Our Pythic Judges: SNC-Lavalin

In Ancient Greece, travelers from far and wide descended upon the Oracle at Delphi. Known collectively as the Pythia, these priestesses or women of Delphi, over generations, provided advice and counsel to anyone wishing to seek it. The Pythia were thought to channel the god Apollo. As the mythology of the Pythia grew, with kings and leaders of armies seeking counsel, no major decision was made before consulting the Pythia. 

We seem to be in a Pythic reality in Canada these days. All in the last month, we have been told that former Chief Justice McLachlin would investigate impropriety in the British Columbia legislature; that former Chief Justice McLachlin was also considered as a potential font of advice for Gerald Butts, the Prime Minister’s ne’er-do-well former Principal Secretary in the midst of the SNC-Lavalin scandal; and that former judges of the Supreme Court of Canada Justice Cromwell and Iacobucci were involved in the aftermath of the SNC-Lavalin case, representing former Attorney General Jody Wilson-Raybould and SNC-Lavalin, respectively.

This state of affairs attracted considerable commentary on Twitter, and I truly think it is a live question that should be debated in the Canadian legal community: what expectations should we have for retired Supreme Court judges (or judges generally)  in Canada?

One can think of two issues that this question invites: the ethical question and the democratic question. First, consider the ethics of the situation. No one denies that judges should be able, like all people, to have a productive and fulfilling post-retirement life. That could include work. After all, these judges have considerable talents that could be brought to bear in any number of situations. Work as a commercial arbitrator, counsel to a law firm—the opportunities are potentially endless.

On the other hand, there is a legitimate question whether judges should be doing certain kinds of work post-retirement. Judicial independence is not only about actual independence but the perception of independence. Though retired, it is certainly possible that a member of the public, objectively and reasonably looking at a particular former judge, could conclude that there is an independence problem if a former judge is using his or her talents in a way that impacts the perception of impartiality. There is at least an implicit recognition of this principle in the generous pensions we provide for those who have served Canada on the bench.

These principles are reflected in the scheme for mandatory retirement. The upshot of Canada’s mandatory age of retirement for judges is that, eventually, judges have to retire, even if they are not ready. In the United States, there is no mandatory retirement age such that judges—most recently Justice Antonin Scalia—sometime pass away while on the bench. There are benefits and drawbacks to the American approach. On one hand, when judges leave the United States Supreme Court, they are probably ready to truly retire, and there is less of a concern about independence. On the other hand, the Canadian approach “cycles” judges in and out of the system, and one might reasonably think that this cycling is for the better.

It’s hard to resolve this question, but I think it is probably best to err on the side of protecting the integrity of the judicial office. The role of the judiciary is too important in modern day Canada—perhaps more important than it should be, mind you—to risk even a perception of partiality. This does not mean that judges should be barred from work, far from it. It simply means we desperately need rules to govern the situation.

My larger concern is with the democratic side of the equation, and this is where modern-day retired judges seem to resemble the Pythia. I think it is unwise for questions about the law within the political branches to be referred to retired judges as if they are some standing committee to  resolve legal disputes in the abstract. This is not the role of the courts in the first place: courts require concrete facts connected to legal causes of action that are ripe for adjudication before they can weigh in. It should most certainly not be the role of retired judges, however eminent.

The effect of making a retired judge like former Chief Justice McLachlin or otherwise “an eminent Canadian jurist or panel of jurists” a first port of call in a case like SNC-Lavalin has corrosive pragmatic and legal effects. Consider the legal effect, first. Gerald Butts mentioned that the former Chief Justice was a potential option for advice, because of the fact that the law governing remediation agreements was new.  The goal was to consult the Pythic judges before the Attorney General would make a decision on SNC-Lavalin. This tendency—to punt the result to some advisory panel—erodes the role that the political branches of government should play in the interpretation and application of law, especially where the law is new. Novelty is no reason to punt the task of law-elaboration within the executive branch. Even if an advisory panel of retired judges was a legitimate idea—and it is not—questions like the ones posed in SNC-Lavalin are not easily amenable to judicial scrutiny. In this realm, the political branches of government should wear the responsibility and burden of making important decisions.

This is connected to the ultimate pragmatic effect of permitting this advisory practice to go unabated. As we know, Ministers of the Crown are politically accountable (or answerable, in other contexts) in the House of Commons for their actions. This concept of responsible government has the effect of providing a focal point for political accountability. But if a Minister, facing political heat, seeks to essentially delegate the power of making a tough decision to a retired judge, that delegation deflects democratic responsibility. Should other politicians disagree with whatever decision the judge renders and then the Minister adopts, the Minister can simply say that she followed the recommendation of the eminent retired judge. It is unlikely that those in the general public will wish to question the opinion of such an esteemed person, asked by the Minister to consider the situation and provide an answer. So, we have a diversion of political accountability, with a politically irresponsible judge essentially making tough decisions for a Minister. The incentive effect will be more of this advisory work sought by governments seeking to duck the hard decisions.

In a modern democracy, there is no Pythia to which we should appeal. Judges serve a defined and circumscribed role, and retired judges an even more circumscribed role. I do not think it is a best practice, except in certain situations, to ask judges to resolve politically difficult issues simply because the law on the issue is unsettled.

Our Government

Some implications from Jody Wilson-Raybould’s testimony

 

I hesitated to write a post on the bombshell testimony of former Attorney General Jody Wilson-Raybould. The facts are constantly evolving, much of it involves politics rather than law, and though we have benefitted from cogent legal commentary on the relevant legal principles, I should let that commentary stand rather than contribute my (underdeveloped) two cents on it. That said, I want to highlight an obvious but important institutional fact that arises out of this imbroglio, but that is somewhat orthogonal to the context of the Attorney General’s control over prosecutions. Madison might have been right to say that if men were angels, no government would be necessary; but it appears that governments can’t save us from the devil, either.

Much of the story of the 20th century was a victory of progressivism—by which I mean the school of thought that emphasizes “civil service” values, and technocratic government—over legalism. Roughly speaking, it was this underlying philosophy that occasioned a mass transfer of power from legislatures to the executive in Canada and the United States. Then, a further subdelegation occurred from the executive to experts, policy-makers, and tribunals within the executive branch. In theory, the incentive structure this set up was a trade-off of control for lower-cost, expert decision-making. Legislatures could not attend to the small, minute details of “post-roads,” for example, so they delegated that power to the executive and its agents to solve. The legislature lost control over the issue, but in return received better public policy decision-making, with a dash of independence to boot. The whole idea was to enable non-partisan decision-making at a lower cost that permitted better public policy.

While some still champion this rather mythical description of how politics and government work, a more hard-nosed reality emerges from the Jody Wilson-Raybould affair, putting aside the important principle of prosecutorial independence. We see a cabal of people in Ottawa—unelected, unaccountable—carrying the balance of power. These people, ostensibly surrogates of the Prime Minister, say that they do not want to talk about legalities. They want to line up op-eds in newspapers to provide cover fire for their humdrum attitude toward law. They don’t like certain laws if they were not adopted by a Parliament in which their party controlled the majority of the seats.  They do all of this, apparently, to save their electoral prospects. In other words, it appears that some of the most powerful people in the country, in the Prime Minister’s office, are driven by the incentive of electioneering rather than the law.

This might be like calling the sky blue. Obviously politicians want to be elected. But so much of our system—and the philosophy of progressivism that informs attitudes of deference towards legislatures and administrative actors—runs on the idea that there are these islands of expertise and independence in a system otherwise tainted by politics. But with the rise of the PMO, the mass delegation of legislative power to Ministers, and the concomitant rise of influence of those like Michael Wernick in the Privy Council Office, experts are always subordinate to politics.

What’s more we have to be realistic about who we empower when we delegate power. Formally, of course, it’s the executive: but underneath the veil, it’s Gerry Butts, or whoever is next in line. The whole project of independent decision-making, even parts of the project that are protected by constitutional principles, is always up for grabs in a system in which the primary incentive is electoral success driven by apparatchiks.

Some might draw the opposite inference from the whole affair. After all, Jody Wilson-Raybould emerges as a champion of the Rule of Law. She successfully stood up to pressure from the Prime Minister and his subordinates. But one person is a thin reed on which to rest our hopes for good institutions. The regularity of scandals in Canadian politics is just a symptom of the broader reality that the incentives structure of the system—perhaps of every political system—is towards a greater concentration of power at the expense of other ideas: independent decision-making, expert decision-making, even the Constitution or the laws. If Jody Wilson-Raybould was a victim of those incentives here, perhaps we should rethink the mass delegation of powers to those—like members of the Ontario Human Rights Tribunal—who have no constitutional principles to protect them.

There is a lot of nuance to the entire affair because of the role of the Attorney General in the Westminster parliamentary system. I cannot speak to the doctrine governing that issue. But it is enough for me to say that there are no angels, not even in government. The SNC-Lavalin affair might make us rethink the extent to which we entrust governmental actors with power, even with the best intentions.

Justice Beetz’s Unity of Public Law

What an old SCC case tells us about the unity of public law

Much has been written about the so-called “unity of public law”: the extent to which various fields of public law draw upon the same values and inspiration. If this sounds onerously academic, it is not. In fact, it is a unified theory of public law that justifies Doré, the ill-regarded case that attempts to equate judicial review of administrative action with judicial review of administrative determinations of constitutional law. Indeed, as part of the unity of public law, some suggest that administrative law values should not be dismissed, and should be regarded as a rich set of insights that can define the scope of constitutional review. For many, the conceptual bedrock for this idea is the decision in CUPE v New Brunswick, in which the Supreme Court advanced the idea that administrative decision-makers were valuable participants in the system of laws, owed deference and respect. That decision was fortified later, so the story goes, by Baker.

The idea that an ill-defined set of administrative law values—or administrative actors—can define the scope of constitutional review is far from certain. It is the Constitution that is supreme over ordinary law, and if anything, constitutional rights should trump whatever values we can extract from administrative law. This of course assumes that administrative decision-making has any extricable values that underpin it at all. To take the point further, rather than allowing the administrative law tail to wag the constitutional law dog, as in Doré, perhaps the reverse should be true. Whatever the Constitution prescribes should set the minimum standards for administrative decision-making.

An old Supreme Court case takes an admirable crack at defining this relationship. As far as I know, Syndicat des employés de production du Québec v CLRB, [1984] 2 SCR 412 is not a case that appears on most administrative law syllabi in Canada, nor is it a case that appears in the pantheon of administrative law classics. But a comment in the case from Beetz J, for the Court, suggests that the unity of public law should not be a one-way ratchet—it should not require the weakening of constitutional norms to suit the prerogative of administrative decision-making.

I need not address the facts of the case, except to note that at issue were two conclusions drawn by the Canadian Labour Relations Board in the context of a case involving the CBC. The first found that employees of the CBC were in an unlawful strike position because they refused to work overtime. The second was remedial in nature, ordering the union representing the employees and the CBC to arbitration.

The legal context at the time, of course, distinguished between errors of law going to jurisdiction, which were reviewed de novo by a judicial review court, and errors of law that were made in the jurisdiction of the decision-maker, reviewed on a highly deferential standard of patent unreasonableness. The Board attempted to argue, outside of these standards, that its remedial order was “not unreasonable or wrongful” [440]. But the Court concluded that the question of remedy was a question of jurisdiction, not one to which the patent unreasonableness standard applies [443]. For the Court, this question went to the basic power and authority of the Board.

Beetz J analogized the authority of the courts to review for these jurisdictional issues to the same authority that undergirds constitutional review. In a passage that should receive far more attention, Beetz J said:

                Furthermore, I do not see why different rules would be applied in this regard depending onwhether 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.

This statement tells us much about how judicial review should operate today, and just how far off the track we have gotten.

Consider, first, the question of jurisdiction. It is true that the Syndicat case focuses on the now-retired metaphysical difference between a “patently unreasonable error” and “an error of jurisdiction.” As the Supreme Court noted in the recent CHRC case, the scope of “jurisdictional error” is narrowing, and for good reason. As Stratas JA outlined in great detail in last year’s Access Copyright case, when courts review administrative determinations of law, there is no principled reason to draw a distinction between errors of law going to jurisdiction or errors of law going to substantive statutory provisions. Administrative decision-makers are creatures of statute, and any error of interpretation should be reviewable in the same way, subject to the standard of review set by the governing legislature. Put this way, everything could be an error of jurisdiction—or as Justice Scalia put it, “statutory authority”—because a decision by an agency that misinterprets a provisions of its enabling legislation, jurisdiction or not, is an error of law.

If that is true, what Beetz J says is quite insightful. Rather than suggesting that the Constitution must adapt to administrative law values, he suggests that administrative review should adopt to constitutional standards, because review of the legislation for its constitutionality and review of administrative decisions engage the same judicial review function. This is an eminently reasonable position in a number of ways. First, it does not lessen the force of the Constitution in the administrative law context. While Beetz J was obviously talking about the division of powers, one of the most important critiques of Doré is the chance that it invites two definitions of constitutional rights, with a weaker one subordinate to a judicial policy of deference in administrative law. But, if a court views its power as deriving from the Constitution in either case, it should “not act differently” in the administrative law context. The same rigorous constitutional standards should apply in either case.

Second, Beetz J is aware of the maxim that legislatures should not be able to do indirectly what they cannot do directly. There is a clear incentives problem with allowing a legislature to escape judicial scrutiny under the Constitution by simply delegating powers to agencies. A less intensive standard of review for administrative decision-makers compared to legislatures would incentivize this delegation.  For obvious reasons, the legislature should not be able to escape the most intensive constitutional scrutiny available by simply enabling someone else.

Finally, it consistently interprets the role of the courts across institutional contexts. If it is true that the Charter made the courts “guardians of the Constitution,” as so many argue it did in the context of constitutional review, why should that role be weaker in the context of administrative decision-making?

What is remarkable about Syndicat, in terms of the unity of public law, is that it comes after CUPE. CUPE is regarded as some Newtonian moment of discovery, in which courts finally shared the mantle of the rule of law with agencies. Syndicat suggests that CUPE was not as dramatic as some say it is. In fact, it suggests that at least one enterprising judge believed that CUPE did not alter the traditional hierarchy of power between courts and agencies. It is the Constitution that governs this entire relationship, and for Beetz J, the Constitution prescribed the same standards of review in both settings. Why we would sacrifice this fundamental bedrock for the rarefied values of the technocracy is unclear.

The Statement of Principles

Thus far, I have stayed out of the controversy surrounding the Statement of Principles [SOP] because I have nothing new to add. Leonid has, in a series of posts, outlined the in-principle objections to the SOP, while others have suggested that the SOP is a modest, necessary remedy for a difficult problem.

But as the debate has evolved, I think something has been lost in the shuffle. Let’s assume that the SOP is constitutional. There are still a number of unanswered questions about the efficacy of the SOP, the way it was adopted, and the strength of the evidence underlying it. Related questions: does the SOP do anything to actually rectify the problem it identifies? And if not, if we believe that the objectors to the SOP are acting in good-faith, shouldn’t we expect better from the LSO given its status as a regulator in the public interest? I think so. That the SOP is toothless is a sign of regulatory excess and pointless, costly regulation that won’t even accomplish the goal it sets out to solve.

I do not purport to say anywhere here that discrimination is not a problem. The experience of racialized licensees should be prioritized, and the LSO should be applauded for turning its mind to this issue at all. At the same time, I think it is important that we do not denigrate the sincerity of the “conscientious objectors” to the SOP. I need not link to the various hues-and-cries on Twitter, assaulting people like Leonid and Murray Klippenstein for being racist, privileged, etc etc. I think we should take as a given that the conscientious objections are rooted in deeply-held philosophical commitments. For that reason we should respect them. Leonid’s objection, for example, is exhaustively set out in his post here, where he outlines the genesis of his general philosophical orientation and how it applies to the SOP. We should assume that if the SOP is enacted, it will exact a constitutional cost—one that may or may not rise to a constitutional violation, but a cost nonetheless.

The SOP was adopted as part of a suite of initiatives designed to address the problem of systemic racism.  The SOP is one requirement that exists in this suite of initiatives. The collection of initiatives was occasioned by a long consultation period, along with a study designed by the LSO and a communications firm “to encourage law firms to enhance diversity within firms, based on identified needs, and create reporting mechanisms.” The study consisted of:

  • Interviewing key informants
  • Organizing, managing, and recording the discussions in 14 focus groups with racialized lawyers and paralegals
  • Organizing, managing, and recording the discussions in two focus groups with non-racialized lawyers and paralegals; and
  • Designing a 35-question survey and collecting data from a large group of lawyers

Somehow, from this process, the SOP was born.  None of the evidence gathered in the study pointed to the SOP as a necessary—or even desired—policy mechanism to accomplish the goals of the overall LSO Equity, Diversity, and Inclusion [EDI] Initiative. The causal link between the SOP and “accelerating culture shift” was never explored by any data in the study. All that was established by the study was that there was, indeed, discrimination in the profession.

But even on that score, there is no clarity on the breadth of the problem, and for that reason, no clarity on the mechanisms required to solve it. In this case, the challengers to the SOP have outlined some compelling reasons in an expert report why we might doubt that the SOP is a tailored, evidence-based policy—assuming, again, that the criticisms of the SOP levelled by a number of quarters is in good-faith. For one, there is a major confirmation bias issue in the study commissioned by the LSO. Survey respondents were already aware about the goals of the study. Participants in the focus groups were separated based on whether they were racialized or not, which does not lend itself to a random discussion of the issues. Perhaps most prominently, there was a sampling bias problem that led to the data underpinning the recommendations presented to Convocation—only a small portion of the over 40 000 licencees responded to the survey data, and according to the expert report, “it is possible that some licensees completed the survey multiple times…”

None of this should be taken as a given simply because an expert says so. This is an expert report filed by a party in the litigation. But it at least raises legitimate questions about the methodology underpinning the solution adopted by the LSO. Clearly, discrimination might be a problem in the profession, but we have no idea how much of a problem it is.

Even if we had some scope of the problem, the SOP is not necessarily linked to solving it. If we assume that objectors to the SOP are acting in good-faith, and therefore we believe that there will be some cost to them associated with abiding by the LSO’s edict, then we should be doubly sure the SOP will actually do something to solve the problem it purports to solve. But the LSO has offered no evidence that this particular policy mechanism is required, cost-efficient, or is even relatively better than other options. Nor has it explained why this policy mechanism is necessary for the soundness of the rest of its EDI policies.

Why should anyone care about this? Shouldn’t the LSO simply just be able to act in the face of a problem?

We know that inclusion in the legal profession is a problem, but as a regulator with delegated legislative authority under the Law Society Act, the legislature implicitly subjected the LSO to democratic norms. It established a system of elections in the enabling legislation itself, which can be interpreted to express a legislative desire to ensure that there is some accountability mechanism within the LSO for the exercise of its powers that are legislative in character. The LSO has the power to compel licensees through rules and bylaws, none of which need to be subject to any approval by the Cabinet (unlike the exercise of delegated legislative power to make regulations—see 63(1) of the Law Society Act). While there is an obvious mechanism to hold benchers and the administration of the LSO accountable through elections, the power of compulsion that the LSO exercises—and the broad powers it has been conferred by legislatures and the courts—counsel in favour of holding the LSO to robust standards of evidence-based policy-making. In other words, not only do we need to know that discrimination is a problem, we need to know whether it is truly “systemic” in order to craft appropriate solutions.

There is no evidence, even on a common-sense basis, that the SOP will do anything to solve the problem it identifies, assuming the problem is framed as the LSO says it is. One might say that the SOP will force licensees to reflect on the things they must do to ensure a more inclusive profession. I think this is Pollyannaish. More likely, people will file rote statements without reflecting on them, as Atrisha Lewis points out. Or they will simply write something that fits with what the licensee perceives the LSO to want. Unless the LSO is going to police the substantive content of each filing, there will be no way to know who is genuinely reflecting on the issue. Given the vagueness of what constitutes a “violation” of the requirement, we can expect  discretion of prosecutions under the Law Society Act against those who do not adopt a “proper” SOP. The costs continue piling up when one thinks of defending the SOP in court, and the cost of enforcement.

Someone has to ask if the EDI initiative requires this SOP given the costs it exacts against principles of good government and against the good-faith constitutional objectors. The SOP seems to be questionable response to a problem of unknown proportions that raises significant constitutional concerns, even if those concerns do not constitute an in-law constitutional violation. I gather that the LSO perhaps did not expect this to be an issue, and are now painted into a corner. Like most administrators, they do not want to cede any regulatory power. So they must defend the SOP in court. But I think even they must recognize that the SOP is probably a bad policy mechanism for the problem of discrimination, no matter its scope.

The LSO should be held to a higher standard than this. We should expect evidence-based policy-making in the administrative state, especially where the LSO has the means (through the exorbitant fees it charges) to conduct properly designed research studies and to lessen the informational uncertainty designed to solve the problem. Some literature in administrative governance focuses on the cost of acquiring information within public institutions. Here, the costs for the LSO on this particular problem are not particularly high. And yet, we are left with a dog of a policy mechanism, one that is unlikely (even on a common sense basis) to solve the problem it purports to solve. At the same time, the costs of implementing it and enforcing it—both monetary and constitutional—are high.

All of this puts the SOP on the horns of the dilemma. Either it does something to accomplish the goal it sets out—it compels people to concern themselves with EDI as the LSO understands it—or it does nothing to accomplish anything, in which case its costly. Surely our public regulator, that we ensconce in yearly fees, can do better.

This is fundamentally different than the claim that the SOP doesn’t go far enough. The problem is that it doesn’t go anywhere at all. I doubt it will solve any problem whatsoever.

A Small Win on Admin Law Expertise

I’ve written before how the Supreme Court’s approach to expertise is wrongheaded in a number of ways. Practically, by saying that expertise “inheres in a tribunal as an institution,” (Edmonton East, at para 33), the Court has simply asserted a fact that is unlikely to be empirically true across the mass of varied decision-makers. Rather, “a tribunal” is not “an institution.” The administrative state consists of many institutions, some expert, some inexpert, deciding many different questions. This is all in addition to the formal point that, in absence of legislative language specifying expertise as a reason for deference, courts do not have carte blanche to make up reasons for deference that the legislature—which created the decision-maker—would not have approved.

The Federal Court of Appeal’s recent case in CPR v Univar, without taking as hard of a line on expertise as I have above, did interestingly justify the assertion of expertise in the particular case. I view this as a positive development from the Supreme Court’s neo-Cartesian  “I-say-therefore-it-is” reasoning in Edmonton East.

CPR v Univar involved a “level of service” complaint under the Canadian Transportation Act. Univar is a distributor company located on the island of Richmond in BC. Richmond is connected to CP’s rail system through a bridge. That bridge was damaged by a fire, and CPR instituted an embargo prohibiting movement of rail over the bridge. It later denied service at all to Univar because, to CPR, “the fire was a force majeure event” causing irreparable damage. Univar claimed that this denial of service breached the level of service obligation under the Act.

The Canadian Transportation Agency [CTA] found in favour of Univar, concluding that CPR breached its level of service obligations “except for two ‘reasonable pause’ periods arising from force majeure events” [9]. In reviewing this decision, the Federal Court of Appeal (which hears direct statutory appeals from the CTA), concluded that the standard of review applicable to the CTA’s decision was reasonableness. In part, this was because of the hornbook law statement that “decision-makers’ interpretations of their home statue, with which they have particular familiarity call for deference when judicially reviewed” [14].

The Court could have stopped there, as the Supreme Court does. Luckily, it did not. It is worth reproducing the Court’s explanation of why the home statute presumption makes particular sense in this case [15]:

This Court has recognized on a number of occasions, and in various contexts, the Agency’s expertise (Canadian National Railway Company v. Richardson Limited, 2015 FCA 180 at paras. 25-31; Canadian National Railway Company v. Canadian Transportation Agency, 2010 FCA 65 at paras. 27-29; Canadian National Railway Company v. Greenstone (Municipality of), 2008 FCA 395 at para. 52). Such expertise is particularly obvious when adjudicating level of service complaints under the level of service provisions of the Act. As this Court stated in Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79 at para. 72 (Emerson Milling), the assessment of the service level obligations “lies at the very bullseye of its regulatory know-how and mandate, the very reason why Parliament has vested the Agency with jurisdiction over the merits of cases like this and has left us with just a reviewing role.

This sort of analysis is clearly an improvement over the Edmonton East approach. To be fair, it does stop short of endorsing the formal notion that expertise should be specified by the legislature, as Rennie J and Nadon J did in their reasons in Bell. Nonetheless, the Court in CPR v Univar at least does some work on the practical criticism of expertise.

This is an important development. One of the flaws of the institutional expertise justification advanced by Karakatsanis J is its lack of empirical justification when considering the sorts of questions a decision-maker might have to confront. In a statutory scheme like the Act, the Agency assesses many sorts of claims, some that are closer to its core mandate. There is no reason to presume that because a tribunal is expert in one particular area of its statutory mandate that it will be expert in all of the areas of its mandate. CPR v Univar seems to implicitly endorse this proposition, if only by suggesting that the level of service question is a core question of adjudicative policy that clearly engages the CTA’s expertise.

By at least explaining the reason why it afforded deference with reference to some empirical benchmark, the Court of Appeal significantly improved the Supreme Court’s justification-wanting reasoning for deference. That’s a small win, in my book.

The Diceyan Trope

Metaphors, labels, and particular phrases seem to be a constant theme running through Canadian law. In virtually every area of public law, the Supreme Court deploys clever labels and metaphors to convey ideas that are bundled with certain inferences or assumptions about the ideas themselves. The most famous, perhaps, is the living tree model of constitutional interpretation, which is so ingrained that it has taken academic articles to dislodge its place in the constitutional zeitgeist. Other examples abound.

On one hand, these linguistic devices are useful shorthand. Rather than explaining complex concepts, they allow the Court and others to quickly express a complicated idea in a way that lawyers and academics can understand. On the other hand, they shortcircuit critical analysis of the ideas they represent. Rather than acting as useful stand-ins for complex ideas, I fear that they have become broadside representations of certain way of viewing Canadian law; concepts that, through frequent usage, have become immovable stones that represent closely-held positions.

Perhaps this is most evident with one of the most widely-deployed tropes: the attack on one of the dark lords of administrative law, A.V. Dicey.

I confess that the inspiration for this post was Justice Abella’s recent speech in New Zealand, in which she, as usual, attacked the “Diceyan” conception of administrative law. Lest one should think this is an isolated incident, this Diceyan label also infected the Vavilov and Bell/NFL hearings at the Supreme Court, when one intervener argued that other Commonwealth jurisdictions have gotten by without a standard of review analysis, and a judge retorted that this is because they are trapped in a Diceyan mode of law. As Audrey Macklin explains respecting this exchange, “[The] insinuation behind this remark is that these benighted commonwealth judges are trapped in some nineteenth century intellectual dungeon.”

I fear that this insinuation is the one meant by Justice Abella. Bundled within the Diceyan attack is a number of presuppositions. As far as I can tell, the attack on Diceyanism is an arrow in the quiver of those judges and scholars who were inculcated in the New Deal and Keynesian era of technocracy, expertise, and social policy.  Often called administrative law “functionalists,” (people like John Willis and Harry Arthurs) the functionalists worried about Diceyan administrative law as a way to fill-in conservative ideals under the rule of law rubric. To their minds, cases like CUPE [1978] best recognize the social policy aims of tribunals and their technocratic expertise.

I’ve written before about why these arguments are ill-fitted to the modern administrative state.  Administrative decision-makers now no longer operate in a narrow field of social policy, but also inhabit the most repressive areas of the state: prisons and border officers, for example. Technocratic expertise is one thing, but legal expertise is quite another, and decision-makers are now tasked more than ever with deciding complex legal problems for which they are not necessarily trained. Put differently, there is no reason to believe that an expert in subject-matter A will necessarily have expertise in legal area B. Nor is there any reason to believe that the expert will be able to explain her conclusions in language that permits accountability through judicial review–this is the problem of immunization to which the Federal Court of Appeal is increasingly drawing attention.  The assumptions underlying the functionalist view, if they ever existed, no longer exist as a general matter.

In fact, there is much about Dicey to be admired. The first consideration, though, is determining what Dicey actually meant. While functionalists try to paint Diceyan as a rank anti-administrativist, there is some nuance to his position. Dicey was comparing with a particular style of administrative law—“droit administratif”—which Dicey thought was alien to English legal principles. Particularly, he believed that a separate body of law governed relationships between citizens and the state, as opposed to citizens and other citizens. State actors were not subject to scrutiny by the ordinary courts, but rather special administrative courts. The concern for Dicey wasn’t the exercise of delegated power—he actually allowed for the exercise of legislative powers by delegated actors in the English context, entities like municipal bodies. Instead, it was the worry that different rules might privilege state actors. This concern still worries us today.

But administrative law as we now know it is not about granting rights and privileges to state actors (putting aside ideas of qualified immunity). State actors are subject to the ordinary jurisdiction of the courts. The only doctrine that dilutes this oversight is self-imposed: doctrines of deference that courts created themselves to grant delegated actors “policy space.” No matter, while administrative law as we know it arose subsequent to Dicey, Dicey is probably not as radical as his opponents make him out to be.

What’s more, Dicey’s fundamental principles remain relevant today. His explanation of the rule of law contained within it the seeds of a more substantive approach, one of “legality” underlying all exercises of public power. This is still a useful and important concept, particularly as we consider how best to control discretion exercised by administrative actors. There is nothing in Dicey’s principle of legality that implies a necessarily conservative orientation. All it insists is that courts have an important, perhaps exclusive, role to play in policing the boundaries of the administrative state.  And unless we are willing to attack the independence of judges by insinuating that their policy preferences infect their judicial duty, maybe we should not be so worried about courts like the functionalists were.

More broadly, Dicey did attempt to wrestle with the distinction between parliamentary sovereignty and the rule of law, as I outline here. This is a concept that continues to bedevil us today in discussions about standard of review, and the extent to which Parliament’s law should oust the ability of the courts to review decisions on a de novo basis. As Mark Walters aptly noted in his contribution to the Dunsmuir Decade symposium:

Dicey made some mistakes and the punishment for his sins seems to be that his name is forever associated with that flawed “Diceyan” understanding of public law. However, some of the most difficult and underappreciated passages in his famous book, Law of the Constitution, come in the course of an attempt to explain how judges may resolve the tension between the rule of law and parliamentary sovereignty—passages which make little sense unless we assume that the “spirit of legality” that he says shapes all legal meaning is a substantive ideal that justifies and legitimates the exercise of governmental powers

This Diceyan concept—identified by Walters—is still centrally important today. But it has been forgotten, in part due to the negative inference drawn by those who label particular proposals as “Diceyan.”

This is not to say that these arguments are altogether immune from attack. For example, it is controversial to say that courts should have an exclusive role to play in the rule of law. In the modern era, a focus on courts also tends to crowd out discussion about the best controls on administrative discretion that exist: those imposed by Parliament itself.  I also think that Diceyanism can be used to justify an all-out, Phillip Hamburger-style attack on the existence of the administrative state writ large. For some, this is a good thing. But for others, there may be reason to think Diceyanism is open to abuse.

My point here is not to say that Dicey was right or wrong–clearly, like most humans, he was a bit of both. Either way, to my mind, it is not a foregone conclusion that Diceyan administrative law is a wholly improper theory of the administrative state. Like most theories, Diceyan administrative law contains important principles that should animate future research directions, but it is not a cure-all. Invoking the Diceyan trope does little to further intelligent debate about what administrative law should look like in the 21st century.

At the Executive’s Pleasure

When Parliament delegates power to agencies, it does so for any number of reasons. At least in theory, Parliament could delegate to a tribunal because it genuinely believes that some particular problem requires expert treatment. Parliament could also delegate as part of a “make or buy” decision, in a Coasian sense: the costs of crafting legislation may be prohibitive, and it may make more sense for Parliament to set out the broad strokes and let the agency fill in the blanks. Or, sometimes problems require solving by an independent body. Tribunals, for example, could play an important role in this regard. For example, determining whether a government action is contrary to human rights law is likely best determined by an impartial adjudicator. In such cases, so the story goes, a so-called “flexible” tribunal is best suited to deal efficiently with these sorts of problems.

But the promise of true independence is not often (and perhaps never) realized, because its existence is determined by the legislature and the executive. This should make us question whether the model of administrative justice we currently employ is even working.

The Ontario Human Rights Tribunal is finding this out the hard way. Recently, it came to light that the tribunal is experiencing a shortage of adjudicators, causing mass delays. The shortage is due, apparently, to the Attorney General’s refusal (or failure) to fill vacancies. The Ministry of the Attorney General oversees the province’s tribunals, including the Ontario Human Rights Tribunal. Lawyers and observers have pointed out the effect that the Attorney General’s delay in appointing adjudicators has on procedural fairness rights, and the general efficiency of the administrative justice system. Some people may view this state of affairs as untenable and inappropriate state of affairs, inconsistent with the spirit of administrative justice. But, to my mind, it is predictable.

Why should we expect this? The Tribunal is a recipient of delegated power, under the Ontario Human Rights Code. But like many legislative delegations, power is also concurrently delegated to the executive. As the Supreme Court said in Ocean Port at para 24, this means that tribunals span the constitutional divide between executive and judicial powers, but are primarily invested with these powers by legislative delegation. They are “created precisely for the purpose of implementing government policy.” There is no constitutional principle requiring structural independence, and it need not matter whether the tribunal is adjudicative or regulatory in character.

The Human Rights Tribunal is no exception from the Supreme Court’s comments in Ocean Port. In this case, the legislation specifies the Governor-in-Council has power to make appointments (s.32(2)). The language presupposes that there “shall” be “members” of the Human Rights Tribunal, but how many is left unsaid, presumably up to executive discretion. Otherwise, the only legislative specification on appointments is that appointments must be made according to a particular process (s.32(3)). Other than that, how much members of the tribunal shall be paid (s.32(4)) and their terms of office (s.32(5)) are matters for Cabinet. Cabinet has a wide degree of discretion to shape the efficiency and responsiveness of the administrative process in the Ontario Human Rights Tribunal, supposedly an independent agency, perhaps the “Crown jewel” of administrative law.

The fact that the legislature—at least arguably—even permits this should make us question the actual degree of independence in the administrative state. In fact, recalcitrance in conducting appointments is just one of the many ways that the executive can undermine the project of administrative justice. It is also perfectly legitimate, should the legislation permit it, for a Cabinet, after an election, to fire all the members of a labour board and to replace those members with persons that it sees fit. And this is just on the topic of appointments. Ron Ellis, in his book Unjust By Design (ably summarized by Professor Daly here) goes into detail about the ways in which executive actors can undermine tribunal independence, in a way that undermines the project of administrative justice. Renewal of tribunal members is one way that the executive can do so, but one can also imagine considerations such as the power of the purse and general administrative reorganization as ways in which the executive can subtly (and not so subtly) control the success and efficiency of the administrative state.

This might all sound bad, but I for one, think that independence is an overrated virtue, and should be calibrated to the strength of the case for independence. There is clearly a case for the Bank of Canada to be independent. But one can imagine closer cases. After all, we live in a system of responsible government and political accountability, and creating islands of power without adequate oversight should be concerning. That said, there is clearly a need for the broader category of “independent agencies” in modern administrative decision-making.

So, how do we balance accountability with independence? I think we need to go to the source: Parliament and the legislatures. One way is to insist that Parliament, if it is to empower the executive with power over these tribunals, legislate more specifically. In the Human Rights Tribunal example, perhaps Parliament could specify a minimum number of adjudicators that must exist at a given time. Or it could delegate the power to the Cabinet to do so, but make it a mandatory requirement. More specificity in delegation, while increasing the costs of legislating, also helps to guide executive action and provide constraints on executive recalcitrance.

The Law Reform Commission, in 1985, recommended that the independent agency be decoupled from Cabinet, and instead be made to report directly to Parliament to remove the spectre of executive interference. This might seem desirable, but I fear it prizes independence over accountability. Having someone able to answer, on a day-to-day basis, for the tribunal activities (and to be accountable in a broader sense for the tribunal’s mandate) is an important accountability mechanism in and of itself. It may make more sense for us to expect Parliament to adequately debate and decide on the limits of executive action in relation to tribunals, and then expect responsible ministers to be accountable for whatever they do in relation to the tribunals.

Overall, there is a risk that tribunals merely exist at the executive’s pleasure. But legislatures themselves have made this choice. It is for them to solve.