All about Administrative Law

Justice Stratas’ remarkable endeavour to improve our understanding of administrative law

Justice Stratas recently posted a most remarkable document on SSRN. Called “The Canadian Law of Judicial Review: Some Doctrine and Cases“, it is nothing less than a comprehensive overview of the concepts, principles, and rules of administrative law in an accessible format, for the reference of judges, lawyers, scholars, and students. While Justice Stratas cautions that it “is not meant to be complete” (1), and notes ― with perhaps just a little optimism ― that it “can be read from beginning to end in one short sitting” (7), the wealth of information it contains is really astonishing.

Here is how Justice Stratas himself describes what he is doing:

 It is hard to find a useful, up-to-date summary of the Canadian law of judicial review. This summary attempts in a scholarly way to fill that gap. It attempts to work at two levels: the level of basic concept and the level of detail. First, it describes the basic ordering concepts in the Canadian law of judicial review. Then it proceeds to the three analytical steps to determine an application for judicial review: preliminary and procedural concerns, the merits of the judicial review (review for substantive defects and procedural defects), and remedies. Finally, it examines appeals from applications for judicial review.

Along the way, key Canadian cases are referenced and discussed. A few are critiqued. The cases include major Supreme Court of Canada cases that strongly influence the law and cases from other courts that offer further instruction on that law. Many of these cases are from the Federal Court of Appeal, the intermediate appellate court that decides more administrative law cases in Canada than any other appellate court. Some cases from other jurisdictions are referenced and discussed for comparative purposes. Some academic commentaries and articles are also referenced and discussed. To facilitate study, all cases and articles are hyperlinked to online full-text versions (where available).

The reader is warned that this is only a summary and regard should be had to its date. It is no substitute for competent, specific legal research on a particular issue. Nevertheless, it is hoped that this summary will enrich readers’ understandings and stimulate them to consider, reflect upon and make their own valuable contributions to the doctrine.

(SSRN abstract; some paragraph breaks removed)

Justice Stratas’ work (I am not sure how to describe it ― it is neither an article nor a case- or textbook; in a way, it is perhaps a super-blog-post; more on that shortly) is of course an outstanding service to the legal profession writ large. But it is also, I think, a challenge to us, or indeed several challenges at once.

For one thing, as he did in his lecture on “The Decline of Legal Doctrine” last year, which I commented on here, Justice Stratas calls upon us to devote ourselves to shoring up this weakened edifice. As he notes in his introduction, in order to treat litigants fairly, judges must apply

ideas and concepts binding upon them, a body of doctrine. … If decisions are made because of an individual judge’s sense of fairness or justice, the appearance, if not the reality, is that the decision sprung from personal or political beliefs of an unelected person. (4)

Here, Justice Stratas now says, is a restatement of the ideas and concepts that structure administrative law. One challenge for us simply to help him with it: “contributions of case law, articles, comments and input will improve this document and are most welcome”. (9) But there is a broader challenge here too, especially to those of us in academia. If a sitting judge is able to produce such a statement in a notoriously tricky and unsettled area of the law, why haven’t we done something similar in others?

Now, of course there treatises and textbooks in many areas of the law, and part of what prompted Justice Stratas to put together his document, which is based on PowerPoint presentations he uses to speak on administrative law, is the dearth of “new, up-to-date texts on administrative law, perhaps reflecting its currently unsettled nature. Who dares write about a landscape that is shifting so much?” (6) But Justice Stratas challenges us on the form as much as on the substance. He forces us to think about the media we use to present legal doctrine, even we do write about it.

Justice Stratas points out that

[b]ack in the day of published law reports, knowledgeable editors, skilled in the area, could pick out the cases that matter. These days, however, most lawyers work online, not from the law reports, encounter the flood of cases and somehow have to separate the wheat from the chaff. Alas, most don’t have criteria in mind to do that. (5)

Meanwhile, loose-leaf services, though informative as to particular cases, might tend to “encourage us to think of administrative law as a bunch of particular rules that govern particular topics”, (6) without thinking about underlying concepts and their inter-relationships. (Justice Stratas’ concerns here echo those of Jeremy Waldron, whose work emphasizes the “systematicity” of law, and seeks to push back against treating it as just a collection of unrelated rules and commands.)

And then, of course, there is a concern about access to justice, or to law anyway. In an age in which, on the one hand, many litigants represent themselves, and on the other, those who take interest in Canadian administrative law are sometimes half a world away from a Canadian law library, and also in an area in which the resources even of many practising lawyers are likely to be limited (I’m thinking, for instance, of the immigration bar), it would arguably not be enough to point people to books even if very good ones existed. Justice Stratas writes that

[t]he law should be accessible to all: other judges, counsel, academics, law students, parties and self-represented litigants. Online publication and availability for free encourages this. Hence this document and the location where I have posted it. (6)

If we accept the doctrinal mission with which Justice Stratas wants to invest us, we must think about the form of our work as well as its content. I’m not sure that we must quite imitate Justice Stratas. His document has some advantages. It is relatively easy to access, concise, and convenient in its abundant use of hyperlinks. But I think that a website having the same content would be even easier to access than a document one must download from SSRN, and easier to navigate than a pdf through which one must scroll. Needless to say, I am not criticizing Justice Stratas. Again, we owe him greatly, and I, at least, would probably not have started thinking about this without his nudge. But if can improve on his first attempt in this regard, then we should.

Last year, I wrote about about a symposium at McGill about the “Responsibility of Doctrine”. Musing on the English/common law and French/civilian senses of the word doctrine/doctrine, I concluded that if these ongoing conversations about the law “are to flourish in the 21st century, they will need to remain open to new forms, and … it will not do to ignore these new forms simply because they are unfamiliar.” Justice Stratas makes a remarkable contribution to legal doctrine, in both of its senses, in an unfamiliar form. I hope that the legal community will pay all the more attention to it for this reason.

H/t: Patrick Baud

Why Bother about the Charter?

The Supreme Court divides on whether one might claim Charter damages against an administrative tribunal

Last week, the Supreme Court issued its first decision of 2017, Ernst v. Alberta Energy Regulator, 2017 SCC 1. One can only hope that it is not a trendsetter. The decisions raises more questions than it answers. The Court is split 4-1-4, with the different opinions at odds about which questions it is necessary or even appropriate to answer, and there is no holding on the most important of these, which was whether damages for breach of the Canadian Charter of Rights and Freedoms could ever be awarded against an administrative tribunal. As Jennifer Koshan notes over at ABlawg, “[t]he Ernst decision is challenging to read”, and “[i]t is also challenging to identify the precedential value of the case.”

The case arose out of allegations that the Alberta Energy Regulator (an administrative tribunal) attempted to silence Ms. Ernst in retaliation for her criticism. She claimed that the Regulator demanded that she no longer take disagreements with it to the media, and refused to consider her submissions to it on the same terms as it did those of other members of the public in retaliation for her failure to comply, and thereby breached her freedom of expression, contrary to paragraph 2(b) of the Charter. As a remedy for this breach, Ms. Ernst sought an award of damages, arguing that it was an “appropriate and just” remedy under subsection 24(1) of the Charter.

The Regulator sought to have her claim in damages struck as devoid of any chance of success, invoking a statutory immunity clause that barred suits for “any act or thing done purportedly in pursuance of” the Regulator’s legislative mandate, “or a decision, order or direction”. Ms. Ernst, however, argued that the constitution prevented this provision from denying her the ability to bring Charter claims.

* * *

As just mentioned, there are three sets of reasons ― and no majority. As prof. Koshan helpfully explains, there are

three key issues, although not all of the justices agreed that these issues were worthy of consideration, nor did they agree on the order in which they should be considered:

  1. Whether it was plain and obvious that [the immunity clause] barred Ernst’s Charter claim;
  2. Whether it was plain and obvious that Charter damages were not an appropriate and just remedy in Ernst’s claim against the [Regulator]; and
  3. Whether Ernst’s failure to provide notice of a constitutional challenge to s 43 was fatal to her claim.

In what the Court designates as “reasons for judgment”, Justice Cromwell, with the agreement of Justices Karakatsanis, Wagner, and Gagnon, finds that Charter damages will not be an appropriate and just remedy, in this case or indeed, it seems, in just about any conceivable case against an administrative tribunal, meaning that the immunity clause is constitutional ― and, assuming, as Justice Cromwell does, that it bars Ms. Ernst’s claim ―the claim must be dismissed. (I would quibble here with prof. Koshan’s otherwise insightful post: she writes that Justice Cromwell “held that [the immunity clause] did, on its face, bar Ernst’s claim for damages”. It seems to me that this somewhat mischaracterizes Justice Cromwell’s reasons, which do not amount to a holding on this point. But as prof. Koshan says, it is difficult to understand what the Court actually decides.)

Justice Abella, who concurs in the result, would instead have dismissed Ms. Ernst claim for failure to provide notice of her constitutional challenge to the immunity clause. She she also suggests, however, without deciding, that Justice Cromwell is likely right about the appropriateness of Charter damages against administrative tribunals. Meanwhile, the Chief Justice and Justices Moldaver and Brown, with whose joint opinion Justice Côté agrees, dissent on the basis that it is not plain and obvious that the immunity clause bars Ms. Ernst’s claim or that Charter damages are an appropriate and just remedy.

The three opinions trade surly accusations of procedural impropriety, implicit or explicit. Justice Cromwell accuses the dissent of having decided that the immunity clause did not plainly bar Ms. Ernst’s claim even though the Court heard no argument on this point, because Ms. Ernst herself had conceded it. The dissent responds that the issue is too important for the court to simply proceed on the assumption that the concession is right. For her part, Justice Abella implies that Justice Cromwell should not have addressed the constitutional question at all ― and, remarkably, Justice Cromwell does not even attempt to respond to this accusation (though he repeatedly refers to the obiter part of Justice Abella’s reasons!).

* * *

Prof. Koshan has summarized the three sets of reasons in detail; there is no need for me to do so again. In the remainder of this post, I want to focus on the question, which goes ostensibly unanswered in a 4-4 tie vote (Justice Abella abstaining), of whether Charter damages can be an appropriate and just remedy against an administrative tribunal. Justice Cromwell emphasizes the “need for balance with respect to the choice of remedies” for Charter breaches. [25] It is hard to be against “balance”, of course, but the question is how that balance is to be struck.

For Justice Cromwell, damages should not be too widely available. He gives two reasons for denying them in this case. First, if Ms. Ernst was wronged, she had an adequate alternative remedy in the form of an application for judicial review. It is her own fault that she did not make one. Had she done so, a court could have set aside the Regulator’s unconstitutional decisions. Indeed, “judicial review would in all likelihood provide vindication in a much more timely manner than an action for damages” ― if it had been initiated “promptly”, anyway. [36] Second, allowing claims for Charter damages to be brought against administrative tribunals would interfere with “good governance” by “chilling” their exercise of “responsibilities of a policy-making and adjudicative nature.” [42] Defending against damages actions is time- and money-consuming and distracting, and tribunals will be tempted to act “defensively” to avoid having to do so. Justice Cromwell adds that “allowing Charter damages claims to be brought … has the potential to distort the appeal and review process”, [54] and undermine the finality of administrative decisions. Moreover, the rule barring such claims needs to be categorical, since case-by-case consideration of whether a given claim might amount to an “appropriate and just” remedy would defeat its purposes.

The dissent disagrees with this; indeed, it is aghast at the prospect of a blanket immunity from Charter claims for administrative tribunals. Whether an application for judicial review ― which cannot lead to an award of damages ― would be an adequate alternative remedy is too early to say. As for concerns about good governance, courts should recall that “Charter compliance is itself” such a concern, indeed “a foundational” one. [169] While damages awards will likely not be “appropriate and just” “where the state actor has breached a Charter right while performing an adjudicative function”, [171] there is no need to expand immunity from such awards for non-adjudicative actions, especially when, as is alleged to be the case here, the actions at issue are “punitive”. At most, “certain state actors are subject to qualified immunities”, [176] such that it is only possible to claim damages against them for abuse of power or actions outside of their functions. In other words, there is no need for a blanket rule precluding case-by-case consideration, as Justice Cromwell suggests.

For my part, I do not think that Justice Cromwell’s arguments in favour immunizing administrative tribunals are persuasive. I thus sympathize with the dissent, Indeed, I wonder whether even it may go too far in favour of immunity of adjudicative decision-makers. In New Zealand, the Supreme Court’s holding in Attorney-General v Chapman [2011] NZSC 110, that damages for the breach of the New Zealand Bill of Rights Act 1990 are not available when the breach results from actions of the judiciary has been criticized, including by the two dissenting judges, who pointed out that while a personal immunity for judges is necessary to prevent the sort of ill-effects that worry Justice Cromwell, it is not so clear that the state should also benefit from this immunity.

Be that as it may, I think that the dissent is right to be skeptical of the need for an immunity for decisions that are not of an adjudicative character. Of course defending Charter damages claims may be a distraction and a drain on an administrative tribunal’s resources. But that’s true for any government entity that could be subject to such damages. On Justice Cromwell’s logic, we might as well abolish this remedy (admittedly already underdeveloped and moribund as it is). And as for the worry that administrative decision-makers may suffer a “chilling effect” ― that is as much a feature as it is a bug. If we care about the constitution, shouldn’t we want government entities to worry about acting unconstitutionally, instead of being concerned that they will? Perhaps there is a level of concern that would be excessive. But are we anywhere near it? It is, as the dissent points out, for the government to prove that good governance considerations preclude Charter damages awards; Justice Cromwell’s reasons show no evidence of such proof having been produced (unsurprisingly at such a preliminary stage in the litigation).

Finally, a word on a precedent that Justice Cromwell dismisses, it seems to me, rather too quickly. In Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 SCR 585 and companion cases, the Court held that a litigant who want to bring a private law damages claim against the government did not have to first pursue a judicial review claim to have the decision from which the claim purportedly arose quashed. Justice Cromwell notes that “[t]he Court did not comment on the appropriateness of a Charter damages award against a quasi-judicial board.” [40] That’s true so far as it goes. But the principle underlying the TeleZone decision was that litigants are entitled to seek compensation for losses caused by the government, and so to pursue a damages action, without having the underlying decision set aside, because judicial review and damages claims are of a different nature. TeleZone does not dispose of Ernst, not least because it involved private law rather than Charter damages claims, and it is possible that the function of Charter damages is at least somewhat different, making judicial review a closer substitute. I am skeptical about that, but need to think more about this. In any case, it is too bad that Justice Cromwell seemingly does not trouble himself with this question (and also that the dissent does not raise it).

* * *

In the event, Ernst only flags the issue of potential liability of administrative decision-makers for Charter breaches. It does not dispose of it. This is as well, because the decision is not going to be a Supreme Court classic. But it is worrying all the same. If it turns out that administrative decision-makers cannot be held to account for Charter breaches except by way of judicial review (and holding them to account through that means is a tricky business in light of the Supreme Court’s decision in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395!), then one will have to wonder whether they will bother thinking about their Charter obligations at all.

Law in La-La-Land

The post-truth jurisprudence of Canadian administrative law

Last month, the Supreme Court issued a decision in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, which deals with the evergreen issue of determining the standard on which a court must review the decision of an administrative tribunal. I wasn’t able to comment on this case at the time, because 240 exam papers landed in my office a couple of days thereafter, but I would like to return to it now, because in my view the majority opinion shows quite clearly what a fantastical creature Canadian administrative law has become.

Justice Karakatsanis, writing for the majority, describes the circumstances of the dispute as follows:

Alberta residents may dispute their municipal property assessment before a local assessment review board. When one Edmonton taxpayer did so, the assessment review board decided to increase the assessment the taxpayer had disputed. [1]

The question is whether the board in question had the authority to increase ― or could only decrease or refuse to change ― the assessment disputed before it. The board obviously concluded that it did, but did not explain the decision ― admittedly because the taxpayer did not deny that it had the requisite authority. It is only on a subsequent appeal to the courts that it did so. How, then, must the board’s tacit, unexplained, decision be treated? Is it entitled to judicial deference, or can the courts simply substitute their own view of the matter?

* * *

Defer, says the majority. In the Supreme Court’s administrative law jurisprudence, deference is the presumptive stance, including on questions of law such as the one at issue.

This presumption of deference on judicial review respects the principle of legislative supremacy and the choice made to delegate decision making to a tribunal, rather than the courts. A presumption of deference on judicial review also fosters access to justice to the extent the legislative choice to delegate a matter to a flexible and expert tribunal provides parties with a speedier and less expensive form of decision making. [22]

Only when the question at issue falls within one of a few exceptional categories is the “presumption of deference” rebutted. In the majority’s view, none apply here. In particular, the fact that the legislation involved specifically provides for an appeal from the administrative decision on a question of law, as was the case here, does not matter. The administrative law framework, with its presumption of reasonableness, is to be applied regardless.

As Justice Karakatsanis notes, this framework acknowledges that “[t]he presumption of reasonableness may be rebutted if the context indicates the legislature intended the standard of review to be correctness” [32]. The dissenting judges would have found that this is the case here, because the board’s expertise lies not in the interpretation of its enabling legislation, which is at issue here, but rather in property valuation, which is not. Justice Karakatsanis is unmoved by this:

Expertise arises from the specialization of functions of administrative tribunals like the Board which have a habitual familiarity with the legislative scheme they administer. … [A]s with judges, expertise is not a matter of the qualifications or experience of any particular tribunal member. Rather, expertise is something that inheres in a tribunal itself as an institution. [33]

Having concluded that she must defer to the board’s decision, Justice Karakatsanis then face the question of how to defer to a decision that is entirely unexplained. After all, as the still-leading (although perhaps increasingly from behind) case on reviewing administrative decisions,  held, “reasonableness ‘is … concerned with the existence of justification, transparency and intelligibility within the decision-making process'” [36; citing Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at [47]]. But not to worry: in that same case, the Supreme Court went on to say it is enough to consider the reasons that could have been given for the decision, even though they were not, and to defer to them. This is what Justice Karakatsanis does, for 20 paragraphs. She concludes that board’s decision was reasonable.

* * *

If this is not post-truth jurisprudence, it’s pretty close. The Oxford English Dictionary, which recently chose “post-truth” as its word of the year, says that it describes “circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief”. The Supreme Court’s vision of administrative law might not be the product of appeals to emotion, but there is certainly a great deal of personal belief unburdened by a reckoning with objective facts there.

Start with the claim that the presumption of deference is all about respecting legislative intent to grant decision-making authority to administrative tribunals rather than courts. If the Court really cared about legislative intent, wouldn’t it ask itself what the purpose of providing a statutory right of appeal on questions of law, as the legislature had done in this case, is? The majority does no such thing. It is content to affirm the irrelevance of either the text or the purpose of such provisions and holds that even if the statute says “appeal”, the courts must read “judicial review” and defer. Yet as the dissent cogently points out, the statutory text is pretty clear that the legislature wanted some questions of law (those deemed important enough by a judge) to be resolved by the courts. For all its show of deference to the legislature, the majority only cares about its own views about how administrative law should operate.

Next, consider the claim that the administrative decision-maker’s expertise entitles it to judicial deference. The majority does not discuss the expertise of the board whose decision is at issue here. It does not meaningfully respond to the dissent’s argument that the board has no particular expertise on the question before the Court. It is content to state an airy generality: the very existence of a specialized tribunal is enough to make it an expert. Why? It seems almost as if the Supreme Court is embracing that pop-psychology staple about 10,000 hours of doing something being enough to make one master it. Here’s news for the Court: that’s not true. The dissent’s take on this issue is, once again, more realistic:

an administrative decision maker is not entitled to blanket deference in all matters simply because it is an expert in some matters. An administrative decision maker is entitled to deference on the basis of expertise only if the question before it falls within the scope of its expertise, whether specific or institutional. [83]

As mentioned above, the dissent would have found that the question at issue here was not within the scope of the board’s expertise. The majority, once again, is uninterested in facts or, as the dissent also notes, in legislative intent (which in some case may well be to create a decision-maker without legal expertise), and ignores them the better to apply its beliefs about the proper relationships between courts and administrative decision-makers.

And all that for what? Not to actually defer to the supposedly expert board’s reasoning ― but to make up a reasoning that the board may or may not have come up with on its own, and defer to that. As Paul Daly put it (aptly, it goes without saying),

Karakatsanis J. points to multiple features of the elaborate statutory scheme that might be said to support the alternative interpretation and explains how each of them is nonetheless consistent with the Board’s interpretation (if one can call it that), much of which is supported by reference to a decision made by another body that “formerly” had appellate jurisdiction from the Board [44]. This, frankly, is quite bizarre. Who knows what the Board would have said if these points had been made to it? Indeed, who knows what the Board will say in future cases when these points are made to it? (Paragraph break removed)

It’s as if Justice Karakatsanis were playing chess with herself, and contriving to have one side deliberately lose to the other. This, admittedly, is not a post-truth reasoning. It is outright fiction.

* * *

As you can probably guess, I do not like any of it one bit. Perhaps this is not a very educated feeling. I have not thought about administrative law as much as prof. Daly, for instance, or many others. (I do have plans to get more serious about it, but it’s a medium- or even a long-term project.) I hope, however, that there may be some value in even an uneducated person stating the view that the emperor has no clothes, and that his proceeding any further in this state is offensive to public decency. What is more difficult for an uneducated mind is to say what dress the emperor ought to put on. Prof. Daly argues

that the only way to move the law forward within the existing framework without starting again from scratch is to apply reasonableness review across the board, with the important caveat … that the range of reasonable outcomes will be narrower in cases featuring an appeal clause.

I cannot comment on this suggestion, beyond saying that I am, in my uneducated state, extremely uneasy with deferential review of administrative decisions on questions of law. I will say, though, that I’m not at all sure that starting again from scratch is not the right thing to do, or even the only possible thing to do.

Taking Doctrine Seriously

Some thoughts on a most interesting lecture by Justice David Stratas

Last week, at the Canadian Constitution Foundation’s Law and Freedom 2016 conference, Justice David Stratas of the Federal Court of Appeal delivered a fascinating lecture called “The Decline of Legal Doctrine.” I highly recommend it. I won’t summarize it beyond saying that Justice Stratas’ thesis is that judges, lawyers, and academics are all guilty of a lack of interest in legal doctrine and tend to see the law as largely result oriented, which diminishes the legitimacy of judicial decision-making and risks leaving us at the mercy of dangerous prevailing opinions should crisis strike. There is simply too much there, and it is too important, for a summary to be useful. I will share a few reflections of my own below. Here it is.

Before I get to my comments, I want to say that I am, of course, very flattered at being mentioned as one of the exceptions to the general lack of interest in legal doctrine. Indeed, I am flattered that Justice Stratas should read my blog at all. I hope, however, that my gratitude for Justice Stratas’ kind words does not bias my views of his lecture.

* * *

Here they are, in a somewhat disjointed form. With one exception, they concern things that Justice Stratas did not say, and which I would love to hear him say more, at some future point, rather than things he did say with which I disagree. They are, in other words, intended not as criticisms, but as questions.

1. Let me start with the word “doctrine” itself. Maybe it’s just me, but I find it a slippery one ― it’s one of those words that lawyers love to use that can mean different things in different contexts, perhaps depending on whether we use them with a definite or an indefinite article, or no article at all, while assuming that everyone knows what we are talking about. A non-lawyer in the audience asked Justice Stratas what the difference between legal “theory” and legal “doctrine” was, but only got a definition of “theory” in response. As best I can though, legal doctrine (no article) is the set of rules and principles that can be derived or inferred from judicial decisions.

Here’s an interesting twist though: later in the Q&A, Justice Stratas spoke of the various types of judges and said that “doctrinal” judges are those who “understand the rules but want to know more about how to use them and these are perhaps reformist people that might want to tweak or modify the rules.” I think that this connection, in practice if not as a matter of definition, between an interest in the rules and their underlying principles on the one hand, and an interest in tweaking them on the other, might be, if not slightly paradoxical, then at least in tension with the need for doctrinal stability of which Justice Stratas spoke so passionately. Does doctrine bear the seeds of its own destruction?

2. Justice Stratas argues that we need stable, coherent, legal doctrine to which lawyers and judges alike are committed because we might not always live in “benign times,” and in a moment of crisis we will be better off if judges decide controversial cases on the basis of stable legal doctrine rather than of what they feel is right or fair in those ominous circumstances. Crises rarely make for clear, even-handed thinking. Legal doctrine is, in other words, a form of pre-commitment that will save us from the siren calls of rights-crushing emergency.

I would like to think that this is true. But is it? Can we think of situations where doctrine has played such a role? And indeed, why do we think that a commitment to legality will be less likely to falter in a time of crisis than a commitment to justice? That, after all, is the underlying premise of the claim that doctrine will save us even if the judges’ sense of right and wrong is swayed by momentary considerations. Again, I would like this to be true, but I wonder if we have reasons to think it is, other than our desire for it to be.

3. Justice Stratas argued that we must devote ourselves to stabilizing legal doctrine, to settling public law doctrine in a comprehensive way ― and that we must do it right away. Tomorrow will be too late. At present, public law is too unsettled ― precedents can be reversed with little apparent explanation, or simply ignored without being reversed. (An aside: one area which Justice Stratas specifically mentioned as illustrating this trend is the courts’ relationship to empirical evidence, and the rule ― which he tied to the Supreme Court’s recent assisted suicide decision, Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, but which actually goes a little further back, to Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 ― that appellate courts should defer to a trial judge’s findings with respect to such evidence. Some of the points he made in criticizing this rule seem to echo ideas I have expressed on this blog, especially here, so I was very glad to learn that Justice Stratas shares these concerns.)

Here’s a question though. If we accept, as I think we should, the mission that Justice Stratas wants us to undertake, what is our departure point? Do we simply take the current state of the law as a given and stop messing with it, on the assumption that it is more important that things be settled than that they be settled right? Or should we, in order to build on solid foundations, go back to first principles to some extent ― at the risk of reversing some more precedents? Are there other potential pitfalls to deciding from first principles? Justice Stratas praised the Supreme Court of the 1980s for its “painstaking,” “scholarly,” and “balanced” approach to Charter cases, in which it had to build doctrine from the ground up ― but I wonder if that is not idealizing things somewhat.

4. Justice Stratas argues that a doctrine-focused approach to judicial decision-making, even in cases of first impression or those involving conflicting lines of authority, can be free from politics, and that the judges’ personal views matter less than people tend to suppose. That is true, as I’ve often said, if we understand politics in a partisan sense or, as Justice Stratas might have meant it, as synonymous with results-oriented reasoning. However, as I’ve also often said, I think that politics, in a much broader sense of ideas about how the state and society as a whole should be organized does matter to judicial decision-making. Justice Stratas speaks of developing legal doctrines in ways that “make sense” ― but it seems to me that legal doctrines make sense in light, among other things, of certain values that they reflect or serve, and that these values can be described as political, in a broad sense.

This is perhaps the only point on which I disagree with Justice Stratas. Though it might be a disagreement about words more than about the underlying realities, I think that the words matter. I worry that complete denials of the political aspects of adjudication come across as overdone, and as a result do not actually help the courts establish their legitimacy.

5. That said, Justice Stratas was right to criticize those ― whether academics, lawyers, students, or journalists ― who think of judicial decisions purely in terms of results and their political implications, real or supposed. (He compared such commentary to “essentially an open-line radio-show comment put in an educated way using highfalutin legal language.”) He was also right to lament judicial decisions that leave room for such interpretations, in particular through their failure to adequately explain, in terms of legal doctrine, the outcomes that they reach.

I wonder, though, what can be done about this very real problem. I’m afraid that judges focusing on the doctrine and explaining their decisions will not be enough. For instance, I don’t think that the Supreme Court’s recent jurisprudence in the area of language rights is half bad, in terms of engaging with doctrinal issues. Yet in December’s Policy Options, a couple of political scientists published a tendentious take-down of this jurisprudence looking at it entirely through the lens of results (which happened to go against language-rights claimants) and, as I have argued in a Policy Options blog post, blithely ignoring the law in the process. In other words, people are liable to misrepresent the courts’ work as results-oriented even when any fair reading of the decisions in question shows that it is not. Dan Kahan et al. wrote about this problem in a fascinating study (about which I blogged for the National Magazine) that found that while legal reasoning tends to be based on legal, rather than (narrowly) political considerations, “our system of justice lacks reliable practices for communicating courts’ neutral resolution of divisive matters.” Lawyers should, no doubt, try to push back against tendentious and uninformed criticisms of the judiciary (though as I have also argued they should do so without misrepresenting all criticism as tendentious or as endangering the Rule of Law!). But is that enough?

* * *

Well, this is more than enough for me. Again, I express my gratitude to Justice Stratas for a fascinating lecture and for his kind words, and I hope that he comes back to this topic in the future. The above questions and quibble notwithstanding, Justice Stratas is right that we need to take legal doctrine seriously, and we owe him for reminding us of this.

Whatever

On Thursday, the Supreme Court handed down its decision in Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, an immigration law case. Paul Daly expertly discusses takes apart the majority opinion from the administrative law perspective. For my part, I will deal with the substance of the decision. While I’m not an immigration law aficionado, I do have some practical knowledge of it, having clerked at the Federal Court for a year. So I’ll comment from the perspective of someone formerly (and briefly) “in the trenches,” someone who actually had to deal with cases of this sort on a regular basis.

The issue in Kanthasamy was the standard to be applied by the bureaucrats reviewing (on behalf of the Minister of Citizenship and Immigration) applications for exemptions from the requirements of the Citizenship and Refugee Protection Act on the basis of “humanitarian and compassionate considerations.” In practice, most of these applications are made by people whose applications for asylum are unsuccessful and who seek to be granted permanent residence in order to avoid deportation. Mr. Kanthasamy was in this situation too. The test that had long been applied by the administrative decision-makers, and also by the Federal Court on judicial review, was drawn from a set of Guidelines issued by the government. Under this test, there existed “humanitarian and compassionate grounds” for allowing a person to stay in Canada if deportation would result in “unusual and undeserved or disproportionate hardship” to that person or to another directly affected one.

The Supreme Court was unanimous in holding that this was not the right approach. There was no unanimity, however, about what the right approach was. The five-judge majority, in an opinion by Justice Abella, insisted that the decision-maker must

focus[] … on the equitable underlying purpose of the humanitarian and compassionate relief application process. [They must] see[] the words in the Guidelines as being helpful in assessing when relief should be granted in a given case, but … not treat them as the only possible formulation of when there are humanitarian and compassionate grounds justifying the exercise of discretion. …

They should not fetter their discretion by treating these informal Guidelines as if they were mandatory requirements that limit the equitable humanitarian and compassionate discretion granted [by statute]. [31-32]

It is necessary to look at all the circumstances, and not to become fixated on specific words, treating them as discrete criteria.

For its part, the two-judge dissent, in an opinion by Justice Moldaver, emphasized the exceptional nature of “humanitarian and compassionate” applications, which must not become “a separate, freestanding immigration process, something Parliament clearly did not intend.” [85] The correct approach to the examination of such applications “must balance the dual characteristics of stringency and flexibility.” [96] A test that does this is:

whether, having regard to all of the circumstances, including the exceptional nature of H&C relief, the applicant has demonstrated that decent, fair-minded Canadians would find it simply unacceptable to deny the relief sought. To be simply unacceptable, a case should be sufficiently compelling to generate a broad consensus that exceptional relief should be granted. [101; emphasis in the original]

Justice Moldaver insists that “The ‘simply unacceptable’ test … should not be seen as wordsmithing,” [104] and assures us that will be readily applied because “[i]t uses concepts that are well-understood and regularly applied in Canadian law,” [ibid.] notably in the contexts of extradition proceedings and the doctrine of abuse of process in criminal law. By contrast, in the opinion of Justice Moldaver,

the test that [Justice Abella] proposes is amorphous. It does not provide any guidance to decision makers as to the kinds of factors outside the hardship test that would be sufficient to justify relief. Even more problematic, by introducing equitable principles, it runs the risk of watering down the stringency of the hardship test. Relief could be granted in cases which arouse strong feelings of sympathy in an individual decision maker, but which do not reach the stringent standard that the hardship test demands. [107]

“Amorphous” is, indeed, a polite way of putting it. My reaction on first reading the majority opinion was that it said nothing at all, and that I must have missed something. Having read the dissent, and re-read the majority opinion before writing this post, I have come to the conclusion that I did not miss anything, and that the majority does, indeed, abjectly fail to provide any guidance to both the administrative decision-makers and to the Federal Court, where their decisions are reviewed (if they are reviewed at all), usually without any further right of appeal. Indeed, the majority opinion is even worse than just a failure to provide guidance: it takes away what little guidance there was, saying that it was not good enough ― and replaces it with nothing.

But would the dissent’s “simply unacceptable” test have been any better? I doubt it. Justice Moldaver’s proposed measure of “simple unacceptability” is “broad consensus that exceptional relief should be granted.” Whose consensus is this? And how is a bureaucrat, or a judge of the federal court, supposed to ascertain its existence? These are silly questions of course. Acceptability and consensus, just like “community standards” and other tests of this sort, are just rhetorical devices. There exists a broad consensus if a judge ― or a bureaucrat ― thinks that there ought to exist a broad consensus, and that’s that.

Justice Moldaver says that the “simply unacceptable” test is similar to those that are applied in other areas of the law. But, while true, this assertion misses the crucial point that the people who will actually be applying this test ― i.e. bureaucrats and Citizenship and Immigration Canada ― are not familiar with those areas of the law. They are, as Prof. Daly points out, not even lawyers. Indeed, even the judges of the Federal Court, who will be reviewing the bureaucrats’ decisions ― on the deferential “resonableness” standard ― are not familiar with these areas of the law, which are related to the criminal law context, though to be sure, the Federal Court does occasionally deal with abuse of process claims. The Supreme Court recently acknowledged the limits of the Federal Court’s subject-matter expertise, in Strickland v. Canada (Attorney General), 2015 SCC 37, which I blogged about here. In that case the issue was the Federal Court’s suitability to deal with family law issues, but the problem is similar in the criminal law and extradition contexts.

In short, both the majority and the dissent approach the case in a manner that is largely divorced from the reality in which it was decided and, more importantly, in which similar cases will be decided in the future. Neither provides helpful guidance to the decision-makers who are going to deal with these cases as part of their regular routine. (It might not be a coincidence that the only judge with the experience of such cases, Justice Rothstein, was not on the panel that decided Kanthasamy. With his retirement, the shortage of relevant practical experience on the Court is now permanent.) The judges act like generals who visit a distant and, on the whole, not terribly important position once in a blue moon, point in the direction of something on the horizon, and depart, self-satisfied. The local commanders might try to figure out what it is that the generals wanted, the soldiers might be impressed with confident tone and eloquent gestures, but there are unlikely to be substantial changes on the front line as a result of this visit.

As a result, I’m not at all convinced that the result of the majority’s decision will be that too many “humanitarian and compassionate” applications will be granted, as Justice Moldaver fears ― or for that matter that more will be, as Justice Abella presumably wants. (By the way, neither judge, I suspect, knows how many are actually granted now. Certainly we at the Federal Court had no idea. Since the decision is, ostensibly, the Minister’s, he or she cannot apply for judicial review of a decision granting an application, so the courts never see them.) Left to their own devices ― freed from the constraints of the Guidelines and protected by a deferential standard of review ― the bureaucrats who deal with the applications might even become less, rather than more, likely to grant the applications. After all, in my admittedly limited experience, they do not exactly share Justice Abella’s sensitivities and inclinations. More likely, however, they will just shrug off the Supreme Court’s latest pronouncement. And really, that’s pretty much what it deserves.

Consistency and Complexity in Judicial Review

In a (somewhat) recent post commenting on Justice Brown’s appointment to the Supreme Court, Paul Daly wrote about “an interesting paradox” in the world of judicial review of decisions by the “political branches” of government: “[t]hose [who] would defer to Parliament would not defer to the executive.” The “conservatives” who are skeptical of judicial review of legislation, especially on Charter grounds, rally under “the Diceyan banner” ― which is also “a flag of hostility to the administrative state” ― and thus don’t like courts to defer to the decisions of administrative agencies and tribunals. This is indeed an interesting observation, but perhaps not, I would suggest, a paradox. Or, if it is indeed a paradox, then “conservatives” are not the only people who hold paradoxical beliefs about the proper relationships between the courts and the other branches of government.

Consider what people other than “conservatives” or Diceyans think of judicial review. Start with the view that is dominant in the Canadian legal community, including on the Supreme Court, which we might call “progressive.” (Actually, I’m not sure that either it or the “conservative” view described by prof. Daly should be described by such politically charged labels, but let’s put that worry to one side, while keeping in mind that it is legal ideologies we are talking about, not those of democratic politics.) The progressive view favours robust judicial review of legislation, and in particular robust judicial enforcement of the Canadian Charter of Rights and Freedoms. It also, however, favours judicial deference to administrative decision-makers. If the conservative view is paradoxical, so is the progressive view ― it’s just that its paradox goes in the opposite direction.

There is also a third view, which we might call “classical liberal” or “libertarian,” that rejects judicial deference both to legislatures and to administrative decision-makers. On this view, the Rule of Law means that, to conscript Chief Justice Marshall’s famous words, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Whatever the legislature thinks the constitution means, and whatever the executive branch thinks a statute (or the constitution) means, the judges may not substitute those opinions for their own. This view is not very, or even at all, popular in Canada, but it does have some adherents. To put my own cards on the table, it is the one I am most sympathetic to, among the broad categories I am describing.

Finally, we could imagine a position that favours deference both to legislatures and to administrative decision-makers. To be honest, I am not sure that it has any actual adherents, though my ignorance should not be taken as evidence of their absence. I am also not quite sure what to call this view. Actually, “progressive” might be a better label for this position than for the current mainstream one I describe above, because deference-across-the-board is probably closer to the views of the original progressives of a century ago, but I suppose that using it in this way now might be confusing.

With apologies for my non-existent graphics skills, here is how the above categories look in table form:

Deference to:

Legislatures

Yes

No

Administrative Agencies or Tribunals

Yes

?

Progressives

No

Conservatives

Libertarians

Both the conservative and the progressive positions seem to involve a paradox, if deference to one “political branch” but not the other is a paradox. The libertarian position, by contrast, has the virtue of consistency, as does the (hypothetical?) deferential position.

But, as I suggested above, I am not sure that the conservative and progressive positions can be fairly characterized as paradoxical, no matter how tempting it is for me to criticize them. It is, surely, at least plausible to believe that judges, being unelected and unaccountable, should defer to the constitutional judgments of elected legislators, but that the same argument for deference does not apply to unelected, and often virtually unaccountable, bureaucrats. It is also plausible to believe that judges should defer to expert administrators, but not to the bunch of amateurs or even bigots that make up a legislature. Of course, I tend to think that the better view is that courts should not defer either to administrators or to legislators, because both face various perverse incentives and neither is really willing and able to abide by the Rule of Law. But I don’t think that either the conservative or the progressive position can be dismissed out of hand as merely illogical.

And then, there’s the fact that both of these views are actually much more complex than I have made them out to be ― and that even their supporters sometimes acknowledge. The conservative view may favour robust judicial review of decisions made by the executive branch, but perhaps not in some areas, such as those that have to do with national security. The progressive view, even more clearly, leaves important areas of legislative action out of the scope of robust (or indeed any) judicial review ― notably anything that has to do with economic policy and regulation, and property rights (although, in a further inconsistency, some of those who hold this view are committed to defending the economic rights of organized labour). Indeed, it is arguably even possible to sympathize with the libertarian position on judicial review and yet argue that in some types of cases, courts should be more deferential than in others; or at least I have taken this position, though perhaps I’m just a faint-hearted libertarian.

I think prof. Daly is right to remind us about the links that exist between the two sorts of judicial review ― that of legislation and that of administrative decisions ― and to invite us to think about whether our approach to them makes sense when we consider them together, and not only in isolation. As we engage in this reflection, we might want to attain a certain level of coherence in our views on democracy, the Rule of Law, and institutional competence. But the legislature and the executive might not stand in the same relation to these principles; indeed, the same branch might interact with them very differently depending on the issue at hand. Thus it is no surprise, and no paradox, that internally coherent legal ideologies would countenance apparent inconsistencies in the levels of deference courts should afford different decision-makers.

Adequate Alternatives

Last week, the Supreme Court issued an interesting decision which, although apparently only concerned with judicial review (of the administrative law sort) and the respective jurisdiction of the Federal and superior courts, also tells us something about the role of the courts more generally. The case, Strickland v. Canada (Attorney General), 2015 SCC 37, was an appeal from decisions by the Federal Court and the Federal Court of Appeal not to hear an application for judicial review of the legality of the Federal Child Support Guidelines, which the applicants said did not comply with the requirements set out in their enabling legislation. The Supreme Court unanimously dismissed the appeal, and held that the federal courts were right to decline to exercise their undoubted jurisdiction to review the Guidelines’ legality.

Both federal courts concluded that provincial superior courts would be better placed to consider such a challenge, within the context of a case where the Guidelines would be applicable. Such cases, and family law matters more generally, are the preserve of the provincial courts. Federal courts have very little say in family law, and lack the expertise in this area. The interests of justice, they thought, would be better served by having a more expert court consider the issue.

The first question which the Supreme Court addressed was whether it was indeed the case that a provincial superior court could consider a challenge to the Guidelines’ legality. Section 18 of the Federal Courts Act, after all, gives the federal courts exclusive jurisdiction to review the actions of the federal administration, including the regulations it issues, such as the Guidelines. However, Justice Cromwell, for the majority, concluded that “[a] provincial superior court can hear and determine a challenge to the legality of the Guidelines where that determination is a necessary step in disposing of support proceedings properly before it.” [15] He pointed out that the Court already held, in Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, that superior courts could exercise their jurisdiction to award damages against the federal Crown without the federal courts having first considered the legality of the Crown’s conduct in the context of an application for judicial review. This decision, Justice Cromwell said, “support[ed] the principle that the provincial superior courts have the authority to consider and rule on the legality of the actions of federal tribunals when doing so is a necessary step in adjudicating claims properly before the superior courts.” [22] Thus if a litigant who is seeking or opposing a child support order wants to challenge the legality of the Guidelines in a case before a superior court, he or she may do so.

Given this conclusion, the second question for the Supreme Court was whether the federal courts were right to decide that such a challenge would be a better vehicle for considering the legality of the Guidelines then an application for a declaration made to the federal courts. The courts’ power to review the legality of the decisions of governments (as well as some other organizations) is discretionary, meaning that in some circumstances, the court will decline to exercise it. This is particularly so, Justice Cromwell pointed out, when the remedy sought is a declaration. As Justice Cromwell further pointed out, “[o]ne of the discretionary grounds for refusing to undertake judicial review is that there is an adequate alternative,” [40] which “need not be the claimant’s preferred remedy or identical to that which the claimant seeks by way of judicial review.” [59] In this case, the question was whether challenging the legality of the Guidelines before the provincial superior courts was such an alternative, an issue that must decided by looking at all the circumstances of the particular case, including “the purposes and policy considerations underpinning the legislative scheme in issue.” [44]

The appellants claimed that going to the Superior Courts was not an adequate alternative for them. They did not want to (re)litigate their child-support cases ― they only sought to have the Guidelines themselves declared illegal, and thus had no reason for turning to the superior courts. But unlike litigants asserting a private right, the “appellants do not have a right to have the Federal Court rule on the legality of the Guidelines,” [48] and the Court was entitled to refuse to do so. In making that decision, it could not

simply look at the alleged advantages of judicial review from the appellants’ perspective so that they can make their point, but also must engage with the more fundamental questions of how judicial review interacts with the operation of the Guidelines in family law litigation in the provincial courts. [50]

In this regard,

it would be curious, to say the least, if the legality of a central aspect of [the family law] regime were to be finally decided by the federal courts, which, as a result of federal legislation, have virtually no jurisdiction with respect to family law matters. [51]

Finally, a ruling by the federal courts that the Guidelines are illegal would not prevent a “proliferation of litigation.” For one thing, it “would not be binding on any provincial superior court.” [53] For another, “[i]t would be for the provincial courts to decide the impact of the illegality of the Guidelines on particular support orders and that could only be done in the context of a multitude of individual cases.” [53] There would be other consequences, too, with which only the superior courts could deal.

Ultimately, says Justice Cromwell. family law expertise is required to adequately decide of the challenge to the Guidelines’ legality. It is provincial superior courts that deal with the issues on which the disposition of such a challenge would depend, and have a sense of the Guidelines’ real-life operation and effects. Even if they cannot grant the precise remedies sought by the appellants, it is they who should hear their claims.

* * *

I think this is the right decision. It reminds me of Bilodeau c. Canada (Ministre de la Justice), 2009 QCCA 746. Mr. Bilodeau sought to have Québec’s courts review a decision of the federal Justice Minister refusing to review his criminal conviction, which he claimed was a mistake. The majority of the Québec Court of Appeal sided with the government, holding that a decision of the federal administration could only be reviewed by the Federal Court. But Justice Duval Hesler (as she then was, and for whom I did some research as a part-time clerk) dissented, arguing (among other things) that “it is desirable that a court engaged this [judicial] review know, understand, and be in the habit of applying the relevant principles” [106] of law. Stickland does not overrule Bilodeau, since it does not affect the majority’s conclusion that the Mr. Bilodeau’s application was not “properly before” the provincial courts at all, but I am happy to see the now-Chief Justice’s logic vindicated.

In a way, however, Justice Cromwell’s reasons are actually unsatisfactory. Perhaps this is too much to ask of a judicial opinion as opposed to an academic study, but I wish he had explored the parallel between the issue he was facing and that of public interest standing ― on which he is, after all, the Supreme Court’s resident expert, having authored its opinion in the leading case on the subject, Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524. As Justice Cromwell explained, the claim in Strickland was for a “public law remedy.” The appellants were not looking for anything for themselves, at least not immediately. Their situation was somewhat different from the usual public interest litigants, because their legal rights would have been affected by an invalidation of the Guidelines, but their claim was arguably more similar to public interest one than to a traditional private action.

Under the Downtown Eastside framework, courts will grant a litigant who does not have a personal stake in the dispute public interest standing to contest the legality (and often the constitutionality) of government action if they consider the claim to be a “reasonable and effective” vehicle for having the issue determined. The standing inquiry is, of course, concerned with the claimants, because there is a suspicion that, lacking a personal stake in the dispute, they will not pursue their case effectively, and might interfere with the rights and autonomy of persons who do have such a stake. Accordingly, courts ask themselves whether would-be public interest litigants are genuinely concerned about the issues they are raising, and whether they will be able to litigate them in such a way as to enlighten the courts, and possibly to bring to bear evidence and arguments that would not be available to other parties. But courts are also concerned with using their proverbially scarce resources effectively, as well as with ensuring that an adversarial debate will take place. And, although not fully determinative, the existence of alternative effective means of addressing the issue will clearly be of considerable importance.

It seems to me that the concerns that were weighing on Justice Cromwell’s mind in Strickland are not very different. Ultimately, the issue is whether the case, as framed by the appellants, was a reasonable and effective vehicle for addressing the issue it presented. To be sure, unlike in public interest standing cases, Justice Cromwell (as well as the courts below) worry not about the proposed parties’ capacity to pursue the case, but about the proposed adjudicators’ ability to resolve it. The alternative whose existence might justify refusing the claim to proceed is not the possibility that other litigants could make the same arguments (possibly) before the same court, but that (possibly) the same litigants could make the same arguments before a different court. But these are two aspects of the same problem.

Especially with public interest litigation, which raises complex and often fact-intensive issues ― and has the potential to do so in a relative factual vacuum ― courts are concerned about being able to settle disputes effectively. This may be difficult to do because the parties fail to provide enough information or because the court itself lacks the necessary expertise. For better or worse, Canadian courts aren’t exactly shy about exercising their jurisdiction even in such difficult cases. But it is reassuring to see that, when an alternative recourse susceptible of making for better-informed adjudication exists, they can still insist on it being taken.