On Canadian Statutory Interpretation and Recent Trends

I have had the pleasure of reading (for the first time front-to-back) the legal interpretation classic, Reading Law by Justice Scalia and Bryan Garner. For Canadian courts struggling with how to source and use purpose when interpreting statutes, Reading Law provides valuable assistance. It does so by outlining two schools of thought on how to source purpose, schools of thought that are prevalent in Canadian debates and recent decisions over statutory interpretation. On the one hand is purposivism; on the other hand is textualism. While these schools do not actually differ about whether purpose should form part of the interpretive exercise, they do differ about how to actually determine what purpose governs. Canada’s recent statutory interpretation cases point to the textualist direction.

The first school of thought, broadly known as purposivism, is apparently Canada’s leading approach to statutory interpretation.  Purposivism “acknowledges that the meaning of language is imprecise and measures words against contextual, schematic, and purposive considerations” (see Hutchison, here, at 8). Aharon Barak claims that:

[a]ccording to purposive interpretation, the purpose of a text is a normative concept. It is a legal construction that helps the interpreter understand a legal text. The author of the text created the text. The purpose of the text is not part of the text itself. The judge formulates the purpose based on information about the intention of the text’s author (subjective purpose) and the “intention” of the legal system (objective purpose) (Barak, Purposive Interpretation, at 110).

The motivation behind purposivism is a sort of legal realism that queries whether text can ever truly be clear enough to be a dominant force in legal interpretation (see, for a characteristic example of this line of thinking, the opinion of Breyer J in FCC v NextWave Personal Communications Inc, 537 U.S. 293, 311). Purpose is thus a way to deal with latent ambiguities that may naturally arise in text. And importantly, purpose is focused on the “ends” a statute is designed to achieve, perhaps at a high level of abstraction or generality. On a radical purposive account, the goal of interpretation is to effectuate whatever the court determines the purpose(s) to be; text is merely a means to the end of purpose. Put differently, text is derived from purpose under the purposive account.

On the other hand is “textualism.” Textualism receives a bad rap in Canada, but that is probably more due to caricature than a real appraisal of the merits and demerits of the textualist method. Here Scalia & Garner have much to say. While the central feature of textualism is the idea that “if the text…is clear, interpreters should not impeach the text using extrinsic evidence of statutory purpose…” (Manning & Stephenson, Legislation and Regulation, at 94), textualism does not ask a court to “put on blinders that shield the legislative purpose from view” (Scalia & Garner, at 20; see also William Popkin, “An ‘Internal’ Critique of Justice Scalia’s Theory of Statutory Interpretation,” 76 Minn L Rev 1133, 1142 (1992)).  Instead, purpose is “deduced from a close reading of the text” (Scalia & Garner, 20).  Put differently, purpose is derived from text on the textualist account.

Why are textualists concerned about purposes achieved without reference to the text? First, textualists are concerned about the generality problem (see Max Radin, “Statutory Interpretation,” 43 Harv L Rev 863, 876 (1930)). A court motivated by its own results-oriented reasoning could choose a purpose that is barely represented in text, or is otherwise quite abstract in relation to text. Indeed, at the highest level of generality, every statute could be said to pursue “justice and security” (see Radin). But choosing that purpose could distort the means used by the statute chosen to achieve its ends by “enabling…crabbed interpretations to limiting provisions and unrealistically expansive interpretations to narrow provisions” (Scalia & Garner, at 20). This particular problem also has resonance in administrative interpretations of law, where an expansive purposive interpretation of enabling provisions could actually result in more deference to decision-makers than what the text itself allows.

Second, textualists are concerned with the realities of the legislative process and the fact that legislatures are imperfect. The takeaway from the Legal Process school, which influences purposivism, is that legislatures pursue reasonable purposes reasonably. But textualists understand that legislation, especially in the US, is a result of legislative compromise. While purposes may be clear, text pursues purposes in different ways. In this way, textualists are more concerned with the implementational rather than the ulterior purposes of legislation. Legislation can implement purposes in text in various ways.  A generalized example here is instructive:

For example, a statute providing a specific protection and a discrete remedy for purchasers of goods can be said to have as its purpose “protecting the consumer.” That would not justify expansive consumer-friendly interpretations of provisions that are narrowly drawn (Scalia & Garner, at 57).

What does this dispute between textualists and purposivists have to do with Canada? From a descriptive perspective, it describes perfectly what is happening in Canadian courts right now with regards to purpose. Normatively, Scalia & Garner’s text explains why a textualist-purposive approach is well-justified.

On the descriptive account, the Supreme Court in the past has fallen victim to the “level of generality” problem. West Fraser is a classic example. There, the dispute was whether a British Columbia statute permitted fines to be levied for workplace safety violations against owners of land on which accidents occurred. The relevant provision under which West Fraser was fined was, by its text, only applicable to “employers.” But Chief Justice McLachlin, for the majority, held that the ultimate purpose of the statute was to “promote workplace safety in the broadest sense” (see West Fraser, at para 17). This allowed her to conclude that the particular text of the section under interpretation should be interpreted to cover off West Fraser’s conduct. But here is a classic example of the purposive approach: purpose was used to interpret the text under consideration, rather than the other way around.

Justice Côté in dissent, in my view, had much better of the argument. Her view was that the relevant provision had chosen the means by which to pursue the purpose of workplace safety. The text had chosen “limited means” to pursue that purpose—by limiting fines to employers (see West Fraser, at para 107). This is a classic dispute between ulterior and implementational purposes.

Justice Côté’s view has recently been picked up in recent Supreme Court cases and in cases in the Federal Court of Appeal. I cite two examples here. First is Telus v Wellman, which I wrote about here. There, the dispute was what purpose should be chosen: for the majority, the purpose of the Arbitration Act, as directly reflected in the relevant statutory provisions, was that the Act ensures that parties abide by their agreements. But in dissent, Abella and Karakatsanis JJ would have pitched the purpose of the statute at the level of “access to justice.” Moldaver J in majority rejected the dissent’s characterization, holding that this purpose could “distort the actual words of the statute” (Telus, at para 79). The access to justice purpose was not rooted in statute. Moldaver J, then, could be said to adopt a position closer to Cote J in West Fraser, and closer to the textualist position identified by Scalia & Garner.

Similarly, in Hillier, Justice Stratas rejected the Attorney General’s attempt to cast a statute at the high level of abstraction of “administrative efficiency.” Rather, he concluded that not “every section in the Act is aimed at furthering efficiency” (Hillier, at para 35). Rather, the relevant provision under interpretation “pursues a different, more limited purpose” (Hillier, at para 35). That limited purpose governed, not the abstract purpose chosen by the Attorney General.

In these cases, the Supreme Court and the Federal Court of Appeal corrects the error in West Fraser. And here is a good point to say why it is that the textualist approach adopted by Moldaver J and Stratas JA is preferable. First, as noted above, a liberal application of the purposive approach could lead to high error costs. By prioritizing ulterior motive over implementational purpose (abstract versus specific purposes), the court could fail to understand how and why a statute achieves a particular goal. In other words, reasoning backwards from purpose (as McLachlin CJ did in West Fraser) could lead to ignoring what the text actually says, and how the text decides to pursue a particular goal. For McLachlin CJ in West Fraser, it was of no moment that the relevant provision only applied to employers. But this was the interpretive dispute at hand. The interpretive approach in West Fraser, in this sense, ignores the import of the text.

Secondly, and pragmatically, choosing more abstract purposes of statutes over more implementational ones does not actually help the interpretive task. To say that the purpose of a statute is “access to justice” will rarely do anything to determine how the text is actually supposed to be interpreted. This is because there are many different ways that a statute can methodologically choose to pursue access to justice. More likely, abstract, ulterior purposes can be used to distort text to achieve policy outcomes the interpreter likes. This is profoundly violative of the Rule of Law.

And finally, as Scalia & Garner note, perhaps the most important interpretive canon is that one which says that “[t]he words of a governing text are of paramount concern, and what they convey, in their context is what the text means” (Scalia & Garner, at 56). This sentiment has been expressed by the Supreme Court of Canada, particularly where text is “clear” (see Celgene, at para 21). It is as old as Justinian’s Digests (“A verbis legis non est recedendum”). A powerful principle of democracy justifies the canon. It is, after all, text which is enacted by our democratic institutions. Purpose should revolve around text, such that the purpose with the most reflection in text should govern. Sourcing text from purpose risks prioritizing an ideal with little democratic pedigree over the specific and finely-wrought means by which the text enacts that purpose.

Overall, and while no Canadian court will probably ever describe itself as textualist, courts in Canada are increasingly looking to text to discern purpose. In my view, this is a salutary development.

Results-Oriented Conservatism: A Defence of Bostock

Should textualism lead to more “conservative” outcomes as a matter of course? No.

Those who wish to transform textualism—a methodology of interpretation—into a vessel for conservative policy outcomes are in the wrong business. Instead of being in the business of law, they are in the business of politics. For years, a small group of Canadian judges have fought hard against this tendency. As Justice Stratas, for example, notes in Hillier, at para 33:

Those we elect and, within legislative limits, their delegatees (e.g., Ministers making regulations) alone may take their freestanding policy preferences and make them bind by passing legislation. Absent constitutional concern, those who apply legislation—from the most obscure administrative decision-makers to the judges on our highest court—must take the legislation as it is, applying it without fear or favour. Their freestanding policy preferences do not bind, nor can they make them bind by amending the legislation: Euro-Excellence Inc. v. Kraft Canada Inc., 2007 SCC 37, [2007] 3 S.C.R. 20 at para.

On this account, the proper venue for political change is the legislature, not the courts. For that reason, it was always faulty to attach a political agenda to textualism. Recent “disappointments” for conservatives at the Supreme Court of the United States are a reflection of the reality: textualism was never designed to achieve certain policy ends, and rightly so. Conservatives who wish to do so, in my view, are just as unprincipled as living treeists, who would adapt the Constitution and statutes to suit their policy preferences.

To make this point, I focus on the SCOTUS’ recent decision in Bostock, which has rankled conservatives who have a political agenda (though as I will note, there are others who have principled objections to the interpretation in Bostock). I first outline why, on first principles, Gorsuch J’s interpretation in the case is justified. Then I move on to consider the perils of the approach shared by some conservatives and progressives. As Brian Tamanaha notes in his important book, this results-oriented reasoning in statutory interpretation is profoundly disrespectful of the Rule of Law, which presupposes law as an independent field, a closed system–even if we may only reach that result imperfectly.

Bostock—Textual Interpretation

The case of Bostock in the United States is perhaps the best example of conservatives who have been somehow “betrayed” by textualism. Here are some examples:

  • In the link above, Josh Hammer says that Bostock represents the end of legal conservativism, arguing that “[w]hat we need is a more forceful conservative legal movement, just as willing as the left to make moral arguments in court, based on principles of justice, natural law…the common good and religious and moral traditions underlying Anglo-American constitutional order.” Forget if these traditions are not represented in legislation; they should somehow subvert Congress’ choices.
  • Senator Josh Hawley spelled the end of the conservative legal movement, arguing: “And if those are the things that we’ve been fighting for—it’s what I thought we had been fighting for, those of us who call ourselves legal conservatives—if we’ve been fighting for originalism and textualism, and this is the result of that, then I have to say it turns out we haven’t been fighting for very much.”
  • Robert George argues that the case “…vindicates Adrian Vermeule’s warning to conservatives that trying to combat the longstanding “progressive” strategy of imposing a substantive moral-political agenda through the courts by appointing “originalist” and “textualist” judges is hopeless.” What is the conservative version of such an agenda? The goal is to “…advance a socially conservative moral and political vision.”

I could go on. What unites these critiques is the idea that somehow the Court, in applying a plausible textual interpretation, failed conservatives on substantive grounds. To this I say: so be it. The place for these visions of the good deserve to be aired in public, not in august courtrooms.

What was the offense caused to conservatives in Bostock? The Court (per Gorsuch J for the majority) decided that Title VII protected against discrimination on the basis of sexual orientation and identity because such discrimination necessarily and logically involves discrimination on the basis of sex. The textual problem in Bostock was, in some ways, staggering: Title VII does not include sexual orientation or identity as distinct grounds of discrimination. However, for Gorsuch J, the ordinary meaning of the term “sex” applied today just as it did when Title VII was promulgated. Applying that definition, Gorsuch J reasoned that when one discriminates on the basis of sexual orientation or identity, one must necessarily discriminate on the basis of sex. This is because when one fires someone, for example, for being gay, they are necessarily making an implicit judgment about the person’s gender. If a man is attracted to another man, and is fired on that basis, the employer is implicitly saying that she would tolerate that attraction if the employee was a woman attracted to a man. Gender plays at least some small part in the decision to fire.

Because of the text of Title VII which prohibits discrimination “because of sex,” it did not matter if gender was not the primary cause of the discrimination. The “because of” standard encompasses even a 1% causal vector of the discrimination. This was supported by precedent.

Notably Gorsuch J refused to consider the fact that post-Title VII enactment Congresses have not amended Title VII to include sexual identity or orientation. This “post-enactment legislative history,” as it is technically called, should be anathema to textualists, because there is no good reason to suppose why Congresses failed to amend the statute. Just like pre-enactment legislative history, this sort of evidence should not ground an interpretation on its own; at best, it can be used with caution, particularly where the reason why Congress failed to act is clear.

My main point here is not to defend this particular interpretation, but I cannot help but make a tentative case for Gorsuch J’s view. I do this in order to demonstrate that the real dispute here is not a political one, but a legal one, between textualists. In my view, a number of interpretive considerations support his view.

Text: Gorsuch J’s textual interpretation comes down to the plausibility of his point that sex is inextricably linked to sexual orientation and identity: or more specifically, that discrimination on these grounds are all closely related. While Alito J in dissent disputed this point, and others have as well, there is some textual logic to it. First, there are at least some cases where sex is necessarily bound up with discrimination based on orientation. If there is even a chance that an employer could tolerate opposite sex attraction, but oppose same sex attraction, then the relevant difference is sex. With that aside, more importantly, a textual interpretation of the words “because of” leads to the conclusion that these words are broad. Broad words=broad meaning. On that account, any chance that discrimination could occur on the basis of sex, in the course of discrimination based on other unlisted grounds, is encompassed in the “because of” language.

Precedent supported this conclusion. In Oncale (per Scalia J, the king of textualists), Justice Scalia held that Title VII prohibited discrimination based on same-sex harassment. Why? Because the words “because of” encompassed situations involving same sex: “…we hold today that nothing in Title VII necessarily bars a claim of discrimination “because of…sex” merely because the plaintiff and defendant…are of the same sex” (79).

This is a simple matter of dynamic interpretation. When courts interpret broad, causal language, they must apply these terms to new situations. This is not a re-writing of the statute. Indeed, both sides in Bostock agree that the meanings of “sex” and “because of” are the same when Title VII was enacted and in the present day. But where new fact situations arise, that original meaning must be applied to new situations. As Justice Scalia noted in Oncale, while male-on-male sexual harassment was not the evil Congress was concerned with when it enacted Title VII, “…statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed” (my emphasis). As Justice Scalia also says in his classic A Matter of Interpretation, statutory interpretation is governed by the rule that text should be interpreted “….to contain all that it fairly means” (23). This is all Gorsuch J did in Bostock.

Some might say this is a plain meaning approach. But I don’t see it. Justice Gorsuch gave the words “sex” and “because of” the same meaning they had when Title VII was enacted. He merely interpreted those words to encompass phenomenon that reasonably fall within their ambit. The fact that a phenomenon is new does not mean that it is necessarily excluded from broad statutory language. The question then is not whether Congress anticipated particular applications to new phenomenon. The question is whether the text can cover off those applications.

Context and Legislative History: If the text is clear—or at least clear enough—then there is no need or warrant to deviate from it. The Canadian Supreme Court accepts this reality (see Celgene, at para 21, and more, and more). And so does the American Supreme Court: see Milner. What this means is that legislative history, and post-enactment legislative history, cannot enter the interpretive task. This means that the fact Congress did not act to explicitly adopt certain explicit prohibitions is irrelevant.

Why should these be considered irrelevant? Post-enactment legislative history is a dangerous tool, on both principled and pragmatic grounds. On the former, legislative history goes to the intent of lawmakers, not to the natural import of the words they adopt in legislation. The latter matters. Whatever Congress did or didn’t do is of no relevance to the meaning of the words adopted. But the problems mount on pragmatic grounds. Legislative history, as Justice Scalia always noted, is not probative, because whatever people say may not be reflected in text. Post-enactment legislative history is even worse. Now we are trying to draw inferences based on what Congress did not do. That is a fool’s errand. As Justice Gorsuch notes, we will never know why Congress did not act to amend Title VII. This is not interpretation, but rather arm-chair psychology about what Congresses may have thought.

Results-Oriented Conservatism

Before continuing, I want to clearly acknowledge that there are plausible textual interpretations that run counter to Gorsuch J’s view. Some could argue that Gorsuch J’s analysis is a literalist approach, rather than one based on ordinary meaning. One could even say that Gorsuch J’s interpretation is itself compelled by results oriented reasoning, rather than the law. But this latter attack would only be strong if Gorsuch J’s approach was not plausibly based on text and precedent. Since, I hope, most would concede that this is a close call (in the name of humility), it is difficult to say anyone was results-oriented in Bostock. Better to keep politics out of it—after all, lawyers have no special political views warranting special treatment—and view the matter as a textual disagreement. I would characterize Bostock as a debate about legal interpretation, not political aims.

But there are exogenous, conservative forces that want to introduce this phantom into Bostock. Conservatives often get angry at progressives who invoke living constitutionalism (in Canada, the living tree metaphor) to adapt the Constitution to present realities. In Canada, we are familiar with this interpretive trick. How else to explain what Justice Abella did in SFL, where she, in all her wisdom, decided that it was now the time to grant “benediction” to a right to strike in Canada’s Constitution? The same phenomenon is at play when conservatives seek to use the law to achieve policy aims that should be achieved in the legislature.

Both attempts by ideologues to subvert law should be rejected. This is no longer a popular view, but law is an autonomous field, within reason, in the realm of statutory interpretation. The methods of interpretation are just that: methodologies. They are designed to reach the authentic meaning (contrast this with intent or expected application) of legislation. If a Congress passes legislation that is socialistic, then it should be authentically applied, leading to socialistic outcomes. If Congress passes legislation cutting back on social benefits, that legislation should be applied leading to its natural outcome. Judges do not bring special moral or political wisdom to the interpretive task. If lawyers are upset about the terms of legislation, they can speak out about it in the political realm. But that’s all.

The flaws of adopting a political approach to interpretation are not only present on a principled basis. If the political aims of legislation become the sole basis on which interpretation is conducted, then the incentive is to simply appoint people based on their substantive political views, not on the quality of their legal craft. To some extent, this is already happening in the United States. In that context, all we will see is a flat-out war between progressives and conservatives who seek to subvert law to their own aims. Nothing, not even law, which is supposed to be a fetter on political wishes, will be sacred anymore. From a strategic perspective, this is bad for either side. Victories achieved by one side in the courtroom can easily be overturned once the “other side” achieves power. And the merry-go-round goes on.

Better, in my view, to hone our arguments to legal ones, applying neutral methodologies, as best we can. Interpretation is designed to determine the meaning of legislative texts. Let the legislature legislate, and let courts interpret. Believe it or not, lawyers and their political views are not particularly enlightened.

ESA II: The Standard of Review and Rogers

In Entertainment Software Association, Stratas JA for the Court set out a number of important comments about statutory interpretation and international law. I dealt with those comments in a previous post. I write again about this case to highlight Stratas JA’s comments on the standard of review. Particularly, Stratas JA was faced with the propriety of the Rogers decision, which held that when an administrative regime contemplates concurrent jurisdiction between a decision-maker and a court, the standard is correctness. While Stratas JA rightly held that the issue should be left for another day, I think there are good reasons to affirm Rogers in light of Vavilov.

Stratas JA started out by noting that “[f]or some reviewing courts, Vavilov wrought a significant change in how reasonableness review should be conducted. But in our Court, at least for the conducting of reasonableness review in a case like this, Vavilov hardly changed anything at all” [23]. This was because one of Vavilov’s innovations (at least at the SCC) was its list of contextual “constraints” that act as indicia of a reasonable decision. For example, and perhaps most importantly, statutory language could be broad or narrow, which would either “liberate or constrain” the decision-maker (Entertainment Software Assoc, at para 24; Vavilov at paras 89, 110). Similarly, other factors (precedent, affect on the individual, etc) could set the context in which reasonableness is defined. In the Federal Court of Appeal, a similarly contextual approach was already known: see particularly the decisions in Farwaha, at para 91; Delios, at paras 26-27). In a way, Vavilov was a full vindication of the Federal Court of Appeal’s approach. No longer, Stratas JA said, would lower courts have to “tip-toe around dicta in Supreme Court decisions like [Edmonton East] and [Wilson].” Despite Abella and Karakatsanis JJ’s (surprising and unexpected, given cases like Saskatchewan Federation of Labour) call to follow stare decisis in relation to these cases, the majority rightly did away with them, leaving them to be read by generations of law students as exotic artifacts of times gone by. And the Federal Court of Appeal’s long-standing approach to these issues, rooted in sound doctrine, was vindicated.

More difficult was the propriety of Rogers. As noted in my previous post, the section of the Copyright Act under interpretation in the case “falls to be interpreted by both the Board and the courts” [14]. Under Rogers, the standard of correctness applied to such cases of concurrent jurisdiction. The question: does Vavilov throw doubt on Rogers?

As Stratas JA notes, Vavilov is exhaustive in that it addresses “all of the situations in which a reviewing court should derogate from the presumption of reasonableness review” (Vavilov, at para 69; see also Vavilov, at para 143 re “holistic revision”). While the Court left open the possibility for future categories of correctness review to be recognized in future cases (Vavilov, at para 70), Rogers clearly did not fit into the Vavilov correctness categories. This is odd, considering Rogers is of relatively recent vintage and the Court was clearly aware of it as a previously-recognized correctness category. My speculation is that, since Vavilov is clearly a compromise judgment.

That said, in my view, a case for Rogers could be made in light of Vavilov. Though Stratas JA left the merits of this argument for another day, he does point out that an organizing premise of Vavilov is legislative intent; specifically, a respect for the “institutional design choices” made by Parliament in establishing an administrative body (Vavilov, at paras 24, 26, 36, and 46). It is this concept that justifies a presumption of reasonableness review. Similarly, it is this concern that justifies one of the categories rebutting that presumption: statutory rights of appeal on questions of law. A respect for these “institutional design choices” (for example, the act of setting up an administrative actor in the first place, and the act of subjecting that administrative actor to a right of appeal on questions of law) might similarly militate in favour of recognizing concurrent jurisdiction as a category of correctness review (see Entertainment Software Assoc, at para 18).

While I find this argument quite convincing, there are three counter-arguments that should be tackled. First, one might argue that since Vavilov did not recognize Rogers, this should be taken as a sign that Rogers is no longer good law. While the Supreme Court in administrative law does have a history of simply ignoring precedents, no one should presume that this is what the Supreme Court decided implicitly in Vavilov. Remember that Vavilov is comprehensive; the Supreme Court took great pains to clarify its pre-Vavilov precedents. It is more likely that Rogers was not included because of the internal politics of keeping the majority together; not an implicit desire to overrule Rogers.

Second, one might argue that the conceptual basis of Rogers itself no longer exists. Specifically, Rogers says that “By setting up a specialized tribunal to determine certain issues the legislature is presumed to have recognized superior expertise in that body in respect of issues arising under its home statute…”(Rogers, at para 11). Similarly, in cases of concurrent jurisdiction, “…it must be inferred that the legislative intent was not to recognize superior expertise of the Board…” (Rogers, at para 15). On these extracts, expertise seems to be doing some conceptual work. Yet Vavilov dispatches with expertise as a reflexive reason for deference. What result?

While expertise is no longer the lynchpin for deference, Rogers still speaks of “legislative intent.” In this case, the relevant legislative intent has simply shifted. We do not go further and ask what legislative intent Parliament had with respect to expertise; we simply ask what Parliament did when it set up a decision-maker, from an institutional perspective. Under this new theoretical basis, and as noted above, there is at least a case that Rogers can fit in quite nicely.

Finally, one might take a page from Abella and Karakatsanis JJ’s disguised dissent and simply argue that concurrent jurisdiction should not necessarily lead to correctness review (the disguised dissent made this point re rights of appeal at Vavilov, para 249). One could argue that nothing should be gleaned from concurrent jurisdiction as a matter of legislative intent; and the presumption of deference should apply.

But the importance that the Vavilov Court attaches to delegation as a tool belies this argument. For the Court, it is the very act of delegation that invites reasonableness review (Vavilov, at para 30). But when Parliament delegates to a decision-maker but carves out jurisdiction for a court to decide the same or similar matters at first instance, the delegation to the administrative agency cannot be construed as “full.” Accordingly, the presumption of reasonableness should not be characterized as “full” either. The exception for courts to exercise original jurisdiction qualifies the delegation, undermining the conceptual basis for reasonableness review.

This is just a sampling of some of the considerations to take into account regarding Rogers. It will be interesting to see how courts deal with that case in light of Vavilov.

 

The Continued Relevance of “Jurisdiction”

This post is co-written with Leonid Sirota

One of the innovations of Vavilov was its dispatch of so-called “jurisdictional questions” from the standard of review analysis. A long-time feature of Canadian administrative law, jurisdictional 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” (see Vavilov, at para 65; Dunsmuir, at para 59). These questions would attract correctness review. But as the Vavilov majority acknowledged, “…majorities of this Court have questioned the necessity of this category, struggled to articulate its scope and ‘expressed serious reservations about whether such questions can be distinguished as a separate category of questions of law” (Vavilov, at para 65; Alberta Teachers, at para 34).   As a result, the Court decided that it would “cease to recognize jurisdictional questions as a distinct category attracting correctness review” (Vavilov, at para 65), satisfied in the knowledge that the robust reasonableness review it articulated would solve a potential problem of decision-makers arrogating power to themselves they were never intended to have (Vavilov, at para 68; para 109).

We question whether matters are so simple. While the Court purported to rid Canadian administrative law of “jurisdictional questions,” clearly the concept of jurisdiction remains. In this post, we outline the four ways in which it remains relevant in Canadian administrative law, despite its absence from the standard of review analysis. This happens (1) in the course of statutory interpretation under Vavilov itself; (2) in the presence of certain statutory rights of appeal; (3) when drawing the boundaries between the remits of two or more tribunals; and (4) when determining whether a tribunal is empowered to consider Charter questions.

A note before beginning: between us, we view questions of jurisdiction differently. One of us (Mancini) has previously argued that jurisdictional questions should simply attract reasonableness review, since jurisdictional questions are merely a subset of a larger category of questions of law; in his view, there is no meaningful difference between jurisdictional questions and other questions of law, for the purposes of the standard of review (see the reasons of Stratas JA in Access Copyright (2018) at para 75). The other (Sirota) disagrees with this position, and instead believes that questions of jurisdiction must attract a correctness standard of review, and that if this means that most or all questions of law, being jurisdictional in some sense, require correctness review, so much the better. This difference is not material for the purposes of this post. We only mean to argue that the Vavilov judgment should not be read as dispensing with the existence of all questions of jurisdiction, let alone with the concept of jurisdiction writ large. Indeed, jurisdiction still remains an important and relevant concept in distinct areas of Canadian administrative law, an idea recognized in some respects by Vavilov itself.

Statutory interpretation under Vavilov

As noted above, Vavilov ceases to recognize jurisdictional questions as a distinct category attracting correctness review (Vavilov, at para 65). This is not a surprise, as majorities of the Court had previously thrown doubt on both the concept of jurisdiction (see CHRC, at para 38) and the means used to identify jurisdictional questions (McLean, at para 25).

And yet: chassez le naturel, et il revient au galop. When the Court goes on to describe the statutory context within which a particular decision-maker operates as an “obvious and necessary constraint” on administrative power (Vavilov, at para 109),  the Court’s explanation harkens back to the language of jurisdiction. The Court says that

Reasonableness review does not allow administrative decision-makers to arrogate powers to themselves that they were never intended to have, and an administrative body cannot exercise authority which was not delegated to it (Vavilov, at para 109, our emphasis).

What is this if not an invocation of the concept of jurisdiction, albeit in plain English? Whether we frame the issue as one of statutory authority or jurisdiction, the point is the same: administrative decision-makers only have the power that is explicitly or impliedly delegated to them by legislation (or that they hold under the royal prerogative). If they go beyond the scope of the delegation, the decision-makers lose their authority to act. Far from doing away with the concept of jurisdiction, then, the Court embraces it in its articulation of the legal limits of reasonableness review.

Moreover, the Court explains that “[i]f a legislature wishes to precisely circumscribe an administrative decision maker’s power in some respect, it can do so by using precise and narrow language and delineating the power in detail, thereby tightly constraining the decision maker’s ability to interpret the provision” (Vavilov, at para 110). In such cases, “questions relating to the scope of a decision maker’s authority … may support only one” permissible interpretation (Vavilov, at para 110), by contrast with others where the statutory language is more open-ended. While the Court resists the analogy, it is difficult to distinguish single-answer “questions relating to the scope of a decision maker’s authority” from pre-Vavilov questions of jurisdiction. What is new, perhaps, is the implicit recognition that even open-ended grants of authority must have their limits.

This is not something to be worried about―even though, as the Vavilov majority noted, every question regarding an administrative decision-maker’s statutory limits can be conceived as a question of jurisdiction (see Vavilov, at para 66), and is so conceived elsewhere (see Peters v Davison (NZCA) explaining that UK case law, followed in New Zealand, has served to “render redundant any distinction between jurisdictional and non-jurisdictional error of law”). Indeed, the Court is correct in saying that jurisdiction (or statutory authority) is a natural limit on administrative discretion. Although it does not serve as the lynchpin for a distinct category of legal questions for the purposes of standard of review analysis, the concept remains in the articulation of the limits on administrative decisions.

Statutory Rights of Appeal and Privative Clauses

Under Vavilov, different standards of review apply on statutory appeals and on judicial review. On appeal, when a case involves a question of law, the standard will be correctness; when a case involves a question of fact or mixed fact and law, the standard will be palpable and overriding error. On judicial review, by contrast, most questions of law, as well as questions of fact and policy, attract reasonableness review.

Hence the scope of statutory rights of appeal, and thus whether a given issue can be appealed or must be judicially reviewed, may be decisive for the outcome of a case. This scope can be circumscribed; one common way in which this is done is by limiting the right of appeal to “questions of law and jurisdiction” as, for example, in the Broadcasting Act provision at issue in Vavilov’s companion case, Bell/NFL.

How are such provisions to be interpreted? Vavilov could be read in one of two ways on this score. First, one could read Vavilov to suggest that when a legislature provides an appeal on a question of law or jurisdiction, jurisdiction means the same thing as “law.” This appears to be what the Court did in Bell, when it did not mention the difference in legislative language between questions of law or jurisdiction. Secondly, one could read Vavilov as retaining the concept of jurisdiction, but simply concluding that for standard of review purposes, the distinction between law and jurisdiction does not matter. This retains the concept of jurisdictional questions.

But what if the appeal right only extends to questions of jurisdiction, not to non-jurisdictional questions of law?  (See, for a version of this in Quebec, Mancini’s article on the subject). If this happens, there are three options. If Vavilov is read as saying that the concept of jurisdiction has no distinct meaning, courts can safely ignore the privative clause and simply consider the right of appeal as either extending to questions of law, or perhaps as covering a null set of cases. We find either of these solutions to be undesirable. If a legislature uses the term “jurisdiction” in a right of appeal, in contrast to the term “law” in a privative clause, the legislature’s use of that term must be given effect: this is simply an application of the presumption against tautology, endorsed in Vavilov itself (see para 45). If the legislature uses the term jurisdiction in a statutory right of appeal, it must mean something over and above a question of law, however much courts and scholars might disagree with its implicit determination that there exist non-jurisdictional questions of law.

This means that courts, in determining whether a particular matter falls within such a right of appeal, must come to its own determination about whether the subject matter is “jurisdictional.” Jurisdiction, then, continues to rear its head in these scenarios.

Jurisdictional Boundaries Between Two or More Administrative Bodies

The Vavilov majority retained, as a category of question attracting correctness review, the determination of “jurisdictional boundaries between two or more administrative bodies” (Vavilov, at para 53).  This happens when it is unclear which body must resolve a given issue, and one body attempts to address a matter that may be considered to fall within a comprehensive legislative regime administered by another.

The Court says that “[a]dministrative decisions are rarely contested on this basis” (Vavilov, at para 64). This observation is true, but the category is not without controversy. In fact, the Court will hear a case, Horrocks, which considers the demarcation of the respective spheres of authority of human rights tribunals and labour arbitrators, and the governing test for determining which actor should assume jurisdiction in a particular case (see Weber, Figliola). In these cases, the Court uses “jurisdiction” in its standard sense: as the power to hear and decide certain matters. If a tribunal proceeds erroneously on this score, it would incorrectly assume jurisdiction.

It might seem puzzling that Vavilov retained this category of review while purporting to rid Canadian administrative law of other “jurisdictional questions.” And yet, what choice did the Court have? As it pointed out, litigants (and indeed tribunals themselves) need to know which administrative body is tasked with resolving a given question.

Jurisdiction to Consider Charter Questions

The question of whether a decision-maker can consider the Charter is also a question of jurisdiction in the classic sense. It is noteworthy that the term “jurisdiction” appears 89 times in the Supreme Court’s reasons in Martin, which set out to re-appraise the rules governing whether a decision-maker has the authority to consider Charter issues. This is a preliminary question that must be asked before dealing with the merits of a particular constitutional challenge. The Court in Martin concluded that where there is jurisdiction to decide questions of law, there is also jurisdiction to consider the Charter (see Martin, at para 36). For the Martin Court, jurisdiction is defined as “the power to decide” (Martin, at para 36). It will be a “jurisdictional question,” therefore, whether a decision-maker has power to determine how the Charter applies to a matter on which it is required to rule. When a court reviews a decision-maker’s conclusion on this front, the court will owe the decision-maker no deference (see Martin, at para 31).  In this manner, the concept of jurisdiction will continue to inform whether a decision-maker has power to decide a Charter matter, and such questions will function much the same way as they did pre-Vavilov.

This isn’t to say that this category of review is justified from a perspective of first principles or precedent. The Constitution is always a limitation on government action, whether that action is legislative or administrative. That is, legislatures should not be able to “delegate out” of the Constitution by empowering an administrative actor. While it is true that administrative decision-makers are creatures of statute, constitutional constraints circumscribe statutory grants of authority whether they are mentioned or not. Indeed, the better view is that a legislature cannot preclude a decision-maker from considering the Constitution even by saying so. And from the perspective of precedent, Martin is difficult to reconcile with Doré, which held that “…administrative decisions are always required to consider fundamental values” (Doré, at para 35). While we both consider Doré to be unjustified in every other respect, this aspect of Doré―at least if for the extra-constitutional “values” we substitute the more appropriate “law”―is supported by the fundamental idea that the Constitution is supreme in the hierarchy of laws: s.52 of the Constitution Act, 1982 (see also Canada (Citizenship and Immigration) v Tennant, 2018 FCA 132).

Normative Implications

In our view, the holding in Vavilov on jurisdictional questions must be considered quite limited. The Court must not be taken as saying that “jurisdictional questions” do not exist as a conceptual matter. Nor is the Court saying that, in other contexts, courts must defer on questions that can be identified as jurisdictional.

Rather, the situation is much more nuanced. Jurisdiction remains a relevant principle in Canadian administrative law, in at least four areas where courts will be called upon to delineate the scope of the authority of particular decision-makers, whether in the ordinary process of statutory interpretation, in demarcating jurisdictional lines, construing statutory rights of appeal, and in relation to Charter questions. Courts will need to return to a stable definition of jurisdiction. It will do no good to suggest that “jurisdictional questions” have been banned from the world of Canadian administrative law. Horrocks is an example: there, the Court will need to decide whether its test for determining which particular body has jurisdiction is adequate.

In our view, this narrow reading of Vavilov is normatively desirable. Jurisdiction is not the will-o’-the-wisp some make it out to be. Scholars obsessed with the “bad old days” of pre-CUPE administrative law always speak of jurisdiction as if it is some major impediment to administrative decision-making. But that is only so if administrators must, contrary to basic constitutional principles requiring all public power to be constrained by law, be allowed to roam free of legal fetters. Such claims by the defenders of the administrative state are an admission against interest, and quite an unnecessary one. Administrative decision-makers function just fine in jurisdictions where their jurisdiction and, indeed, the correctness of their legal interpretations are fully policed by the courts.

It is true that judges of a particular era were pre-disposed to view administrative power with skepticism. But they had good reason: the rise of administrative power was not an inevitability or a phenomenon that was totally consistent with fundamental constitutional principles. Jurisdiction—the idea that a law (typically statute but sometimes the common law) that exists outside the administrator’s subjective preferences and is subject to judicial interpretation determines whether the administrator can hear or decide a matter—is merely a constitutionally required limit on administrative power (see Vavilov, at para 109). No amount of tinkering with standards of review can change this. Courts trying to flee from constitutional principles will find that they cannot outrun them. They must reckon with this reality and devote their energy to working out how these principles are to be applied, rather than to futile escapades.

 

 

Entertainment Assoc, 2020 FCA 100: A New Canadian Textualism

In Entertainment Software Assoc v Society of Composers, 2020 FCA 100, Stratas JA (for the Court) made a number of interesting comments about statutory interpretation in the administrative state and the role of international law in the interpretive activity. In this post, I review these comments, and agree with them wholeheartedly. This case is an important add-on to a growing list of cases in the Federal Court of Appeal and the Supreme Court (Williams, Cheema, Hillier, Placer Dome, Telus v Wellman, Rafilovich) that advocate a certain form of text-based purposivism, which rejects abstract purposes and extraneous principles of international law in favour of specific text. As I will note, these cases all indicate a trend: a promising move towards statutory interpretation approaches that are governed by text, not the policy preferences of administrators or the wishes of unelected judges. While the courts most certainly would not put it in these terms, this is a new, reborn form of textualism in Canadian law that incorporates purpose but makes it a servant to text. In this sense, it is most certainly not the plain-meaning rule, but also not pure purposivism.

I note that there are important aspects of this decision that I will address in a later post, including on the standard of review analysis.

Facts

SOCAN administers the right to “communicate” musical works on behalf of copyright owners [1]. It filed with the Copyright Board proposed tariffs for the communication to the public of works through an online music service. After SOCAN filed its proposed tariffs, the Copyright Act was amended to include the so-called “making available provision.” This provision defines “communication of a work…to the public” as including “making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and time individually chosen by that member of the public” [3] (s.2.4(1.1) of the Copyright Act). The question: does the making available of a work on an online server for later downloading constitute “an event for which a tariff was payable”? [4]

A Supreme Court case was on point. In 2012 SCC 34, the Court held that the “transmission over the Internet of a musical work that results in a download of that work is not a communication by telecommunication” [5], meaning that SOCAN could not collect royalties . The argument the Board was faced was that the introduction of s.2.4(1.1) made the Supreme Court’s decision “irrelevant” [6]. The Board agreed [8], concluding that s.2.4(1.1) of the Copyright Act is a deeming provision that makes the making available of a work on a server an act that is a communication to the public, and is therefore an act that triggers a tariff entitlement. The Board’s conclusion meant that it split the process into two separate tariff triggering events: (1) “the making available” and (2) a subsequent download or transmission on the Internet. In support of its reasoning, the Board concluded that the contrary position would “not comply with Canada’s international obligations” as set out in Article 8 of the WIPO Copyright Treaty (the Treaty) [9].

Statutory Interpretation

The Board’s interpretation attempted to transgress the limits on its discretion by references to international law and abstract, imputed legislative purposes. The new Canadian textualism, as espoused by Stratas JA, rejects this approach.

Let’s start at the highest level of abstraction. The rules of statutory interpretation particular to administrative decision-makers must be read in harmony with the Supreme Court’s (and Federal Court of Appeal’s) statutory interpretation precedents, particularly recent precedents. Those precedents prize two things as part of the new Canadian textualism. First, as Stratas JA held in this case, results-oriented reasoning is prohibited: see Williams, at para 48; Cheema, at para 74; Hillier, at para 33; and Vavilov at paras 120-121 re “reverse-engineering” a desired outcome. Interpretation must be conducted according to text, context, and purpose, and extraneous policy or substantive considerations should not enter the analysis. Second, and importantly, courts cannot let purpose suffocate the text, no matter how nice the purposes sound. That is, purposes cannot be stated at such a high level of abstraction that the purpose expands the meaning of the text beyond its natural meaning (see Wilson (FCA), at para 86, rev’d not on this point: “…we cannot drive Parliament’s language….higher than what genuine interpretation—an examination of text, context, and purpose—can bear”; see also Cheema, at paras 74-75).

Examples of this abound. In Hillier, at para 36, the Court rejected abstract purposes of “administrative efficiency, adjudicative economy, and conservation of scarce administrative resources.” Instead, the provision in question was limited to a purpose more reflected in the legislative text (Hillier, at para 35). Lest one think this is just a predilection of the Federal Court of Appeal, the Supreme Court endorsed this approach in Telus v Wellman, where the Court said the following, at para 83:

Hence, while there can be no doubt as to the important of promoting access to justice…this objective cannot, absent express direction from the legislature, be permitted to overwhelm the other important objectives pursued by the Arbitration Act.

In that case, the Court chose purposes actually reflected in the text of the Arbitration Act (another Supreme Court case, Rafilovich, holds the same thing, as I wrote about here). And these cases are consistent with older Supreme Court cases, which constrain purpose: see Placer Dome, at para 23: purpose cannot be used to “supplant” clear language.

Put together, the text, context, and purpose of legislative provisions must be dealt with authentically, but purpose should be constrained to “fit” the scope of the legislative text. This is a simple application of the rule that “Most often the purpose of legislation is established simply by reading the words of the legislation” (see Sullivan, Statutory Interpretation, at 193). Under these precedents, text is inferred from purpose; purpose is not a free-standing licence to override text. This is an important corrective to a potential use of the purposive approach that does away with legislative text, in support of some realist approach to statutory interpretation.

While Vavilov does not reference these precedents (including Telus or Rafilovich), it does invoke the traditional requirement that administrative decision-makers must deal with the text, context, and purpose of legislation (Vavilov, at para 120, 121) with only limited opportunity for error (Vavilov, at para 122). In dealing with the text, context, and purpose, the Supreme Court’s precedents mean that text will often be the dominant consideration. Vavilov endorses this idea, at para 120: where the tools of interpretation lead to a clear answer, that interpreted text will govern. Under this approach, administrative decision-makers are governed by statute, limited by the boundaries on their authority. They cannot transgress these boundaries, and cannot use tools of interpretation that do so.

In the Entertainment Assoc case, the Board seemed to attempt to transgress the boundaries of its authority. The Board’s chosen materials for the interpretive exercise were stated, according to the Court, at a high level of generality (see paras 53-54). For example, the Board focused on the preamble to the Copyright Modernization Act to divine a rather abstract interpretation that supported its view on international law (paras 53-54). It also invoked government statements, but the Court rightly noted that these statements construed s.2.4(1.1) as a “narrow, limited-purpose provision” [56], not as an all-encompassing provision that permitted the collection of tariffs in both instances. The use of these materials was used by the Board to herald a different, broader interpretation than what the text and context of the provision indicated. This is the problem that Telus v Wellman and Rafilovich guard against.

What is the upshot of all this? Entertainment Assoc is justified from first principles and with regards to precedent. On first principles, it restrains the role of purpose and extraneous considerations, which might not be derived from text. On precedent, it is supported by Telus v Wellman and Rafilovich, and is clearly consistent with other Federal Court of Appeal precedents. Slowly, but surely, we are reaching a sensible approach to statutory interpretation.

International Law

The Board spent the majority of its time focusing its interpretation on the Treaty. Indeed, according to the Court, the Board spent scant time on the actual interpretation of the governing statute, instead taking a particular article of the Treaty, interpreting it, and then making “subsection s.2.4(1.1) conform with that interpretation” [70]. Specifically, the Board used article 8 of the Treaty to “provide protection for the act of making a work available by telecommunication even where there was no transmission to the public” [70].

This approach, as the Court notes [75-88], is profoundly violative of the hierarchy of laws (see, for more on the hierarchy, Tennant). Section 52 of the Constitution Act, 1982 is clear: the Constitution is the supreme law of Canada. As the Court eloquently notes, under that Constitution, a division of powers exists which grants exclusive law-making rights to the provinces and the federal government. Of course, so long as powers are not abdicated, they can be delegated to domestic administrative decision-makers. Under this framework, the Constitution binds legislative actors, but within constitutional limits, the legislature is sovereign. This is basic, but as we shall see, easily forgotten stuff.

International law made by “unelected functionaries abroad who draft and settle upon international instruments” should not subvert the hierarchy of laws [79]. The only way that international law treaties can actually become a part of our law is through the process of domestic adoption of international law in a proper legislative instrument [80]. Parliament can adopt international law in whole in or in part; can change the content of international law as it is adopted in domestic legislation; or otherwise choose not to adopt international law in domestic legislation. In this way, Parliament remains sovereign because it controls the international law it adopts. This is the status quo ante, and should not be dispatched with simply because one party, academic, or lawyer likes the substantive content of particular international law instruments.

International law instruments, as the Court notes, can affect the interpretive activity in distinct but narrow ways. Of course, “[s]ometimes the text of a legislative provision explicitly adopts the international instrument wholesale” [82]. Here, international law must form the basis of the interpretation. In other situations, it might be clear that legislation, under the ordinary techniques of interpretation is “clear enough,” such that international law cannot form a part of the interpretive activity. The importance of this conclusion is that if legislative text is clear, it should oust an extraneous international law instrument, due to the hierarchy of laws described above. If legislation is unclear, and international law “may have influenced its purpose or context” [83], international law could enter the interpretive task. The clearness of the legislative text, on first principles, should be the anchor that governs whether international law properly enters the interpretive task because, again, the legislature must proactively legislate into existence international law instruments under orthodox principles (see Sullivan, Statutory Interpretation, at 314, which contemplates an initial assessment of ambiguity: “If a legislative provision is considered unambiguous, it must be applied as written even though it may be inconsistent with international law.”

The Supreme Court’s “presumption of conformity” with international law could be marshalled to support the subversion of the hierarchy of laws, and to give international law a foothold in legislative text, even where the text is clear (see Gib van Ert’s piece here). So goes the argument, legislative sovereignty can be maintained by requiring that legislatures pro-actively and clearly oust international law; in this way, no ambiguity is required, and international law enters the interpretive activity in an all-encompassing way. This is the reverse from what the Court in Entertainment Assoc held, where international law can enter the interpretive activity if it has been clearly incorporated, or if the domestic law is otherwise ambiguous and international law is relevant. Under the argument advanced by van Ert and others, the international law presumption, then, is the tail wagging the domestic legislation dog.

From first principles, this understanding of the presumption of conformity is inconsistent with fundamental, orthodox legal principles. International law should be assimilated to domestic law, not the other way around. We usually don’t speak of legislation as being a “negative-option” in which Parliament must proactively and explicitly legislate away court-created presumptions linked to laws made elsewhere. Of course, it is true that Parliament often legislates against the backdrop of the common law, as developed by courts and led by the Supreme Court in appropriate cases. But in these cases, Parliament is in the driver’s seat, and there is no doubt that Parliament can oust the common law, probably by necessarily implication, a lesser standard than what the presumption of conformity requires: see Hillier, at para 37-38, and also generally how the Federal Court of Appeal prizes legislative action over judge-made rules. The common law rules made by judges are different than a presumption linked to the content of law made by another actor in another state, that purports to bind legislative actors in Canada who hold exclusive law-making power. Expecting this positive law to be supreme over domestic law, so that Parliament must do away with it, turns the international law instrument into the driving force of interpretation. This is quite different than the common law, which is domestic law, and which can be ousted by necessary implication.

Presumptions have a specific and technical meaning in law. Contrary to the Supreme Court’s recent treatment of presumptions (for example, its presumption of reasonableness pre-Vavilov), presumptions are not irrebuttable tools that can be used to subvert duly-enacted legislation out of service to some court-created concept. As the Court notes, the Supreme Court’s presumption “does not permit those interpreting domestic legislation to leap to the conclusion, without analysis, that its authentic meaning is the same as some international law” [91]; see also Hillier, at para 38 “…judge-made rules do not empower judicial and administrative decision-makers to ignore or bend the authentic meaning of legislation discovered through the accepted approach to interpretation.” It goes without saying, then, those who favour international law cannot use it as a way to subvert the authentic meaning of text, even if it is text that these proponents of international law would rather not have. Trite as it is, the remedy for this problem is to vote, not to consult the grand poohbahs of international law.

What Does All of This Mean?

There is a unified theme to all of Entertainment Assoc that indicates new directions in law in this country. As noted above, there is a growing list of cases in the Federal Courts and the Supreme Court that, on matters of statutory interpretation, favours clear legislative text over abstract purposes; and in this case, extraneous international law. We all know that text, context, and purpose are the ordinary tools of interpretation; and that this approach is seen by many (including in older cases of the Supreme Court: see West Fraser) to eschew an approach focused on text. What we are seeing in these cases is an attempt to recalibrate the worst excesses of a purposive or contextual approach: the perhaps irresistible temptation for administrators to use purpose or extraneous tools to oust legislative text in order to expand the boundaries of jurisdiction. Down the years, this sort of approach could slur the meaning of the words adopted by the legislature.

Fundamentally, what drives this tendency is a pernicious form of legal realism that has little confidence in the meaning of words. Of course, sometimes the worst ideas have a kernel of truth in them: sometimes it takes work to extract meaning from legislative language. It is not a self-executing task, to be sure. But the answer is not to rely on extraneous policy preferences or results-oriented reasoning, which a liberal use of broad purposes can invite.

It is no answer to this trend to simply state that the new approach in the Federal Court of Appeal and the Supreme Court is the ghost of “plain-meaning” “Diceyanism” or “formalism.” As I have written before:

In statutory interpretation, a belief that text in its context will generally contain answers is dismissed as a belief in “the plain meaning rule,” mere “textualism”–notwithstanding the important distinction between these two methods. In constitutional law, a focus on constitutional text is “originalism.” None of these are arguments, but they have since infiltrated the orthodoxy of the academy.

Indeed, if I read these cases correctly, formalism is a good thing. It means that we are sticking to the form in which laws must be promulgated and interpreted. If courts believe in the legislative work product, they will spend more time authentically applying the proper tools of interpretation to discern the meaning of the relevant text. Under this approach, legislative text is the driver of interpretation, and most of the time, an authentic application of the tools of interpretation can lead to the meaning of the words enacted by the legislature.

It is important to note that this new Canadian textualism is still Canadian in the sense that purpose forms a part of the interpretive exercise. None of the cases cited throughout this post say otherwise. However, purpose must be reflected in text, not created out of whole-cloth. That is the new Canadian textualism.

While it is too soon to state what the result of this new movement will be, it is notable that the cases are piling up in favour of a certain approach. This is not a coincidence. It indicates that the Supreme Court, and the Federal Court of Appeal, have moved beyond the mere invocation of “text, context, and purpose” in favour of the text actually adopted by the legislature. These cases clarify that the purposive approach is not a licence for policy reasoning above and beyond what the text says. As Justice Stratas notes in Hillier, at para 33: “Those we elect and, within legislative limits, their delegatees…alone may take their free standing policy preferences and make them bind by passing legislation.”

Under this approach, doubt is thrown on abstract policy preferences, purposes with no reference in legislation, international law instruments not clearly incorporated in legislation, and other ways of subverting legislative text. Good riddance.

See the following posts on the new Canadian textualism:

“Clear Enough”

Romancing the Law

The “Return” of “Textualism” at the SCC [?]

Rafilovich: A Textualist (or Quasi-Textualist) Turn?

Doré Revisited: A Response to Professor Daly

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, [1977] 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.

New Paper on Doré and Vavilov

Frequent readers of this blog will know that I have written here on the subject of the propriety of Doré post-Vavilov. As many of you know, I do not believe that Doré can stand in light of Vavilov. I have now outlined more extensively why that is is, in a paper that will appear in the Dalhousie Law Journal later this year. Here is the abstract:

This paper argues that, without substantial doctrinal amendment, there is a fundamental conceptual gap between the cases of Doré and Vavilov. This is because both cases are motivated by different conceptions of administrative law. In Vavilov, the paper suggests that the Court melded together two theories of judicial review: first, a Diceyan theory based on a harmonious understanding of the principles of legislative sovereignty and the Rule of Law; and second, the imposition of a “culture of justification” for administrative decision-makers, in which decision-makers are asked to justify their decisions to receive deference. On the other hand, Doré is motivated by a pure functionalist understanding of administrative law, in which the expertise of the decision-maker in deciding constitutional matters is emphasized. While not total opposites, the theories are also not entirely complementary, such that they lead to different doctrinal prescriptions. The paper explores the doctrinal gap, and suggests two ways in which it might be bridged. First, Doré might be recalibrated to bifurcate the standard of review analysis, so that decisions implicating the scope of Charter rights is reviewed on a correctness standard, while the proportionality/application stage is reviewed on a reasonableness standard. Second, Vavilov’s justificatory standards might be imported into the Doré context to bridge the gap.

The paper can be accessed here. 

 

Expertise in Pandemic Life

 

With the COVID-19 pandemic in full swing, many (for example, Phil Lagasse) have written about the role of experts in public life. The controversy seems to centre around a few points of contention: (1) the degree to which quintessentially political decisions should depend on expert guidance (2) the degree to which the public can and should criticize experts in the midst of a public health dilemma; and (3) the degree to which politicians should or do use experts as the public face of political initiatives.

COVID-19 is an apt phenomenon through which to analyze the role of experts in public life. The pandemic is a health crisis at its core, which invites the contribution of public health officials, doctors, and other experts. At the same time, the health crisis is interwoven with decisions of a political nature: what sorts of programs will best ameliorate the economic strife that many are facing, when and how to “re-open” the economy, and what are the rules that should govern how people interact with one another during the pandemic? In turn, those questions raise this one: what is the proper province of the experts?

Finding this line is no easy task.  But there are, at the very least, a number of important considerations we should keep in mind as we try to find the proper approach to dealing with expertise in public life.

First, we should remember that speaking generally of expertise can belie the complications associated with applying expertise to particular problems. That is, we have to be clear about what sort of expertise we are speaking about. Expertise in public health or epidemiology is not expertise in public policy or program delivery and evaluation. We are familiar with this phenomenon in the law of judicial review. For some time, the Supreme Court presumed that administrative decision-makers in government were “experts” on all matters that came before them (see Edmonton East). But this was always a logically faulty assumption. There was never any evidence offered that experts in government policy—for example, in deciding whether someone is eligible for a certain benefit—ever translated into, say, legal expertise in interpreting statutes or the Constitution. So we must be clear about what sort of “expertise” we are speaking of when we judge the role of experts. Usually, it is not expertise in all things; but rather, it is expertise in some narrow, technical area. And so long as the expert remains confined to that specialized area, there is no reason to worry about over-extending expertise as a concept.

This is not to undermine the importance of expertise in technical areas. Expertise in epidemiology, it turns out, is incredibly important at this time. But once we have narrowed down the scope of an expert’s particular knowledge, it becomes incumbent on the expert to demonstrate that her expertise somehow translates into some other field.

Secondly, and relatedly, using experts to make judgments that affect all of society could lead to certain pathologies. I am often reminded, these days, of Harold Laski’s famous piece “The Limitations of the Expert” (see also Professor Daly’s post here). In the piece, Laski outlines a number of pathologies associated with expertise, all of which are relevant today. For one, experts, even in their own fields, may “tend to neglect all evidence which does not come from those who belong to their own ranks” [4]. More generally, in relation to other fields, experts cannot claim finality for their views because “[e]very expert’s conclusion is a philosophy of the second best until it has been examined in terms of a scheme of values not special to the subject matter of which he is an exponent” [6].  That is, expertise itself in a technical area cannot be the sole means by which social problems are solved, particularly problems that are evasive of empirical analysis. Sometimes—most times—political judgment about social values or norms is required to round out an expert’s rather narrow or technical focus.

Deeper pathologies that affect the fundamental values of our constitutional order may run together with expertise. In an interesting study of the nature of expertise in decision-making, Sidney Shapiro argues: “A central reason why critical inquiry over expert decisions is necessary is that the expert rarely factors democratic liberal values into her decisions. Expertise tends to be narrowly focused and highly specialized, and the expert does not make her judgments in light of democratic liberal values” [1013].  Put differently, experts can tend to focus on their own narrow area of expertise without considering broader social norms or legal values. Health officials may suggest a particular response that maximizes health outcomes, but that does not take into account other constitutional or legal values. The two are not necessarily co-extensive, given the constitutional challenges that exist in respect of the COVID-19 response.

Third, the public has a role in evaluating the evidence, justifications, and reasoning underlying expert decisions. As Shapiro aptly notes, some “[d]ecisions within government institutions often occur within the shadows, concealed from public view” [1015]. This reality has two takeaways. First, experts should not be considered to be cloistered servants away from public scrutiny. If experts are indeed central to decision-making, those responsible for decisions should offer the public a chance to scrutinize the assumptions and reasoning underlying particular decisions. This is all a function of the theory, endorsed in Vavilov, of a “culture of justification” for administrative decision-makers in which the legitimacy of a particular decision depends on the way in which it is justified to the public. Secondly, to this end, the public should not shy away from criticizing the approach of experts when it does not jibe with common sense or experience. The public can legitimately ask, through their representatives, whether the World Health Organization adequately discharged its mandate in protecting the public; whether politicians were right to not close the border at the outset, based on expert judgment; and whether Dr. Theresa Tam’s about-face on masks was justified. These are all areas in which the public can play a role.

Finally, overreliance or trust in experts risks deflecting political responsibility.  This is a point made by Lagasse in his piece. In our system, the COVID response will be judged in political terms by the electorate at the next election(s). But if politicians stand behind experts, allowing them full rein to craft policy (and/or take responsibility for it), there is a risk that this responsibility can be deflected onto the experts. This is a worry that should be constantly guarded against. As Laski notes, experts should be on tap, but not on top. Putting them on top—allowing them to lead the charge, rather than take an assisting role in the public health crisis—undermines democratic accountability.

These are some rough-and-ready considerations to keep in mind as we think through the role of experts in this public health crisis.

 

 

 

The Life and Times of Patent Unreasonableness

Post-Vavilov, can a legislature freely specify the standard of review? The answer seems obvious. Legislation overrides the common law, so as the Vavilov majority states, “…where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law” (Vavilov, at para 35).

In most cases, this clear language of the Court will be dispositive. Clearly, where the legislature specifies a standard of review (as opposed to a ground of review—see Khosa), it must be given effect. However, there are niche issues to consider. For example, what about standards of review that have defined statutory or common law meanings? Such a term, for example, is the patent unreasonableness standard, a standard of review that typified the “pragmatic and functional” era in administrative law, and that was put to bed in Dunsmuir. Patent unreasonableness still has some play in the BC Administrative Tribunals Act and in the Ontario Human Rights Code (s.45.8) in relation to decisions by the Ontario Human Rights Tribunal. How affected is the patent unreasonableness standard by Vavilov?

In this post, I want to explore the status of patent unreasonableness post-Vavilov. First, I want to suggest that patent unreasonableness, as a statutory standard of review, is a distinct standard that should be respected post-Vavilov as an instantiation of legislative intent, absent constitutional constraints. I then turn to ask whether such constraints are present, either because of Vavilov or otherwise. As I will note, there are constitutional issues with patent unreasonableness on questions of law that can be framed in various ways. I conclude by noting that patent unreasonableness may be an unconstitutional standard of review.

***

Patent unreasonableness, as a standard of review, originally had a common law meaning, as set out in CUPE v New Brunswick (see Dunsmuir, at para 35). In addition to the standards of review of reasonableness simpliciter and correctness, patent unreasonableness was the most deferential standard of review. Patent unreasonableness refers to the “immediacy” or “obviousness” of the defect in a decision-maker’s decision (see Southam, at para 57; Dunsmuir, at para 37). In order for a decision to be found patently unreasonable, the decision must be immediate and obvious (this reminds me of the old ground of an “error on the face of the record). This is the distinguishing factor between the previous distinction between “reasonableness simpliciter” and “patent unreasonableness.”

In Dunsmuir, of course, the Court did away with this distinction, deciding that patent unreasonableness was no longer an available standard of review. The Court reasoned (1) that the distinction between patent unreasonableness and reasonableness was largely illusory (Dunsmuir, at para 41) and (2) that patent unreasonableness might require a a court to accept a decision that is irrational, simply because the error isn’t clear enough—this presents Rule of Law issues (see Dunsmuir, at para 42).

That said, patent unreasonableness as a statutory standard of review remains in some contexts. The BC Administrative Tribunals Act, for example, prescribes a standard of patent unreasonableness where the statute contains a privative clause (section 58(1)). In Ontario, the Human Rights Code, as noted above, prescribes a standard of patent unreasonableness—though the Ontario courts have interpreted this provision as only requiring reasonableness review, in light of Dunsmuir (see Shaw v Phipps ONCA, at para 10). The Supreme Court has held that the standard of patent unreasonableness in this context has a distinct meaning, “but the content of the expression, and the precise degree of deference it commands in the diverse circumstances of a large provincial administration, will necessarily continue to be calibrated according to general principles of administrative law” (Khosa, at para 19).

***

The first issue with patent unreasonableness raises the question of how far the common law analysis set out in Vavilov can go to alter the standard of patent unreasonableness, given the comments in Khosa. BC courts have split on the issue. As I have blogged about before, in College of New Caledonia, the Court concluded that “Vavilov has not changed the law with respect to the meaning of patent unreasonableness under [the BC ATA]” (College of New Caledonia, at para 33). Meanwhile, in Guevara v Louie, the BCSC concluded that Vavilov’s comments on the reasonableness standard “also apply to a review of reasons on the standard of patent unreasonableness” because common law jurisprudence may impact what constitutes a patently unreasonable decision (Guevara v Louie, at para 48).

Generally, I am of the view that patent unreasonableness as a standard, if prescribed by the relevant legislature, must remain as distinct as possible. This is because the selection of patent unreasonableness—either as defined by the legislature explicitly or by the common law, as incorporated by legislation—is a distinct choice by the legislature that should be respect. The legislature clearly could not have intended that patent unreasonableness would be modified by Vavilov. So, as much as possible—in order to respect legislative choice—patent unreasonableness should be considered a distinct legislative standard.

Of course, this does not rule out the influence of the common law. In the BC ATA, patent unreasonableness is largely defined by grounds that resemble abuse of discretion—here, the common law cannot play much of a role, because patent unreasonableness has been defined clearly by the legislature. But in the Ontario Human Rights Code, patent unreasonableness is not defined. Here, the common law definition of patent unreasonableness—as it existed at the time of enactment—can supplement the legislative term. In such cases, the benchmark for patent unreasonableness may draw limited inspiration from Vavilov. But to say that Vavilov turns patent unreasonableness into a wholly different standard is a different matter altogether; one that, to my mind, disrespects the legislative choice to enact a more deferential standard of review. To my mind, College of New Caledonia gets this basically correct.

***

If patent unreasonableness is a distinctive standard, then the question becomes: is it a constitutional standard of review on questions of law? To be sure, issues regarding the constitutionality of various standards of review are not often explored in Canadian administrative law. In Quebec, however, the constitutionality of the Court of Quebec applying deferential standards of review is an issue that will be heard by the Supreme Court of Canada soon. This indicates that the constitutionality of particular standards—especially those prescribed in legislation—might be an important issue going forward. In my view, there are two such potential constitutional issues with the patent unreasonableness standard. First, the Rule of Law—as conceived in Vavilov—could be a fetter on the legislature’s choice to prescribe a patent unreasonableness standard of review. Second, s.96 could itself found a challenge to the patent unreasonableness standard. In whole, I find this latter challenge more convincing.

First, Vavilov’s comments on the Rule of Law present a challenge to the imposition of a patent unreasonableness standard on questions of law. Recall that, in Dunsmuir, the Court (in a throwaway line, mind you) reasoned that patent unreasonableness presents rule of law issues, because it could shelter otherwise illegal decisions from review. Indeed, as noted above, the Ontario courts have taken these concerns to heart. They have read the “patent unreasonableness” standard in the Human Rights Code as merely demanding “reasonableness” review (see Intercounty Tennis Association, at para 45). In Intercounty Tennis Association, the Court relied on Vavilov’s Rule of Law comments (at para 43, saying that the legislature’s standard of review choice must be respected “within the limits imposed by the rule of law”) to reach this conclusion:

[44] As set out above, returning to an era where “patent unreasonableness” is given a meaning beyond “reasonableness” does raise rule of law concerns – namely, the fact that an irrational decision is allowed to stand because its irrationality is not “clear” or “obvious” enough.

I am sympathetic to these Rule of Law concerns. But there is a preliminary question that must first be answered: does the Rule of Law have substantive force, such that it can bind the choice of legislatures within its limits?

Of course, the Court has previously held that the Rule of Law cannot be used to attack the content of legislation (Imperial Tobacco, at para 59). But as Leonid Sirota notes, there might be valid reasons to distinguish Imperial Tobacco. And at the very least, Vavilov’s comments on the Rule of Law, particularly the comment that legislatures can specify the standard of review within the limits imposed by the Rule of Law, seem to suggest that the Rule of Law, as a principle, will set the boundaries for the standards the legislation can choose.

The other way to view the issue is that Vavilov merely spoke to the common law standard of review analysis. That is, the Rule of Law, within the common law analysis, can impact the court’s choice of a standard of review. But once the legislature legislates, the common law analysis—including the comments on the Rule of Law—cease to apply.

I must admit that, at first, I was drawn by this common law angle. But how does one square the Court’s comments, then, about the limits imposed by the Rule of Law? I can’t seem to reconcile these comments, to be frank. They seem to suggest that the Rule of Law will impose limits on the legislature’s selection of the relevant standard of review. Given that this is likely the case, it would seem to suggest that the Rule of Law does have substantive content, contrary to Imperial Tobacco.

I think a preferable interpretation, rather than relying on a potentially limitless unwritten constitutional principle, is one rooted in s.96 of the Constitution Act, 1867. That is, s.96 has developed such that the role of the superior courts in policing the boundaries of administrative action is constitutionally guaranteed, especially on questions of law: see Crevier. Patent unreasonableness, as a statutory standard, is one that impacts this supervisory function of the superior courts—it requires a court, having identified an error, to measure whether it is “obvious” enough to warrant intervention. This means that certain errors—even material ones—will be allowed to stand . In Quebec, this issue is currently being litigated with respect to the Court of Quebec and the potential requirement of “double deference’”—which has the effect of sheltering illegal decisions from review. This clearly impacts the reviewing function of the Court. In this respect, patent unreasonableness could be unconstitutional because it requires courts to simply ignore errors that otherwise arise.

In light of this conclusion, the question then arises: what do courts do with this when faced with a ptent unreasonableness standard? One could imagine two scenarios. First, one can take the Ontario court’s position, which is to say, a position rooted in constitutional avoidance: read patent unreasonableness to simply mean something else. Another option is to simply strike the legislation prescribing patent unreasonableness, either pursuant to the Rule of Law or under s.96. I think constitutional avoidance in this context is not a sound idea, because as I said earlier, patent unreasonableness can have a distinct meaning if set out in statute (like the BC ATA) and otherwise draws inspiration from the common law definition of patent unreasonableness. This takes “avoidance” too far—avoidance is typically only feasible when a term is ambiguous and there are two plausible meanings one could take of the view. But here, patent unreasonableness is, to my mind, not necessarily ambiguous—though its contours may be hazy.

In my view, we must deal with any constitutional problem faced by patent unreasonableness head on. In my view–and holding my tongue as much as possible in light of the Quebec case on deference–the patent unreasonableness standard has the potential to shelter material errors of administrative actors from judicial scrutiny. This, on an understanding of s.96, is unconstitutional.

Put differently, I think the best way to approach the patent unreasonableness standard, post-Vavilov, is to simply conclude that it is unconstitutional because it minimizes and restricts the reviewing role of the courts. I do not expect anyone to actually pick up this argument—but I think it is a fair point to make in light of that standard. Overall, though, the question of patent unreasonableness will continue to grip courts in jurisdictions where the standard is relevant. This post is designed to provide a toolbox of arguments as litigants and courts deal with this question.

The Common Good Administrative State

The Internet has been captivated by Professor Adrian Vermeule’s provocative essay in The Atlantic on so-called “common good constitutionalism” (CGC). CGC could be describes as part of a larger theory that co-blogger Leonid Sirota calls “right-wing collectivism,” which “blends support for using the power of the state to advance traditional moral values, a hostility to free markets, and nationalism.” CGC picks up the mantle in the legal realm, with Vermeule suggesting that “substantive moral principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read in the majestic generalities and ambiguities of the written Constitution” should be the starting point for interpretation. These substantive principles include

…respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality”—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority.

CGC is clearly distinguishable from other political and legal theories of interpretation. It does not ally itself with originalism, in that originalism is not expressly designed to promote certain substantive political aims. On the other hand, CGC does not take freedom of the individual as the dominant good in a polity, as libertarians might. Instead, CGC intends to promote substantive conservative ideals in constitutional law.

This is a rough-and-ready description of CGC, and for those who want a more in-depth description of the theory’s substantive ends, Leonid Sirota has written a post on CGC here, and others have written well-justified critiques of Vermeule’s position. My goal in writing today is to suggest some implications of CGC for administrative law and the delegation of power to administrative agencies. I do not think that a state or court that sets out to accomplish what Vermeule suggests would be able to avoid delegating power to agencies—this Vermeule seems to acknowledge. The question is whether such delegation is desirable, and whether the conservative adherents of Vermeule’s theory would themselves accept an ever-growing administrative (rather than democratic) behemoth.

I first describe what Vermeule says about the administrative state in his controversial piece and a related piece. Then I address some implications of CGC for administrative law and delegation. My view is that CGC depends–crucially–on the administrative state to effectuate its aims. But there is no guarantee that the administrative state can be wielded to achieve those goals.

**

Vermeule spends the majority of his time talking about the ends associated with his CGC, and rightly so: these are controversial aims that run against orthodox opinion and established authority. However, he does devote some time to discussing how his CGC will affect the “structure and distribution of authority within government.” It is worth quoting the entirety of what Vermeule says about administrative agencies and bureaucracy; clearly, these institutions form the means to Vermeule’s ends:

As for the structure and distribution of authority within government, common-good constitutionalism will favor a powerful presidency ruling over a powerful bureaucracy, the latter acting through principles of administrative law’s inner morality with a view to promoting solidarity and subsidiarity. The bureaucracy will be seen not as an enemy, but as the strong hand of legitimate rule.

This is the entirety of what Vermeule says about bureaucracy in his piece, but there is a lot of meaning packed in these words. The last link in Vermeule’s comments links to another piece he wrote in which he discusses the ability of the administrative state to actively promote religion. In this piece, Vermeule suggests that “specialization” in administrative agencies is neither here nor there on religion, because “specialization is an intrinsically neutral institutional technology.” Vermeule says, on this basis:

So the administrative state, in my view, is an institutional technology that can be put to good or bad ends, and is no more intrinsically hostile to religion than is, say, the use of written rather than oral communication.

[…]

Let me distinguish two ways the administrative state could be put to beneficial use to promote religion. One is by clearing away legal and economic obstacles to religious practice, obstacles thrown up by other sorts of institutions; another is by directly and affirmatively promoting religious values.

For Vermeule, then, the picture seems to be of an administrative state actively advancing a certain discretionary agenda, perhaps unconstrained by constitutional or legal arguments that might confine that discretion, with the gargantuan task of promoting “solidarity and subsidiarity.” Unfortunately, no matter whether such a state is desirable, I do not find such a state practical in any sense of the term.

**

Consider, first, the supposition that the bureaucracy would be “strong” in itself, acting under a “strong” Presidency. This comment seems to recall the unitary executive theory, under which “whatever authority the executive has must be controlled by the President.” This includes bureaucratic agencies operating under the President. These sorts of agencies can be contrasted with independent agencies, typically styled as such because their heads are removable by the President only for cause (though see Vermeule’s piece here). On the unitary executive theory, bureaucrats fall under the control of the President, exercising his constitutionally-delegated Article II authority.

At first blush, the unitary executive theory might appear to be a normatively desirable way to control bureaucrats. After all, Article II is clear that it is the President who holds the executive power, and so any exercise of that power must be controlled by the President. This theory has infiltrated the Supreme Court of the United States’ cases, particularly the so-called “Peek-a-boo” case (PCAOB v Free Enterprise Fund).

But practically, I have always been skeptical that the unitary executive theory is any more than a constitutional ideal rather than a practical, empirical fact. That is, it is somewhat of a legal fiction. The President of course cannot control every executive agent. And this is where Vermeule’s use of the administrative state as an instrument of CGC will falter. The political science and public choice literature is rife with theories of bureaucratic “drift,” under which agency members might “drift” from the statutory authorization giving them power. The same type of executive drift is possible from the perspective of the President; where preferences diverge between career staff and bureaucrats may have ideas of their own. After all, “…agencies (often have different goals than politicians or different judgments about how best to achieve those goals.” (see Jacob Gerson’s piece here). In the United States, for example, Jennifer Nou has written about civil servant disobedience, an increasingly prominent phenomenon during the Trump era. What is the Vermeulian plan for a disruptive civil service, with its own preferences, and its own agenda? In other words, do we think a strong bureaucracy will fall in line to CGC?

For example, one form of contestation might arise when a CGC President wants to promote “subsidiarity.” What incentive is there for a national administrative agency to embrace the principle of subsidiarity in the exercise of its legal functions? This seems to be a situation where there could be a classic preference divergence, where in the halls of power there is probably an incentive to arrogate more and more power to federal authorities over local authorities.

The upshot of Vermeulian CGC is that it would, I suspect, necessitate a mass amount of delegation to administrative agencies (though Vermeule does not expressly say this). Keeping in mind that Congress already has a difficult time in deciding how to monitor its delegations of power, and given that the pace and breadth of delegation seems to grow year over year, I have no faith that a CGC-based state would be able to control the mass delegation it plans. And it is worthwhile to question whether more delegation to administrative agencies is at all desirable.

These concepts are not new, and are fairly simple to understand. But they represent general rules about how the bureaucracy operates. There is no guarantee that a strong bureaucracy, as Vermeule wants it to be, will be a faithful agent for the President.

**

But let’s assume that such a unity of identity and purpose is achievable—the administrative state, under this understanding, could become a tool for CGC and its programs. But this illustrates the problem with administrative power, based on it is upon contested notions of expertise and the “science of administration”: these tools can be easily co-opted and turned against CGC. On this account, the administrative state could be a self-defeating enterprise for CGC.

It is interesting, at least to me, that Vermeule calls the administrative state a neutral “institutional technology.” This might be strictly true, but it harkens back to an era when we spoke of ideas of strictly neutral expertise, or of the administrative state’s neutral status as a collection of good-faith individuals working towards the public good. One of the notions inculcated by the administrative law functionalists of a previous generation (like Wilson, Landis, and Goodnow) was the idea that administrative technology should be kept independent from the travails of politics. On this account, the administrative state might be described as a neutral technology.

But as I have written before (and as Vermeule seems to tacitly acknowledge), there is nothing technological or neutral about the administrative state. As mentioned above, agents within the state may have their own goals. But more importantly, if delegation is the so-called “engine” of the administrative state, then the currency we are really speaking about in administrative law is power. Power is what administrative agents act on when they create rules and make decisions. Courts are primarily concerned with whether these rules and decisions fall within the scope of the enabling power, and/or whether the power exercised by delegated officials is justified. Power, then, is given by the legislature to the delegated actor, and it is that power we should be concerned with.

Vermeule accepts that this power can be used to advance religious goals, or perhaps goals centred around the constitutional aims of CGC. But it is just as likely that this power can be co-opted by bureaucrats, courts, or politicians or judges of a different stripe, to advance an exact opposite version of the “common good.” As I wrote before:

Progressives have spent more than a generation asking courts to stay out of the business of administration, especially because of their supposed conservative and market-based political philosophy. This largely worked. The administrative state is now entrenched in many common law countries. But administrative power knows no ideology. Its only ideology is power, in a raw sense. That power—being judicial, legislative, and executive power merged—can be wielded by those with anti-progressive goals, or more dangerously, by those with authoritarian tendencies who seek to “throw things into confusion that he may ride the storm and direct the whirlwind.”

The number of times this has happened in administrative law history are too many to count: but consider the use of administrative agencies by FDR to advance the New Deal, and then the capture of these agencies some 50 years later by President Reagan to advance his deregulatory agenda. Recall that Chevron deference was introduced during the Reagan era, and served to assist the Reagan administration’s environmental agenda. The administrative state’s allyship with power makes it a dangerous tool that can be used for partisan or political ends that CGCers would find abhorrent. 

This is not, in itself, a bad thing. In fact, it subjects the administrative state—to the extent permissible with preference divergence—to the democratic accountability of elected officials. But let’s not pretend that the administrative state can be a neutral technology that always and everywhere can be transformed to CGC ends.

**

If the administrative state is fundamentally about power, then we should be careful about its exercise. This is the traditional way we view power in constitutional law and administrative law. For example, judicial review in Canada is concerned with surveillance of lower decision-makers in order to ensure precise conformity to their enabling statutes (see Wall, at para 13; Vavilov, at paras 108-110). The same is true in the United States. CGC, then, turns the typical discussion of judicial review of administrative action on its head. Instead of discussing how best to control administrative decision-makers through doctrine, CGC seems to harken back to an old era of administrative law theory, where there is an implicit trust in administrative decision-makers to simply do the right thing. For the reasons I’ve noted above, it is unlikely that this will ever be the case. But as co-blogger Leonid Sirota points out, there is a downfall to assuming that power can simply be trusted to a massive administrative state, advancing the “common good” (whatever that turns out to be defined as):

From this recognition there should proceed, as I repeatedly insisted my post on the corrupting effects of power, to a further acknowledgement of the importance not just of moral but also of institutional and legal constraints on power. We must continue to work on what Jeremy Waldron describes as “Enlightenment constitutionalism” ― the project of structuring government so as to separate out and limit the power of those whom Professor Vermeule calls “the rulers” and empower citizens. This project recognizes the need for power but also its temptations and evils, and the fallibility of human beings in the face of these temptations and evils. As James Madison, in particular, reminds us, we should strive to so design our institutions as to make these human weaknesses work for us ― but we can only do so if we are acutely aware of them.

Much administrative law is best conceived in this light. We are talking, after all, about the law which governs administrators—the judicial and legal controls that we apply to ensure the legality of state power. The worry is even greater in administrative law contexts, because Parliament can easily escape the strictures of judicial control by delegating power away. Judicial review, on this front, is concerned with managing the risks associated with delegated power, and the discussion should be the best doctrine to effectuate that concern. But CGC seems to unleash the administrative state, putting trust in the bureaucracy to achieve its aims. This, to my mind, is a classic mistake.

**

Of course, I cannot address all of the implications of CGC in this (relatively) short post. I have tried to focus on a few implications for the world of administrative law. The metes and bounds of CGC will, hopefully, be fleshed out in further academic debate and discussion. For now, though, I am skeptical that the mass delegation of power that CGC will likely entail to the administrative state will be worth the risks associated with that delegation.