matters, Professor Paul Daly argues that Doré actually “emerges strengthened” from Vavilov. Professor Daly’s post responds to my own paper (The Conceptual Gap Between Doré and Vavilov) and post, where I argue the opposite. In this post, I would like to respond critically to Professor Daly’s interesting and provocative arguments. I first recap my position on the matter. Then, I review Professor Daly’s arguments, and respond in turn. In whole, I remain convinced that Doré is inconsistent with Vavilov. Specifically, I disagree with Professor Daly that the presumption of reasonableness applies to Charter issues arising in the scope of administrative jurisdiction. Moreover, I disagree that Vavilov’s articulation of reasonableness review is functionally similar to Doré’s. As it turns out, these disagreements matter for the continued propriety of Doré post-Vavilov.
As I wrote in both my paper and post on the matter, there are key tensions between Vavilov and Doré that deserve some attention.
These tensions arise with respect to both selecting and applying the standard of review. On the selection front, Doré reasonableness is based on a functionalist idea, where the expertise of decision-makers in deciding constitutional matters is presumed (see Doré , at para 46). This justified the selection of a reasonableness standard of review when an administrative decision is challenged as unconstitutional—even though a correctness standard applies when a statute under which an administrator may operate is challenged (see Vavilov, at para 57). However, Vavilov resiled from this presumptive stance on ordinary questions of law, instead rooting the presumption of reasonableness review on the fact of delegation, not expertise (see Vavilov, at para 30). This, to my mind, illustrates an inconsistency: why would a court presume expertise on constitutional matters, but not on ordinary legal interpretation (the stuff of Vavilov)?
On the application front, I argued that Vavilov probably introduced stricter reasonableness review than the sort of reasonableness review envisioned in Doré and later represented in its progeny (for example, TWU). This is because there are aspects of Vavilov that are more formalist: for example, the focus on the statute as the “most salient aspect” of the legal context relevant to judicial review (Vavilov, at para 108). Transposed into the Doré context, this might mean that decision-makers should focus on the existing constitutional text instead of abstract values. I also admitted in my paper that Vavilov isn’t just one thing—there is a focus on developing a “culture of justification” in administrative decision-making (see Vavilov, at para 2; The Conceptual Gap, at 13-14). But even this is inconsistent with Doré , which said very little about the sorts of reasons required in a constitutional context; in fact, no guidance was given in Doré at all, except to say that decision-makers should balance “the Charter values with the statutory objectives” (Doré , at para 55). Contrast this with Vavilov’s detailed approach to reasons-giving, and we see not only an inconsistency, but a schism.
Not so fast, says Professor Daly. For him, when it comes to both selecting and applying the standard of review, there are no great tensions between Vavilov and Doré. Indeed, for Professor Daly, “…Doré emerges strengthened from Vavilov, not weakened.” This is because “…the excision of expertise from the process of selecting the standard of review means that the presumption of reasonableness review certainly applies to Charter issues.” Vavilov indeed does draw a distinction between “merits” review, under which reasonableness presumptively applies, and issues of procedural fairness (see Vavilov, at para 23). If this is the case, expertise no longer matters one way or another to determining the standard of review. Professor Daly further argues that the exercise of discretion implicating constitutional matters is different than pure challenges to statutes under the Charter. In the latter case, uniformity is required, on Vavilov’s own terms. But in the former case: “…answers can legitimately vary as between different regulatory regimes: for example, what is a proportionate restraint on freedom of expression in the workplace may not be proportionate in a municipal election campaign…”
When it comes to applying the standard of review, Professor Daly notes that “[t]here is nothing formalist about the detailed articulation of reasonableness in Part III of Vavilov” (though he goes on to concede that “[s]ome components of Vavilovian reasonableness review can fairly be described as formalist or Diceyan”). He concludes that “[a]dministrative decision-makers can continue to contribute to our collective understanding of the Charter in its application to particular regulatory settings.”
While I will note areas of agreement, I must strenuously disagree with much of what Professor Daly says about Doré in light of Vavilov, when it comes to selecting the standard of review. The core disagreement between our positions lies in how far each of us would extend the presumption of reasonableness. For Professor Daly, the presumption applies to Doré -type issues. But for me, the presumption of reasonableness outlined in Vavilov must necessarily exclude Doré -type issues. This is for two reasons. First, the presumption, rooted in legislative intent, cannot apply to Charter issues—the legislature cannot intend anything with respect to the depth of scrutiny used by a reviewing court on constitutional matters. Second, the standard of review applied to Charter issues should not depend on the context in which these issues are raised: either way, the Constitution is a fundamental constraint on government actors, requiring uniform interpretation by the courts.
Let’s begin with the first argument by reviewing the conceptual basis for the presumption of reasonableness. As the Court notes in Vavilov, the presumption of reasonableness review is based on the “very fact that the legislature has chosen to delegate authority…” (Vavilov, at para 30). In other words, “[t]he presumption of reasonableness review…is intended to give effect to the legislature’s choice to leave certain matters with administrative decision makers rather than the courts” (Vavilov, at para 33). Legislative intent guides the presumption of reasonableness review, at least on ordinary questions of law. The fiction being deployed here is that the legislature intended deference when it delegated authority to an administrative decision-maker.
While it might be defensible to suggest that a legislature intends deference when it delegates (though such a suggestion itself requires a leap of logic that some might find implausible), it is another thing altogether to impute to the legislature an intent to defer on constitutional matters. This is because legislatures cannot meaningfully alter the depth of constitutional scrutiny afforded its own enactments by courts. Such alteration would strike at the core of powers exercised by judicial review court. Specifically, the Supreme Court has held that legislatures do not have the ability to “limit judicial review of constitutionality” (see Amax Potash Ltd Etc v The Government of Saskatchewan,  2 SCR 576, which was rendered in the context of a division of powers case, but with comments equally applicable to Charter issues). Vavilov alludes to this limitation more specifically. It says that legislatures can only specify the standard of review “within the limits imposed by the rule of law” (Vavilov, at para 35). The Rule of Law includes “constitutional questions” which include challenges to statutes on division of powers and Charter grounds. On these questions, correctness rules the day, and the legislature’s intent is of no moment.
Is the same true for exercises of administrative discretion implicating the Charter? It should be, because the legislature cannot do indirectly what it cannot do directly. The legislature should not be able to escape the full scrutiny of the courts under the Constitution simply by delegating. An adjunct to this principle was set out in Eldridge, at para 42, in the context of Charter applicability. There, La Forest J, relying on his decision in McKinney, noted that legislatures should not be able to evade Charter responsibility by simply delegating power. While this decision was rendered in terms of Charter applicability, the same principle applies to questions of standard of review. The level of scrutiny applied by the Court should not differ depending on whether the legislature decides to delegate. Put differently, courts should not impute to the legislature an intent to alter the status quo ante of correctness review simply through the act of delegation.
Put this way, if we cannot speak of a legislative intent to defer on constitutional matters regarding statutes, the same is true on matters arising in administrative jurisdiction. Applying the Vavilov presumption to these questions would mean that we can implicitly conclude that the legislature intended deference on these constitutional matters. But for the reasons above, if we apply the same rules to administrative discretion implicating the Charter, then we cannot speak of a legislative intent on these matters either. Put simply: the legislature is constitutionally incapable of possessing an intent when it comes to the standard of review courts apply on constitutional questions, no matter the context in which the questions arise.
This leaves an important question: if the Vavilov presumption does not apply to Dore-type issues, where do these issues fit in the Vavilov framework? In my view, Doré -type questions involve the Rule of Law, warranting correctness review, as described in Vavilov. While Professor Daly notes that challenges to administrative discretion may admit of more than one answer, one must remember that we are speaking of the Constitution’s protections, not of the ability of administrators to have more lee-way in the context of their regulatory regimes. These issues are still constitutional questions that require a uniform interpretation by the courts, even if the issues arise in challenges to administrative discretion. In fact, the power of judicial review exercised in constitutional and administrative contexts derives from the same source. As Justice Beetz noted in Syndicat des employes de production du Quebec:
Furthermore, I do not see why different rules would be applied in this regard depending on whether it concerns judicial review of an administrative or quasi-judicial jurisdiction, or judicial review of legislative authority over constitutional matters. When the courts of law have to rule on the validity of a statute, so far as I know they do not ask whether Parliament or the legislature has expressly or by implication given ss. 91 and 92 of the Constitution Act, 1867 an interpretation which is not patently unreasonable. Why would they act differently in the case of judicial review of the jurisdiction of administrative tribunals? The power of review of the courts of law has the same historic basis in both cases, and in both cases it relates to the same principles, the supremacy of the Constitution or of the law, of which the courts are the guardians (at 443-444).
Putting aside the old administrative law language of “jurisdiction” and the fact that we currently accept reasonableness review on the merits, there is an overall point here the bears repeating: even if a constitutional issue arises in administrative proceedings, it is the same power of judicial review that is exercised by a court when it reviews statutes for their constitutionality. The role of the courts should be the same in each context: as guardians of the Constitution, courts must render uniform interpretations of the Charter, even in cases of administrative discretion.
Relatedly, there is also an important perspective to consider here: that of the holder of the right. How does one explain to her that her right means something different because an administrator made the decision? How does a Court conclude that the Constitution’s meaning could potentially be different—not for reasons of text, precedent, or structure—but because the procedural trappings of a case happen, fortuitously, to be different? Administrative exigency is no excuse—or at least, not a good one—to limit one’s Charter rights. (see, for more on the arbitrariness of Doré, Evan Fox-Decent and Alexander Pless, “The Charter and Administrative Law: Cross-Fertilization or Inconstancy?” in Lorne Sossin & Colleen Flood, eds, Administrative Law in Context (Toronto: Emond Montgomery, 2012) at 431).
Professor Daly might respond that the Constitution could mean different things in regulatory contexts. But this point seems to view the matter from the wrong perspective. The question is not what makes the most sense for administrators given the different contexts that they render decisions. The question, instead, is whether there is some principled reason, besides administrative exigency, for a lower standard of scrutiny to be deployed when reviewing administrative decisions under the Charter. As I’ve written before, doctrine should not “require the weakening of constitutional norms to suit the prerogative of administrative decision-making.”
With my remaining space, I’d like to turn to the issue of applying the reasonableness standard. Here, I agree with much of what Professor Daly says. As he notes, and as I argue in my paper, there are tensions in Vavilov’s articulation of reasonableness review (see the Conceptual Gap, at 15). I acknowledge, specifically, that aspects of Vavilov reasonableness may have a Diceyan quality to them, while other parts of Vavilov are more designed to encourage space for decision-makers to justify their decisions to the public (Vavilov, at para 14). Other aspects of Vavilov are not formalist at all—for example, the recognition that administrative justice need not look like judicial justice (Vavilov, at para 92). On this, I think there is agreement.
But this does not change the fact that there are aspects of Vavilovian review that are decidedly formalist, and which conflict with Doré on its own terms. Recall that the governing statutory scheme will be the most salient aspect of the legal context relevant to judicial review (Vavilov, at para 108), with the principles of statutory interpretation acting as necessary constraints on decision-makers. As noted above, if we transposed this requirement into the constitutional context, we would expect the Constitution—specifically, its text—to be even more fundamental than statutes, to the extent that decision-makers must always consider the Charter within their scope of discretion (Doré , at para 35; Slaight Communications, at 1077-1078). As I note in my paper:
Recall that Vavilov, in the context of legislative interpretation by administrators, asked decision-makers to focus on a number of “constraints” that would determine whether a particular decision is reasonable or not. Some of these constraints are particularly relevant to the constitutional context. For example, in the context of assessing the reasonableness of a decisionmaker’s constitutional conclusions, Vavilov’s focus on the “governing statutory scheme” could easily simply be rebranded as the governing constitutional text; precedent, in both contexts, would be relevant; and the principles of statutory interpretation emphasized in Vavilov could become the principles of constitutional interpretation in the Doré context. Additionally, the Court could impose explicit reasoning requirements on all of these constraints; where they are in play, decision-makers should reason in relation to them, just as the Court asked decision-makers to reason respecting the Vavilov constraints (The Conceptual Gap, at 26).
And more specifically, the exercise of discretion under the Charter still requires justification. This was not alluded to in Doré, and yet Vavilov centres the entire edifice of reasonableness review on this principle. Justification, for example, requires the consideration of “…the perspective of the individual or party over whom authority is being exercised” (Vavilov, at para 133). Where rights and interests are stake, one must assume that the standard must be something more than being “alive” to the Charter issues at stake, as the majority concluded in TWU. While I acknowledge that TWU was a law society case, where reasons take on a different character, I must note the dissent’s point of view in TWU. Arguably, the dissent’s comment is more in line with what Vavilov requires:
While the Benchers may not have had a duty to provide formal reasons…the rationale for deference under Doré —expertise in applying the Charter to a specific set of facts…–requires more engagement and consideration from an administrative decision-maker than simply being “alive to the issues,” whatever that may mean… (TWU, at para 294).
In sum, I continue to believe, despite Professor Daly’s strong arguments, that Doré is vulnerable to attack after Vavilov. While I would be prepared to make arguments that attack Doré head-on, there is value in comparing Vavilov to Doré. Far from emerging strengthened, I continue to hold the view that Doré requires assimilation to the Vavilov framework. But I part ways with Professor Daly on precisely how this is done.