Lowering Expectations: The Supreme Court’s Standard of Review Cases

Why, sadly, Canada’s administrative law community should probably lower its expectations.

Next week, the Supreme Court of Canada will finally conduct its once-per-decade review of the standard of judicial review. In Vavilov, and Bell/NFL, the Court will hear about a number of issues: the standard of review on questions of law, the role of reasons in administrative law, and the role of so-called “jurisdictional questions,” among others. Many administrative law aficionados will pay close attention to next week’s hearings. I have outlined my proposals for how the Court should handle these cases and judicial review more generally (here, here, and here). But no matter what one thinks about the merits of the law of the judicial review in Canada, I do not think the Court will do anything in these appeals that will affect, in any substantive way, the standard of review.

I take as a given “Daly’s law”: that is, the idea that “the more excited administrative law aficionados are beforehand, the more disappointed they will be afterwards.” Evidence helps us with this conclusion. Most recently, many administrative law watchers had high hopes for the Court’s Tran case last year. Tran was an appeal from a Federal Court of Appeal decision, where the FCA expressly noted the difficulty of applying the Supreme Court’s standard of review precedents on questions of law. But Tran frustrated our expectations by simply saying that its result would be the same under any standard of review.

I do not think we will get a Tran-type conclusion in the Vavilov and Bell/NFL cases; I expect a bit more than that given the Court’s express request for submissions on the standard of review. But I do not think that the Court will do anything exciting or substantive in these appeals. And so, I think we should all temper our expectations.

The Court is notoriously divided on administrative law in general, and the divisions are deep and intractable on foundational questions. This makes it difficult to hope that the Court will come up with a workable and constitutionally justifiable doctrine. For example, the Trinity Western case, while focused on matters outside the direct scope of these appeals, demonstrated the fault lines in how the Court views issues of judicial review. The Court has also divided on the specific issue of jurisdictional questions: see Guerin and CHRC. In those cases, the dissenters viewed the category of jurisdictional questions as fundamental to the Rule of Law. On those terms, it’s difficult to assume there is much wiggle room for the dissenters on the category. What’s more, the Court has divided on the factors that rebut the presumption of reasonableness review. In Groia, Justice Côté would have found that the presumption of reasonableness review was rebutted by the fact that “the impugned conduct occurred in a courtroom…” [166]. This factor was previously unknown to the standard of review framework, and indicates the breadth of considerations that at least one judge is thinking about on the issues. Other cases demonstrate more fundamental problems. In West Fraser, then-Chief Justice McLachlin (with the agreement of five other judges) claimed that the decision-maker in that case was the recipient of the delegation received unrestricted powers because of an “unrestricted” delegation, and so was (presumably) owed unrestricted deference. This is a bold statement that is strikingly at odds with a fundamental concept of administrative law in Roncarelli: there is no such thing as untrammeled discretion. Naturally, dissenting judges found that the enabling statute actually did confine the decision-maker at issue in West Fraser.

The problem transcends administrative law and affects broader issues that define the parameters of the debate. In Mikisew Cree, the Court split over the circumstances in which the duty to consult attached to legislative action. Two judges (Abella and Martin JJ) would have found that the legislative process was “Crown conduct” subject to the duty, despite the fact that in the Westminster tradition, the entire law-making process is immune from judicial scrutiny. Here, we have a deep disagreement about the very nature of the Parliamentary system, one which foreshadows the more specific administrative law problems.

Further, the problems that the Court has to face are broad, and that state of affairs lowers the probability of any workable agreement. The problems range from how courts should select the standard of review (the status of the presumption of reasonableness; the status of the jurisdictional questions category; the role of constitutional questions) to how the courts should apply the standard of review (what is the role of the principles of statutory interpretation?; should courts supplement reasons?). There is no reason to think the Court will create a precedent on any one of these issues, let alone all of them. Yet each of them is vitally important and deeply contested.

The factional stasis at the Supreme Court is a real shame, because now more than ever there is an academic and judicial movement that has converged on the idea that at least some reform of the law of judicial review, even at the margins, is highly desirable. Very few people are happy with judicial review in Canada. This is an important opportunity to fundamentally question the foundations of judicial review in Canada, to create a workable framework that deals with the developing Canadian administrative state.

So, if I had my way, I would take the opportunity and start from scratch. I once believed, naively, that the Dunsmuir framework was workable. A lot of people think, with good reason, that only the extensions on Dunsmuir that have caused the most academic consternation—the presumption of deference introduced in Alberta Teachers and entrenched in Edmonton East; the completely unjustified “supplementation of reasons” doctrine that the Court created out of whole cloth in Newfoundland Nurses. Of course, these doctrinal innovations have made the law unworkable. But Dunsmuir itself is a problem because it creates a sort of centrifugal force with which the Court must contend. Its categories and factors will remain, even if Edmonton East, Newfoundland Nurses, and Alberta Teachers are expressly overturned. The categories and factors are intractable precisely because there is no sense of the relationship between them on first impression. They are not necessarily connected to what I have before called the fundamental premise of administrative law: its statutory character. It would be better for the long-run doctrinal clarity of the standard of review framework if the Court began its analysis from this fundamental premise, while critically questioning whether these categories and factors are necessary at all.

But because the Court cannot even find agreement on more mundane points, it pains me to predict that Dunsmuir will remain largely unscathed. That prospect disappoints me given the opportunity the Court has created for itself. But if nothing else, administrative law scholars will have another decade of work.

The Supreme Court’s Unreasonable Reasons Doctrine in Admin Law

Why Newfoundland Nurses should be overturned and a recent FCA case adopted as a new starting point.

In Sharif v Canada (Attorney General), 2018 FCA 205, the Federal Court of Appeal (per Stratas JA) was faced with the herculean task of trying to do the impossible: review nothing. Indeed, that is what is asked by the Supreme Court when it says that courts should supplement the reasons of decision-makers. Sharif is the latest in a growing list of cases that demonstrate the fallacy of the Court’s approach. There are two reasons why Sharif’s reasoning demonstrates the flaws with the Court’s doctrine of supplementing reasons: supplementing reasons skewers itself on the Supreme Court’s own concept of deference; and a doctrine of supplementation creates perverse incentives for decision-makers.

First, to Sharif. The Chair of the Warkworth Institution Disciplinary Court convicted Mr. Sharif of “fight[ing] with, assault[ing] or threaten[ing] to assault” another person under the Corrections and Conditional Release Act [CCRA]. In making the decision, the Chair only made a few factual findings: (1) he attempted to keep his meal tray out of a correctional officer’s reach; (2) this conduct invited physical contact either by Mr. Sharif or by the officer [17].

Fatally, Stratas JA noted that the Chair did not analyze the provision of the CCRA under which he convicted Sharif—and that led him to obviously (but implicitly) conclude that Sharif’s action of keeping his meal tray away from the officer was “figh[ting] with, assault[ing] or threaten[ing] to assault.” But to Stratas JA, this “[fell] short of affirmative action or aggression with physical consequence” [23], the condition required under the CCRA. The Chair’s reasons did not contain a finding of aggressive conduct [25].

At this point, the Supreme Court of Canada’s conclusion in Newfoundland Nurses enters the fray. The Court there confirmed Dunsmuir’s selective citation of an academic article, reasoning that judicial review courts may provide reasons that were not but “could be” offered by the decision-maker. Courts should “supplement [reasons] before [they] seek to subvert them” [12] by looking to the record; additionally, inadequacy of reasons is not a standalone basis for review [14]. To the Court (through Justice Abella), this doctrine was consistent with Dunsmuir’s requirements of “justification, transparency, and intelligibility” [13].

Justice Stratas declined to supplement the Chair’s non-existent reasons, even though he looked to the record as instructed by Newfoundland Nurses. In fact, he concluded that, looking to the record, the Chair “declined to find that Mr. Sharif’s conduct was aggressive” [27]. Applying Newfoundland Nurses, and doing anything more to determine whether the ultimate outcome was reasonable, would amount to  “impersonation” of the decision-maker (Bonnybrook, at para 91 per Stratas JA in dissent—but with no quarrel from the majority). To Justice Stratas, doing so would usurp the role of the decision-maker, or otherwise speculate as to what the decision-maker thought about the relevant legal analysis. Here, the reasoning was plainly deficient. The Court could not conduct judicial review.

Having concluded this, Justice Stratas refused to take Newfoundland Nurses any further. In effect, he concluded that the lack of reasoning was a standalone basis for review. And he was right to do so. This is where Newfoundland Nurses goes wrong and Sharif should be followed. Reasons are a window into a decision. The decision-maker has been delegated power to make decisions; and the reasons offered are important for the court to determine the legality of a decision. If decision-makers are incentivized to provide inadequate reasons, but courts cannot intervene on those decisions, the administrative state is evasive of review. A court ginning up supplementary reasons only exacerbates this concern by providing cover for bad and inexpert decision-making.  Sharif raises this concern on two fronts, and I would take the reasoning in the decision further to bar all supplementation.

As Justice Stratas notes in the decision, supplementing decisions can be fundamentally corrosive of the separation of powers between the judiciary and the legislature. The task on judicial review is to police the boundaries of the administrative state (Wall, at para 13), with the appropriate degree of deference indicated by the legislature.   It is not giving “respectful attention” (Dunsmuir, at para 48) to the reasons the decision-maker offered if the court is, as Newfoundland Nurses instructs, permitted to recreate a decision from the record that the decision-maker did not make. The Justice Abellas of the world forget that reasonableness is a standard of review. If a decision-maker offers nothing, how can a court review—or even give deference—to something that does not exist? It is profoundly disrespectful of the (supposedly expert) delegated decision-maker to impose a court’s own reasoning, but it creates a situation where that disrespect begets insulation. By saving the administrative state from its own poor reasoning, courts will end up reviewing its own reasons, not the decision-makers. And decision-makers will use their delegated authority to make decisions that courts cannot review on the merits.

But the downstream effect of this doctrine of deference is likely also corrosive. A decision-maker under Newfoundland Nurses can provide one line of reasons knowing that courts can look to the record to supplement the decision. But this is not judicial review in any meaningful sense. The job of a judicial review court is to review a decision, not conduct documentary discovery.  A bare record is a necessary but insufficient condition for meaningful review. Reasons—addressing the main legal issues and engaging with the core interpretive difficulties—are vital. When a court supplements a decision, decision-makers can relax, knowing that the margin for error is quite wide. And in cases where the decision-maker has some control over compiling the record, the doctrine incentivizes the piling of documentary evidence into the record, without having to engage with the difficult legal questions, knowing that courts could–somewhere–find a justification.

In this sense, for a lawful administrative state, it is not enough that the outcome of a decision be supported by the record. The administrative decision-maker–the merits-decider–must herself support that outcome with reasons springing from her own pen. A court on judicial review must take those reasons for what they are, not create incentives for a free-riding administrator to depend on an expert court to cover for legal mistakes. This is all the more important where important liberties are at stake.

Sharif pushes back on these perverse incentives by demanding more. It asks decision-makers to explicitly set out the basis of the decision, and justifies the revocation of the lifeline granted to them by Newfoundland Nurses. It restores a modicum of respect for Parliament’s choices. Newfoundland Nurses should be rejected. Sharif is a good start as a replacement.


Criticizing the Supreme Court

Why we should vigorously dissent when the occasion presents itself.

What is the generally accepted scope of criticism for the Canadian judiciary?

This question was brought into stark relief last week, with a post from co-blogger Leonid Sirota and a similar post from me criticizing, in no uncertain terms, Justice Abella’s recent comments about the role of the Supreme Court in Canadian society. Leonid received criticism for his post, with others positing that there should be a presumption of good-faith when criticizing the judiciary.

It strikes me that the general reaction, while itself in good faith, ignores the nature of judicial decision-making in modern day Canada. The so-called “countermajoritarian difficulty” is, to some, a non-starter for discussion in Canada, because Parliament and the provinces (read: Canadians) themselves gave the strong-form power of judicial review to the courts in the 1982 constitutional negotiations. Within this argument is an admission that the court’s role—itself a product of democratic consensus—cannot usefully be criticized on democratic grounds. It is reflective, according to Justice Abella, of a broad consensus among Canadians that the court should be advancing values and principles that at one point were the responsibility of the legislature.

So be it. But with great power comes great responsibility. And if we are to accept a role for courts in legislating, then courts should be subject to the very same criticism that is leveled at politicians of all stripes. If courts are ruling on matters central to who we are as Canadians, and if they are doing so because we gave them that power through democratic channels, we should be responsible for monitoring our choice. In that sense, the judiciary’s great power should be checked by watchful criticism just as Parliament’s judgment is criticized.

The response to this is predictable, and it is raised by Justice Abella: the difference between the judiciary and the legislatures in our system is so important that it is given constitutional protection. Judicial independence is a cherished principle because it allows the courts full scope to check majoritarian passions, which is sometimes necessary in a society based on constitutionalism and the Rule of Law. In this sense, we should not undermine judicial independence through robust criticism of the judiciary, lest it invite enterprising Trumpian politicians to rail against the courts and reduce the public’s trust in these hallowed institutions.

The conflation between judicial independence and criticism is quite unfortunate. Judicial independence is indeed an important constitutional requirement, one that should be preserved. But judicial independence should not stop us from criticizing the judiciary when it goes too far, in light of other constitutional principles—including the separation of powers. Parliament is supreme within constitutional boundaries, but this does not stop any one of us from vigorously criticizing parliamentarians, even with invective language. Even lawyers, defenders of the institutional integrity of law, do this on Twitter from time to time when talking about Justin Trudeau, Doug Ford, Jim Watson, etc etc.

If one views the court as carrying immense power, it is natural to err on the side of promoting vigorous, powerful dissent rather than muddy agreement or assumptions of good-faith. We can always assume good-faith, but that gets us nowhere near the substantive justifications for a court decision, nor does it allow us to criticize a particular judge’s thought process and reasoning. Something may be in good-faith but totally and completely contrary to fundamental law; or it may be the result of several logical fallacies, or an oversized view of the judicial role unsupported by our history or traditions. It may be inevitable that we have to mention a judge’s name in criticizing her thought process, and if judges are public figures, they should expect nothing less. In this sense, short of the marginal cases where one lobs horrible insults, the judge and her worldview are inseparable from the things she says and the public pronouncements she makes.

In other words, if a judge of a particular court views her job as deciding value judgments, that same judge cannot then hide behind judicial independence as a protection against vigorous criticism. The Charter did not entrench courts. It entrenched a Constitution, the basis of which derives from popular support represented by legislatures. We, including those in the legal profession, have the right and the responsibility to vigorously criticize judges. If a line is to be drawn, it should be drawn inclusive of this important principle. In the same vein, in a society where judges carry great power, histrionics and celebration of those same judges should be avoided, much in the same way that we view politicians with a hint of distrust. This is not a malevolent consequence of our system, but it should be the natural reaction of human beings who have delegated broad powers to others to govern them.

Judicial Supremacy Defrocked

Justice Abella’s recent speech should remind us that courts are fallible.

In a recent speech reprinted in the Globe and Mail, Justice Abella of the Supreme Court again offered a robust defense of the judicial role and the profoundly benevolent impact of the Supreme Court in Canadian constitutional history:

Integration based on difference, equality based on inclusion despite difference and compassion based on respect and fairness: These are the principles that now form the moral core of Canadian national values…the values that make our national justice context democratically vibrant and principled…[a]ll this came from the Supreme Court.

She goes further:

A Supreme Court must be independent because it is the final adjudicator of which contested values in a society should triumph. In a polarized society, it is especially crucial to have an institution whose only mandate is to protect the rule of law.

On one hand, it is good to see that Justice Abella no longer finds the Rule of Law annoying. But on the other hand, her comments should give us pause. She presents a vision of a Supreme Court that decides what Canadian values are, and then imposes them on the society generally. We should first call this for what it is: judicial supremacy, in which rights are not recognized as much as they are created out of whole cloth at the discretion of the Supreme Court. Abella J seems to accept this in Saskatchewan Federation of Labour, where she “gives benediction” to a right to strike. “Benediction” is defined as “the utterance or bestowing of a blessing, especially at the end of a religious service.” True to form, the Supreme Court is the high priest, bestowing us with rights as only a supreme institution can.

Glibness aside,  I do not mean to use the term “judicial supremacy” in a bombastic way, but rather in a technical legal sense. I mean it in the sense that Justice Abella clearly views the role of the Supreme Court as having the last word on constitutional matters. But her view goes even further: she thinks that the Supreme Court is a freestanding arbiter that is institutionally capable of rending final judgments on contests between values for the society on the whole.

I’m not sure this is normatively justifiable or whether it’s even a structural or textual feature of the Canadian Constitution. The legislature still has an important role to play in vetting laws for their constitutionality and making important value judgments that may impact constitutional rights—in most cases, the legislatures are probably better at this than courts. But this is a bigger fish to fry. Assuming for my purposes that Justice Abella’s description of what courts do and should do is accurate, maybe this state of affairs could be justifiable on the basis that courts are comparatively better at making the sorts of value judgments that arise in constitutional matters. If Justice Abella’s framing is true, so the argument goes, the essence of constitutional adjudication is value judgment; courts adjudicate constitutions, and therefore courts, over time, will be expert in value judgments.

But no one has ever presented evidence that this is empirically true, and I am not sure anyone ever could. Justice Abella herself recognized this in Doré, when she developed a doctrine of deference premised on the concept that courts are worse at constitutional decision-making than administrative decision-makers. In fact, courts are not institutionally suited to balance the sort of polycentric considerations that go into difficult and resource-laden value judgments. And judges are trained in the law, which on many modern accounts, is not even the purpose of law school. There are good reasons to doubt the ability of the courts to even begin to understand the weight of the task at hand.

If we are to have judicial supremacy, and judicial supremacy is fundamentally about final value judgments, I am not sure why we solely appoint legal practitioners to the Supreme Court. I only half-joke when I say that we could populate the court with people trained in the different perspectives through which value judgments could and should be made. Economic reasoning, for example, could be extremely helpful here. As Lon Fuller said, there is a point at which we could trade-off certain values in favour of others. We should attempt to develop theories by which we can anticipate and calculate the costs of adopting one right over another; or the reliance interests associated with this precedent over that one. What’s more, philosophy could be helpful. Moral and normative reasoning about how people should live is clearly within the interest of Justice Abella when she judges cases.

I think that the Justice Abellas of the world who argue that law is simply about “balancing values” are caught between a rock and a hard place. On one hand, if they make that argument, they should accept that law has no claim to empire over adjudication. Adjudication is not what is taught in training for lawyers; and there are people who are better qualified to assess the different tradeoffs of values and the practical impact those changes have. But if they reject this proposition, then they must accept that there is a locus of “law” somewhere to be found in adjudication. It follows that we should train lawyers and judges to first, do no harm; determine the meaning of constitutional terms according to objective standards.  Values may be instantiated in the law, but one must first interpret that law to determine those values. It shouldn’t be the case that judges enter legal inquiries with an idea of the values they seek to advance.

The task of judging was supposed to be defined by “passive virtues,” with courts possessing neither force, nor will—only judgment (The Federalist, No. 81). Justice Abella evidently believes in a vision of courts that are not only supreme but confidently so. Judgment has turned into arrogant finality that decides not only the narrow constitutional issue before the court, but the larger value judgment which is settled for all time.  There is no democratic recourse to the ever-expanding domain of constitutional empire if courts make abstract, political, and resource-intensive value judgments for the society on the whole.  If courts are going to do this—if we have sold the legislature down the river—then they should at least be good at it.

Bell/NFL: The Second Dunsmuir Redux Case

Two weeks ago, I summarized and analyzed the arguments in Vavilov, one of the Dunsmuir redux cases that will be heard at the Supreme Court in December. I’ll now do the same for the second case, Bell/NFL, which similarly focuses on an important conceptual difficulty in the law of judicial review: the presence and implications of a category of “jurisdictional questions.”

This case concerned an interpretation of the Canadian Radio-television and Telecommunications Commission [CRTC] of its own statute and regulations. The Appellants, Bell and NFL, claim that the interpretation raises a jurisdictional issue; the Respondent government resists this claim, arguing that the concept of jurisdictional questions inviting a different standard of review should be jettisoned. For reasons I’ve explained before, I do not think jurisdiction is a helpful category in the law of judicial review. All administrative law is confined to statute, and so whether an issue is “jurisdictional” or not is simply a function of an enabling statute.

The interpretive difficulty

The interpretive difficulty in Bell/NFL centres around the broadcast of the Super Bowl in Canada. For many years, the Super Bowl had been broadcast in Canada under the “simultaneous substitution regime,” set out in the regulations [Sim Sub Regulations] under the Broadcasting Act. Under the simultaneous substitution regime, a Canadian television station is required (unless the CRTC determines otherwise) to substitute a Canadian feed for a non-Canadian programming service—the result being that Canadians watching the Super Bowl see Canadian commercials whether they watch the Super Bowl on a Canadian or American channel (see Sim Sub Regulations, s.4(1))). The CRTC, under the Sim Sub Regulations, can apply an exception to the simultaneous substitution requirements if the “deletion and substitution are not in the public interest” (s. 4(3)). The CRTC can make this decision under s.18(3) of the Broadcasting Act, which allows it to make any decision “within its jurisdiction” if it is satisfied it is the public interest.

In this case, after consultations, the CRTC decided that the simultaneous substitution of Canadian content would no longer be in the public interest.  The key provision is s.9(1)(h) of the Broadcasting Act, under which the CRTC is entitled to require a licensee to “carry…programming services specified by the Commission.” Under this provision, the CRTC decided that it had jurisdiction under s.9(1)(h) to apply the exception to the simultaneous substitution regime in the public interest.

At the Federal Court of Appeal (a direct statutory appeal), Bell and the NFL argued that the CRTC “only has jurisdiction to make orders and regulations regarding programming services and does not have jurisdiction to single out an individual ‘program’” [15]. While the Broadcasting Act does not define programming services, the appellants argued that other provisions in the statute used the term “programming services” to refer to television channels. So, since the Super Bowl is a single show, the CRTC did not have “jurisdiction” under s.9(1)(h) to make the order it did.

The Federal Court of Appeal decided otherwise. First, the Court concluded that the standard of review is reasonableness, but rejected the “margin of appreciation approach” that the Court adopted in Vavilov [9].  It ultimately decided that the term “programming services” is contextual in nature; it could mean a single “program” (ie) the Super Bowl in certain circumstances [19]. A number of factors supported this conclusion: (1) previous interpretations of the CRTC held that the term was contextual [16]; the Sim Sub Regulations adopted the definition of “programming services” under the Broadcasting Distribution Regulations, which defined a “programming service” to mean a singular program [17]; while the legislative history demonstrated that “programming services” was used in reference to television channels, it was not determinative, and there was no evidence that the legislature intended to exclude a singular program from the term “programming services.” All of this meant that the CRTC’s decision was reasonable.

While there were other issues in this case, this core issue is the one that is most relevant to current debates in administrative law and judicial review.

The Parties’ Submissions on Standard of Review

Bell and NFL filed a factum each before the Supreme Court; Bell’s focused on the standard of review, while the NFL’s focused on the application of the standard of review to the issues in the case.

Bell’s factum reads as an attack on the administrative state. In the opening paragraphs of the factum, Bell notes that s. 9(1)(h) is juxtaposed with s.26(2) of the Broadcasting Act, which gives the power to Cabinet to require the broadcast of “any program.” This, to Bell, was the only provision of the statute that permitted the targeting of an individual program. This made sense—the Cabinet is “a democratically accountable body” [5]. And Bell does not pull punches, calling the CRTC’s exercise of power “Orwellian,” “conferring upon itself the ability to dictate the particular television programs that broadcasters distribute…” [5].

This assault on administrative power informs Bell’s standard of review proposal. To Bell, it is “inconceivable” that Parliament would have wanted the CRTC to have the last word on its own “jurisdiction” on this matter. To prevent this reality, Bell argues that a separate category of “jurisdictional questions” inviting correctness review is required. At risk are three principles: legislative supremacy, the separation of powers, and the rule of law [paras 42, 45, and 63-69]. When the fundamental question concerned “executive accountability to legal authority,” it would undermine the intent of the legislature to allow its creation to run beyond its statutory limits; the separation of powers is at risk if the executive could “decide for itself what powers were delegated to it by the legislature” [47]; and if the CRTC could single out a program when the statute expressly left that task to Parliament, the rule of law is impacted [69].

Without correctness review on “jurisdictional questions,” Bell alleges that we have an administrative state untethered to statute, making law as it goes along. And for Bell, even if the presumption of reasonableness was applicable, other statutory signals rebutted the presumption, including a statutory right of appeal [87-88].

The government, in its submissions, reiterated the focus on a general standard of deference for all administrative decision-makers that it set out in its Vavilov submissions and that I addressed in my previous post. It argues that the category of jurisdictional questions should be eliminated [34], and that the mere fact of delegation creates a presumption of deference [48]. To the government, there should be no search for other implicit signals of legislative intent to rebut this presumption.


The Bell/NFL case gives the Supreme Court an opportunity to review its approach to that unicorn of judicial review, “jurisdictional questions.” In a forthcoming paper entitled “Two Myths of Administrative Law,” one of the myths I tackle is the idea of jurisdictional questions. In my view, both Bell and the government get this issue wrong. A category of jurisdictional questions (but not necessarily the concept of “jurisdiction”) is not helpful to the task of determining the standard of review; but neither is an always-applicable presumption of deference, which the government seems to believe necessarily follows from the rejection of the category of jurisdictional questions.

Starting at the beginning, Dunsmuir defined a true question of jurisdiction as one that concerned the decision-maker’s authority to make the inquiry in the first place [59]. This is, to be clear, is a very narrow sort of jurisdiction that can be distinguished from a pre-CUPE notion of jurisdiction. Under pre-CUPE law, every decision of an administrative decision-maker that runs afoul of its statutory boundaries could be considered as beyond its jurisdiction. Dunsmuir rejected this broad notion of jurisdiction.

But the Court has struggled with this conceptually difficult category. In subsequent cases, it has rolled back its application. In Halifax, it did away with the notion of “preliminary” or “entry” jurisdictional questions. In Alberta Teachers, a majority of the Court remarked that the category served little purpose. In CHRC, it reaffirmed the idea that a category of jurisdictional questions is unhelpful. Some spirited dissenters argue that the category is necessary, as Bell argues, to ensure that administrative decision-makers stay within their lawful boundaries (see also dissents in Guerin and CHRC).

I can understand the worry of the Court’s dissenters and Bell about the need to keep the administrative state in check. The real question is if meaningful checks and balances can be applied to a decision-maker by a judicial review court in absence of this category. To my mind, the answer is yes—but not under the current presumption of reasonableness, nor the extended version sought by the government in this litigation.

How is this so? In CHRC, the majority cited the City of Arlington case at the Supreme Court of the United States, per Scalia J. In that decision, a majority of the United States’ apex court rejected the idea that jurisdictional questions deserve a special, more intensive review than other questions of law. At the root of the argument for the category of jurisdictional questions, Scalia J reasons, is a misapprehension of the notion of “jurisdiction” in administrative law. For example, in Canada, s.96 courts have “inherent jurisdiction” that is constitutionally significant. This power to hear and decide cases is fundamentally different from the idea of administrative law jurisdiction—the jurisdiction of s.96 courts is constitutionally entrenched, whereas the jurisdiction of administrative decision-makers is defined by their statutes. This fundamental concept was described by the Court in Ocean Port, at para 23, with respect to independence. Constitutional guarantees of independence do not transfer over to an administrative decision-maker, even if they are requirements in the context of superior courts. While we would jealously guard constitutional independence, independence in the administrative context is completely different—it can be traded away.

The same is true of “jurisdiction.” In administrative law, the idea of “jurisdiction” is purely statutory. The power of a tribunal to hear and decide cases is circumscribed by statute, unlike in the s.96 context; so are the remedies that the decision-maker can grant, and whether a particular claimant can even have standing to challenge a particular decision. Whether the tribunal can act at all on a particular matter is a matter of statute. At the most extreme end, whether we have an administrative state to even review is a matter of statute. In a sense, everything and nothing is jurisdictional (Nolan, at para 33) because a decision-maker has no independent reserve of powers on which to rely outside the statute.

If one supports the idea that the level of deference owed to a decision-maker is a function of statute (which the Supreme Court does), then there is no reason to apply a different standard of review over questions going to the tribunal’s power to hear and decide cases, as opposed to its power, say, to grant a certain remedy. If a tribunal hears a case it is not statutorily empowered to hear, it is as much an affront to legislative supremacy and the rule of law as if the tribunal granted non-pecuniary damages when its enabling statute gave it no authority to do so. Both are instances in which the decision-maker has assumed power it has not been specifically assigned—and at heart, this is Bell’s fundamental concern with the CRTC’s action here. Nothing turns on the label of “jurisdiction.”

While the Court’s invocation of City of Arlington in CHRC supports the government, the Court doesn’t cite City of Arlington for its other, parallel proposition; that it is the job of courts to intensively police the boundaries of the administrative state, no matter the standard of review. For Scalia J, every case turns on the vigorous enforcement of statutory boundaries, not the artificial imposition of a particular category. And this is where Bell’s submissions are preferable to the government’s.  Under the government’s formulation of deference without an investigation of statutory signals, it is possible that a decision-maker could have (essentially) the last word on its statutory boundaries. This is not only problematic when we speak of the decision-maker’s power to hear and decide cases; it is a problem in every permutation of decision-making that could abridge the enabling statute. A judicial review court must review, and in our system of laws, this means determining whether there is any daylight between potentially correct interpretations of statutory language and what the decision-maker did in a particular case.

This case provides an example of how this could work in practice. In any given case, there should be two inquiries: (1) is the decision barred by the text, context, and purpose of the statute? (2) is the process of reasoning sound with respect to these principles of statutory interpretation?

On the first question, whether the term “programming services” can refer to the Super Bowl is a question of law. That means that a court reviews the text, context, and purpose of the statute—and the “open-textured” language therein—to determine the level of deference owed and whether the substantive result is legal. Here, the text is undefined in the statute, and is reasonably open-textured, meaning it could support more than one option. Sometimes, the tools of statutory interpretation require this result—there may be more than one answer. The context supports the CRTC’s interpretation and the breadth of options; the definition of programming services in the Sim Sub Regulations supports the CRTC’s decision. While I am alive to the concern that the Cabinet may have the power under s.26(2) to specify particular programs, that power seems to be of a different nature—based on the “urgency” of the program specified.  And even though a statutory right of appeal is present in the legislative context, that does not change the legality of the CRTC’s reasoning on the specific interpretive difficulty. Finally, the CRTC’s decision does not run counter to any of the Broadcasting Act’s purposes.

If I had my druthers, this is how we would deal with questions of law. There would be no presumption of “reasonableness.” Any deference is inherent in the language, the context, and the purpose of the statute. Here, the CRTC’s decision is not reasonable, or correct, but legal—it is supported by the tools of statutory interpretation and its process of reasoning is adequate (this point was not central). Nothing more or less.

Jurisdictional metaphysics, while interesting, is the province of lawyers. Bell/NFL provides an opportunity for the Court to get out of the game.

The Supreme Court’s Hubris in Mikisew Cree Nation v Canada

In Mikisew Cree Nation, the Supreme Court dealt with a novel argument: does the duty to consult [DTC] attach to legislative action? The Court, rightly, answered no, holding unanimously that the Federal Court had no jurisdiction under the Federal Courts Act over a judicial review brought against Parliament’s law-making power. But the Court split into four sets of reasons on the substantive matter of whether the DTC applies to legislative action. While rejecting the challenge in this case, Karakatsanis J in the lead opinion left the door open to these sorts of challenges in the future. For the reasons I’ll explain below, I think this is a profoundly unprincipled way of reasoning about the issue—first, because it is an attempt to expand judicial power in violation of the separation of powers, and second, because it undermines the national certainty the Supreme Court is designed to provide.

The facts of the case are simple. In 2012, two omnibus bills affecting environmental protections were introduced and passed in Parliament, receiving Royal Assent. The Mikisew, with proven Aboriginal rights under Treaty 8, alleged that the Crown had the DTC them on these legislative changes to the environmental protection regime—arguing that it affected their constitutionally-protected rights. The Federal Court agreed with the Mikisew, holding that they were entitled to notice of the parts of the bills that would affect their interest, as well as an opportunity to make submissions. The Federal Court of Appeal reversed, concluding that the Federal Court had no jurisdiction over the matter.

The first opinion in the Supreme Court was written by Karakatsanis J. On the issue of jurisdiction, Karakatsanis J held that the Federal Courts Act only contemplates judicial review of Crown actors (defined as Her Majesty in right of Canada in s.2(1) of the Federal Courts Act) or federal boards, commissions, or other tribunals. On the first count, Karakatsanis J concluded that Her Majesty in right of Canada refers only to Crown actors in their executive, rather than legislative, capacity [15-16]. As well, the Crown is not a “board, commission, or other tribunal” as defined in ss. 2(1) and 2(2) of the Federal Courts Act.

This is enough to dispose of the case. But Karakatsanis J went on to address the merits, concluding that the DTC, which applies to “Crown conduct,” can only apply to executive action—not the actions of Ministers introducing legislation (acting in their legislative capacity). While Karakatsanis J acknowledged the “overlap” between executive and legislative functions in Westminster systems, here what was challenged was a direct exercise of legislative power under the Part IV of the Constitution Act, 1867 [33]. This challenge, to her mind, implicated the separation of powers, parliamentary sovereignty, and parliamentary privilege [35-37]. But Karakatsanis J did not close the door to the challengers completely. She first noted that “the Crown’s honour may well require judicial intervention where legislative may adversely affect—but does not necessarily infringe—Aboriginal or treaty rights” [3]. She then concluded her reasons by saying that “other protections may well be recognized in future cases” [52].

Abella J, concurring on the jurisdiction point, nonetheless wrote separately to say that the Court’s aboriginal law jurisprudence, specifically pertaining to the honour of the Crown, compelled a result that the DTC applied to Parliament. To her mind there was no “doctrinal or conceptual justification which would preclude a [DTC] in the legislative context” [81]. The “formal label applied to the type of action that the government takes…”, to Abella J, has no impact on the sanctity of rights protected in s.35 of the Constitution Act, 1982—whether that action is legislative or executive. Abella J would introduce a requirement that legislatures consider whether their chosen legislative process affecting Aboriginal rights “…accords with the special relationship between the Crown and Indigenous peoples of Canada” [93].

Brown J also wrote separately, while concurring on the jurisdictional point, to attack Karakatsanis J’s mixed message on the DTC in a legislative context. To him, Karakatsanis J’s reluctance to close the door completely on the issue would “throw this area of the law into significant uncertainty” [104]. To Brown J, “…the entire law-making process—from initial policy development to and including royal assent—is an exercise of legislative power which is immune from judicial interference” [117]. This is because, while the separation of powers in Canada is not rigid, this does not mean that the roles of the legislative and executive branches are “indistinguishable for the purposes of judicial review” [119]. The history of parliamentary sovereignty—for example, the hard-fought adoption of the Bill of Rights of 1688—compelled the conclusion that “…parliamentary and judicial functions have been clearly separated from Crown control” [128]. And so, Karakatsanis J’s opinion was “searching for a problem to solve (while at the same time declining to solve it)” [135]. This situation would invite courts to, potentially in the future, take a greater supervisory role over the legislative process in a way that is at odds with the separation of powers [135, 142].

Finally, Rowe J also wrote separately, outlining mainly the practical problems with an approach invited by Karakatsanis J. Specifically, what types of legislation would trigger the DTC? Who would need to be consulted? And at what stage in the legislative process would consultation take place? [165].


There is much in this decision worth noting, but I want to focus on Karakatsanis J’s problematic reasons and their implications for the separation of powers and the Supreme Court’s general method of deciding cases.

Each of the opinions decided the case on the question of jurisdiction. That is, the Federal Court had no judicial review jurisdiction over the decision of a legislature—not a Crown actor per se nor a federal “board, commission, or other tribunal.” This should have decisive, and Karakatsanis J should have gone only so far as to explain that finding—particularly for the purposes, for example, of preventing forum-shopping whereby a new claimant could bring relief against the Crown in a provincial superior court and make the same arguments (s.17 of the Federal Courts Act contemplates a system of concurrency where claims can be brought against the Crown in provincial or federal court so long as statute does not say otherwise). Obviously, the jurisdictional finding in this case dovetails with a finding that legislation is not “Crown conduct.”

In consideration of this, Karakatsanis J should have ended her comments at the finding that the court had no jurisdiction because the enactment of legislation is not “Crown conduct.” For her to go further and leave the door open to future legislative challenges based on the honour of the Crown–which also undergirds the DTC– is severely flawed for two reasons: (1) it is not prescribed by the structure of the Constitution, nor would it be a good policy idea and (2) it introduces uncertainty.

Brown J is right to point out the contradictory nature of Karakatsanis J’s opinion. On one hand, she writes that parliamentary sovereignty, the separation of powers, and parliamentary privilege preclude the challengers’ preferred outcome. This is all correct for the reasons outlined by Brown J and Rowe J. But then, in service to unknown goals, she decides that these principles can be violated just a bit—that in a future case, they could be compromised to permit the sort of challenges sought by the claimants here where rights are adversely affected by “the Crown” in enacting legislation even when the legislation itself is constitutional (see Karakatsanis J’s reasons at paras 3, 25, 44 and 52). This means, to Karakatsanis J, that the separation of powers/parliamentary sovereignty are negotiable in a manner uncontemplated by the Constitution. Her guiding light seems to be the hobby-horse of changing circumstances; some future time when the separation of powers and parliamentary sovereignty will give way to allow these sorts of challenges.

Query why these principles preclude challenges based on a failure to abide by the DTC now, while in the future, they could allow challenges based on an “adverse effect” on Aboriginal rights. The same principles apply. Under the current doctrine, in order for a DTC violation to occur, asserted Aboriginal rights must be “adversely affected” (Rio Tinto, at para 31).  But Karakatsanis J now purports to say that a DTC violation and adverse effect are two different things–and that the principles of parliamentary sovereignty and the separation of powers could allow an independent claim based on the latter in the future. The honour of the Crown is not a free-standing right to challenge legislation, and most importantly, no matter the legal label, the Crown does not enact legislation. 

Notwithstanding this unprincipled distinction drawn by Karakatsanis J regarding the DTC, it is completely unclear why the constitutional principles relied on by Karakatsanis J would operate to, in the future, allow an “adverse effect” challenge based on the amorphous “honour of the Crown.” While the separation of powers and parliamentary sovereignty are principles that are necessarily variable in our constitutional monarchy, that variation is included in the structure, not as a product of the times. For example, Karakatsanis J herself notes that the Cabinet and the legislature operate in some ways as a piece—this is a basic feature of Westminster government. But as Brown J noted, the separation of powers does not expand and contract to permit something tomorrow that isn’t allowed today; in this case, a constitutional challenge that is fundamentally unknown to the legal system. Karakatsanis J frames the requirements of the separation of powers and legislative sovereignty in language that calls to mind a standard (see Brown J’s reasons at para 103). But these principles are rules that bind the actors in the constitutional system. They are only open to negotiation to the extent the Constitution prescribes that negotiation.

The target for Karakatsanis J—and more honestly, Abella J—seems to be the sphere of authority granted by the Constitution Act, 1867 to the legislature. Karakatsanis J seems to want to, slowly but surely, increase judicial oversight over that sphere and erode what the Constitution expressly contemplates. This is wrong simply because it is not prescribed by any constitutional text or principle. While the honour of the Crown is a constitutional principle, it is unclear why that principle is ill-served as applied to legislation by the existing Sparrow justification framework. In other words, why does the honour of the Crown compel the requirement of some new cause of action in violation of the very same principles relied on by Karakatsanis J?

The beneficiary of such a duty would not be Aboriginal peoples, but the judiciary. Its existence would expand judicial power beyond deciding cases towards ongoing supervision of the legislative process. This seems to be a legal fact wholly lost on the Supreme Court. It seeks to enlarge its power and process beyond its constating statue (the Supreme Court is simply a statutory court, no matter the pains it takes to say otherwise) and beyond the constitutional division and separation of powers. Judicial oversight of legislative acts could create distorted inefficiencies in our system of government that achieve no ends—in this case, I have doubts it would achieve the ends of reconciliation sought by the Court.

For some, this would be enough to counsel against the idea. But Karakatsanis J and Abella J seem to believe that this is required as a matter of policy. It seems, to them, that courts are able to vindicate the rights of Aboriginal peoples by monitoring the legislative process, and in fact, should in order to promote “reconciliation.” Even on this count, they fail. First, reconciliation would be an admirable goal if anyone, especially the Supreme Court, could adequately define what it means. But at any rate, the Supreme Court itself has recognized that its august halls are not suited to the promotion of Aboriginal rights (Clyde River, at para 24—an opinion jointly penned by Karakatsanis J). And this seems just logical. Why are nine patrician judges any better able to define reconciliation? Why should Aboriginal peoples have to spend years and thousands of dollars trying to define to these same nine judges what reconciliation is? This would be enough to question the wisdom of an approach advocated by Karakatsanis J and Abella J, but of course, there are also the practical concerns raised by Rowe J.

A final broader point about the Supreme Court’s method of deciding cases. Part of the reason for the Supreme Court’s existence is its ability to settle law. In fact, the Supreme Court was founded under s.101 of the Constitution Act, 1867 “for the better Administration of the Laws of Canada.” It does nothing of the kind when it leaves open the door just a crack to an argument that it otherwise rebuffed. This seems to be a repeat habit for the Court. In Gosselin, the Court did the same thing regarding positive rights under s.7 of the Charter. In Wilson, Justice Abella wrote separately to argue for a new standard of review framework in absence of arguments on that front, and despite acknowledging that a future case would have to deal with the issue. And for now, the separation of powers and legislative sovereignty preclude DTC-like legislative challenges—but not forever.

This method of deciding cases wholly undermines certainty. As Brown J notes, it invites enterprising litigants and judges to argue that this case—their case—is the one that was contemplated by the Court or a judge of the Court in Gosselin, or Wilson, or Mikisew. Courts should decide cases. If they seek to depart from precedent in the future, they should be able to do, according to generally recognized and principled criteria. But the Court shouldn’t write its own precedents with the express understanding that they will be overturned.

In a way, all of this expresses the Supreme Court’s hubris. It’s hard to believe that the Court would want to download onto the lower courts a general duty to supervise legislative action, especially when it would be structurally incompatible with the Constitution, practically difficult, and likely unsuccessful as a way to vindicate Aboriginal rights. What we should seek to avoid is a jurocracy, as Herbert Weschler once put it. But, with the door open to a some sort of DTC in the legislative context, we are well on our way.

Vavilov: Doing the Administrative State’s Dirty Work

Over the next few weeks, I will be taking some time in this space to summarize the submissions in the upcoming Dunsmuir review: the cases of Vavilov and Bell/NFL. Today I will focus on Vavilov, and the proposals offered by both the Appellant (the Government of Canada) and the Respondent (Vavilov) for the standard of review of administrative action. As I’ll explain, on balance, the Respondent’s formulation is most consistent with the fundamental function of judicial review.

I should note at the outset that I am the Vice-President of the Advocates for the Rule of Law group, which is intervening at the Court in the Vavilov and Bell/NFL appeals. My comments below should be read as only my view on the merits of the parties’ submissions.


In many ways, Vavilov is a perfect case to test the merits of Dunsmuir. It is a case of pure legislative interpretation. Under the Citizenship Act, persons generally born on Canadian soil receive Canadian citizenship (under the principle of jus soli embedded in s.3(1)(a) of the Citizenship Act). There are, however, exceptions contained in s.3(2)(a), (b), and (c) of the Citizenship Act:

(2) Paragraph (1)(a) does not apply to a person if, at the time of his birth, neither of his parents was a citizen or lawfully admitted to Canada for permanent residence and either of his parents was

(a) a diplomatic or consular officer or other representative or employee in Canada of a foreign government;

(b) an employee in the service of a person referred to in paragraph (a); or

(c) an officer or employee in Canada of a specialized agency of the United Nations or an officer or employee in Canada of any other international organization to whom there are granted, by or under any Act of Parliament, diplomatic privileges and immunities certified by the Minister of Foreign Affairs to be equivalent to those granted to a person or persons referred to in paragraph (a).

The Vavilov case turns on s.3(2). Vavilov was born in Canada to Russian parents who were spies for the Russian government. The parents lived in Canada under assumed identities. But for Vavilov, he was always Canadian. He did not have any suspicion that his parents were covert agents.

In 2010, while living in the US with his family, the FBI arrested his parents. This was the first time that Vavilov was made aware of his parents’ identities. Subsequently, the Registrar of Citizenship cancelled Vavilov’s citizenship, on the conclusion that s.3(2) of the Citizenship Act applies. To the Registrar, since Vavilov’s parents were not citizens or lawfully admitted to Canada, and because they were “employees of a foreign government” under s.3(2)(a), Vavilov was not entitled to citizenship.

The Federal Court of Appeal disagreed with the Registrar’s conclusion. On the standard of review, the Court noted that this is a case where the margin of appreciation was exceedingly narrow for the Registrar, for three reasons: (1) the interests of the individual affected were elevated in this case; (2) the Supreme Court had conducted searching review of immigration matters in its recent cases and; (3) the reasons were inadequate.

On the merits, the Court concluded that the words “…employee in Canada of a foreign government” must be read ejusdem generis with the words preceding it. According to the Court, the common theme underpinning the s.3(2)(a) category was the concept of diplomatic privileges and immunities. Section 3(2)(a) was designed to apply only “to those employees who benefit from diplomatic privileges and immunities” [45]. This conclusion was supported by the context of the provision. Sections 3(2) (c), for example, referred to privileges and immunities granted to persons referred to in s.3(2)(a), indicating a legislative intention that persons in s.3(2)(a) are only those with privileges and immunities. International law also supported this conclusion—the Citizenship Act “borrows many of the same phrases that the Vienna Convention on Diplomatic Relations uses in the context of diplomatic immunity” [74]. Under the Vienna Convention, certain employees of a foreign government have immunity, specifically persons connected with the diplomatic mission. Persons not associated with the diplomatic staff are outside of the Convention, and to the extent that Convention is adopted into Canadian law, Vavilov’s parents were therefore outside the Citizenship Act exception to jus soli citizenship [58].

For our purposes, the Federal Court of Appeal’s concerns also extended to the process of reasoning by the Registrar. The Court noted that “[O]n the central statutory interpretation issue before us, the Registrar said nothing” [38]. The Registrar, as is common in administrative law, apparently relied on a report prepared by an analyst. But that report “contains only one brief paragraph on the statutory interpretation issue, and a very limited one at that” [39]. The Court was concerned that the decision was immunized from review, because it could not be sure that the central statutory interpretation issue was even considered.

The Government’s Submissions

With the facts of the case in the backdrop, the Government began its submissions by outlining its proposal for revisions to the standard of review framework set out in Dunsmuir. The government set out its proposal clearly in the first paragraph of its factum:

The standard of review should be deferential, subject only to limited exceptions where the foundational democratic principle and the rule of law make it clear that the courts must have the final word.

The motivation behind this proposal is the mere fact that the legislature granted authority to an administrative body [49]. To the government, delegation=deference.

So, we have a rule (rather than a presumption) of deference for even more matters than Dunsmuir and its progeny prescribed. Notably, no longer do we have the correctness categories of true jurisdictional questions or the category of questions of central importance to the legal system and beyond the expertise of the decision-maker.  This general category of deference applies not only to the result reached by the decision-maker but its process of reasoning. For the government, administrative decision-makers under the ambit of government should not be expected to undertake the type of statutory interpretation analysis that courts undertake [4]. And, the decision-makers should not be expected to make explicit findings on matters of statutory interpretation [60].

The only exceptions to this general rule of deference are constitutional questions (where a law is challenged before a decision-maker on constitutional grounds) and on issues of procedural fairness.

On the merits, the government argues that there was a cogent basis for the Registrar’s decision. The government highlighted that in previous versions of the Citizenship Act, there was a requirement embedded in the citizenship exception that representatives or employees of foreign governments have official accreditation, or any connection to a diplomatic mission [84]. That requirement no longer exists, and the Registrar pointed this out, concluding that the wording in s.3(2)(a) was meant to encompass additional individuals beyond just those with immunities and privileges. Since the decision-maker canvassed this legislative change, some case law bearing on the problem, and other factors, the government argues that this is a sufficient basis to uphold the legality of the decision on its deferential standard.

It appears, for the government, that this alone is enough on its prescribed intensity of review. The government argues that if there are “additional relevant interpretive factors which the administrative decision-maker did not consider, a court may examine such factors in order to discover whether the administrative decision-maker’s interpretation can be sustained” [89]. These “additional relevant interpretive factors” are the text, context, and purpose of the statute that the Registrar was tasked with interpreting. On an interpretation of these factors, the government argues that the decision is legal.

Vavilov’s Submissions

The Respondent’s proposed standard of review framework is from a different world than the government’s. He proposes a two-part framework. First, so-called “discretionary decisions” are reviewed for reasonableness. Second, questions of law are reviewed on a correctness standard. On this second prong, the Respondent concedes that the view of the decision-makers on the “purpose and policy of its own statutes will continue to deserve respect” [59]. However, courts will still have to review the administrative decision-makers’ view of its enabling statute, independently.

The Respondent also, instructively, responds to the government’s proposed standard of review framework. He first notes that while deference to administrative decision-makers presumes trust on the part of these decision-makers, “It is worth recalling that some of the most regretted episodes in Canadian history were the work of federal statutory decision-makers exercising delegated authority” [33]. And, the Respondent also notes that the government’s submission was basically an attempt to insulate its statutory decision-makers from review. Under the government’s formulation, for example, expertise is also always presumed—“no matter how limited the statutory discretion that Parliament gave to the decision-maker or how insubstantial their real expertise” [53]. Particularly on this front, the Respondent notes that the Registrar under cross-examination said that she was “not a lawyer” and therefore did not know the legal “significance” of words in the provision [102].

On the merits, the Respondent argues that the Federal Court of Appeal’s interpretation was right, particularly noting that the Registrar/analyst interpretation did not address the legislative context of s.3(2), particularly s.3(2)(c).


In my view, the Respondent accurately describes the implications of the government’s view. Particularly, the Respondent’s proposal is better than the government’s on a number of fronts if we view the matter from the basis of the fundamental function of judicial review—quite aside from any constitutional mandate for superior courts to police the boundaries of the administrative state.

First, most of Canadian administrative law doctrine is premised around the idea that the administrative state is a collection of virtuous experts creating good public policy and fairly adjudicating disputes. But the Respondent points out that this is far from the case. In fact, the state’s statutory creations have been perhaps the greatest purveyor of discriminatory treatment in the history of Canadian society. Far from being “flexible and expert,” (Edmonton East, at para 22) sometimes administrative decision-makers have been unfair, discriminatory, and even racist: particularly, the examples cited by the Respondent of the deportation of Japanese Canadians and the experience of Aboriginal peoples with residential schools are apposite. This is not to say that government agencies today have designs to discrimination. But it does mean that government agencies can make irrational decisions—particularly ones that are inconsistent with enabling law or the facts and record before it.

So, contrary to current scripture, it is not unreasonable that some would question the lawfulness of state action at the outset. And this is where the idea of a going-in rule of deference loses its force. The government wishes to create a system where state action is presumably lawful; where the mere fact of delegation speaks to the degree of deference owed by courts to a decision-maker. But on simple logical terms, a decision of a government to delegate to a satellite decision-maker says nothing about the degree of deference owed to that decision-maker by courts. Governments delegate to administrative decision-makers for a whole host of reasons: (1) the legislature does not want to spend the time setting up a complex regulatory scheme ex ante; (2) the legislature doesn’t care about the intricacies of the particular issue at hand, and wants someone else to deal with them; (3) the government legitimately feels that it does not have expertise in a particular matter; (4) the government does not want to make politically-charged decisions and wants to foist the political heat on someone else. More reasons abound. But the very fact of delegation says nothing about how courts should view that delegation, given that the reasons motivating delegation are so variable.

Quite the opposite from the traditional story, the potential for legislatures to shirk responsibility for important matters may invite scrutiny by courts. Delegation creates a form of distance between legislatures and decision-makers that makes it difficult for courts to conduct review. The idea is that a law passed by the legislature sets a standard—and decision-makers, relying on their own practices or ideas of what is right, and the informational asymmetry that they enjoy, can “drift” from the text of the law by which they are bound. This principal-agent problem invites, rather than counsels against, the scrutiny of courts.

On this front, the government’s standard of review proposal makes it more difficult for courts to determine whether a decision-maker is acting lawfully. Perhaps the most pernicious of the proposals is the idea that courts should presume deference on implied interpretations of law. One of the most common rationales for deference, put forward by the government above, is the idea that Parliament’s decision to vest power in an administrative decision-maker in the first place is legally significant. Even if we accept this logically deficient rationale, deferring to “implied” interpretations of law raises the prospect that the court is deferring to nothing. This is because it will be difficult for courts to determine whether the interpretive difficulty faced by the decision-maker was even addressed, let alone in a substantive way, if there is only an “implied determination.” Not to mention, of course, that if Parliament delegated to a decision-maker the power to make a decision, we should expect that a decision be made, not merely “implied.”

This is even more so where there are multiple analytical paths to a particular result. It may be easy in some cases for courts to draw a direct line to a particular analytical path from a result—in such cases, it may be easy to say what sort of interpretation is “implied” (putting aside the objection that it is the job of the decision-maker to positively pronounce on the matters it has been entrusted with by the legislature). But in most cases, if it is truly the case (as most argue) that statutes can fairly bear more than one meaning, then the reasoning employed to get to a certain result is quite important on judicial review. Where the decision-maker has multiple options, and has failed to pronounce on its reasoning, the court is left in the unenviable position of having to guess. In all cases, the quality of the reasoning adopted by the decision-maker—whether it addressed the text, context, and purpose of the statute, which cabins its discretion (McLean, at para 38)—is key. For the government to claim that these are mere “additional interpretive factors” is simply incorrect when it is the quality of the reasoning that determines whether a particular interpretation is lawful.

Vavilov shows why the government’s proposal is so flawed on both of these fronts. Even though we always presume expertise by decision-makers, the decision-maker in Vavilov basically admitted that she had no idea about the central interpretive difficulty in the case. She said she did not understand the terms of legal significance. The result she reached evinced this lack of understanding; she failed to take account of the whole of s.3(2) of the Citizenship Act and barely pronounced on the key interpretive difficulties. Yet, the text, context, and purpose of statutes are key to determining the range of reasonable outcomes available to the decision-maker. So, it is not true to say hers was a decision that fell within a range of reasonable outcomes, as Justice Gleason at the Federal Court of Appeal did in dissent. Quite the contrary, her decision was flawed precisely because her reasoning was flawed and wanting. It was unclear whether she took a proper analytical path to her decision. And yet, the government asks courts, on a hope and a prayer, to defer to this sort of reasoning merely because it is implied.

As Justice Stratas said in Bonnybrook, it is not the job of courts on judicial review to impersonate the decision-maker and fill in the gaps in deficient decisions. Yet the government’s proposal asks courts to do just that. Putting aside the constitutional objections to this posture, it fundamentally misconceives what courts are supposed to do on judicial review. Judicial review is designed to ensure decision-makers act rationally and according to law.

Courts cannot be conscripted into service by the administrative state to do its dirty work.