Immigration and Refugee Decision-Making: The Vavilov Effect?

It has been a while since I’ve blogged. The last few months have been—in a word—chaotic. I’m hoping to blog more regularly going forward now that some of these things have settled

One of the areas where administrative law really comes to life is in immigration decision-making, particularly front-line decision-making like visa decisions or humanitarian and compassionate decisions [H&C]. This is where the pressures, incentives, and moral worldview of “street-level bureaucrats” in particular contexts can tell us about how decisions affecting all-too-real rights and interests are made. The area, though, presents all sorts of challenges for those studying the law of judicial review.

First, immigration visa decision-making is also just one particular iteration of a broader reality: the inexplicable diversity of administrative decision-making. That diversity leaves monist accounts of the administrative state wanting. Expertise—advanced by the Progressive school as a core reason for delegation and deference—presents a different empirical reality in these contexts. In other words, this is not the labour board or the human rights tribunal where we might have more confidence in the “expert” nature of the decision-maker. In this context, not only is “expertise” not to be assumed, but what it means on the frontlines escapes easy definition.

Second, emerging democratic theories view the administrative state either as a place to facilitate and channel democratic deliberation or a place to encourage contestation (agonism). These theories are deeply insightful and may have resonance in other areas. But in some of these immigration and refugee cases, it is hard to say that there is anything substantively democratic happening. The only democratic argument is entirely formal: the delegation of power to officials to make decisions. This delegation of power must be respected, but the chances for contestation or facilitation seem far off.

Other features of front-line immigration visa decision-making present problems from the perspective of the law of judicial review. Notwithstanding what I say below, it was typically the case that visa decisions did not—and still, do not—require extensive reasons: Persaud v Canada (Citizenship and Immigration), 2021 FC 1252 at para 8. And in theory, this remains true post-Vavilov. What’s more, there was, and remains, a presumption that decision-makers considered all the evidence before her: Cepeda-Gutierrez v Canada, 1998 CanLII 8667. 

The combination of these rules, to my mind, creates an important tradeoff. On one hand, given the backlogs in this area of administrative decision-making, we may think that officers should not spend time writing extensive reasons. On the other hand, a paucity of reasons or an adequate record that “immunizes” decisions from effective review presents problems from the perspective of legality, but more directly, to the individuals who wish to seek judicial relief: see Canada (Citizenship and Immigration), v Canadian Council for Refugees, 2021 FCA 72 at para 102.

There should be some balance struck here. Post-Vavilov, courts in some cases are beginning to strike this balance. They have done so in favour of more substantive reasoning that addresses the legal and factual stakes to the party affected by a decision. In other words, in these cases, the courts are not abiding boilerplate and rote recitation of the facts. Nonetheless, they are not expecting long, involved reasons in every case, and they need not be perfect: the reasons can be short, but should be directed to the actual stakes facing the individual. In my view, this decisively moves the balance towards the ideal of legality, understood in this case as enhancing the role of the courts to ensure compliance with administrative law.

Here are some examples of what I am describing:

  1.  Singh v Canada (Citizenship and Immigration), 2022 FC 692

Here, Justice Diner describes well the post-Vavilov position on reasons:

[22] Visa officers are certainly entitled to deference, but only where their findings have at least a modicum of justification. That was entirely absent here. In the age of Vavilov, the Court cannot defer to reasoning missing from the Decision, or fill in that reasoning for administrative decision-maker. Lacking justification, the matter will be returned for redetermination

2. Rijhwani v Canada (Citizenship and Immigration), 2022 FC 549

This was a denial of a permanent residence application where the applicant plead H&C grounds. The applicant specifically pointed to establishment and hardship as supporting her application. The Officer did not address these factors in detail. The Court says, at para 17: “It is particularly important that when there are few factors raised—in this case only hardship and establishment—that the Officer addresses the rationale clearly for each.”

This did not occur here. Noting, at para 10,  that “brevity cannot excuse inadequacy” the Court takes issue with the “two significant errors…in under a page of reasons” that characterized this decision.

3. Gill v Canada (Citizenship and Immigration), 2021 FC 1441

Gill was found inadmissible to Canada for five years by a visa officer because of misrepresentation; he failed to disclose an unsuccessful tourist visa application to the United States. Gill advanced the argument that his “misrepresentation” was actually an innocent mistake. He argued that the officer did not reasonably explain why he rejected the “innocent mistake” argument.

Specifically, the officer in this case apparently took—word-for-word—reasons that were given by a separate officer in another case that was reviewed in the Federal Court. Speaking of the Cepeda-Gutierrez presumption, the Court said, at para 34:

I note, however, that the use of identical template language to express not just the relevant legal test or framework, but the reasoning applicable to an applicant’s particular case undermines to at least some degree the presumption that the officer has considered and decided each individual case on its merits.

The Court did note, however, that templates can be useful tools in high volume-decision-making [33].

I do not present these cases to make an empirical claim about what any number of courts are doing post-Vavilov. This is impossible to do without closer study. But I can say that there are many more of these cases, and I recommend you consult my weekly newsletter if you are interested in reading more. In the meantime, I think we can draw some conclusions from these cases:

  1. There is something to be said for a signal sent by a judicial review court to administrators about what they should expect. Prior to Vavilov, decision-makers may have expected strong presumptions of deference and courts claiming that inadequate reasons did not provide a standalone basis for review. Now, decision-makers may expect a closer look if their decisions are reviewed, particularly in this front-line context. One hopes that this incentivizes structural solutions within administrative bodies. This should not be hard to expect from Immigration, Refugees, and Citizenship Canada, which houses Canada’s largest administrative decision-maker.
  2. No one should take this to mean that reasons need to be extensive in every case. But it should be taken to mean that boilerplate is presumptively problematic. This is because boilerplate, by its nature, does not respond to the individual stakes raised by many of the decisions in the immigration realm. This is, in part, the thinking behind the Vavilovian constraints. If the constraints bind differently in different cases—if Vavilov is truly contextual—then boilerplate is a non-starter because it will generally fail to account for the context of various decisions.
  3. Nor is this emerging line of cases overly onerous for administrative decision-makers or front-line officers. Again, the reasons need not be perfect, need not look like a judicial decision, and need not be extensive. But they must address the actual legal and factual issues at play. If a decision-maker cannot do this, then one should wonder why they were delegated power in the first place.

At any rate, this is an area that I hope receives more attention going forward.

Same Pig, Different Lipstick: Bill C-11

Last year, I wrote about Bill C-10, which was concerned with “compelling companies like Netflix Inc and TikTok Inc to finance and promote Canadian content.” The Bill was controversial, not least because the law could be read to target content produced on user-driven sites (TikTok, say) targeting individual content creators rather than the tech giants and subjecting them to discoverability requirements and penalties. One of the biggest concerns was free expression. This law could be read to grant Canada’s telecom and broadcast regulator (the CRTC) power to regulate the content of individual expressions, something that—to many of us—presented constitutional and regulatory concerns. As Professor Michael Geist of the University of Ottawa stated upon the tabling of the bill, it “hands massive new powers to Canada’s telecom and broadcast regulator (the CRTC) to regulate online streaming services, opening the door to mandated Cancon payments, discoverability requirements, and confidential information disclosures, all backed by new fining powers.” 

Bill C-10 died because of the election, and some of us thought that would be the end of this. Not so. Yesterday the Trudeau Government re-introduced the same pig with different lipstick: Bill C-11. Professor Geist has led the charge on this and I would direct you to his site for deep analysis of the Bill, but for now, it’s enough to say that this Bill is generally not an improvement on its predecessor, at least from the perspective of the power it vests in the CRTC. Its central problem is hinging the entire controversy of the Bill on a clause which allows the CRTC to decide when and to whom the Act applies, subject to some exceptions. This should be, if not constitutionally problematic, politically so: this is the power to expand the scope of the law to a large class of individual users, allowing the Government to evade responsibility for this controversial choice in Parliament. In other words, the Government still has power to regulate user generated content and subject that content to discoverability regulations and users to potential penalties. It has this power despite the Bill representing that it does not.

Let’s take a look at the Backgrounder for the Bill. The Government says that this Bill solves two problems with Bill C-10. First, “it captures commercial programs regardless of how they are distributed, including on social media services.” Second, “the proposed bill is also clear that the regulator does not have the power to regulate Canadians’ everyday use of social media, including when they post amateur content to these services.” It seems, then, that the proposed bill does not apply to Canadian users or individual creators. And the opening part of the actual text of the Bill sounds promising. It says that it must be construed and applied in a manner that is consistent with “(a) the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings.” Section 4.1 (1) of the Bill sounds even better: “This Act does not apply in respect of a program that is uploaded to an online undertaking that provides a social media service by a user of the service for transmission over the Internet and reception by other users of the service.” This seems to deal with the problem so many of us had with Bill C-10 when it purported to extend its scope to the average TikTok user.

This sounds like a real improvement. But the promise fades when we consider the CRTC’s new regulation-making power. A regulation is a form of law—the power to make regulations is given to an agency by the elected legislature. This isn’t itself inherently problematic, and of course regulation-making is widespread today. But this goes further. Section 4.1(2) of the Bill basically “takes back” s.4.1(1), when it gives the CRTC power to make regulations governing “programs” despite the seeming exclusion of user content. This is something approaching–if it isn’t already–a Henry VIII clause, which allows an agency to amend a primary law (h/t Leonid Sirota for raising this point). If not constitutionally problematic, it is politically so. It allows the Government to evade responsibility for the potentially vast scope of this law.

This is the controversial clause. It is cabined by a few factors, namely s.4.2 (2) (a) which directs the CRTC to consider “the extent to which a program, uploaded to an online undertaking that provides a social media service, directly or indirectly generates revenues” as it makes regulations. As Professor Geist notes, the target here appears to be YouTube music. But there are many other types of user-generated content that could conceivably fall under the scope of the law, including user generated TikTok videos or podcasts that indirectly generate revenue and have other features that fall within the scope of the regulation-making power.

The end result, as Professor Geist says, is that this technical change “would likely capture millions of TikTok and YouTube videos.” In his post on the Bill, he summarizes the wide berth of power granted to the CRTC in Bill C-11:

Views on the scope of this regulatory approach may vary, but it is undeniable that: (1) regulating content uploaded to social media services through the discoverability requirement is still very much alive for some user generated content; (2) the regulations extend far beyond just music on Youtube; (3) some of the safeguards in Bill C-10 have been removed; and (4) the CRTC is left more powerful than ever with respect to Internet regulation.

Taking into account alternative views on the scope of the Bill, I agree. The Bill basically downloads the real decision-making a level down. Rather than the Government taking responsibility for regulation user content in this fashion, it will grant it to the “independent” CRTC. If there is controversy about a future regulation, the Government can shift responsibility to the CRTC. The regulation-making just reinforces this, granting a power to the CRTC to expand the scope of the law and to make the decisions Parliament should be making in plain view.

Others will differ. They could say that I am discounting the CRTC’s own democratic process. Or, one might say that the statute cabins the regulation-making power, and that the income-generation factor is one, non-exhaustive factor. Maybe they’d be right. But I think I could grant all of this and still maintain that the Bill purports to grant significant power to the CRTC to apply the law to users, something the Backgrounder suggests it does not. This disparity concerns me.

It is important here to address another possible response. Much is made in administrative law about the need to empower regulatory experts to make decisions in the public interest. So far as this goes, the device of delegation could be useful. But it is not always and everywhere so, and there are differences in kind. A delegation to the CRTC here may be justifiable, but the Government should take responsibility for the choice to regulate user content. Presumably, this should be something that—if it needs to be addressed—should be addressed in the primary law, rather than by the CRTC in its own wide, relatively unconstrained discretion. In other words, if Youtube music is the problem, the law should be appropriately tailored.  And the use of something like a Henry VIII clause is ill-advised, to say the least.

The basic problem here might be more fundamental. I am candidly not sure what the need for this Bill is, particularly the targeting of user content. It seems the regulatory goal here may be to subject the Act’s requirements to users who generate a certain income, for example, and among other things. If that is the regulatory goal, why is the CRTC regulatory mechanism desirable here? If the Government wants to make this policy choice, why can’t it do so in the plain view?  Perhaps I simply do not understand the CanCon-motivated reason why this particular power is justified.  I’m open to someone explaining to me what I might be misunderstanding here—perhaps something specific to this regulatory context.

Nonetheless, I think there are real democratic tradeoffs to the use of this sort of regulation-making power, and more specifically the deflection of responsibility to the CRTC. This is a controversial application of a regulatory law—with penalties—to a potential huge class of users. Not only does the Government purport not to do this, but it does it here with a delegation to the CRTC. If later challenged, the Government can simply defer to the CRTC.  I do not see this legal device—and this Bill—as any better than Bill C-10.

Boilerplate in Decision-Making

Administrative boilerplate is probably legion in government, but of course, this is an empirical question. Nonetheless, I have read enough cases to know that individuals at the foot of administrative power—many times in front-line decision-making— are at least sometimes faced with deciphering reasons that purport to have “considered all the factors.”  Confronted, as well, with a strong presumption that decision-makers considered all of the evidence in the first place (Cepeda-Gutierrez), it is theoretically hard for applicants to move beyond boilerplate.

Besides internal administrative mechanisms that could—but may not—discourage this sort of behaviour, judicial review doctrine in Canada is starting to take notice of it. Here are a few recent cases:

Gill v Canada (Citizenship and Immigration), 2021 FC 1441

In this case, a visa officer in New Delhi used almost identical language to reject Gill’s application as another visa officer used in another denial out of New Delhi. The Court said [34]: “I note, however, that the use of identical template language to express not just the relevant legal test or framework, but the reasoning applicable to an applicant’s particular case undermines to at least some degree the presumption that the officer has considered and decided each individual case on its merits.”

Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157

In this case, the Federal Court of Appeal chastised the Patented Medicine Prices Review Board for, among other things, “conclusory” analysis that purported to consider all the evidence [43]. This was important for the Court: “At best, on this point the Board obfuscated, making it impossible for a reviewing court to know whether the Board has helped itself to a power it does not lawfully have. By obfuscating, the Board has effectively put itself beyond review on this point, asking the Court to sign a blank cheque in its favour. But this Court does not sign blank cheques. Administrators cannot put themselves in a position where they are not accountable.”

Publicover v Canada (Attorney General), 2021 FC 1460

In this case, the Minister of Fisheries and Oceans denied a request for a  lobster licence transfer. In her reasons, the Minister stated that she had considered “all the relevant circumstances” [16]. The Court was troubled by this boilerplate, because it did not show that the Minister connected her analysis to the actual law and policy governing the decision [62, 66].

These cases represent a decisive shift from pre-Vavilov caselaw. Gone is Newfoundland Nurses, which permitted courts to take these boilerplate statements and “supplement” them: Nfld Nurses, at para 12. Underlying this doctrinal innovation was an unqualified presumption about administrative decision-making: “To me, it represents a respectful appreciation that a wide range of specialized decision-makers routinely render decisions in their respective spheres of expertise, using concepts and language often unique to their areas and rendering decisions that are often counter-intuitive to a generalist” [13].

In the context of boilerplate, Nfld Nurses makes little sense. This is because boilerplate reasons do not do anything to show expertise or the use of specialized concepts or language. It is merely a “say-so” of the decision-maker. Even on the Dunsmuir standard, it was always hard to say–with a straight face– that this sort of reasoning is “justified, transparent, and intelligible.”

Second, Vavilov’s renewed focus on justification and a “reasons-first” approach will be, I think, a boon for those challenging front-line decision-making. There are necessary caveats: reasons are not always required, and in many administrative contexts (such as high-volume study permit decision-making), “extensive reasons are not required” (see Niyongabo v Canada (Citizenship and Immigration), 2021 FC 1238 at para 12). But even in these areas, courts could be more willing to subject front-line decision-making to a slightly higher bar in terms of reasoning.

Third, I think this turn of events marks a tension between the Cepeda-Gutierrez presumption of consideration and the culture of justification endorsed in Vavilov. This tension was pointed out, as I noted above, in Gill. The presumption of consideration makes sense from an efficiency standpoint: after all, legislatures delegate to decision-makers for a reason, and when they do, courts should generally not go on a line-by-line treasure hunt for error. But at the same time, these efficiency concerns should take a decidedly second place: as noted in Alexion, judicial review becomes difficult when there is only boilerplate shedding light on an ultimate decision; this is to say nothing, of course, of the dignitarian reasons why reasoned decision-making is desirable (see, for a recent analysis of these issues, Janina Boughey).

This is all for the best. Boilerplate may work well in a “top-down” culture of decision-making in which those subject to administrative power and courts are in the thrall of purported administrative expertise. No need, on this account, for a decision-maker to show their work; the “just trust us” ethic is what governs. But Vavilov has arguably changed things: gone is the presumption of expertise, and gone should also be the presumptions about reasoning. If expertise exists, it can and should be demonstrated through persuasive and responsive reasons that allow a court to determine the legal basis of a decision.

Jurisdiction and the Post-Vavilov Supreme Court: Part I

What does “jurisdiction” mean, anyways?

As I wrote in my newsletter last week, the Supreme Court has an awkward relationship with the concept of “jurisdiction.” There is no more tortuous concept in Canadian administrative law. Vavilov, apparently, was the end to the concept of jurisdiction in Canadian administrative law. Vavilov basically said two things about jurisdiction: (1) it is difficult to identify a jurisdictional question, which sheds doubt on the entire enterprise (Vavilov, at para 66); and (2) as a result, “[w]e would cease to recognize jurisdictional questions as a distinct category attracting correctness review” (Vavilov, at para 65). Taken together, it was a fair assumption that jurisdictional questions, if they existed at all, would not be recognized in the law of judicial review.

Easier said than done. The Supreme Court in two recent cases have gone back to the well and drawn from the waters of jurisdiction. In both Ward and Horrocks, the various opinions continue to draw on jurisdiction as a concept without interrogating it. Underneath this technical issue of administrative law is a broader, conceptual difference on the Court that remains post-Vavilov.

In this post I’ll address what I think “jurisdiction” means post-Vavilov. In a future post I’ll address Horrocks and what it might mean for post-Vavilov administrative law splits on the Court.

***

In Ward, under a heading titled, “Jurisdiction Over Defamation and Discrimination,” the majority discusses the “jurisdiction” of the tribunal in that case [28]. In the same paragraph, the Court chastises the Tribunal for indirectly extending its “limited direct jurisdiction.” In Horrocks, on the other hand, the whole dispute concerned the jurisdictional boundary between a labour arbitrator and a human rights tribunal.

The entire setup of these cases is based around the idea of jurisdiction. In Ward, the term was thrown around rather willy-nilly to describe the statutory authority—the grant of power—given to the Tribunal. In Horrocks, the term was used as contemplated by Vavilov, as a category attracting correctness review. But in both cases, jurisdiction looms large.

Before continuing, it’s important to note the various ways that “jurisdiction” has been used in Canadian administrative law. There are at least 3 different uses of the term:

  1. Jurisdiction as a preliminary question: this category concerns “neat and discrete points of law” that arise, for example, in a decision of a human rights commission to refer a case to a human rights tribunal (Halifax, at para 27). In Halifax, the Court overturned previous precedents and held that such questions are reviewable on a reasonableness standard (Halifax, at para 38).
  2. So-called “true questions of jurisdiction”: these questions were said to arise “where the tribunal must explicitly determine whether its statutory grant of power gives it authority to decide a particular matter” (Dunsmuir, at para 59). An example of such a question was provided in Dunsmuir: “whether the City of Calgary was authorized under the relevant municipal acts to enact bylaws limiting the number of taxi plate licences” (Dunsmuir, at para 59). Note, here, that this question trades on the same idea of “jurisdiction” as the preliminary questions doctrine, but there is a difference: ostensibly, this brand of jurisidictional questions concerns an issue that goes to the merits. Vavilov did away with this concept of jurisdictional question, to the extent that such questions attract correctness review.
  3. “Jurisdictional boundaries between two or more tribunals”: this is the category of review at issue in Horrocks. Vavilov retained this category as attracting correctness review.

What is immediately clear is that “jurisdiction” is a morass.

What sense should we make of this? In my view, Vavilov left the door of “jurisdiction” open a crack. The result, as Paul Daly presciently observed the day after Vavilov was rendered, is that jurisdiction is still around—a “stake through the heart” will be the only thing to kill it. In the meantime, we must make sense of what is left of jurisdiction.  As I noted above, one option is to read Vavilov rather broadly: jurisdiction is dead, and we killed it. But this does not explain (in a satisfying way) what the Court is doing in both Ward and Horrocks. Why mention a concept that is dead?

Instead, I think “jurisdiction” (or, as I shall say, hopefully a better label) remains an important concept in Canadian administrative law. This version of jurisdiction—as used in Ward and Horrocks—is not akin to the concept of jurisdiction known to administrative law history (ie) Anisminic. It is not the “preliminary questions” doctrine put to rest in Halifax. This conception of jurisdiction is basically co-extensive with any number of formulations that describes the authority delegated to an administrative decision-maker. The Supreme Court of the United States describes this as “statutory authority,” which is a good a term as any. This is because, fundamentally, any time an administrative decision-maker acts, it is explicitly or implicitly dealing with the boundaries governing it by statute. Whether this is “jurisdiction,” or “statutory authority” does not matter much. It’s all the same thing.

Now, what is true about jurisdiction is that there are different types of legal questions. Some legal questions could be said to be “preliminary.” An example might be a legal condition precedent to the exercise of another legal power under the same statute.  But the difference that Vavilov introduces is simply about the standard of review, not about the existence or not of jurisdictional questions understood in this sense. In other words, to the extent that Halifax and Vavilov dispatched with various types of jurisdictional questions, they only did so to the extent that it matters for the standard of review. Vavilov tells us that questions of jurisdiction, as they were previously known, are hard to identify: and in that sense, they shouldn’t be treated differently than any other legal questions. So whether the question is “preliminary” or on the merits, it’s a legal question that is assimilated to the Vavilov framework.

Why does any of this matter? There is a clarity reason and a substantive reason. For clarity’s sake, the Court should probably not refer to “jurisdiction” anymore. The concept itself, as it is now used, is simply referring to a type of legal question, not a category of review. The Court should adopt some concept of “statutory authority” to describe all the types of legal questions that arise in a typical judicial review proceeding, including anything that might be considered “jurisdictional.” This has nothing to do with the standard of review: all of the questions will be presumed to be reviewed on reasonableness review. On the substantive side, and as we shall see from Horrocks, there are good reasons to take statutes—and the boundaries they set up—seriously. As Vavilov says, the discarding of jurisdiction as a category of review should not lead to  the arrogation of administrative power.

Rethinking Peace, Order, and Good Government in the Canadian Constitution

This post is written by Brian Bird.

The United States has life, liberty and the pursuit of happiness. France has liberté, égalité, fraternité. What is the calling card of the Canadian Constitution? It is peace, order and good government.

Apart from being a concise expression of the political philosophy that animates Canadian society, or at least the philosophy that is supposed to animate it, conventional – and I would say faulty – wisdom has developed around the quintessentially Canadian brand of constitutionalism. The prevailing understanding and analytic approach to peace, order and good government (POGG) has led us to astray with respect to this key element of our constitutional architecture.

Before identifying that prevailing (mis)understanding, let us take a look at the constitutional text. Section 91 of the Constitution Act, 1867 delineates matters over which Parliament has exclusive legislative jurisdiction – matters which, by virtue of that delineation, are off limits for the provinces.

Section 91 begins with the following words:

It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say …

What follows this paragraph is the enumerated list of classes of subjects over which the federal government has exclusive legislative jurisdiction: criminal law, national defence, banking and so forth.

The opening words of section 91 are revealing in at least three ways.

First, the concept of POGG precedes the list of subjects that fall exclusively within federal legislative jurisdiction. I suspect many if not most jurists in Canada envision POGG as residing at the end of the list, as a residual catch-all category. On the contrary, section 91 arguably contemplates legislation for the purposes of POGG as the first and foremost responsibility of Parliament.

Second, the list of subjects that follow the opening paragraph of section 91 are expressly said to be included for “greater Certainty, but not so as to restrict the Generality of the foregoing Terms”. In other words, the enumerated list of subjects under exclusive federal jurisdiction do not diminish the ability of Parliament enact laws for POGG. The conventional wisdom among most Canadian jurists is the opposite, that the list in section 91 curtails Parliament’s power to legislate for POGG.

Third, the power of the federal government to enact laws for POGG is only available where the topic of the law does not come within the areas of exclusive provincial jurisdiction. On a strictly textual basis, then, federal laws that are enacted in the name of POGG are invalid if the substance of the legislation reflects a head of provincial power as found in section 92.

This third consideration provides additional texture to the doctrine of paramountcy, which holds that a valid federal law will prevail over a valid provincial law to the extent the two laws clash. It would seem, based on the opening words of section 91, that there is no scenario in which there will be a division of power issue raised by the coexistence of a federal law enacted for POGG and a provincial law enacted for a matter listed in section 92. Parliament cannot enact legislation for peace, order and good government if the substance of that legislation falls within exclusive provincial jurisdiction.

Having taken a closer look at the wording and structure of sections 91 and 92, it seems inescapable that the proper starting point for determining whether Parliament can legislate for POGG is whether the legislation at issue falls exclusively within provincial jurisdiction pursuant to section 92. If the legislation can only be enacted by the province, it is constitutionally impossible for the same legislation to be enacted by Parliament for the purposes of POGG. This result, however, does not exclude the possibility of the legislation being valid under a specified subject of federal jurisdiction in section 91 and that, pursuant to paramountcy, such federal legislation would prevail over conflicting provincial legislation.

To a certain extent, then, the legal principles developed by courts that govern the ability of Parliament to legislate for POGG get off on the wrong foot. As these legal principles currently stand, Parliament can enact laws for the purposes of POGG in three scenarios: to address matters of national concern, respond to emergencies, and fill gaps in the division of legislative powers.

Given the text and logic of sections 91 and 92, the analysis of the validity of a federal law purportedly enacted to promote peace, order and good government should be reworked to feature two steps. The first step is to determine whether the federal legislation engages a matter coming within the classes of subjects assigned exclusively to the provinces. If the federal legislation encroaches on provincial jurisdiction, the federal legislation is invalid unless it can otherwise be saved – for example, by recourse to the enumerated list of federal subjects in section 91.

If the legislation survives the first step, the second step – tracking the opening words of section 91 – is to determine whether Parliament has made the law “for the Peace, Order, and good Government of Canada”. This language suggests a significant amount of latitude, so long as the legislation bears some rational basis to the three concepts. If that basis exists, the law is valid federal legislation.

If the federal law does not bear a rational basis to the promotion of POGG, Parliament might still be able to validate the legislation at this step by establishing that it falls within one of the classes of subjects listed in section 91. Assuming the federal legislation somehow satisfies section 91, it should be upheld by a court unless other constitutional constraints, such as the guarantees of the Canadian Charter of Rights and Freedoms, are at issue.

It is worth noting an important and, as far as I can tell, often overlooked aspect of the relationship between the list of federal classes of subjects in section 91 and the corresponding provincial list in section 92. The drafters of the Constitution Act, 1867 give us a hint of the rationale for even including a list in section 91 at all. Indeed, the collective structure of sections 91 and 92 lends itself to section 91 featuring nothing more than the general terms of the opening paragraph cited at the beginning of this post. Why did the drafters opt to go further and include specificity in the form of a federal list?

Besides a likely desire to give Parliament and the provinces a flavour of which matters fall within federal jurisdiction, the words that follow the federal list are revealing. Section 91 concludes by saying that “any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.”

In other words, the list of federal subjects in section 91 fall outside of the subject that appears at the end of the provincial list. Section 92(16) affords the provinces exclusive jurisdiction to legislate “Generally all Matters of a merely local or private Nature in the Province”. The closing words of section 91 preclude the possibility of a province enacting a law that pertains to a federal class of subject on the basis that the substance of the provincial law happens to concern a matter of a “merely local or private Nature in the Province”. Owing to the constitutional text, the provinces cannot attempt to legislate on a factually provincial matter that concerns interest, copyrights, the postal service or any other federal subject unless the provincial law can be sustained through recourse to another subject specified in section 92.

The novel two-step analysis for POGG described above challenges the current approach to this constitutional grant of legislative jurisdiction to Parliament. Perhaps the most problematic aspect of the current approach is the absence of a robust inquiry into whether the federal law under scrutiny promotes the three ends of peace, order and good government. The current approach focuses on three other concepts: national concern, emergencies, and gaps. In my view, this approach must be refined to ensure fidelity to the constitutional text and to the brand of federalism it enshrines.

Admittedly, this revamp of the POGG analysis may not yield different results in certain cases that have already ruled on legislation through the lens of this this constitutional provision. In the most recent Supreme Court ruling where POGG took centre stage, the majority’s opinion in References re Greenhouse Gas Pollution Pricing Act – an opinion that affirmed the federally enacted price on greenhouse gas pollution via the national concern branch – may also hold water under the novel approach. There are good reasons to say that the power to enact this law does not belong exclusively to the provinces (step one). And laws that seek to protect the environment – and by extension basic human welfare – serve the peace, order and good government of Canada (step two).

That said, there is also good reason to believe that recalibrating the POGG analysis may lead to different results in future cases. The concepts of peace, order and good government qualitatively differ from the concepts of national concern, emergencies and gaps. It seems intuitive to say that the former concepts are, in a variety of ways, broader than the latter. In short, it may be that the current approach to POGG shortchanges this grant of federal legislative jurisdiction.

Indeed, several existing federal statutes are arguably POGG laws. For example, the Firearms Act, Food and Drugs Act, Privacy Act and Canadian Human Rights Act do not fit neatly within the federal list in section 91. On the current test for POGG, these statutes would not satisfy the emergency branch. They may not satisfy the national concern branch, which remains a difficult needle to thread.

While these statutes likely satisfy the “gap” branch, this outcome also reveals a problem. Saying that POGG can fill gaps in the division of powers, without more, neglects to ask if the gap being filled is a law made for the peace, order and good government of Canada. The gap branch, as it now stands, does not ask whether the federal law is concerned with peace, order and good government.

This flaw in the current POGG test seems to echo the conventional wisdom that the division of powers in Canada is “exhaustive”. Yet, based on the text of sections 91 and 92, the division of powers is not exhaustive in the way that is often thought. If the subject of a law cannot be hung on a hook within the provincial or federal lists and cannot be said to further peace, order and good government, this is a law that no legislature in Canada can enact. The division of powers presents the field of subjects that can be treated by legislation in Canada, but it is not exhaustive in the sense that legislatures can enact laws about anything and everything. The field of legislative jurisdiction in Canada has boundaries. Parliament cannot enact a statute that defines water as H3O instead of H2O. While there is no provincial head of power that impedes this law, there is also no federal head of power or POGG basis that permits such a statute. This law is, subject-wise, out of bounds.

If the current branch-based approach to POGG shortchanges this head of federal power, does Parliament in fact enjoy far more legislative latitude? The answer is likely something less than “far more latitude”. In addition to the field and boundaries just described, the provinces enjoy exclusive jurisdiction to legislate generally on all matters “of a local or private Nature”. In other words, only the provinces can enact laws for local POGG. Besides this check on federal legislative power, there is also – as noted above – constraints imposed by other constitutional instruments such as the Charter.

I finish by noting an interesting interpretive question: must federal legislation for POGG serve all three concepts contained in this clause (peace, order and good government)? Or, alternatively, does the federal legislation only need to serve at least one of these concepts? I leave this intriguing issue, and others that inevitably spring from a consideration of the POGG clause, for another day.

Peace, order and good government may be the most famous phrase in the Canadian Constitution. Many people say the phrase encapsulates Canada’s political culture. It is therefore surprising to discover that, in terms of how this concept lives and breathes within our constitutional atmosphere, we have fallen far short of understanding it.

What Does City of Toronto Mean For Administrative Law?

The Supreme Court released its much-anticipated decision today in Toronto (City) v Ontario (Attorney General), 2021 SCC 34. While others will address the nuances of the case, the majority generally puts unwritten constitutional principles into a tiny, little box. It says that because “[u]nwritten principles are…part of the law of our Constitution…” [50], unwritten principles only have two practical functions: (1) they can be used in the interpretation of constitutional provisions [55]; (2) they can be used to “develop structural doctrines unstated in the written Constitution per se, but necessary to the coherence of, and flowing by implication from, its architecure” [56]. In this category, the Court uses the example of the doctrine of paramountcy, the doctrine of full faith and credit, and the remedy of suspended declarations of invalidity.

I applaud the majority opinion for clarifying the role of unwritten constitutional principles. For my part, I think the functions they have outlined for unwritten principles give those principles a meaningful role in the constitutional structure while giving priority to the text. The majority aptly underscores the worry with unwritten principles–they are so abstract and potentially endless–and negates that worry by ensuring the text as a control on the use of these principles. Even better, the majority closes the door on the rather pernicious attempt to read municipalities into s.3 of the Charter [5].

But that is not my concern for today. What does any of this have to do with administrative law?

Post-Vavilov, there was a good argument that unwritten principles–the Rule of Law specifically–could have independent force in limiting state action in some way on the standard of review–put more bluntly, that the Rule of Law could invalidate certain legislative rules governing standard of review. The Court says, for example, that “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). It goes on to outline categories of questions–like constitutional questions–that demand a correctness standard because of “respect for the rule of law” (Vavilov, at para 53). This raised the argument that if a legislature were to prescribe a standard of review of reasonableness on a constitutional question, such a standard would not be given effect to by a court because it transgresseses the “limits imposed by the rule of law.”

On first blush, City of Toronto tends to throw cold water on the argument. Its insistence that unwritten principles cannot invalidate legislation could mean that a court should give effect to a legislated standard of review on constitutional questions. And because there is no express constitutional provision insisting on a correctness standard on certain questions, on a strict reading of the City of Toronto majority opinion, there would be no power to invalidate that law.

This very well may be true, and yet I think there are a few ways to reconcile City of Toronto with Vavilov that leads to the same result that Vavilov seems to suggest–a court not applying (which is strictly, though perhaps not functionally, different from invalidation) a legislated standard of review of reasonableness on constitutional questions. Much of this argument hinges on s.96 of the Constitution Act, 1867.

First, it might be said that the Rule of Law as outlined in Vavilov is a necessary interpretive principle that should be used to understand s.96. That is, we cannot understand s.96–which contemplates federally-appointed superior courts–without understanding the traditional role of these courts to conduct judicial review of administrative action on a certain stringency on certain questions. In City of Toronto, the Court cites s.96-100 as an example of unwritten principles bolstering a constitutional principle, suggesting that “unwritten constitutional principles of judicial independence and the rule have law have aided in the interpretation of [ss.96-100], which have come to safeguard the core jurisdiction of the courts that fall within the scope of those provisions” [55].

I think to call any of the doctrinal innovations that have come to s.96 a result of “interpretation” stretches the term a bit far. On its face, s.96 is just an appointing provision. It may be one thing to interpret what the terms of that appointing provision are, but to construct doctrine on top of the provision–or to make it work in a constitutional structure–seems to be a different judicial function.

Secondly, and I think more persuasively, the Court notes that unwritten principles can develop structural doctrines that flow from constitutional architecture [56]. Again, the Court notes examples of this sort of doctrinal construction: full faith and credit, paramountcy, and even the legal result in the Quebec Secession Reference. As we see, some of these doctrines are quite particular to specific contexts–the Quebec Seccession Reference, for example. Others are more general. The doctrine of full faith and credit in the context of conflict of laws is a major doctrinal innovation that is not found anywhere in a specific constitutional provision. These doctrinal innovations can, in effect, change or invalidate legislation that conflict with them, though they are rooted in the text itself.

Vavilov‘s comments on standard of review best fall into this category. The standard of review framework flows from two unwritten principles themselves: legislative intent (perhaps partially reflected in the principle of “democracy”) and the Rule of Law. The Court conceives of the Rule of Law as generally the rule of courts, in that courts must retain a strong supervisory role over certain questions. It would upset the supervisory role of these courts to outlaw their ability to hold state actors to the strictest constitutional standard. This is but a logical extension of Crevier, which set the stage for an argument about the constitutionally-protected role of the superior courts.

An example and a caveat. First, the majority and dissent clash over MacMillan Bloedel. In that case, the Court arguably invalidated a legislative scheme that granted exclusion jurisdiction to a youth court. The City of Toronto majority says the holding in that case was based on the text of ss.96-101 and 129 of the Constitution Act, 1867 [50]. The dissent, on the other hand, cites para 41 of MacMillan Bloedel to suggest that the basis of the holding was the Rule of Law itself [176]. In my view, MacMillan Bloedel is a bit of both. The Court clearly bases its decision in s.96 (MacMillan Bloedel, at para 47). But it also says that the case is best understood “in a broader constitutional context, considering this jurisprudence along with the preamble to the Constitution Act, 1867, the principle of the rule of law, and the central place of superior courts in our system of governance” (MacMillan Bloedel, at para 2). To the extent these principles and s.96 were abridged, the impugned legislative provision was “read down” as “inoperative to deprive the superior court of its jurisdiction to convict the appellant of contempt in this case” (MacMillan Bloedel, at para 43). In MacMillan Bloedel, we have a constitutional text (s.96)–>supported by the Rule of Law (unwritten principle)–>a result that the core of superior court powers were protected in this case. Vavilov falls into this same category. We can see, then, that in some cases a legislative standard of review may be “read down” as a result of the standard of review doctrine spun out from the unwritten principles of legislative intent and the Rule of Law.

The caveat I wish to raise has to do with the Federal Courts. Section 96 does not speak to statutory courts, and in theory, the Federal Courts’ judicial review jurisdiction could be abolished tomorrow unlike the superior courts. All of this, then, would stop at the Federal Courts. But I do not think this is inevitable. Once a statutory court has been made under s.101 of the Constitution Act, 1867, one might make the argument that so long as such a court exists, its powers should be construed as broadly as the powers of a superior court under s.96. But I do not commit to this argument in full, except to say that it makes practical sense to me and would uphold a consistent judicial standard for administrative action across jurisdictions.

At any rate, I think City of Toronto–despite its strong language on unwritten principles–can be reconciled with Vavilov. And at the end of the day, the result may be the same: legislation that undermines an unwritten principle may not be “given effect” according to a doctrinal innovation, even if the legislation is not “invalidated” in a strict sense. This is the best way to undertstand Vavilov‘s standard of review framework.

On Law and Music

What is the relationship, if any, between law and music?

As a musician myself, I notice many commonalities between law and music. As a jazz musician, improvisation is what I spend a lot of time thinking about. To improvise over a tune, it helps to know the notes in the tune, the chords underneath it, and the structure of the song. Artists can break these rules, and perhaps the best music comes when the rules are broken. But to break the rules, the cardinal idea of music—it has to sound good—cannot be lost. In other words, an artist has to implicitly justify her departure from the structure of the tune with the most convincing reasoning of all—the fact that the music, nonetheless, still sounds good.

It is only a small jump to move to the world of interpretation. Many have written about the aesthetics of law. In a similar vein, in a delightful article, Jerome Frank analyzes the relationship between legal interpretation and music. I preface this by saying that Frank was a noted legal realist, and I am no legal realist. Nonetheless, the intersection he explores between music and interpretation is, at the very least, interesting. For Frank, the relationship between a composer and a performer is quite similar to the relationship between a legislature and a judicial interpreter. The composer is the legislature, and it “cannot help itself” [1264]: interpretation of whatever is intended (or written, depending on one’s view of the idea of “intent”) must fall to the court—much like a piece of music, composed by someone perhaps generations ago, must fall to a performer.

Once the performer  receives the item to be interpreted, three considerations become important. First, the entire point of a performance is to perform: the performer must give due respect to the composer, because he was the one who made the song that the audience will enjoy. Sometimes in music—particularly jazz—you hear a performer that is ostensibly playing a tune but it is something completely different: he says he is playing “Autumn Leaves,” but he is improvising—almost too much—on the original tune. Sometimes this is good, but many times it isn’t, if only because the composer was the one who made the song (in this case, there is a time for soloing, but it’s important to “play the head,” as it were: “Autumn Leaves” is just fine as it is). As a general rule, I think this tracks to legislation, where the interpreter should do his best to remain true, within reason, to the law.  But, as a second consideration, there will always be an inevitable slippage between what the composer wanted (or even what the composer wrote) and what the performer does. The performer may make an inadvertent error, doing violence to the intention of the author. The composer may herself make a musical error, in which case the performer is left in the position of correcting it or leaving it as is. Finally, the interpreter may make a deliberate choice to change the composer’s creation. A jazz musician can do everything from “bending” the notes, to changing the rhythm, to even “going outside” the chord structure, creating dissonance where none was intended. The “free jazz” school, for example,  “developed in the 1960s as a rejection of conventional musical structures: things like melody, harmony, and chord progressions.”  While the free jazz school in many senses merges the role of composer and performer, creator and interpreter, it demonstrates the extreme end of the spectrum—musicians (and interpreters) can make choices given the structure of the music they are asked to perform.

As a musician, I focus much of the time on bebop, hard bop, and other “straight-ahead” styles—perhaps this explains my preference for textualism as a general interpretive method. Nonetheless, there is no doubt that the choices interpreters and performers make can sometimes make the composer’s or legislature’s creation make more sense—or sound better. And if that is the goal, then  sometimes the interpreter and performer will need to make on-the-spot decisions about how a cacophony of words (or notes) should be put together into a convincing performance. As Frank notes, interpretation is a human activity, and human creativity can make sense of what, on its own, may not make sense. Law is not always coherent, because humans are not always coherent. Yet interpreters, taking a step back, can sometimes (within the context of the interpretive rules) make sense of the law.

Frank’s piece underscores the balance that must be struck in interpretation between fidelity to legislative wishes and the “human” element of interpretation that must make sense of what is in front of a court. On one hand, slavish devotion to the law can lead to absurdity; and for that reason, we have an “escape valve” available for those cases, among others (like scrivener’s error). But in most cases, there is something important about remaining relatively true to the composer’s wishes. The composer created the music for a reason. The performer is being asked to perform it. For the performer to turn the tune upside down is a drastic choice that, at least in some sense, undermines the relationship between composer and musician.

Cannonball Adderley - IMDb
Cannonball Adderley

What does this musical story tell us about interpretive methodology? Methodology cannot perfectly guarantee correspondence between law creation and law interpretation. What is important, though, is that courts make a choice to commit themselves to rules in advance: just like performers (minus the free jazz folks) commit themselves to chords, notes, rules of rhythm, etc. The choice to commit oneself to a “structured and deliberate methodology” as Justice Malcolm Rowe and Michael Collins said in a recent paper, is immensely important. It prevents rank instrumentalism by an interpreter, where a result is chosen and then justified after the fact. A structured and deliberate methodology, as Rowe and Collins note, does not tie an interpreter’s hands, just like chords and notes do not tie a performer’s; but it does structure the choices an interpreter or musician can make, for the benefit of the listeners who  generally do not want to hear dissonance all night. As above, an interpreter who breaks these rules—say, to solve an absurdity—does so because the methodology permits it. He can justify his departure under the rules, much like a musician can justify a departure from notes and chords as justified according to the reality of what sounds good to an audience. The point, as Rowe and Collins say, is that the methodology forces an implicit justification.

The analogy between music and law is imperfect, in part because different musical styles ask different things of performers. A classical musician is likely to be closer to a composer’s wishes than a jazz musician is, and this is in part defined by the rules of the particular style. Nonetheless, the relationship between composers and performers does track to legislative activity. And it shows us how, in many aspects of life outside of law, rules are important even if imperfect.

Does This Kat(z) Have Nine Lives?

In Katz, the Supreme Court set out the approach to judicial review of regulations. The Katz approach is (or, maybe, was) a carve-out from the general law of judicial review. As Professor Daly notes, it grants a “hyperdeferential” margin of appreciation to those that promulgate regulations. The Katz approach, based on previous cases, simply asked whether regulations are “irrelevant” “extraneous” or “completely unrelated” to the statutory scheme (Katz, at para 28), with the challenger bearing the onus.

Whether Katz has survived Vavilov is an open question. Vavilov purported to be a “comprehensive approach” to the determination of the standard of review (Vavilov, at para 17) for administrative action. On its face, that means that Vavilov‘s formula for determining the standard of review should apply to all instances of judicial review of administrative action—including judicial review of not only adjudicative acts, but “legislative” acts, as well. This would be a change, though: pre-Vavilov, there was (at least in theory) no judicial review for the “reasonableness” of legislative acts, and such decisions could not be set aside for errors other than jurisdictional ones. Specifically, Katz incorporates the old adage that judicial review does not entitle a court to review the merits of the legislative act, its “political, economic, or social…” context, or even whether it actually is rationally connected to its objective (see Katz, at para 28; Thorne’s Hardware, at 112-113).

Enter the recent decision of the Federal Court of Appeal (per Stratas JA) in Portnov. There are many issues in the case, but one concerned the propriety of Katz post-Vavilov. For the Court, Stratas JA suggests an easy answer to this question: “Thus, in conducting reasonableness review, I shall not apply Katz. I shall follow Vavilov” [28]. Stratas JA offers a number of reasons for this conclusion:

  1. The Katz approach (and its predecessors) were organized around the fundamental concept of “jurisdiction,” a “vestige” which Vavilov “eradicated” [22];
  2. Oddly, in the pre-Vavilov era, the Supreme Court sometimes simply reviewed regulations for their reasonableness under cases like Catalyst and Green [24].
  3. Vavilov is “intended to be sweeping and comprehensive” [25], and if there is a question as to whether Vavilov applies to an issue not addressed in that case, courts should ask how Vavilov’s general framework applies [25].
  4. Katz is a rule that “applies across-the-board to all regulations,” that “sits uneasily with Vavilov which adopts a contextual approach to reasonableness review” [27].

I think Portnov is right on the money.

Katz is problematic, in my view, because it (1) undermines the coherence of Vavilov’s simplicity; and (2) undermines the virtue of the contextual approach to reasonableness in Vavilov.

First, Vavilov was an attempt to finally address Binnie J’s comments in Dunsmuir, which encouraged a standard of review framework that “…get[s] the parties away from arguing about the tests and back to arguing about the substantive merits of their case” (Dunsmuir, at para 145). Part of this was the introduction of a presumption of reasonableness for most cases of judicial review. As I have written before, I have issues with this broad-based presumption (I do not buy the assumption that delegation necessarily implies deference) but it has one virtue: it may be wrong, but it is strong—it simplifies matters a great deal. That presumption, and the associated correctness exceptions, are largely principled. They are based on the core constitutional concepts of legislative sovereignty (choice to delegate) and the Rule of Law (guaranteeing judicial review of certain stringency on certain questions). A carve-out for regulations, with an ultra-deferential approach, simply complicates the conduct of judicial review for no principled reason. This is because whether an administrator is exercising adjudicative power or legislative power, it is delegated power all the same. And from the perspective of simplicity (with due regard for countervailing considerations) Vavilov‘s general principles for determining the standard of review should be determinative in all instances of judicial review of administrative action.

This is an issue of doctrine, but Stratas JA also provides good substantive reasons for not applying Katz. The contextual approach to reasonableness introduced by Vavilov, too, has its flaws: context can sometimes lead to uncertainty. But if context is adequately described by markers of unreasonableness (say, the “constraints” offered in Vavilov), the uncertainty is limited. Applying those constraints to the context of legislative instruments is perfectly justifiable. It may be, as in Catalyst or Green, that Vavilovian reasonableness is quite relaxed when dealing with certain legislative instruments. In other cases it may be more stringent. The constraints offered in Vavilov take account of the legislative context in a way that, at least to some extent, tracks the words and language used by the legislature to delegate power. With a fine-tuned approach like this, there is no need for a presumptive rule that puts a thumb on the scales for those that promulgate regulations based on any functional reasons.

Some judges of the Supreme Court have indicated an interest in preserving the coherence of Vavilov based on its general principles. In Wastech, for example, Brown and Rowe JJ filed a concurring opinion that would have applied Vavilov to the context of a commercial arbitration. They would have applied a correctness standard of review based on Vavilov’s holding on rights of appeal. These judges said this in Wastech:

[120]                     Factors that justify deference to the arbitrator, notably respect for the parties’ decision in favour of alternative dispute resolution and selection of an appropriate decision‑maker, are not relevant to this interpretive exercise. What matters are the words chosen by the legislature, and giving effect to the intention incorporated within those words. Thus, where a statute provides for an “appeal” from an arbitration award, the standards in Housen apply. To this extent, Vavilov has displaced the reasoning in Sattva and Teal Cedar.Concluding otherwise would undermine the coherence of Vavilov and the principles expressed therein.

I think this is the right approach. Vavilov’s general principles have much to say about many forms of decision-making. And, luckily for us, the fact that these principles have something to say makes judicial review much simpler for the parties and courts. No need for special rules any longer, and so I hope this Kat(z) is out of lives.

For more on this issue, see the following resources:

Paul Daly

John Mark Keyes

The Supreme Court’s Leaves (Or Lack Thereof)

The Supreme Court has gone yet another week without granting leave to any cases. I am not an empiricist, and this is not something I’ve been tracking, but I gather that the Supreme Court has granted leave to less cases over time in general (not to suggest that this week is particularly representative of anything).  Statistics from the Supreme Court from 2009-2019 suggest a drop-off in leave rates, and I imagine that the rate at which the Court granted leave was higher in the 1980s and 1990s than it is now.

There is good work being done to analyze the Supreme Court’s leave practice, an area that I understand is traditionally understudied. Led by Paul-Erik Veel, Lenczner Slaght’s Data-Driven Decisions project, and its related Leave Project, attempt to understand and predict the Supreme Court’s leave practice. And while I am not an expert on the subject, I gather that there is interest in understanding why the Supreme Court has granted fewer leaves over time, and relatedly, whether it is a good or bad thing.

On first blush, the grant of fewer leaves is inconsistent with the role the Supreme Court has given itself over time. Its granting of a constitutional role for itself in the Nadon Reference suggests a court that sits at the centre of Canada’s system of laws. In Henry, at para 53, the Court said the following:

53 In Canada in the 1970s, the challenge became more acute when this Court’s mandate became oriented less to error correction and more to development of the jurisprudence (or, as it is put in s. 40(1) of the Supreme Court Act, R.S.C. 1985, c. S-26, to deal with questions of “public importance”).  The amendments to the Supreme Court Act had two effects relevant to this question. Firstly, the Court took fewer appeals, thus accepting fewer opportunities to discuss a particular area of the law, and some judges felt that “we should make the most of the opportunity by adopting a more expansive approach to our decision-making role”:  B. Wilson, “Decision-making in the Supreme Court” (1986), 36 U.T.L.J. 227, at p. 234.  Secondly, and more importantly, much of the Court’s work (particularly under the Charter) required the development of a general analytical framework which necessarily went beyond what was essential for the disposition of the particular case.

This passage packs in a number of points. First, the Court sees itself not only as an appellate authority of error correction, but as central to the development of the jurisprudence on issues of public or national importance. In turn, this could plausibly affect the doctrine the Supreme Court applies in certain areas. The Court is not designed simply to point out appellate errors, but in turn develops overarching doctrinal frameworks that sometimes requires the overruling of precedents. A modern example is the Supreme Court’s decision in Vavilov, which reads (sometimes) as an academic essay rather than a traditional judicial decision.

The fact that the Supreme Court grants fewer leaves, then, suggests a Court that is not living up to its role to develop the jurisprudence. If the Court is granting fewer leaves, it is deciding fewer cases that could “settle the law” in areas that require it. For those who see the Supreme Court’s role as, for example, arbitrating between competing national values, a lower leave rate suggests a less relevant Supreme Court than its members sometimes imagine.

On the other hand, the granting of fewer leaves is not necessarily problematic if one takes a pessimistic view of what the Supreme Court does. For most advocates across the country, the bread-and-butter of law does not occur in the august halls of the Supreme Court. Instead, it is more likely that legal issues are decided by lower courts and administrative actors. The prohibitive costs associated with bringing leave applications and appeals to the Supreme Court creates a built-in incentive for these issues to be finally decided at a lower level of decision-making.  

This is just my view, but I do not view this as a bad thing. For one,  Canada’s lower court judges are far from bit players in the development of the law. The Supreme Court gets a lot of attention, but the 9 judges on that Court are special only because of their station; not necessarily because they are more likely to come to better or more stable decisions than a lower court judge. The Supreme Court, as Robert Jackson once said, is only infallible because it is final. Our lower court judges are well-equipped to settle the law without high-stakes litigation at the Supreme Court. Vavilov provides another instructive example of this. Prior to Vavilov, the Federal Court of Appeal, led by Justice David Stratas, had attempted to make sense of the Supreme Court’s administrative law doctrine. Its approach to determining and applying the standard of review was, in many respects, adopted in Vavilov: see particularly the Vavilov Court’s approach to reasonableness. The Federal Court of Appeal itself has recently made note of this: Alexion, at para 7. There is an irony here: the Supreme Court, far from settling the law of judicial review in the 2010s, unnecessarily complicated things for lower courts and litigants. Far from stability, the Court actively made things worse. It took lower court judges doing their best to apply the law to make the Supreme Court clean up its own mess, with help from the Federal Court of Appeal.

I am not suggesting that the leave practice of the Supreme Court in recent years is a wholly good thing, but I do not necessarily see it as a bad thing either. There is nothing special in the Supreme Court’s decision-making process that makes it any better suited to decide legal questions—apart from the fact that it provides a final resolution. The finality question is important, but we should not kid ourselves: the law can and does settle without the help of the Supreme Court.

This suggests that, perhaps, the question is not whether more or fewer leaves are granted. Rather, the question may be whether the Supreme Court is granting leaves to the right cases. Vavilov, for example, was an important case on which to grant leave because the doctrine was so unsettled across the country. I am candidly not sure how many such instances exist in various areas of the law. Unfortunately, this suggestion is a non-starter: we will never know what, beyond bromides, members of the Supreme Court take into account when granting leaves.

At any rate, I don’t have the answers here and as I said earlier, there is probably more in the available data to complicate the picture I have drawn here. Nonetheless, I do think more discussion of the benefits and drawbacks of the Supreme Court’s leave practice is desirable.

Alexion: No Blank Cheques Here

In Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157, the Federal Court of Appeal clarified the law of judicial review post-Vavilov (particularly as it applies to reasonableness review) and set out an important reminder: administrators are not a law unto themselves. In order to make sure that this is the case, particularly in situations of legislative interpretation, administrators must explain their decisions. They must do so in a way that engages with the statute under interpretation. In this way, Alexion says something important: when administrators interpret statutes, there is only so much of a margin of appreciation. They must deal with the law.

I first describe the controversy in Alexion and the Court’s holding. Then I outline why this decision is a landmark one for the post-Vavilov world.

**

Alexion is a pharmaceutical company that produces a drug called Soliris. The Patented Medicine Prices Review Board had to decide whether Alexion priced Soliris excessively under the Patent Act. The relevant section is s.85 (1), which lists a number of factors that the Board must consider to make a determination. One of the factors is “the prices at which the medicine and other medicines in the same therapeutic class have been sold in countries other than Canada” (s.85(1)(c)). Only after a consideration of these factors can the Board turn its attention (if necessary) to s.85(2), which asks the Board to also consider “the costs of making and marketing the medicine and any other factors it considers relevant.”

As the Court aptly notes, “Section 85 is the law. The Board’s analysis should start with the law. Whatever the Board does must be consistent with the law” (Alexion, at para 34). The Board, in making its excessive pricing decision, noted that it is charged with determining “the relevance and weight of each factor” in s.85 (Alexion, at para 43). The Board concluded that Soliris was priced excessively, largely because it was priced more than the lowest international price in a list of seven comparator countries (Alexion, at para 3).  Put differently, out of all the seven countries, the Board found Soliris to be priced excessively because it was not the cheapest option. This was despite the fact that the Board’s own guidelines suggested that, normally, “the highest international price” is a key comparator (Alexion, at para 57). In reaching this conclusion, the Board seemingly followed a standard of “reasonableness”: because Soliris is price higher than one of the comparator countries, the Board implicitly concluded that the price of Soliris is unreasonable (see Alexion, at para 51).

For the Court, Stratas JA concluded that the Board failed to properly justify its decision with reference to the statute at hand: Alexion, at para 64, 66. The Court made a number of important comments justifying this decision:

  1. Prior to Vavilov, “…the Supreme Court instructed us to do our best to try to sustain the outcomes reached by administrators” which included “reviewing courts [picking] up an administrator’s pen and [writing] supplemental reasons supporting the administrators’ outcomes” (Alexion, at para 8). This “ghostwriting” was, as is evident, “antithetical to the reviewing courts’ role as an independent reviewer” (Alexion, at para 8).
  2. In this sense, there is a clear relationship between reasons and outcome on judicial review (Alexion, at para 28 et seq). While Vavilov speaks of outcome and reasons as separate, there are many cases where the reasoning on a particular legal question will lead to an illegal outcome; for example, in this case, “certain words the Board used suggest that it went beyond its permissible statutory mandate by regulating the reasonableness of pricing, rather than preventing abusive pricing…” (Alexion, at para 11).  In this case, when the Board spoke of “reasonableness” rather than abusive pricing, “[i]t may be that the Board was trying to reach an outcome that on the facts and the law was not reasonably open to it” (Alexion, at para 32).
  3. The failure of explanation in this case arose on a few different fronts:
  • The Board utterly failed to deal with the most important and central restriction on its authority: s.85 of the Patent Act. We  know that in paras 120-122 of Vavilov the Court notes that “the merits of an administrative decision maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision,” and that the decision-maker must demonstrate that its alive to these “essential elements.” This is because “the governing statutory scheme is likely to be the most salient aspect of the legal context relevant to a particular decision” (Vavilov, at para 108). So when the Board adopted a standard of reasonableness rather than addressing the actual point of the statute—set out in s.85 and the associated case law—it transgressed its authority.
  • The Board’s failure to explain its departure from its own Guidelines was problematic from a reasonableness perspective. While Guidelines adopted by the Board cannot supercede an analysis based on s.85 itself, they can validly guide discretion. Here, the Board did not explain why it did not follow its own Guidelines, which stressed the highest price comparator country.

**

There is a lot packed into Alexion, but I think it is worth noting the various things the Court does with Vavilov, especially when it comes to the reasonableness standard.

First, the Court arguably doubles down on the statute as the most important restraint on administrative power. Many of us who read Vavilov for the first time in December 2019 fastened onto paras 108-110 (and also paras 120-122) of that decision as quite important. Those paragraphs hardened a cardinal rule of administrative interpretations of law: it is the statute that the administrator is interpreting (its text, context, and purpose) that cabin the discretion of an interpreting administrator. Now, how this happens is where the rubber meets the road. But the fact that the statement was made by the Supreme Court—and that it is adopted wholeheartedly by the Court of Appeal in this case—is promising.

There are, of course, different ways that a court can ask an administrator to abide by the terms of its statute, and these ways can be more or less interventionist. Alexion is somewhat reminiscent of another case decided post-Vavilov, Richardson. I blogged about that case here. While the comments made by Nadon JA in that case were obiter, they staked out an even more radical understanding of Vavilov’s paragraphs 108-110 and 120-122. In that case, the administrator at hand erroneously applied the “implied exclusion” rule of interpretation, which the Supreme Court has held is insufficient as the sole basis on which to understand the meaning of statutory provisions (see Green, at para 37). Imposing the Supreme Court’s method of interpretation, particularly with regards to particular canons, is one way to force an administrator to abide by a statute. Another, more general and less stringent way, is what Stratas JA did in Alexion. There the Board misapprehended its own statutory purpose and failed to actually deal with the overriding goal of s.85: excessive & abusive pricing. It also ignored many of the factors set out in s.85(1). This is just a different way of getting at paras 108-110 of Vavilov: the Board failed to address its statute under the governing approach to statutory interpretation.

The fact that the Court in Richardson and Alexion did the same thing in different ways is perhaps indicative of a challenge with Vavilov. The decision says a lot, not all of it always internally consistent. Specifically, the challenge going forward with this rather legalistic vision of reasonableness review is how it meshes with the deference that is built-in to the Vavilov framework. Vavilov makes clear at various points that administrators are not asked to engage in a formalistic interpretation exercise (para 119), and that ‘[a]dministrative justice’ will not always look like ‘judicial justice’…” (para 92). Accordingly, as Professor Daly notes, “some portions of Vavilov are liable to become battlegrounds between different factions of judges, those who favour more intrusive review on questions of law in one camp, their more deferential colleagues in the other” (at 15). One could conceive, as Professor Daly does, of Richardson as “betraying a favouritism for an interventionist standard of reasonableness review on issues of statutory interpretation” (at 14).

However, I would say that Alexion and Richardson are of the same ilk, different points on a similar spectrum. Both are directed towards subjecting administrators to legal requirements, but Alexion does so in a more general way, faulting the administrator for failing to address the relevant statutory purpose (among other things). Richardson does the same thing in a more specific way, faulting an administrator for applying a proper tool of interpretation to the exclusion of the statutory purpose. Both, in my view, are plausible views of Vavilov.

Methodologically, there are other important elements of Alexion. One element is the connection that Stratas JA draws between reasons and outcome. Vavilov speaks of reasons and outcome as separate things, but in reality, they are probably intrinsically connected in at least some cases. Alexion provides a good example. In many cases, it was simply impossible for the Court to determine whether the Board had ventured an opinion on the core legal issue at play in the case. Where the Board did offer an opinion, it cast its decision in terms of the wrong legal standards.  This led it astray, and it was led astray because its reasoning failed to glom onto the important part of the entire thing: the statute.

This leads to a final point about Alexion. Thank goodness we no longer need to worry about courts coopering up deficient decisions under the Nfld Nurses line of cases. As the Court in Alexion mentions, this decision could have gone a very different way under pre-Vavilov case law. The Court would have asked itself to supplement reasons for decision instead of supplanting them.  But as the Court notes, “[m]any of us recoiled at this” (Alexion, at para 9). Why? Because it offends the principle of legality, fundamental to the administrative law system, for a court to uphold a decision that is legally flawed. Of course, deference sometimes asks us to abridge the principle of legality in a strict sense; but there are extremes, and a court making a decision for an administrator is to my mind (and, apparently the mind of the Supreme Court) a bridge too far. As the Court in Alexion says, there are no blank cheques in the law of judicial review (Alexion, at para 44).

All told, Alexion is an important recap of developments post-Vavilov. Particularly on the application of the reasonableness standard, the Court moves the needle in important ways.