As I wrote in my newsletter last week, the Supreme Court has an awkward relationship with the concept of “jurisdiction.” There is no more tortuous concept in Canadian administrative law. Vavilov, apparently, was the end to the concept of jurisdiction in Canadian administrative law. Vavilov basically said two things about jurisdiction: (1) it is difficult to identify a jurisdictional question, which sheds doubt on the entire enterprise (Vavilov, at para 66); and (2) as a result, “[w]e would cease to recognize jurisdictional questions as a distinct category attracting correctness review” (Vavilov, at para 65). Taken together, it was a fair assumption that jurisdictional questions, if they existed at all, would not be recognized in the law of judicial review.
Easier said than done. The Supreme Court in two recent cases have gone back to the well and drawn from the waters of jurisdiction. In both Ward and Horrocks, the various opinions continue to draw on jurisdiction as a concept without interrogating it. Underneath this technical issue of administrative law is a broader, conceptual difference on the Court that remains post-Vavilov.
In this post I’ll address what I think “jurisdiction” means post-Vavilov. In a future post I’ll address Horrocks and what it might mean for post-Vavilov administrative law splits on the Court.
In Ward, under a heading titled, “Jurisdiction Over Defamation and Discrimination,” the majority discusses the “jurisdiction” of the tribunal in that case . In the same paragraph, the Court chastises the Tribunal for indirectly extending its “limited direct jurisdiction.” In Horrocks, on the other hand, the whole dispute concerned the jurisdictional boundary between a labour arbitrator and a human rights tribunal.
The entire setup of these cases is based around the idea of jurisdiction. In Ward, the term was thrown around rather willy-nilly to describe the statutory authority—the grant of power—given to the Tribunal. In Horrocks, the term was used as contemplated by Vavilov, as a category attracting correctness review. But in both cases, jurisdiction looms large.
Before continuing, it’s important to note the various ways that “jurisdiction” has been used in Canadian administrative law. There are at least 3 different uses of the term:
- Jurisdiction as a preliminary question: this category concerns “neat and discrete points of law” that arise, for example, in a decision of a human rights commission to refer a case to a human rights tribunal (Halifax, at para 27). In Halifax, the Court overturned previous precedents and held that such questions are reviewable on a reasonableness standard (Halifax, at para 38).
- So-called “true questions of jurisdiction”: these questions were said to arise “where the tribunal must explicitly determine whether its statutory grant of power gives it authority to decide a particular matter” (Dunsmuir, at para 59). An example of such a question was provided in Dunsmuir: “whether the City of Calgary was authorized under the relevant municipal acts to enact bylaws limiting the number of taxi plate licences” (Dunsmuir, at para 59). Note, here, that this question trades on the same idea of “jurisdiction” as the preliminary questions doctrine, but there is a difference: ostensibly, this brand of jurisidictional questions concerns an issue that goes to the merits. Vavilov did away with this concept of jurisdictional question, to the extent that such questions attract correctness review.
- “Jurisdictional boundaries between two or more tribunals”: this is the category of review at issue in Horrocks. Vavilov retained this category as attracting correctness review.
What is immediately clear is that “jurisdiction” is a morass.
What sense should we make of this? In my view, Vavilov left the door of “jurisdiction” open a crack. The result, as Paul Daly presciently observed the day after Vavilov was rendered, is that jurisdiction is still around—a “stake through the heart” will be the only thing to kill it. In the meantime, we must make sense of what is left of jurisdiction. As I noted above, one option is to read Vavilov rather broadly: jurisdiction is dead, and we killed it. But this does not explain (in a satisfying way) what the Court is doing in both Ward and Horrocks. Why mention a concept that is dead?
Instead, I think “jurisdiction” (or, as I shall say, hopefully a better label) remains an important concept in Canadian administrative law. This version of jurisdiction—as used in Ward and Horrocks—is not akin to the concept of jurisdiction known to administrative law history (ie) Anisminic. It is not the “preliminary questions” doctrine put to rest in Halifax. This conception of jurisdiction is basically co-extensive with any number of formulations that describes the authority delegated to an administrative decision-maker. The Supreme Court of the United States describes this as “statutory authority,” which is a good a term as any. This is because, fundamentally, any time an administrative decision-maker acts, it is explicitly or implicitly dealing with the boundaries governing it by statute. Whether this is “jurisdiction,” or “statutory authority” does not matter much. It’s all the same thing.
Now, what is true about jurisdiction is that there are different types of legal questions. Some legal questions could be said to be “preliminary.” An example might be a legal condition precedent to the exercise of another legal power under the same statute. But the difference that Vavilov introduces is simply about the standard of review, not about the existence or not of jurisdictional questions understood in this sense. In other words, to the extent that Halifax and Vavilov dispatched with various types of jurisdictional questions, they only did so to the extent that it matters for the standard of review. Vavilov tells us that questions of jurisdiction, as they were previously known, are hard to identify: and in that sense, they shouldn’t be treated differently than any other legal questions. So whether the question is “preliminary” or on the merits, it’s a legal question that is assimilated to the Vavilov framework.
Why does any of this matter? There is a clarity reason and a substantive reason. For clarity’s sake, the Court should probably not refer to “jurisdiction” anymore. The concept itself, as it is now used, is simply referring to a type of legal question, not a category of review. The Court should adopt some concept of “statutory authority” to describe all the types of legal questions that arise in a typical judicial review proceeding, including anything that might be considered “jurisdictional.” This has nothing to do with the standard of review: all of the questions will be presumed to be reviewed on reasonableness review. On the substantive side, and as we shall see from Horrocks, there are good reasons to take statutes—and the boundaries they set up—seriously. As Vavilov says, the discarding of jurisdiction as a category of review should not lead to the arrogation of administrative power.