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.

Facts

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).

Analysis

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.

 

 

Anglin: Administrative Lawmaking

How administrators could make law in the dark of night.

In Anglin v Chief Electoral Officer, 2018 ABCA 296, the Alberta Court of Appeal dealt with a hidden issue in administrative law: to what extent are administrative decision-makers required to follow guidelines specifically contemplated by legislation?

In Anglin, the Chief Electoral Officer of Alberta imposed a $250 fine for breaching the Election Act. Anglin had typographical problems: “the sponsorship information on his election signs was printed in a font size smaller than that required by the Guidelines established under the Act, and was not sufficiently legible.” Anglin argued that the guidelines established by the Chief Electoral Officer do not constitute law and cannot form part of the governing statute, and as such a breach of the guidelines is not a contravention. To Anglin, there was no legal authority to impose an administrative penalty for breach of the Act [3].

The legislative context was dispositive to the Court. Under s.134 of the Election Act, candidates must ensure that ads comply with certain requirements “…in accordance with the guidelines of the Chief Electoral Officer” (s.134(2)). Under s. 134(3), the Chief Electoral Officer is required to “establish guidelines respecting the requirements referred to in (2)” which deals with sponsorship information. The specific guidelines adopted in this case prescribed a legibility requirement along with a minimum font size.

Based on this “clear” language [9], the Court concluded that the statute itself incorporates the Chief Electoral Officer’s guidelines, and that the legislature “has the power to delegate and the guidelines, like other forms of subordinate or delegated legislation are all forms of law.” This delegation, to the Court, “is incidental to legislative sovereignty.”

The Court’s reasoning raises significant problems from a democratic perspective, even though it is likely consistent with governing authority; my problem is with that governing authority itself. The making of guidelines and soft law, taken too far and unrestricted by legislatures or courts, can do an end-run around the democratic channels of adopting law, susceptible as those channels are to citizen input.

We have a few rules, insufficient as they are, to control this risk. For example, a decision-maker cannot bind herself to non-binding guidelines to the exclusion of governing law; this would be a “fettering of discretion” (see Thamotharem, at para 62).  Despite express statutory authority to issue guidelines, those guidelines may not “have the same legal effects that statutory rules can have. In particular, guidelines cannot lay down a mandatory rule from which members have no meaningful degree of discretion to deviate, regardless of the facts of the particular case before them” (Thamotharem, at para 66). At the same time, for example, guidelines issued by the Human Rights Commission have been held to have the full force of law, even if they are formulated solely by the Commission (see Bell, at para 56).

The image of a spectrum is helpful here. As noted in Thamotharem, we could have guidelines that are issued without any statutory authority whatsoever—these guidelines are still, in the traditional account, useful for guiding the administrator’s decision and providing a foundation for reviewing its legality. At the other end, we could have guidelines that are adopted according to specific delegated authority, and which must be followed as if they were law; the Anglin case is a good example. In the middle, we could have a broad legislative authorization that allows an agency to simply issue guidelines without any indication as to whether they must be followed or not.

From a fundamental democratic perspective, all forms of guidelines issued in any of these ways are trouble for different reasons. If the guidelines in the first case are applied as if they were law, we have a classic fettering problem. If the guidelines in the third case are applied as if they were law, the people subject to the guidelines have no say over binding law to which they are subject. Perhaps one could argue that these democratic issues could be excused because (1) the legislature has the undisputed authority, short of constitutional constraints, to prescribe the level of procedure required for internal agency workings and (2) perhaps this is the price of a more efficient government. But the problem remains.

One might say that the Anglin case, from a democratic perspective, is not problematic at all; after all, here the legislature has said itself what is supposed to happen. But in reality, the situation is more serious. In every case, the legislature has approved the Chief Electoral Commissioner’s making of guidelines, and his power to apply them as if they were law formulated and adopted by the legislature. And from a public administration perspective, this is completely understandable. Why would the legislature want to expend the cost of conducting a deep dive into the font sizes required on a sign? This is, on the traditional account, clearly a matter for “expert” administrators.

But if we view the problem from first principles, the legislature has in effect delegated the actual power of making the law to the Chief Electoral Officer. And if we accept that such guidelines are “hard law,” then we must accept that the law could be passed in the dark of night, because administrative agencies control how and when these guidelines (read: laws) are adopted. The answer that the legislature authorized the delegation puts form before substance. The question is whether the legislature should be able to delegate the power to the Chief Electoral Officer in the first place, given that this law will not be adopted in the ordinary course of the normal legislative process.

The context of font sizes is a bad example for this argument because it is relatively unimportant. But if we allow this form of delegation writ large, extremely broad delegations of law-making authority would be permitted. A statute could simply have one line, saying “The Administrator of [whatever agency] is entitled to make Guidelines which have the force of law.” Because there is no restriction on the power to make laws in substance, these guidelines would bind as if they were law under the current authority.

The US has some experience with this phenomenon, with its nondelegation doctrine. In practice, United States courts rarely interfere with broad delegations. But at least they have a doctrine—that a delegation must be accompanied by an “intelligible principle” to guide agencies. Here, there is no such controlling doctrine.

A restriction on Anglin-type delegations would actually likely attack very few delegations and interfere minimally with good government. The delegation problem does not arise as strongly—(ie) as a strict form of delegation in substance—in a case where the legislature authorizes the agency to make guidelines to structure its discretion. Without knowing for sure, I’d imagine this is a more common form of delegation. But where the legislature simply allows an administrator to make law itself, this seems to be a bridge too far.

 

Statutory Interpretation in Canada from the “Stratasphere”

For those interested in statutory interpretation and its effect on administrative law, I have a new piece coming out in the Advocates’ Quarterly in October. A preliminary version of the piece was posted on the Advocates for the Rule of Law website over the summer. The paper is basically a review of two opinions written by Justice Stratas of the Federal Court of Appeal. I argue that the opinions give us an opportunity to consider an underexplored area in Canada: how statutory purposes should interact with text, and the implications for the level of deference granted on questions of law to administrative decision-makers. I write the following in the introduction of the piece:

Statutory interpretation presents problems of judicial subjectivity. Though it is well-established that courts and advocates must look to the “text, context, and purpose” of a particular statutory provision to determine its meaning, little work has focused on what courts should do when purposes are stated at different levels of abstraction, or where the statute has multiple purposes which are seemingly contradictory. In fact, there are no rules governing how courts should act in these situations. The potential result of this void is the rule of “homunculi sitting in the minds of judges”; judicial subjectivity beyond statutory text.

While these problems remain, Justice Stratas of the Federal Court of Appeal provides guidance on these questions to courts and litigants in two recent cases: Williams and Cheema. After reviewing the cases, I argue that Justice Stratas’ opinions properly warn courts against characterizing highly abstract statutory purposes, outside of what the statutory text prescribes. In the context of judicial review of administrative determinations of law, doing so could facilitate an overly deferential or interventionist posture to administrative interpretations of law, beyond what text actually prescribes. This is a court created distortion. As an antidote, Justice Stratas’ opinions rightly remind us that legislation binds, and that as a matter of the rule of law, courts must enforce statutory language rather than purposes untethered to text.

 

Sunstein and Vermeule on Fuller: A View from Canada

What would Lon Fuller think about Canada’s standard of review framework?

In a fascinating article, Cass Sunstein and Adrian Vermeule explore the concept of a Fullerian administrative law. Their main argument:

Our largest suggestion is that a Fullerian approach, emphasizing the morality of administrative law, helps to unify a disparate array of judge-made doctrines and perhaps even the field as a whole. We also contend that a Fullerian approach puts contemporary criticisms of the administrative state in their best light and allows the sharpest critics to be their best selves[…]We suggest that most sympathetically understood, the critics are tracking Fuller’s fundamental principles. As we understand these critics, they are seeking to prevent a miscarriage of the legal system by ensuring that the administrative state respects the internal morality of law, at least as an aspirational matter.

The authors posit that doctrines of administrative law—the non-delegation doctrine, the presumption against retroactivity, and the rule that agency rules and decisions should be consistent with each other—can all be understood as expression of Fuller’s principles of morality of law, even if they lack connection to traditional legal sources.

This all seems very intuitive. Some of Fuller’s explanation of what counts as law—for example, a basic convergence between the law as applied and the law on the books—can be clearly applied to administrative agencies that render its own decisions in conflict with its enabling statute. Fuller’s assertion that anything counting as law must be general, promulgated in advance, and understandable evidences a clear preference for strong ex ante rules over ex post standards—and a system of predictable rules is certainly part of most conceptions of the Rule of Law. His admonition that laws should remain constant through time also implicitly disparages administrative adjudication without any external or internal guiding law or policy.

Overall, Fuller’s definition of law as a system of rules to guide action offer important insights about Canadian administrative law. There are parts of Canadian administrative law that can be seen as inconsistent with this fundamental precept. Take the entire standard of review debacle. No matter what one thinks the particular solution is to the Gordian knot, the current state of affairs fails on two of Fuller’s grounds. Most importantly, it provides no guidance to litigants or players in the system. Counsel have to predict by rumour and speculation what standard of review will be selected in a given case—and more importantly, how it will be selected.

Just as serious is the Supreme Court’s tendency to shift the parameters of the debate from case to case. Dunsmuir was decided in 2008. Since then, the following doctrinal changes were introduced by the Court: (1) a presumption of reasonableness review on questions of law was created with a tenuous connection to the original framework set out in Dunsmuir (Alberta Teachers); (2) legislative signals designed to rebut that presumption were accepted (Tervita) and then rejected (Edmonton East, CHRC) as a methodological matter; (3) the Court accepted that an agency can make implied determinations of law (Agraira), taking another case (Alberta Teachers) out of context and adopting a doctrine that stands in tension with Dunsmuir’s admonition that decisions must be “justified, transparent, and intelligible; (4) The Court accepted that “reasonableness takes the colour of the context” (Khosa), but then rejected the idea that reasonableness has many variations, holding that it consists of one standard of review (Wilson), but it is unclear whether that comment overrules Khosa and other cases (for example, Catalyst); (5) It adopted a framework for constitutional review of agency discretion (Doré), then silently rejected it in subsequent cases (Ktunaxa), and lower courts fail to adopt it with consistency; (6) the Court reasoned that courts can supplement the reasons for decisions using the “reasons that could be offered” in cases of deficient agency reasoning (Newfoundland Nurses), then backed off that assertion (Alberta Teachers), only qualifying that reasons cannot be replaced by a decision-maker on judicial review (Delta Airlines). I could go on, but need not.

Incremental development in common law doctrine is necessary and desirable. But what the Supreme Court has done with administrative law is far from incremental. The result is the lack of clear rules as to when particular standards of review are triggered. This creates distortions in the system, with courts intervening when they should not and deferring when they otherwise should not. If this weren’t enough, the Court has failed in a number of cases to adequately explain the shifts in methodology and doctrine. An example of this is the Doré question, where the Court failed to explain its shift in approach in subsequent cases, but another less common example is the tension on the reasons doctrine between Newfoundland Nurses and Alberta Teachers, released a day apart. What the Court has established is a largely ruleless wasteland that Fuller would likely regard with suspicion.

But perhaps the most objectionable part of the Supreme Court’s administrative law doctrine is the Court’s tendency to say one thing and do another. Specifically, take the Court’s tendency to engage in disguised correctness review. Fuller would have abhorred this state of affairs, representing a divergence between the law as applied and the law on the books. The tendency to engage in disguised correctness review leaves open questions as to what the Court is actually doing. Is the Court selecting the standard of review it is forced to by law, but actually applying the standard it thinks should apply? On what basis is it making this selection? One hopes the decision is not made according to freestanding policy views or the Court’s own implicit opinions about particular decision-makers. The point is that we cannot be sure.

As the authors note, Fuller’s principles are not ironclad. Fuller himself recognized that his idea of law can be recognized as a sliding scale, with one end being the minimum morality necessary to constitute law, and on the other hand, an aspirational legal system. How we achieve the balance is fundamentally a matter of tradeoffs. As the authors argue, there is an optimal point in the design between ex ante rules and ex post standards—a point where agencies are sufficiently restricted by ex ante rules with the necessary flexibility and discretion to operate ex post. Fuller’s preference for binding rules imposes a whole host of costs at the outset. For example, for the Supreme Court to construct a standard of review rule entails great cost at the outset, because it will have to design a rule that is properly tailored to the circumstances. Costs may also incur because the rule will either be overbroad or underbroad (take my discussion of the presumption of reasonableness here). A more flexible standard entails costs of its own—but at some point along the line, Fuller’s preference for rules can be sacrificed for other goods, in order to avoid the relevant costs.

But, as I said above, there must be some baseline of rules in a legal system. Administrative prerogative and uncontrolled judicial discretion should be controlled in some way, even in light of the costs of doing so. This really just glosses the surface, but Sunstein and Vermeule are (in my humble view) onto something. From a perspective of strategy, those who are uncomfortable with the administrative state are unlikely to convince true believers that it is unconstitutional writ large, or even that deference is problematic. But individuals from different perspectives can agree that Fuller’s morality principles provide a minimum baseline for the construction of doctrine. We should ask the Court to construct clear rules that can be easily applied; or at least develop more flexible standards that are triggered in clear circumstances.

The Dead Intent of the Framers

The tragedy of Doug Ford looks less like a tragedy after all, with the Court of Appeal for Ontario staying the decision of Justice Belobaba that ruled Ford’s planned council cut unconstitutional. The use of the notwithstanding clause is off the table, for now. But it would be hasty to move on too quickly. How academics and lawyers spoke about the planned use of the notwithstanding clause provides a window into how we justify and critique the use of state power.

For example, some 80 law school faculty across Canada came out against the Ford government’s planned invocation  of s.33 of the Charter of Rights and Freedoms in an open letter. The faculty, relying on a strong-form version of originalism (original intent, long outdated as a form of originalist reasoning), argue that Premier Ford transgressed the intention of the Charter’s framers:

The framers of the Constitution included the notwithstanding clause as a compromise to achieve consensus. But, they firmly believed that the notwithstanding clause would only be used in exceptional circumstances. This has indeed been the case since the Charter’s enactment in 1982.

If the excerpt above seems an insignificant part of the letter, the faculty use the original intent of the (yet undefined framers) to define a political norm that governs the frequency of use of the notwithstanding clause.

In 36 years, the notwithstanding clause has rarely been used. Liberal governments, NDP governments and Conservative governments at the federal and provincial levels have all been extremely reluctant to use the notwithstanding clause. Faced with judicial decisions declaring legislation unconstitutional, governments in Canada have sought alternative ways of bringing their laws into compliance with the Charter. This is precisely what the framers of the Constitution had hoped and predicted. The notwithstanding clause was only to be used in the most exceptional circumstances.

The faculty, to their credit, do not attack the legality of Ford’s planned use of the notwithstanding clause. So long as the form requirements are met, the notwithstanding clause can be invoked. Rather, they seek to define, using framers’ intent, the political boundaries that should govern this extraordinary power.

At first blush, I agree that the invocation of the notwithstanding clause should be subject to political norms and should be critically examined by citizens. There should be a justification of the use of the notwithstanding clause. This is different from the sort of legal restriction on statutory decision-making explained in Roncarelli v Duplessis. In an administrative law sense, state power is subject to the law, and the exercise of powers contemplated by statute are controlled by that statute.  That analogy is ill-fitting for a power unrooted to statute that exists in the text of Constitution itself. Nonetheless, one can meaningfully argue that a political norm of justification should accompany the use of the override. As I’ve said in this space before, Premier Ford has failed on this score.

The interesting part of the faculty letter, though, is not the substantive argument. Rather, it is the analytical footpath. The faculty seek to call up the live hands of Jean Chretien et al who “framed” the Charter to support their point of view. In fact, Chretien, former Ontario Attorney General  Roy McMurtry, and former Saskatchewan Premier Roy Romanow (the individuals who bartered the notwithstanding clause into the Charter through the famous Kitchen Accord) have come out to say that  the notwithstanding clause should only be used “in exceptional situations, and only as a last resort.”

It is surprising that a fairly large contingent of the Canada law professoriate endorse the proposition that the intent of the framers should mean anything in this case. Others have written about the problems with original intent originalism—determining the class of relevant “framers,” determining how to mediate between different intents among these “framers,” determining the level of generality at which intent is expressed, and the list goes on. These practical problems underline a broader theoretical problem–why, in a normative sense, should the views of Jean Chretien et al bind us today? How can we be assured that these “framers” are speaking on behalf of the meaning adopted by Parliament and the legislatures?

Even if we should accept that this intent leads to the acceptance of the relevant political norms, there is no evidence offered in the letter that other potential “framers” of the Charter shared the view of Chretien, Romanow, and McMurtry as to the use of the notwithstanding clause. For example, Brian Peckford (former Premier of Newfoundland who apparently presented the proposal of the provinces to Prime Minister Trudeau), wrote a piece arguing that Premier Ford’s use of the notwithstanding clause was perfectly appropriate. He made no mention of any understanding or political commitment on the part of any other Premiers or parties as to the expected use of the notwithstanding clause. In this sense, the framers’ intent means nothing; it is dead in terms of helping to interpret even the political norms surrounding the use of the notwithstanding clause.

This is a dangerous form of originalist reasoning adopted by the faculty, and should be used sparingly with appropriate caution. It is open to abuse. Lawrence Solum argues that theories of originalism have two features (1) fixation and (2) constraint. That is, the meaning of a constitutional provision is fixed at the time of framing; and in terms of original meaning originalism, the original public meaning of the constitutional text constrains the constitutional practice of courts. To my mind, the sort of originalism relied on by the faculty fails to both fixate and constrain constitutional meaning, precisely because there is at least an open question as to the expected legal and political practice of the notwithstanding clause. There is even a question as to who should fit into the relevant class of framers, and who should not. In this sense, the form of originalist reasoning invited by the faculty is not, in substance, different from living tree constitutionalism—unfixed and unconstrained. It is an invitation to dress up the desired political outcomes of its proponents with the imprimatur of a legal doctrine.

Putting aside the faculty focus on political norms, if framers’ intent is accepted as an appropriate doctrinal model, the debate in courts will focus on which particular framers support one side of a case or another. Will some lawyers introduce affidavit evidence from Jean Chretien? Another side, Brian Peckford? Rather than focusing on the meaning of words in their context—their original meaning—framers’ intent will incentivize lawyers to spin historical tales, told through the intent of those whose view may not actually represent the state of the law.

That said, we shouldn’t bristle at the opening provided by the faculty. There is, perhaps for the first time, a willingness to accept forms of originalism. If the faculty intended to fix the constitutional political practice of the notwithstanding clause at the time of framing, that intent is better vindicated by original meaning (to the extent it can be discerned) precisely because it fixes and constrains. Of course, a rational person would rather bet on a system of rules that prevents political hijacking of legal interpretation, because political power can be wielded in any direction. A safer gamble—a better methodology—is a form of doctrine less amenable to political reasoning. Given the faculty acceptance of some model along these lines, I look forward to seeing how a focus on fixation and constraint can influence other areas of the Charter.

Toronto v Ontario: A Remedy Seeking a Right

Constitutional politics and the notwithstanding clause

Yesterday, Justice Belobaba of the Ontario Superior Court released his decision on the Ford government’s plan (“Bill 5”) to cut Toronto City Council in half, deciding that it infringed the s.2(b) Charter right to freedom of expression. In response, Ford announced his government would reconvene the legislature and pass a bill to invoke the so-called “notwithstanding” clause of the Charter, under which Charter rights can be “overridden” (though this word isn’t used in the text) for a period of five years.

It was an eventful day all around, and there were many comments from people more qualified than I to speak on freedom of expression, the notwithstanding clause, and the interaction between the two. I will, however, comment on two points in this sordid saga: (1) the conflation of s.2(b) and s.3 of the Charter in Justice Belobaba’s decision; (2) the notwithstanding clause

Freedom of Expression in the Electoral Context

First, to the decision. Justice Belobaba began the analysis by properly noting that the question was “not whether Bill 5 is unfair. The question is whether the enactment is unconstitutional” [7]. But just as quickly, Justice Belobaba ultimately concluded that the province had “clearly crossed the line” [9] because (1) Bill 5 was enacted in the middle of an election campaign and (2) it doubled the population size of wards in the city, breaching a voter’s right to “effective representation” [20]. On the timing issue, Justice Belobaba concluded that the freedom of expression right was impacted because of “confusion” and “uncertainty” owing to Bill 5 [30]. The ultimate conclusion was that “…the candidate’s ability to effectively communicate his or her political message to the relevant voters” was impacted by Bill 5.

While I won’t dwell on the point, this seems a stretch. Section 2(b) is broad and the Supreme Court rightly affirms the particular importance of political speech (see Libman, at para 31). But it doesn’t guarantee a right to expression in perfect circumstances—nor does it proscribe government conduct that could make political speech “ineffective.” The fundamental question under s.2 is whether a government law “limits” speech. There is a distinction between effectiveness of speech and freedom of speech; the latter is a necessary condition, the former is not. If courts begin to delve into the messy business of striking down government laws that merely affect the effectiveness of speech, the Charter could end up restricting the marketplace of ideas in ways that are typically repugnant to a liberal order. Practically, it also means that in some cases the court will need to determine whether a law renders speech “ineffective,” which would require some fairly metaphysical evidentiary standards, not to mention a voyage into the content of the speech. It is even more difficult to prove an infringement in cases where, as here, the purported restriction speaks only to the environment (confusion and uncertainty) in which candidates campaign, not to legal restrictions on the political campaigns and voters themselves, such as in the typical s.2(b) electoral cases: BC FIPA, Thomson Newspapers, Libman.

I’m more concerned with the second finding in the decision—the essential application of s.3 of the Charter concerning voting rights in a case where it does not apply. Section 3 textually reads that it applies to voting for federal and provincial representatives. Under the purposive approach to constitutional interpretation, the purpose of s.3 is to guarantee “effective representation” (Reference Re Prov Electoral Boundaries) in these fora. Mathematical parity is not the test, but what constitutes effective representation appears to be a fraught question. But in this case, against the backdrop of one affidavit, Justice Belobaba concluded that the expressive right to vote for effective representation had been breached because the ward population size had been doubled [51, 60]. This is fundamentally the language of s.3, not s.2(b). Justice Belobaba, to his credit, is alive to this concern. He ultimately concludes that voting is a form of expression rendered ineffective by Bill 5, and whether or not it is rooted in s.3, it can be transposed to the s.2(b) context [43 et seq]. But here again we get into the business of effectiveness—especially what constitutes an effective vote. The language is striking, calling to mind a category mistake; should we be in the business of assigning value to votes based on resulting effectiveness?

Regardless, s.2(b) and s.3 are distinct Charter guarantees. They have distinct purposes, with “effective representation” being the purpose of s.3. While these purposes may sometimes overlap, it seems to me that the purposive approach to Charter interpretation has to insist on some analytical distinction between the rights to be of any use. If rights are to be interpreted in their “historic, political, and philosophic” context, surely that purposive context changes with the right in question. This has particular implications for the relationship between Charter rights and s.1 of the Charter. As Peter Hogg notes in his important article, how we construe Charter rights at the infringement stage has implications for the s.1 stage. If a right is construed broadly at the first stage (the purpose is construed broadly), then we leave s.1 for more work to do. Similarly, a right that is characterized with a narrow purpose may leave less work for s.1. This is a rough-and-ready purposive analysis, but it means that regularly mixing and matching Charter rights can have consequences for the evidence required to prove a Charter breach, the evidence required to sustain one, and the intensity of review that courts apply to particular infringements.

There is also the obvious problem here of essentially applying a Charter guarantee where it doesn’t apply to municipalities (despite Justice Belobaba’s comments regarding Haig, I think he fundamentally imported s.3). I call this “constitutional substitution.” It means that a court, seeking to vindicate a result that seems unfair or unjust in the abstract, massages a chosen constitutional right that will best achieve that result. It is perhaps an uncommon phenomenon, but it is present in this decision—s.3 does not apply, s.2(b) does. While I’m alive to the idea that the s.2(b) electoral cases could implicate s.3, those cases dealt with different legislative schemes that, again, directly impacted/limited the ability of participants in the political system to participate (ie) through financial restrictions.

I don’t mean to advocate for a “watertight compartments” approach to Charter rights, in part because I think the reality of constitutional facts makes this difficult. That said, as Mike Pal very aptly noted, we have no real doctrinal means to deal with overlap of constitutional rights as opposed to the reconciliation of rights. We should start from the premise that the Charter lists distinct guarantees that the Supreme Court has insisted should be interpreted with distinct purposes. From there, we deal with the hard cases that arise where rights overlap, such as in the case of s.2(b) and s.3. And this isn’t the only area of the Constitution where rights can overlap—the recent Ktunaxa ruling demonstrates a contested area between the freedom of religion guarantee and Aboriginal rights under s.35. While each overlap may have to be resolved differently, some unified principles would be helpful.

Brief Comments on the Notwithstanding Clause

I can’t do much to add to the already booming discussion on the notwithstanding clause. I for one accept its legitimacy as part of the constitutional order, in part because of the evidence that it formed a part of the pact leading to the Charter, adopted itself by our elected representatives and because one part of the Constitution cannot be breached by another. The notwithstanding clause is a power that can be used by elected officials assuming they follow the form requirements set out in the Ford case (no relation).

I will venture two points. First, simply because the notwithstanding clause is legitimate itself doesn’t mean that it can’t be misused illegitimately. The exercise of state power—even a constitutionally entrenched power—does not operate in a vacuum. We should expect a duty of good-faith in a constitutional democracy to attach to the use of such powers; put differently, and without entering the foray into constitutional conventions, we should expect elected officials to abide by constitutional norms as they are defined.

Part of this norm, given the atrophied s.33, should be a public justification for the use of the extraordinary override. The populist justification put forward by Premier Ford is lacking for this reason. No one says that the seminal Ford case compels Premier Ford to do anything but pass a properly formed bill. But in a deliberative, representative democracy, we should expect leaders to justify their use of extraordinary state power, especially as it applies to the override of constitutional rights, themselves adopted by legislative actors. As James Madison wrote in the Federalist No. 10, we expect in a representative democracy that our leaders will not appeal to factions (as in a direct democracy) but to the highest ideals of the legal order.

A second point about the notwithstanding clause, especially on constitutional substitution. The effect of Justice Belobaba’s ruling is to open the door to the use of the notwithstanding clause on s.3 of the Charter, the essence of his legal findings. Yet this is doubly prohibited by the Constitution. As I say above, s.3 only applies to Parliament and the legislatures and at any rate cannot be overridden by the notwithstanding clause. Though Justice Belobaba framed his findings under s.2(b), his ultimate conclusion was framed in the right to effective representation that would be infringed by having councilors who cannot respond to voter complaints [57]. He was most concerned with being able “to cast a vote that can result in meaningful and effective representation” [59]. This is in substance a finding under s.3. Yet by framing the finding under s.2(b), Justice Belobaba opens the door both to the application of s.3 to municipalities and to the use of the notwithstanding clause against, in essence, a s.3 finding. If we accept that the right to effective representation is infringed, we should worry about the notwithstanding clause’s use here.

Vote ‘em out

I offer these comments tentatively, largely because we are in unchartered waters. At the same time, two final points. First, I disagree with those who say this is a constitutional crisis. Constitutions are meant to be durable, to withstand pressure by those seeking to break constitutional norms, or even the inadvertent pressure of complacence. In some ways (putting aside the constitutional substitution concern) this is a textbook case of the court issuing a ruling and the government responding.

Second, I think the best way to understand Justice Belobaba’s ruling is to conclude that he saw a wrong, fashioned a remedy, and hooked it to a right. On most accounts, though the duty of procedural fairness does not attach to acts of the legislature, there was something unfair about the way in which Bill 5 was introduced and the context of the Premier’s contentious relationship with Toronto Council. Most likely this was an arbitrary decision by the Premier. In the face of this unfairness, Justice Belobaba found a way to get around the problem of s.3 by applying s.2(b) and by stretching the meaning of s.2(b) itself. I do not see this as a proper response to legislative unfairness. The best responses are for PC MPPs to oust Ford, or for the voters to do so.

10 Things I Dislike About Administrative Law

A perspective from a skeptic

Inspired by Leonid’s post on the Constitution, I’ve decided to list the 10 things I dislike about administrative law in Canada in advance of the planned revisit of Dunsmuir.

One’s personal list of problems with administrative law will inevitably reflect one’s views of what administrative law is and should be, and indeed, what law is and should be. Reasonable people will disagree on this, but perhaps we could agree on two fundamental starting points (even if we disagree on their interaction). First is the idea that absent constitutional objection, legislative delegation to administrative decision-makers should be respected, and courts should give effect to legislative language using the ordinary tools of statutory interpretation (set out in cases like Rizzo, Canada Trustco). Second is the Rule of Law; courts must survey the statutory boundaries of inferior tribunals to determine (1) the level of deference owed and (2) whether the decision is legal. On this account, administrative law can be understood as a form of control over the diffused form of decision-making the administrative state has wrought.

As I hope to show (quite tentatively, I might add), the Supreme Court has moved away from these first principles, often at the expense of the Rule of Law. The main point of the Supreme Court’s administrative law doctrine is an acceptance of deference to the “unrestricted” power of administrative decision-makers (see West Fraser, at para 11). By limiting the circumstances in which courts can review the propriety of the administrative state, the Court has “read in” a doctrine of deference that may not be prescribed by the enabling statute or the role of courts to enforce constitutional precepts as “guardians of the Constitution” (Hunter v Southam). The Court has constructed its own administrative law rules to operationalize its vision of deference.

  1. Selecting the standard of review

The standard of review is the obsession of Canadian administrative lawyers. The Supreme Court has fed this obsession by creating an overly complex standard of review analysis that is tenuously connected to the overall principles of the Rule of Law and legislative supremacy. The sine qua non of the analysis is a presumption of reasonableness on issues of home statute interpretation that is virtually irrebuttable (see Edmonton East, at para 22). This presumption is the imposition of judicial preference on a statute that may not agree with that preference, contrary to the hierarchy of laws. It is profoundly inconsistent with the idea that courts must enforce the law as they find it (see Justice Brown’s comments in CHRC on this front). At the same time, the Court has failed to explain or justify the relationship between the presumption, the categories inviting correctness review, and other legislative factors. Lower courts understandably struggle with this superstructure that might work in Supreme Court chambers but do not work in the context of judicial review.

I prefer a doctrine that puts the onus to defer on legislatures. Otherwise, the default position (especially on questions of law) should be de novo review by courts–consistent with their constitutionally defined supervisory jurisdiction (see point 7). If legislatures want to constrain decision-makers, they will prescribe—for example—a “statutory recipe” that the decision-maker must follow (Farwaha, at para 91; Boogaard, at paras 43-44). If not, on certain matters, the legislature may use open-textured language, directing the decision-maker to act “in the public interest” for example. The former will force a more searching standard of review, the latter a lesser one. The point is that we no longer need the labels of “reasonableness” or “correctness.” After all, administrative law is very simply a specialized branch of statutory interpretation (Bibeault, at para 120), recognizing the fundamental fact that the administrative state is statutory in nature.

  1. Applying the standard of review of “reasonableness” on questions of law

To the parties, whether a decision is reasonable (or, I prefer to say, simply “legal” ) is the central question on judicial review. But the Supreme Court has not explained what constitutes a “reasonable” decision, particularly when it comes to determinations on questions of law. It simply says that reasonableness takes the colour of the context (Khosa, at para 59) with the range of outcomes expanding or contracting based on the “context”. All of this is metaphorical and unhelpful to litigants and lower courts.

At one level, we can question whether the decision-maker’s interpretive process for determining the content of the law is “reasonable”—does the decision-maker engage with the text, context, and purpose of the statute? This may impose a “lawyerly” methodology on decision-makers, inconsistent with a commitment to legal pluralism that nominally defines the Supreme Court’s deference doctrine.

That being so, I think we should expect decision-makers to articulate their decisions in ways cognizable to the rest of the legal system, if we value uniformity in the way these decision-makers deal with disputes. But I think this is a pipe dream. We can’t expect, for example, all “line decision-makers” to understand the finer points of statutory interpretation. All we might expect is that a decision is actually made by a decision-maker with cogent reasons so that courts can evaluate it. When faced with an administrative decision, say, interpreting an enabling statute, a court simply has to decide whether the decision fits within the statute. Courts apply the ordinary tools of statutory interpretation to do this. I say more about this process here, but suffice it to say that whether a decision “fits” with an enabling statute can be answered by asking whether the decision renders a result at odds with the purpose of the statute (properly construed); whether the decision is precluded by other parts of the statute; and whether the text of the statute precludes the interpretation undertaken by the decision-maker. This is not far from what the Newfoundland Court of Appeal did in Allen, a commendable decision.

  1. Expertise

Courts assume that expertise is, at the very least, a practical reason for deference—legislatures delegate to decision-makers because of their expertise. In fact, expertise is a key reason undergirding the Supreme Court’s presumption of reasonableness on questions of home statute interpretation. But there is never an investigation into whether this expertise exists in reality, nor is there ever an explanation of the sort of expertise that would be relevant to trigger deference. The Court assumes that “…expertise is something that inheres in a tribunal [which tribunal?] itself as an institution” (Edmonton East, at para 33).

Putting aside this mysterious statement, if expertise is a good practical reason for deference, the Court should move away from the general assumptions and explain in each case (1) the relevant sort of expertise required to trigger deference and (2) whether there is any statutory evidence that such expertise exists in practice. As I have written before, this was the general approach used by the Supreme Court in the pragmatic and functional era (Pushpanathan is a good example). Why this approach is no longer appropriate is a puzzle.

  1. Lack of academic and judicial focus on agency procedures and policies

In law schools, administrative law almost exclusively is taught as the law of judicial review. Little attention is paid to the bowels of administrative law—the different sorts of decision-makers in the “administrative state,” their policies and procedures, the effect of “guidelines” (binding or non-binding) on individual litigants, and the profound democratic challenge posed by the adoption of policy guidelines imposed without the consent or consultation of the people subject to the guidelines. While Lorne Sossin has done some important work in this regard, academics would do well to examine and further define the taxonomy of potential internal policies that could impact individual litigants, and the extent to which they could deviate from the statutory grant given to the decision-maker.

  1. Jurisdictional Questions

The perennial unicorn of administrative law, the concept of the jurisdictional question continues to haunt the law of judicial review. These are (largely hypothetical) questions on which a decision-maker is afforded no deference, because they go to the authority of the decision-maker to respond to the case in front of it at all.

In CHRC, the majority of the Court rightly noted that the concept of the jurisdictional question is quite indistinguishable from other questions of law a decision-maker is asked to address. Dissenters on the Supreme Court (particularly in CHRC and its predecessor, Guerin) think that the concept of jurisdictional questions is important to the role of courts on judicial review to enforce the Rule of Law. Essentially, to the dissenters, the Rule of Law requires correctness review because deferring to administrative decision-makers on their own jurisdictional limits allows the “fox in the henhouse”—virtually unreviewable administrative authority over legal limits.

But as Justice Stratas noted in a recent Access Copyright case (and before him, as Justice Scalia of the Supreme Court of the US noted in City of Arlington,), a judicial review court interpreting an enabling statute on any legal question inevitably deals with the issue of its limits to enter the inquiry in the first place. These issues are all matters of legislative interpretation. As Justice Scalia noted in City of Arlington “The fox-in-the-henhouse syndrome is to be avoided not by establishing an arbitrary and undefinable category of agency decision-making that is accorded no deference, but by taking seriously, and applying rigorously, in all cases, statutory limits on agencies’ authority.”

The jurisdictional questions doctrine only makes sense if the Rule of Law mandates more searching review for questions of jurisdiction opposed to all other legal questions—assuming that a clear division can be drawn between these questions. But when it comes to administrative law, there is no meaningful distinction between legal questions and questions of jurisdiction—authority to make a decision in either category rests wholly on the statutory grant given to the decision-maker. As Justice Scalia noted in City of Arlington, a better descriptor for the concept is simply “statutory authority.” On this account, jurisdiction is not a concept that adds anything of substance.

  1. Charter Values

The religion of deference has even extended to constitutional issues. Truth be told, more ink has been spilled on the idea of Charter values than I think is necessary. Others have written about the doctrinal problems with Charter values as originally understood in Doré. These problems were exhaustively explored in Rowe J’s judgment in the Trinity Western case, and I need not revisit them here.

I will simply say that the benefits of Charter values that were promised by the Court’s judgment in Doré have yet to come to fruition. As I wrote here, the Supreme Court (and lower courts) cite Doré without applying its key holdings, basically applying the same tests associated with legislative challenges and particular Charter provisions than the “Charter values” (whatever they are) themselves. Even defenders of Charter values acknowledge that they have been applied inconsistently.

One wonders if there is any promise to the use of Charter values, or whether these values are unknowable, useless, and unhelpful in judicial review. To my mind, it is for the defenders of Charter values to move beyond the abstractions and lay out how—exactly—Charter values are fundamentally different from Charter rights, warranting a different analysis and relaxed standard of review.

  1. There are unexplored constitutional issues with aspects of administrative law

Section 96 of the Constitution Act, 1867 has been interpreted as the foundation of the power attributed by the Constitution to courts of inherent jurisdiction. The test described in Residential Tenancies (NS) determines whether or not a particular judicial power can be transferred by Parliament and legislatures to statutory tribunals. But there is separately a “core” of s.96 powers that cannot be transferred (MacMillan Bloedel, at para 15) to statutory tribunals.

To my mind, the supervisory jurisdiction of superior courts over inferior tribunals—on questions of law, specifically— is included in this core of superior court jurisdiction (MacMillan Bloedel, at paras 34-35).The concept of a core is a useful connection to the original purpose of s.96 courts to provide uniform interpretation of law.

Professor Daly has written on this issue, particularly on the issue of transferring judicial review functions to intermediate statutory tribunals. But I think more work should be done to square the constitutionality of the administrative state with the supervisory jurisdiction of superior courts. For example, full privative clauses could be unconstitutional if they block the supervisory jurisdiction of superior courts–on all questions of law, not just “jurisdictional” issues as noted in Crevier. I also would not concede that deference doctrines on questions of law—which dilute the supervisory function—are consistent with the role of superior courts. The list goes on, and it’s a list that could be explored with reference to the original meaning of s.96.

  1. The Supreme Court’s reasons doctrine

The Supreme Court tells us that we should pay attention to the “reasons that could be offered” by an administrative decision-maker before concluding that reasons are insufficient, warranting review (Dunsmuir, at para 48). This doctrinal innovation was based on a line taken from an academic article that did not speak to the mechanics of judicial review.

While the Supreme Court walked back this development in Delta Air Lines, it still remains the case that courts can supplement the reasons of decision-makers. This is problematic on a number of fronts. First, it was the legislature that delegated the decision-maker the power to make “justifiable, transparent, and intelligible” decisions. That power was not vested in the courts. Second, it is profoundly inconsistent with a notion of deliberative deference for a court to gin up reasons for a decision that the decision-maker may not have provided. Third, by abiding a culture of unjustified decision-making in the administrative state, the Court incentivizes decision-makers to limit the provision of reasons in their decisions, basically immunizing their decisions from meaningful review (see the discussion in Tsleil-Waututh Nation). But because the Court has stated that insufficiency of reasons is not a standalone basis for allowing a judicial review (Newfoundland Nurses, at para 14), a judicial review court is left in the unenviable position of having to defer to a potentially unjustified decision.

If a decision is unreasonable because of a lack of justification, it should be remitted. It is the remedial stage of the judicial review in which the court determines whether the decision can be maintained, looking to the record, for example (see Lemus, at para 33). Otherwise, courts may inadvertently allow unjustified decision-making.

  1. Deference to implied interpretations of law

The same comments I made in (8) apply here. Agraira holds, for example, that courts can defer to determinations of law that are “necessarily implied” within an ultimate decision (at para 48). Relying again on the magic line from the academic article, the Court concluded that it could consider the reasons that could be offered in support of a decision. But in Agraira itself, the Court noted that it could not “determine with finality the actual reasoning of the Minister.” I fail to see how a judicial review court, in those circumstances, can determine whether the reasoning and outcome fit within a range of reasonable outcomes.

  1. The standard of appellate review

This is a technical but important point. On an appeal of a judicial review court’s determinations, the Supreme Court insists that appellate courts should apply the judicial review standards of review–reasonableness and correctness–rather than the typical standards of appellate review set out in Housen. The appellate court is to “step into the shoes” of the lower court to determine whether that court selected and applied the proper standard of review (Agraira, at para 46). The effect of this is the same review, twice, of an administrative decision.

There are a number of problems with this. The first rests in the distinction between a first instance judicial review court and an appellate review court. If, as I posit above, judicial review is fundamentally a task of statutory interpretation (on both standard of review and the merits), then the appellate court is looking at particular legal issues raised in that interpretation by an appellant. This is fundamentally no different than the typical fare of appellate courts in most instances; determining whether a lower court interpretation of law is correct according to Housen.

Also, it makes little sense for an appellate court to redo a first instance court’s interpretation of a statute for reasons of judicial economy. Further, judicial review is supposed to be a summary procedure. Even at the appellate level, this should hold true.