On Canadian Statutory Interpretation and Recent Trends

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ESA II: The Standard of Review and Rogers

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

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

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

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

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

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

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

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

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

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

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

 

The Continued Relevance of “Jurisdiction”

This post is co-written with Leonid Sirota

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

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

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

Statutory interpretation under Vavilov

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

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

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

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

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

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

Statutory Rights of Appeal and Privative Clauses

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

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

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

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

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

Jurisdictional Boundaries Between Two or More Administrative Bodies

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

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

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

Jurisdiction to Consider Charter Questions

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

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

Normative Implications

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

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

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

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

 

 

Entertainment Assoc, 2020 FCA 100: A New Canadian Textualism

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

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

Facts

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

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

Statutory Interpretation

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

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

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

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

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

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

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

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

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

International Law

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

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

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

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

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

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

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

What Does All of This Mean?

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

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

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

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

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

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

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

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

See the following posts on the new Canadian textualism:

“Clear Enough”

Romancing the Law

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

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

Doré Revisited: A Response to Professor Daly

Over on Administrative Law Matters, Professor Paul Daly argues that Doré  actually “emerges strengthened” from Vavilov. Professor Daly’s post responds to my own paper (The Conceptual Gap Between Doré and Vavilov) and post, where I argue the opposite. In this post, I would like to respond critically to Professor Daly’s interesting and provocative arguments. I first recap my position on the matter. Then, I review Professor Daly’s arguments, and respond in turn. In whole, I remain convinced that Doré is inconsistent with Vavilov. Specifically, I disagree with Professor Daly that the presumption of reasonableness applies to Charter issues arising in the scope of administrative jurisdiction. Moreover, I disagree that Vavilov’s articulation of reasonableness review is functionally similar to Doré’s. As it turns out, these disagreements matter for the continued propriety of Doré post-Vavilov.

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As I wrote in both my paper and post on the matter, there are key tensions between Vavilov and Doré  that deserve some attention.

These tensions arise with respect to both selecting and applying the standard of review. On the selection front, Doré  reasonableness is based on a functionalist idea, where the expertise of decision-makers in deciding constitutional matters is presumed (see Doré , at para 46). This justified the selection of a reasonableness standard of review when an administrative decision is challenged as unconstitutional—even though a correctness standard applies when a statute under which an administrator may operate is challenged (see Vavilov, at para 57).   However, Vavilov resiled from this presumptive stance on ordinary questions of law, instead rooting the presumption of reasonableness review on the fact of delegation, not expertise (see Vavilov, at para 30). This, to my mind, illustrates an inconsistency: why would a court presume expertise on constitutional matters, but not on ordinary legal interpretation (the stuff of Vavilov)?

On the application front, I argued that Vavilov probably introduced stricter reasonableness review than the sort of reasonableness review envisioned in Doré and later represented in its progeny (for example, TWU). This is because there are aspects of Vavilov that are more formalist: for example, the focus on the statute as the “most salient aspect” of the legal context relevant to judicial review (Vavilov, at para 108). Transposed into the Doré  context, this might mean that decision-makers should focus on the existing constitutional text instead of abstract values. I also admitted in my paper that Vavilov isn’t just one thing—there is a focus on developing a “culture of justification” in administrative decision-making (see Vavilov, at para 2; The Conceptual Gap, at 13-14). But even this is inconsistent with Doré , which said very little about the sorts of reasons required in a constitutional context; in fact, no guidance was given in Doré  at all, except to say that decision-makers should balance “the Charter values with the statutory objectives” (Doré , at para 55). Contrast this with Vavilov’s detailed approach to reasons-giving, and we see not only an inconsistency, but a schism.

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Not so fast, says Professor Daly. For him, when it comes to both selecting and applying the standard of review, there are no great tensions between Vavilov and Doré.  Indeed, for Professor Daly, “…Doré  emerges strengthened from Vavilov, not weakened.” This is because “…the excision of expertise from the process of selecting the standard of review means that the presumption of reasonableness review certainly applies to Charter issues.” Vavilov indeed does draw a distinction between “merits” review, under which reasonableness presumptively applies, and issues of procedural fairness (see Vavilov, at para 23). If this is the case, expertise no longer matters one way or another to determining the standard of review. Professor Daly further argues that the exercise of discretion implicating constitutional matters is different than pure challenges to statutes under the Charter. In the latter case, uniformity is required, on Vavilov’s own terms. But in the former case: “…answers can legitimately vary as between different regulatory regimes: for example, what is a proportionate restraint on freedom of expression in the workplace may not be proportionate in a municipal election campaign…”

When it comes to applying the standard of review, Professor Daly notes that “[t]here is nothing formalist about the detailed articulation of reasonableness in Part III of Vavilov” (though he goes on to concede that “[s]ome components of Vavilovian reasonableness review can fairly be described as formalist or Diceyan”). He concludes that “[a]dministrative decision-makers can continue to contribute to our collective understanding of the Charter in its application to particular regulatory settings.”

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While I will note areas of agreement, I must strenuously disagree with much of what Professor Daly says about Doré in light of Vavilov, when it comes to selecting the standard of review. The core disagreement between our positions lies in how far each of us would extend the presumption of reasonableness. For Professor Daly, the presumption applies to Doré -type issues. But for me, the presumption of reasonableness outlined in Vavilov must necessarily exclude Doré -type issues. This is for two reasons. First, the presumption, rooted in legislative intent, cannot apply to Charter issues—the legislature cannot intend anything with respect to the depth of scrutiny used by a reviewing court on constitutional matters. Second, the standard of review applied to Charter issues should not depend on the context in which these issues are raised: either way, the Constitution is a fundamental constraint on government actors, requiring uniform interpretation by the courts.

Let’s begin with the first argument by reviewing the conceptual basis for the presumption of reasonableness. As the Court notes in Vavilov, the presumption of reasonableness review is based on the “very fact that the legislature has chosen to delegate authority…” (Vavilov, at para 30). In other words, “[t]he presumption of reasonableness review…is intended to give effect to the legislature’s choice to leave certain matters with administrative decision makers rather than the courts” (Vavilov, at para 33). Legislative intent guides the presumption of reasonableness review, at least on ordinary questions of law. The fiction being deployed here is that the legislature intended deference when it delegated authority to an administrative decision-maker.

While it might be defensible to suggest that a legislature intends deference when it delegates (though such a suggestion itself requires a leap of logic that some might find implausible), it is another thing altogether to impute to the legislature an intent to defer on constitutional matters. This is because  legislatures cannot meaningfully alter the depth of constitutional scrutiny afforded its own enactments by courts. Such alteration would strike at the core of powers exercised by judicial review court. Specifically, the Supreme Court has held that legislatures do not have the ability to “limit judicial review of constitutionality” (see Amax Potash Ltd Etc v The Government of Saskatchewan, [1977] 2 SCR 576, which was rendered in the context of a division of powers case, but with comments equally applicable to Charter issues). Vavilov alludes to this limitation more specifically. It says that legislatures can only specify the standard of review “within the limits imposed by the rule of law” (Vavilov, at para 35). The Rule of Law includes “constitutional questions” which include challenges to statutes on division of powers and Charter grounds. On these questions, correctness rules the day, and the legislature’s intent is of no moment.

Is the same true for exercises of administrative discretion implicating the Charter? It should be, because the legislature cannot do indirectly what it cannot do directly. The legislature should not be able to escape the full scrutiny of the courts under the Constitution simply by delegating. An adjunct to this principle was set out in Eldridge, at para 42, in the context of Charter applicability. There, La Forest J, relying on his decision in McKinney, noted that legislatures should not be able to evade Charter responsibility by simply delegating power. While this decision was rendered in terms of Charter applicability, the same principle applies to questions of standard of review. The level of scrutiny applied by the Court should not differ depending on whether the legislature decides to delegate. Put differently, courts should not impute to the legislature an intent to alter the status quo ante of correctness review simply through the act of delegation.

Put this way, if we cannot speak of a legislative intent to defer on constitutional matters regarding statutes, the same is true on matters arising in administrative jurisdiction. Applying the Vavilov presumption to these questions would mean that we can implicitly conclude that the legislature intended deference on these constitutional matters. But for the reasons above, if we apply the same rules to administrative discretion implicating the Charter, then we cannot speak of a legislative intent on these matters either. Put simply: the legislature is constitutionally incapable of possessing an intent when it comes to the standard of review courts apply on constitutional questions, no matter the context in which the questions arise.

This leaves an important question: if the Vavilov presumption does not apply to Dore-type issues, where do these issues fit in the Vavilov framework? In my view, Doré -type questions involve the Rule of Law, warranting correctness review, as described in Vavilov. While Professor Daly notes that challenges to administrative discretion may admit of more than one answer, one must remember that we are speaking of the Constitution’s protections, not of the ability of administrators to have more lee-way in the context of their regulatory regimes. These issues are still constitutional questions that require a uniform interpretation by the courts, even if the issues arise in challenges to administrative discretion. In fact, the power of judicial review exercised in constitutional and administrative contexts derives from the same source. As Justice Beetz noted in Syndicat des employes de production du Quebec:

              Furthermore, I do not see why different rules would be applied in this regard depending on whether it concerns judicial review of an administrative or quasi-judicial jurisdiction, or judicial review of legislative authority over constitutional matters. When the courts of law have to rule on the validity of a statute, so far as I know they do not ask whether Parliament or the legislature has expressly or by implication given ss. 91  and 92  of the Constitution Act, 1867  an interpretation which is not patently unreasonable. Why would they act differently in the case of judicial review of the jurisdiction of administrative tribunals? The power of review of the courts of law has the same historic basis in both cases, and in both cases it relates to the same principles, the supremacy of the Constitution or of the law, of which the courts are the guardians (at 443-444).

Putting aside the old administrative law language of “jurisdiction” and the fact that we currently accept reasonableness review on the merits, there is an overall point here the bears repeating: even if a constitutional issue arises in administrative proceedings, it is the same power of judicial review that is exercised by a court when it reviews statutes for their constitutionality. The role of the courts should be the same in each context: as guardians of the Constitution, courts must render uniform interpretations of the Charter, even in cases of administrative discretion.

Relatedly, there is also an important perspective to consider here: that of the holder of the right. How does one explain to her that her right means something different because an administrator made the decision? How does a Court conclude that the Constitution’s meaning could potentially be different—not for reasons of text, precedent, or structure—but because the procedural trappings of a case happen, fortuitously, to be different? Administrative exigency is no excuse—or at least, not a good one—to limit one’s Charter rights.  (see, for more on the arbitrariness of Doré, Evan Fox-Decent and Alexander Pless, “The Charter and Administrative Law: Cross-Fertilization or Inconstancy?” in Lorne Sossin & Colleen Flood, eds, Administrative Law in Context (Toronto: Emond Montgomery, 2012) at 431).

Professor Daly might respond that the Constitution could mean different things in regulatory contexts.  But this point seems to view the matter from the wrong perspective. The question is not what makes the most sense for administrators given the different contexts that they render decisions. The question, instead, is whether there is some principled reason, besides administrative exigency, for a lower standard of scrutiny to be deployed when reviewing administrative decisions under the Charter. As I’ve written before, doctrine should not “require the weakening of constitutional norms to suit the prerogative of administrative decision-making.”

***

With my remaining space, I’d like to turn to the issue of applying the reasonableness standard. Here, I agree with much of what Professor Daly says. As he notes, and as I argue in my paper, there are tensions in Vavilov’s articulation of reasonableness review (see the Conceptual Gap, at 15). I acknowledge, specifically, that aspects of Vavilov reasonableness may have a Diceyan quality to them, while other parts of Vavilov are more designed to encourage space for decision-makers to justify their decisions to the public (Vavilov, at para 14). Other aspects of Vavilov are not formalist at all—for example, the recognition that administrative justice need not look like judicial justice (Vavilov, at para 92). On this, I think there is agreement.

But this does not change the fact that there are aspects of Vavilovian review that are decidedly formalist, and which conflict with Doré on its own terms. Recall that the governing statutory scheme will be the most salient aspect of the legal context relevant to judicial review (Vavilov, at para 108), with the principles of statutory interpretation acting as necessary constraints on decision-makers. As noted above, if we transposed this requirement into the constitutional context, we would expect the Constitution—specifically, its text—to be even more fundamental than statutes, to the extent that decision-makers must always consider the Charter within their scope of discretion (Doré , at para 35; Slaight Communications, at 1077-1078). As I note in my paper:

Recall that Vavilov, in the context of legislative interpretation by administrators, asked decision-makers to focus on a number of “constraints” that would determine whether a particular decision is reasonable or not. Some of these constraints are particularly relevant to the constitutional context. For example, in the context of assessing the reasonableness of a decisionmaker’s constitutional conclusions, Vavilov’s focus on the “governing statutory scheme” could easily simply be rebranded as the governing constitutional text; precedent, in both contexts, would be relevant; and the principles of statutory interpretation emphasized in Vavilov could become the principles of constitutional interpretation in the Doré context. Additionally, the Court could impose explicit reasoning requirements on all of these constraints; where they are in play, decision-makers should reason in relation to them, just as the Court asked decision-makers to reason respecting the Vavilov constraints (The Conceptual Gap, at 26).

And more specifically, the exercise of discretion under the Charter still requires justification. This was not alluded to in Doré, and yet Vavilov centres the entire edifice of reasonableness review on this principle. Justification, for example, requires the consideration of “…the perspective of the individual or party over whom authority is being exercised” (Vavilov, at para 133). Where rights and interests are stake, one must assume that the standard must be something more than being “alive” to the Charter issues at stake, as the majority concluded in TWU. While I acknowledge that TWU was a law society case, where reasons take on a different character, I must note the dissent’s point of view in TWU. Arguably, the dissent’s comment is more in line with what Vavilov requires:

While the Benchers may not have had a duty to provide formal reasons…the rationale for deference under Doré —expertise in applying the Charter to a specific set of facts…–requires more engagement and consideration from an administrative decision-maker than simply being “alive to the issues,” whatever that may mean… (TWU, at para 294).

In sum, I continue to believe, despite Professor Daly’s strong arguments, that Doré  is vulnerable to attack after Vavilov. While I would be prepared to make arguments that attack Doré  head-on, there is value in comparing Vavilov to Doré. Far from emerging strengthened, I continue to hold the view that Doré requires assimilation to the Vavilov framework. But I part ways with Professor Daly on precisely how this is done.

Against Administrative Supremacy

A response to the “Guest Posts from the West Coast” Series

This post is co-written with Mark Mancini

Over at Administrative Law Matters, Cristie Ford, Mary Liston, and Alexandra Flynn have published a series of posts critiquing the Supreme Court’s decision in  Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 for what they regard as its departure from the principles of deference to the administrative state that long characterized Canadian administrative law. As we are going to show, this critique reflects a commitment to what Jeffrey Pojanowski describes as “administrative supremacy”, “an unapologetic embrace of the administrative state”. (861)

Yet in our view this critique rests on a distorted representation of the relevant constitutional principles, such as democracy, separation of powers, and the Rule of Law, and of the stakes involved in judicial review. More robust judicial review of administrative decisions ― if indeed that is what Vavilov will lead to, which is not yet clear ― would not cause a dismantling of the administrative state. It should, however, result in an application of the laws enacted by Parliament and the legislatures more in accordance with their terms, which is what the relevant principles, properly understood, require.


Professors Ford, Liston, and Flynn all see Vavilov as a break with a decades-long history of judicial recognition of and deference to the administrative state. Professor Ford writes that “[o]nce upon a time, in the days before the modern administrative state, there was one standard of review for errors of law: correctness”. These pre-historic days ended, however, with a “[g]rudging acknowledgment of administrative tribunals’ jurisdiction, at least in hard cases” in CUPE v NB Liquor Corporation, [1979] 2 SCR 227. Since then, and until Vavilov, the courts would defer to administrative interpretations of law, unless they were unreasonable, perhaps even patently so.

The embrace of deference reflected a certain view of the law, of the institutions of government, and of their relationship with one another. It rested, in Professor Ford’s words, on a “recognition that the rule of law could be a multifaceted, legitimately contestable thing”, part of “a captivating legal pluralist world”. Courts acted with “humility” in the face of “multiple kinds of expertise” embodied by administrative tribunals, accepting “that expertise could even mean knowing what it was like to be the recipient of social benefits”. They also recognized that “administrative tribunals were more diverse and more representative of the population at large than the judiciary was”. For her part, Professor Liston adds that the turn to deference aimed at

realizing the intertwined principles of democracy, parliamentary sovereignty and the rule of law; affirming the administrative state as a legitimate fourth branch of government; [and] respecting the separation of powers by minimizing judicial review when the legislature indicates that the decisionmaker has primary jurisdiction to fulfill its mandate and interpret the law in relation to that mandate.

Professors Ford and Liston also both argue that the deferential approach was meant to foster access to justice, but acknowledge that it has ultimately failed to do so. There was too much play in the joints, too many opportunities for argument about the appropriate degree of deference. Judicial review lost its “focus remained on [the] merits” of the cases and became bogged down in “law office metaphysics”, as Professor Liston puts it (citing Justice Binnie).

Vavilov and its companion case Bell Canada v Canada (Attorney General), 2019 SCC 66, however, usher in a radical change. Professor Ford writes that “[t]he velvet glove is off. Vavilov signals a retrenchment by a more assertive, and conservative, Court” (a label that Professor Liston endorses), and that “[w]e are done with letting 1,000 rule of law flowers bloom”. Focusing on Bell (which she describes as “the tell in the shell game that is administrative law”), Professor Liston laments its disregard of administrative expertise, of “the broad grant of discretion” to the CRTC “to make decisions in the public interest that touch on fundamental policy objectives” (reference omitted) and “the democratic and fair process that led to the ultimate decision”, involving protracted consultations and responsive “to the views of ordinary Canadians” who complained to the CRTC about not being able to watch American Super Bowl ads. Instead, Professor Liston sees Bell as having “imported” “political currents from the south”, such as “the libertarian attack on the administrative state”.

As noted above, this view of the administrative state and its relationship with the courts is consistent with Professor Pojanowski’s description of “administrative supremacy”, which

sees the administrative state as a natural, salutary outgrowth of modern governance. In its strongest form, it sees the role of courts and lawyers as limited to checking patently unreasonable exercises of power by the administrative actors who are the core of modern governance. To the extent that durable, legal norms are relevant, the primary responsibility for implementing them in administrative governance falls to executive officials, who balance those norms’ worth against other policy goals. (861)


In our view, the administrative supremacist critique of Vavilov and Bell suffers from two fundamental flaws. On the one hand, the principles on which administrative law rests, and which it purports to apply, do not mean what administrative supremacists think or say they do. On the other, a rejection of administrative supremacy does not necessarily lead to the dismantling of the administrative state, supremacists scare-mongering to the contrary notwithstanding.

Start with the principles. The administrative supremacist view is that democracy is at least equally, if not better, embodied in the decisions of administrative tribunals as in legislation enacted by Parliament or legislatures. For one thing, tribunals are acting pursuant to a mandate from the legislatures. For another, the administrative process itself can be characterized as democratic, as the CRTC’s is in Professor Liston’s post.

Yet it simply isn’t the case that a decision actually made by an appointed official, or even a group of officials, is democratic in the same way as a statute debated and enacted by an elected assembly ― even if the assembly itself gave away its decision-making power to the officials in question. To give an extreme example, if Parliament contented itself with simply delegating its full law-making powers to the Prime Minister, we would not, I hope, regard this as a democratic arrangement, even if it may be legal. Somewhat less extreme but more real and just as undemocratic, the recent briefly-mooted plan to delegate plenary taxing power to the federal government was undemocratic too, and would have been undemocratic even if rubber-stamped by a Parliament content to abdicate its responsibility.

And the possibility of public input into an administrative decision offers no more than a partial correction to the problem. This input need not be in any sense representative of “the views of ordinary Canadians”; it is much more likely to be driven by a small group of motivated activists or rent-seeking economic actors, as the “capture” era of American administrative law demonstrates. Besides, even if the CRTC’s decision-making follows a process that could be described, however precariously, as “democratic”, not all administrative decision-makers operate this way. Consider “line decision-makers”, many of whom follow minimal process before reaching their decisions. Vavilov’s reasoning requirements will likely change what these officials do going forward, but the rank administrative discretion they exercise is not in any sense “democratic” on its own; it can only said to be so by virtue of the delegated power that the decision-makers exercise—nothing more or less.

Administrative supremacy similarly distorts the meaning of separation of powers. While Professor Ford, to her credit, associates this principle with the view that “[t]he courts’ role is to police the executive’s exercise of authority”, Professor Liston writes of “the administrative state as a legitimate fourth branch of government” and considers that separation of powers requires “minimizing judicial review when the legislature indicates that the decisionmaker has primary jurisdiction to fulfill its mandate and interpret the law in relation to that mandate”.

Separation of powers is, to be sure, a slippery and complicated idea, but there is, at its core, the Madisonian view that “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny”, and further “that each department should have a will of its own”. The administrative “fourth branch” exists precisely to subvert the distinctions between the other three, accumulating in its hands the ability to make policy, execute its decisions, and decide disputes about them. This subversion is compounded by arguments to the effect that the courts can have their core function of saying what the law is taken away from them by legislatures, and that they must defer to legal interpretations propounded by the “fourth branch”, so as to have no will of their own. While Canadian law probably permits the delegation of significant powers to the administrative state, there is a major risk in concentrating these powers. This is why the courts must ensure that administrative decision-makers only exercise those powers actually delegated to them, for the purposes for which they have been granted.

Moreover, the mere fact of delegation does not speak to the intensity of review a court should apply. While the Vavilov Court adopts a presumption of reasonableness based solely on the fact of delegation, this must be considered an organizing default rule that is a product of compromise ― it cannot be defended on the grounds that there is a principled link between delegation and deference. Indeed, the political science literature holds that legislatures may delegate for any number of reasons, none of which have to do with what a court should do on review. Better for a court, in our view, to review the legality of an exercise of administrative power de novo, at least absent some signal from a legislature that it intends deferential review (Vavilov, at [110], outlines some of these signals well).

Last but not least, administrative supremacy embraces a highly misleading view of the Rule of Law. Its proponents suggest that the Rule of Law is possible in ― indeed, that the better understanding of the Rule of Law requires ― a legal environment when legislation has no settled meanings dispassionately elucidated and consistently applied by independent courts. Recycling (and magnifying tenfold) a Maoist metaphor, they would have “1,000 rule of law flowers bloom”, as Professor Ford puts it.

Yet on any serious account of the Rule of Law stable, clear rules, consistently applied so as to create a predictable legal environment, are the heart of this concept. So is the idea that government power is limited by these rules. Judicial control over the meaning of legal rules and over government’s compliance with them is not an ideological caprice, but a necessary corollary of the principle. Only the courts ― not administrative decision-makers subject to control by the executive and invested with an explicit policy-making mission ― are sufficiently independent and can be committed to keeping the government within legal boundaries, as Dicey notes in his Law and Public Opinion. Abstract legal pluralism is, to us, no substitute for the legal certainty which the Rule of Law requires and to the maintenance of which the courts are essential.

And, as far as that point goes, there is another problem with the administrative supremacist argument as it pertains to the Rule of Law. In Professors Liston and Ford’s posts in particular, we see the classic supremacist argument from pluralism and expertise. Encompassed in this ideal is the idea of a “culture of justification” in which expertise could be brought to bear by administrative decision-makers in the reasons justifying administrative action. But there are limits to these principles that Professor Liston does not acknowledge. For one, expertise is not a legal reason for deference. It may be, as Professor Daly notes, an epistemic reason for deference, but what is the legal rationale for a court to abdicate its reviewing function under the Rule of Law in the name of alleged expertise?

Even as an epistemic reason for expertise, the presumption of expertise for all administrative decision-makers, which Professor Liston seems to tacitly endorse, was never justified as a matter of first principle. Indeed, as the Vavilov Court notes, it was impossible to distinguish matters over which administrators were expert from those where they were not. As we know in the prison context, in immigration law, and beyond, decision-makers’ claims to expertise, especially in legal or constitutional interpretation, can be exaggerated or outright unfounded. To give up on the role of the courts in enforcing legal boundaries in the name of unproven assertions of expertise is, in our view, contrary to the Rule of Law.

Our second objection to the administrative supremacist argument can be dealt with more briefly. An administrative law that rejects administrative supremacy and gives effect to the principle of the Rule of Law, properly understood, does not entail the demolition of the administrative state. (For one of us, this is a matter of considerable regret, but it is true all the same.) The administrative state exists in the United Kingdom and in New Zealand, where courts insist on their role of policing the boundaries of its authority, largely without deferring to its legal interpretations. The approach there is summarized in Lord Diplock’s words in the GCHQ case, Council of Civil Service Unions v Minister for the Civil Service, [1985] AC 374:

the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.

This approach would not prevent the delegation by Parliament or the legislatures of discretionary or adjudicative authority to administrative agencies and tribunals. It would mean, however, that these agencies and tribunals must give effect to the laws that give them their powers and to the general law of the land, rather than to their preferred policies and predilections.

To take up Professor Liston’s example, the CRTC’s view that it would be a good idea to impose some requirement on those subject to its licensing authority does not exhaust the question of its authority to impose this requirement. The question is whether the CRTC actually has this authority, because Parliament has granted it. The administrative state can exist if Parliament or a legislature has willed it into existence. But democracy and separation of powers, no less than the Rule of Law, should lead to the conclusion that the administrative state, and its powers, exist only to the extent that they have been willed into existence, and that their bootstrapping claims deserve scrutiny by the judiciary.

In part, disagreement about deference comes down to how one ought to conceptualize the administrative state. For Professors Liston and Ford in particular, the administrative supremacist view leads to the conclusion that administrative power is to be encouraged; that administrators all have something valuable to say about the law; that a Dyzenhausian view of “deference as respect” best encapsulates the role of courts vis-à-vis administrative actors. We view this as a decidedly Panglossian view of the administrative state. A basic deceit at the core of Canadian administrative law is the tendency for observers to concentrate on the tribunals that best demonstrate, to these observers anyway, the virtue of the administrative state: labour boards and the CRTC, for example. The harder question is what to think of administrative actors that do not fit this mould.

In this respect, Professor Liston and Ford put forward an old view of administrative law that dates back at least to the 1930s and the New Deal ― which is not a good time from which to borrow ideas. A 21st century version of administrative law must contend with the growth of the administrative state into the licensing state, the exclusionary state, and the carceral state; incarnations of the state that, due to a lack of expertise or otherwise, may not be owed respect under the benevolent standards of review Professor Liston wants. Adopting general language of “pluralism” and “expertise” masks the real work: how to legitimize administrative power that is not characterized by the functional reasons for deference, as in Vavilov itself.

Again, this is not an ideological quirk. With respect, we find puzzling the claims that Vavilov is the work of a “conservative” court influenced by “libertarian” “political currents”. Six of the seven members of the Vavilov majority signed the “by the Court” judgment in R v Comeau, 2018 SCC 15, [2018] 1 SCR 342; three were also in the five-judge majority in Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293. However one might describe these judgments, conservative, let alone libertarian, they were not. People of all persuasions should be concerned about the scope of administrative power, no less than that of legislatures or, say, police forces. And if sometimes this rebounds to the benefit of those actuated by the profit motive, we do not think this is as sinister a possibility as Professor Liston seems to find it.


All in all, we differ from the defenders of administrative supremacy in one fundamental respect. The principles at play—democracy, separation of powers, and the Rule of Law—are not licenses to justify administrative power. Instead, they are properly viewed as constraints on that power. Vavilov was right to reject justifications other than legislative delegation for administrative power, and to insist on meaningful scrutiny of the compliance of the exercise of this power with its legislative warrant. For better or for worse, this will not undermine the administrative state, but the reminder that administrative power is something to be constrained using ordinary legal tools, not unleashed in service of the bureaucratically determined common good, is a salutary one.

New Paper on Doré and Vavilov

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

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

The paper can be accessed here. 

 

Expertise in Pandemic Life

 

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

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

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

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

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

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

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

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

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

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

 

 

 

How Much Justice Can You Afford?

The trade-offs involved in designing fair administrative procedures

In the last administrative law class before the extended break into which the present plague forced us (and which is about to come to an end, as we resume teaching ― online), I taught procedural fairness. One of the points I tried to impress on my students is that procedural fairness is (like so much else) a matter of trade-offs. More elaborate procedures meant to ensure that administrative decisions are fair to those whom they affect have benefits ― but they have costs too. The question for those who design the procedures to be followed by a given decision-maker ― legislatures, administrative entities (and their legal advisors!), and eventually courts ― is how to optimize these trade-offs.

This point may bear repeating here. I teach New Zealand law, of course, but the principles and indeed the language of Canadian law of procedural fairness is not very different from those to be found in New Zealand or the United Kingdom. Early Canadian cases on the duty of fairness, notably Nicholson v Haldimand-Norfolk Regional Police Commissioners, [1979] 1 SCR 311, referred to a New Zealand appeal decided by the Judicial Committee of the Privy Council, Furnell v Whangarei High Schools Board, [1973] AC 660. The leading Canadian case, Baker v  Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, also draws on UK cases to some extent, rather than treating them as utter heresy, in the way Canadian cases on substantive review, notably Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, treat cases like Anisminic Ltd v Foreign Compensation Commission, [1969] 2 AC 147.

In these (and other) cases, trade-offs tend not to be discussed explicitly, which is why I think this post is warranted, even though its claims should be, I think, fairly obvious. The language used is, rather, that of justice, fairness, doing the right thing, and general warmth and fuzziness. In Furnell, Lord Morris of Borth-y-Gest, for the majority , explained that “natural justice is but fairness writ large and juridically. It has been described as ‘fair play in action’”. (679) The majority in Nicholson adopts this passage, as do a number of other Canadian cases. In Baker, Justice L’Heureux-Dubé writes that

the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker. [20]

At the same time, however, there is much talk of flexibility. This should be a hint. If the issue were one sided, we would always want to have more fair play, more open procedures, more opportunities for those affected to put forward their views. There would be no need to modulate the duty of fairness; it would be better to maximize it in every case.

And to be, well, fair, to the courts, their recognition of this issue is sometimes explicit. Justice L’Heureux-Dubé’s reference to the “context” of administrative decisions and may well push to expand, as well as to contract, the duty of fairness in a given case. But other judicial statements are less ambiguous. For example, in Cardinal v Director of Kent Institution, [1985] 2 SCR 643, Justice Le Dain insisted that the requirements of fairness he found applicable

are fully compatible with the concern that the process of prison administration, because of its special nature and exigencies, should not be unduly burdened or obstructed by the imposition of unreasonable or inappropriate procedural requirements. (660)

And, more broadly, in a passage from Pearlberg v Varty, quoted in Nicholson, Lord Pearson pointed out that “if there were too much elaboration of procedural safeguards, nothing could be done simply and quickly and cheaply. Administrative or executive efficiency and economy should not be too readily sacrificed”. Such frankness is not always to be found, however. Besides, frank though it is, Lord Pearson’s statement strikes me as still incomplete.


It is true, of course the elaboration of procedural safeguards comes at the cost of efficiency (not necessarily in its technical sense, but simply as speediness) and economy. But not only to the administration. For one thing, the administration here is only a stand-in for government and, in turn, for the voters who mandate it, however indirectly, and for the taxpayers who fund it. So it is worth pondering the fact that the government staffs, and the taxpayers pick up the bill for, the tribunals or other decision-making agencies, and the courts that engage in judicial review. The government, and again the taxpayers, also pay for lawyers who defend administrative decisions. Government officials who provide process for people are also being paid ― and they are taking time out of their schedules that could presumably be used for something else.

But the government and the taxpayers are not the only ones bearing the costs of “the elaboration of procedural safeguards”. So do the affected parties, who are also expending time and resources on process. If you are told that you have a right to be heard and to represented by a lawyer, you’ll want to prepare and to hire a lawyer. That ain’t cheap, in terms of time and money. Each additional opportunity to make submissions, each additional hearing, each additional cross-examination is an invitation to spend more time and money, to say nothing of emotional investment. Administrative decision-making is often said, as for example by the majority in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, to be “speedier and less expensive” than adjudication in the courts. But there is no law of nature that says that this must be so, and even if administrative tribunals have a relative advantage, this does not mean that they achieve speed and affordability in some absolute sense.

So administrative procedures imposed in the name of fairness have costs, some of them falling on the administration itself, and some on those being administered. Of course they do have benefits too, and these benefits are also distributed in ways that the language of judicial decisions does not always make obvious. Of course, an opportunity to be heard to be given a decision that one can accept as consistent with fair play even if unsatisfactory are very important benefits ― benefits that have to do with the value of human dignity, as Jeremy Waldron points out (primarily in relation to courts, but the point generalizes) in “The Rule of Law and the Importance of Procedure“. These benefits that accrue primarily to the parties affected by administrative decisions.

But other benefits that are expected to be provided by more elaborate administrative procedures will accrue more widely. There are good governance benefits, for example, resulting from insofar as administrative procedures leading to more, or better, information being taken into account by decision-makers, and this, in turn, translating into more rounded and sensible decisions being made, into local knowledge displacing or at least supplementing the preconceptions of bureaucratic planners. There are Rule of Law benefits from the laws are enforced in a non-arbitrary way, by non-biased officials ― at least provided that the laws are minimally decent. There are even democratic benefits, insofar as voters want those laws enacted by legislatures to exist and be enforced in accordance with their terms (a big, and often unwarranted assumption, to be sure).

And so, to repeat, the question for those who are in charge of desigining administrative procedures is how to balance the costs and the benefits. One general point is that, as with much else, the marginal cost of “the elaboration of procedure safeguards” goes up, while the marginal benefit that it produces goes down. Some elementary duty to appraise a person subject to an administrative procedure of what is going on and an opportunity to make written submissions is likely not to be especially onerous on the either the administration or the affected party, while providing a substantial gain (in terms of making the affected party feel better, of leading to more accurate decisions, etc) over a bureaucrat deciding on a whim in his or her office. The gain from moving from a written procedure to an oral hearing with lawyers and cross-examination may well be less, though it might still be significant ― in some cases (for example, when credibility is in issue), while the cost may well be greater. The gain from having an appeal procedure is likely to be less still: if the decision-maker at first instance was competent, most of his or her decisions will be acceptable, even if the appellate process can improve on them somewhat. For any given decision, there is a point where the costs of additional process will outweigh the benefits. The trick is to find this point, or something near enough to it.

One cannot, I suspect, meaningfully generalize much beyond that, and the courts are right to emphasize the case-by-case nature of the inquiry into the duty of fairness. Different kinds of decisions will have different costs and benefits. Some parties are better able to bear their share of the costs than others. Some decisions are so routine that additional procedural safeguards will yield little advantage. Some decisions are preliminary and defects can be rectified at a later stage.

The trouble is, to repeat, that costs and benefits are both spread among different people and groups of people. It may be that adding or withholding process will provide benefits to some while imposing costs on others. How to balance that is not obvious, to put it mildly. No one group involved in designing administrative procedures ― legislatures, the administration itself, and the courts ― may have a very good understanding of the impacts of their decisions, although the courts typically consider themselves experts in the matter.

What is more, all come to the design process with their own biases that make them overestimate certain costs or benefits. Legislatures are probably concerned to save money (at least all things being equal; sometimes, they have other interests in mind, as becomes apparent from considering the extraordinarily elaborate procedural scheme for teach discipline that was at issue in Furnell). Administrators probably want to save their time and effort. Both may underappreciate the benefits of procedural safeguards, both to affected parties and to society at large. Meanwhile, courts, insofar as they act at the behest of parties dissatisfied with individual decisions and bound to argue that the procedures followed were insufficiently elaborate may lose sight of the costs ― not only to the administration but also to other affected parties, who are not before them ― of additional procedure. Last but not least, it’s worth keeping in mind that lawyers, collectively, tend to benefit from more process. We are also trained to explain to people why more process is a good thing. And it often is! But we are not entirely disinterested when we say so.


The language of fair play and participation ― important though these things are ― should not lull us into losing sight of the unpleasant realities of administrative procedures. More is not always better. There are costs, and trade-offs. We must ― and can do no more than ― try to find the best balance, case by case, statutory scheme by statutory scheme, and labouring under all the severe limitations to which institutional design generally is subject. We cannot have have it all ― affordability and impartiality, expeditiousness and participation. The New Yorker’s cartoonist J.B. Handelsman, though he probably had a somewhat different issue in mind, put it well.

Inter vira enim loquuntur leges

The pandemic and delegation of power to the executive

Writing in La Presse earlier this week, Martine Valois raises some pointed questions about the extent of the powers the Québec government is exercising by various forms of delegated legislation, without control or even clear authorization by the National Assembly. Professor Valois’s op-ed is worth reading in full, but I would like to focus on one specific point she makes, about a decree that

allows [the government] to suspend orders given by the Superior Court in relation to supervised visits between a child and a parent. In our legal system, which is based on the Rule of Law and separation of powers, a minister cannot suspend a judicial decision. (Translation mine)

Maxime St-Hilaire has a response to Professor Valois over at À qui de droit, which is also worth reading. He is sympathetic on the whole, but on the specific point I am highlighting here, he disagrees. Professor St-Hilaire points out that “incompatible legislation can modify, suspend, or annul the effects of a judgment”, (translation mine here and below) and it is far from certain that this power cannot be delegated to the executive. Professor St-Hilaire points to cases such as In Re Gray, (1918) 57 SCR 150 and the Chemicals Reference, [1943] SCR 1, which accept “imprecise delegation of extremely broad powers ‘of a legislative nature’ to the executive, provided that such legislation can be revoked, and all the more so in an emergency situation”. This power is subject to constitutional limits, arising notably out of the federal division of powers, the protected jurisdiction of superior courts, and the constitutional amendment formula, but none are relevant here.

My own, tentative, view is somewhere in between those of Professors Valois and St-Hilaire. I’m not convinced that the principles of the Rule of Law, let alone separation of powers, can be applied to as to generate a legal prohibition on the delegation of a power to suspend or override court orders. At the same time, however, I think there is a strong case to be made for the proposition that such delegations should not easily be read into general legislative provisions, and that the specific provision invoked by the Québec government does not in fact authorize it to suspend court orders.

I think it is reasonably clear that, in application of the principle of Parliamentary sovereignty, legal rights determined by the judgment of a court can be modified by statute. And it is also clear that, subject to exceptional limitations (notably those in relation to taxation which I recently discussed here), legislatures can delegate their power to change the law to the executive. Is the power to modify rights fixed by court order an exception to this general rule? As readers will recall, I am more open to the possibility of constitutional principles producing specific legal effects, including invalidating some legislative provisions, than many other scholars. But I am not convinced that such an exception can be derived from the principles Professor Valois invokes. No doubt the Rule of Law counsels against upending court orders, but like the more general requirement of legal stability, this is probably not an absolute rule. And no doubt separation of powers says that the executive should not adjudicate disputes, but this is not what is going on here: court orders are suspended, in blanket fashion rather than case-by-case, and will, presumably, then be reinstate, in blanket fashion too.

But while this disposes of the suggestion that there is an absolute, constitutional prohibition on delegating a power to interfere with court orders, the question of whether a given delegation actually accomplishes this is a separate one. The Québec government’s authority to suspend the effect of court judgments is aid to rest on the residual clause in section 123 of the Public Health Act. Section 123 provides that “while the public health emergency is in effect, the Government … may, without delay and without further formality” take a certain number of measures “to protect the health of the population”. Seven types of measures are enumerated, from compulsory vaccination, to closures, quarantines, and evacuations, to building works and expenditures. The residual clause, section 123(8), follows this enumeration, empowering the government to “order any other measure necessary to protect the health of the population”. The question, then, is whether this broadly-worded, but residual, provision, authorizes the government to suspend court orders.

It is true, as Professor St-Hilaire says, that “imprecise delegation of extremely broad powers” is possible under the Supreme Court’s decisions in Gray and Chemicals. But these cases do not stand for the proposition that imprecise delegation must always be taken to enable the government to do whatever it wants. In both, the Court was at least prepared to entertain the possibility that the powers claimed by the executive had not been validly delegated. Both cases concerned the interpretation of a provision of the War Measures Act which granted vast powers to the executive to:

do and authorize such acts and things, and make from time to time such orders and regulations, as [the Governor in Council] may by reason of the existence of real or apprehended war, invasion or insurrection deem necessary or advisable for the security, defence, peace, order and welfare of Canada; and for greater certainty, but not so as to restrict the generality of the foregoing terms, it is hereby declared that the powers of the Governor in Council shall extend to all matters coming within the classes of subjects hereinafter enumerated… 

In Gray, the issues were, first, whether this was a “Henry VIII clause”, empowering the executive to make regulations that override statutes and, second, whether the subjects of the regulations made under this provision had to be of a similar nature to those enumerated. The majority of the Supreme Court held that the opening part of this provision was broad enough to serve a Henry VIII clause, while the proviso in the second part ousted the application of the ejusdem generis presumption. In Chemicals, the main issue was whether the power delegated by Parliament to the Governor in Council could further be delegated to officials. The Court held that it could, because the power was so sweeping that it was a necessary implication that it would, in part, by exercised by others.

Section 123 of Québec’s Public Health Act is not an exact equivalent to the provision of the War Measures Act interpreted in Gray and Chemicals. Indeed, its structure is almost the opposite. The War Measures Act provided a broad initial delegation to do anything the executive “may … deem necessary or advisable for the security, defence, peace, order and welfare of Canada”, followed by a set of examples said, in Gray, to be not so much illustrative as “marginal” cases for which Parliament thought it expedient to dispel possible doubt. Section 123, by contrast, starts by enumerating a series of specific measures the government is authorized to take, followed by the residual clause in section 123(8). The enumerated measures are the obvious, central examples of a government might need to do in a public health emergency, and there is no language ousting the application of the ejusdem generis presumption. If anything, given this difference in statutory language, Gray arguably provides support for an argument a contrario for the proposition that the residual clause is not to be read as broadly as the War Measures Act delegation. If the Québec legislature really wanted to delegate “extremely broad powers” to the executive, it would have done so differently.

But there is more. Gray and Chemicals are good law so far as they explain the general ability of Parliament to delegate broad powers (including Henry VIII powers and the ability to subdelegate) to the executive. But in another respect, there is a strong argument to be made for the proposition that the law has moved on. In Gray, only Chief Justice Fitzpatrick referred to the argument that “the powers conferred by” the War Measures Act “were not intended to authorize the Governor-in-council to legislate … so as to take away a right … acquired under a statute”, but he easily rejected it. The issue did not arise in Chemicals. But the idea that authority to interfere with existing legal rights must be granted clearly if not expressly, that it will not be readily inferred from open-ended provisions delegating power to the executive, known as the principle of legality, has been much developed in the last few decades. The development has gone further in the United Kingdom than in Canada, but Justice Cromwell’s concurring reasons in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31, unchallenged by any of his colleagues, provide at least some support for the proposition that it is in fact part of Canadian law.

There is, therefore, a serious argument to be made for the proposition that while interference with court orders may be authorized, it needs to be authorized clearly. An “imprecise and broad” delegation, let alone a residual clause following an enumeration of subjects that have nothing to do with court orders, is not enough. There is, of course, no precedent directly on point, and the argument I am advancing here is just that. However, as for example Lord Sumption explained in his Reith Lectures (which I summarized here), it is quite proper for courts, even on a limited view of their power that disclaims substantive review of public policy, to ensure that the legislature has squarely confronted the implications of exorbitant powers it grants the executive (or indeed other unusual consequences that may result from its enactments).

As both Professors Valois and St-Hilaire note, the Rule of Law tends not to fare well in real and perceived emergencies. The Rule of Law is, above all, an ideal, and in such times ideals to be disregarded. Its protection as a matter of positive constitutional law is limited. As a result, contrary to what Professor Valois suggests, I do not think the principle can serve as a categorical bar to legislatively authorized interference with court orders.

At the same time, however, the Rule of Law should not be sold short. At a minimum, it requires courts to read legislation ― even emergency legislation ― carefully, and not to find in it powers beyond those actually given by legislatures. But, more than that, the principle of legality suggests that when a legislature wants to interfere with the ideal of the Rule of Law, it must at least understand what it is doing and even, perhaps, be prepared to pay the political price for it.