The End of Administrative Supremacy in Canada

There has been a great deal of debate about the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653, including about how much it would change Canadian administrative law, and then about how much it has in fact changed the law. For example, in a recent post, I argued that Mason v Canada (Citizenship and Immigration), 2023 SCC 21 was illustrative of some of the practical changes Vavilov has wrought. But this debate can also be had at a different level, that of administrative law and indeed constitutional theory. There, the question is not so much about Vavilov’s practical consequences for the law of judicial review, but about what it says or implies about that law’s theoretical foundations.

It is at this theoretical level that co-blogger Mark Mancini’s and my new article, “The End of Administrative Supremacy in Canada”, recently accepted for publication by the UBC Law Review, enters the debate. Here is the abstract:

For forty years, from the Supreme Court’s 1979 decision in CUPE to the 2019 one in Vavilov, Canadian administrative law has been characterized by a strong belief in the value of administrative power and a distrust of its supervision by the judiciary. This article charts the development of this approach to administrative law, which it refers to as “administrative supremacy”, and explains its fundamental commitments. It then argues that administrative supremacy is fundamentally misguided, and that its rejection by the Vavilov majority is a significant improvement for Canadian law.

Administrative supremacy rests on distinctive and, as the article argues, misconceived views about three key issues in constitutional theory. First, it rejects the separation of powers in favour of an embrace of allegedly expert administrative institutions. Second, it either rejects the Rule of Law or, more recently, redefines it to negate its central commitments to legal certainty. Third, it also redefines democracy as participation in administrative rule-making.

On each of these issues, the article contends that the more orthodox understanding of the relevant principles is preferable to that put forward by administrative supremacy. Administrative expertise does not live up to its promise and is not worth the abandonment of the safeguards against abuse of power. And while administrative reasons and participation may enhance the quality of administrative decision-making, it is no substitute for independent judicial review of administrative action.

To a large degree, Vavilov repudiates key aspects of administrative supremacy. While the repudiation is incomplete, it is to be warmly welcomed.

A few additional notes might be useful too. First, we take the phrase “administrative supremacy” and from Jeffrey Pojanowski’s “Neoclassical Administrative Law“, which I wrote about here, and, like Prof. Pojanowski, do not mean it as some sort of insult, but rather as a shorthand description of a set of constitutional commitments that privilege that administrative state over the legislatures, the courts, and indeed the political executive.

Second, to make our case about the administrative-supremacist commitments of Canadian administrative law pre-Vavilov, we trace the development of scholarship in this area, from John Willis to David Dyzenhaus, and of administrative law doctrine from CUPE, Local 963 v New Brunswick Liquor Corporation, [1979] 2 SCR 227 to the concurrence in Vavilov by Justices Abella and Karakatsanis. We do not say, of course, that all administrative supremacists, academic and judicial, thought exactly alike. Indeed we take pains to explain how their views, especially those of the academics, evolved. But we argue that, even as they evolved, they preserved crucial elements of continuity that mean that it is fair to consider them part of a common tradition, a single school of thought. One unfortunate consequence of tracing all this in some detail is that the article is very long, almost 20,000 words. But we hope that the amount of detail we provide will make it interesting too.

Third, our original submission of this article, to a journal that shall remain nameless, was promptly rejected in no uncertain terms. (I am grateful to the nameless journal for its expeditiousness, though I have to admit that it is difficult not to think that the review it commissioned was remarkable more by its promptness than by its thoroughness.) So uncertain were these terms that we simply ignored them and submitted the article again without revising it ― there simply wasn’t anything useful to get out of that review. And the reviewers commissioned by the UBC Law Review editors, for their part, quite liked our piece. At least one of them did note that it would not be to everyone’s taste ― which is fair enough ― but thought that its arguments were sufficiently supported to deserve an airing. I am disclosing all this, with Mark’s consent, because it provides further evidence for what I said here about an earlier article that went through the same process of rejection (albeit less peremptory) and then acceptance after another journal had commissioned more open-minded reviewers:

[T]he peer review process is a bit of a crapshoot. Even if you are cautious, some reviewers will bristle and see their role as that of gatekeepers preserving scholarship from heresy. But others may see their role differently, and say that, while they disagree with the paper, it is still well argued and deserves a hearing. (Of course, you have to make their life easier and make sure that the paper is indeed well argued; the more heterodox you are, the more you need to dot your i’s and cross your t’s.)

And further:

If at first you don’t succeed, try again. Try with a different journal, hope you get different reviewers, perhaps a more sympathetic editor. That’s easier to do when your paper is one that doesn’t need to be out right away … [An] article, making a less topical and more fundamental claim, could wait. And perhaps there is a further lesson here, which is that it is better to reserve heterodox ideas for articles of this sort, knowing that it might be a while before they can run the peer review gamut. But, be that as it may, the point is that, precisely because it is a crapshoot, precisely because it empowers people who enjoy being more Catholic than the Pope, the peer review process can be dispiriting ― but knowing why it is this way should remind us that it isn’t always this way.

And, last but not least, I am grateful, and so is Mark, to the people who have provided useful comments on previous drafts: Prof. Pojanowski, Paul Daly, Robert Thomas, and Gerard Kennedy, as well as the UBC Law Review’s anonymous reviewers. As is traditional to say, the remaining mistakes are ours alone, but they have made sure there are fewer of them.

Anyway, I hope that our injection of heterodoxy in Canadian administrative law theory will be of interest to some readers, and can stimulate further conversation on the constitutional foundation of judicial review in the post-Vavilov world.