10 Things I Dislike About Administrative Law

A perspective from a skeptic

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

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

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

  1. Selecting the standard of review

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

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

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

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

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

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

  1. Expertise

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

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

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

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

  1. Jurisdictional Questions

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

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

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

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

  1. Charter Values

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

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

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

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

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

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

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

  1. The Supreme Court’s reasons doctrine

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

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

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

  1. Deference to implied interpretations of law

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

  1. The standard of appellate review

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

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

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

 

Girouard v CJC: An Administrative State Coup?

The administrative state is not a constitutional mandate

A few weeks ago in this space, I mooted the arguments that could stand against the constitutionality of the administrative state. I alluded to an argument—percolating in Canada—that the administrative state could be mandated by the Constitution. I wrote this piece in a fully hypothetical mindset. But I forgot about a case in the Federal Court, Girouard v Canadian Judicial Council, in which the Canadian Judicial Council [the CJC] essentially attempted to constitutionalize its status as a statutory administrative tribunal by making it beyond judicial review. The Federal Court thankfully rebuffed the argument.

First, the brief facts. The CJC is a statutory body that has authority to review the conduct of federally appointed superior court judges. The CJC is made up of 39 members—chief justices, associate chief justices, and other senior judges—and is chaired by Chief Justice Wagner.

When a complaint is made against a member of the judiciary, the CJC has authority to investigate. It could do so through an Inquiry Committee [IC]. According to the Judges Act, which governs the CJC, the CJC may appoint an IC consisting of its membership or members of the bar of a province having at least ten years standing (s. 63(3)). After the inquiry has been completed, the CJC will report the conclusions and make recommendations to the responsible Minister (s.65).

Two inquiries were completed in the case of Justice Girouard, a judge of the Quebec Superior Court. In 2012, Justice Girouard was caught on a video that allegedly showed him involved in a drug deal. The CJC was asked to review Justice Girouard’s conduct. The first inquiry rejected the allegations against Justice Girouard, but raised concerns about the credibility and reliability of the facts reported by Justice Girouard. The CJC accepted the conclusion of the IC. In 2016, the Minister and Minister of Justice of Quebec filed a joint CJC complaint regarding Justice Girouard’s lack of credibility during the first IC. A second IC was convened, which found that Justice Girouard was not forthcoming during the first inquiry process. The CJC accepted that conclusion in its recommendation report to the Minister. In the main judicial review, Justice Girouard challenged the IC report to the CJC and the CJC report to the Minister, among other decisions.

The case here was a motion to strike brought by the CJC, which essentially argued that the CJC was a superior court, and not a federal board, commission or tribunal subject to judicial review under the Federal Courts Act. To the CJC, the Judges Act expressly notes that the CJC is “deemed” to be a superior court. Apart from the Judges Act, the CJC also argued that judicial independence as a constitutional principle compels the conclusion that the Federal Court has no authority to review the CJC, composed as it is of s.96 judges. The Federal Court rejected these arguments, concluding that the CJC is a statutory federal body subject to judicial review under the Federal Courts Act. Relatedly, the Federal Court concluded that the CJC does not possess the traditional indicators of a superior court, despite the fact that its membership is drawn from the ranks of s.96 judges.

The legal arguments presented by the CJC, to my mind, are problematic on three fronts: the implication of the CJC’s argument runs into problems at the level of fundamental principle; second, on specific legal points; and third, on the context in which this decision was made.

The first issue: if we accept the CJC’s argument, we can conclude that at least some of the administrative state is constitutionalized, simply because a s.96 judge (acting non-judicially) is on the committee. This is because the CJC argues that it is superior court, unreviewable without a right of appeal, despite being a body created by Parliament. Specifically, the CJC argues that the Federal Court cannot review the CJC because it does not fall into the definition of a federal board, commission, or tribunal in the Federal Courts Act. According to the CJC, this seems to be for two reasons: (1) because, properly interpreted, the definition does not encompass s.96 courts and (2) a principle of judicial independence precludes the Federal Court from exercising review over s.96 judges.

Both arguments run into what I call the fundamental principle of all administrative law: its statutory character, open to amendment or rescission at any time by the legislature. Tomorrow, for example, Parliament could remove the Immigration and Refugee Board, because the Constitution does not require the maintenance of a body to process refugee applications. We would revert to a pre-administrative law world, in which the executive (the responsible Minister) would process humanitarian and compassionate applications, for example. Put differently, and except in defined circumstances (such as those in Vriend, where Parliament has already spoken on a matter), the Constitution does not ordinarily require a legislature to positively act, much less to establish a robust administrative state. If the CJC is not open to judicial review under the ordinary channels, its actions are insulated from review, taking on a constitutional character. In the ordinary course, we would reject this argument—both on principle and because the Supreme Court has said that Parliament cannot establish s.96 courts (Crevier).

Why does this matter? While the CJC did not expressly argue this, its argument implites that the CJC can be put beyond review. An administrative actor created by statute should never be put beyond review, new-fangled theories of “constitutional structure” and administrative law constitutionalism notwithstanding. In constitutional democracies, government power must be subject to law. This means a neutral arbiter must determine if government properly exercised power according to law–the Rule of Law, at the very least, encompasses this principle of legality. If an administrative decision-maker, no matter the rank of its members or their august titles, is put beyond review, we approach a government by executive fiat and prerogative, not a government of laws adopted lawfully.

I see this case as an extreme example of the modern trend of administrative law: towards more regulation and more administrative decision-makers that have court-imposed “unlimited” powers (see West Fraser, at para 11). Once we accept even one instance of such a decision-maker, vested by statute, we have to conclude that no court can speak ill of that “unlimited” decision-maker. Obviously this has profound effect on the Rule of Law, individual liberties, and due process. Take this case–dissenting members of the CJC were concerned that certain anglophone members of the CJC could not evaluate the entire record, which was in French. This implicates the fairness of the process for Justice Girouard. A purpose of judicial review is to ensure this basic fairness, but if we make administrative decision-makers beyond reproach, we sit them alongside the basic law of the land–the Constitution. And of course, legislative bodies acting alone cannot establish new constitutional provisions.

The only wrinkle in the Girouard case is the membership of the CJC—in part, s.96 judges. A principle of judicial independence does require some separation between the judicial branch and the other branches of government. Resting on this, the CJC argued that s.96 judges—whenever acting in any capacity—exercise powers as a member of a court of inherent jurisdiction. But the CJC is established not as a loose confederacy of s.96 judges acting in a judicial, adjudicative role, deciding individual cases and applying the law. This is the hallmark of the judicial function (see Residential Tenancies at 743). Rather, it is established as a statutory investigatory institution, vested with powers only so far as the statute allows. The CJC has no other inherent power—no constitutional power to vindicate a right with a remedy—and has no supervisory jurisdiction, other powers typical of a superior court. It is acting only as a sort of self-governing professional body for judges, according to the terms of the statute. In absence of any exercise of a judicial function, and given the statutory basis of the CJC, there’s no reason to believe that the CJC should be constitutionalized as a s.96 court simply because, in another capacity, members of the CJC exercise judicial functions–notwithstanding the specific facts of the Supreme Court’s comments in Ranville (distinguished by the Federal Court).

In fact, the implication of the converse is absurd. The CJC stands and falls as a whole–as an institution. As I note above, the CJC ICs, for which the CJC sought immunity from review, is in part made up of s.96 judges. But the ICs can also include members of the bar of 10 years standing. The CJC’s argument implies that this does not matter so long as there are s.96 judges on the IC, the IC and the CJC together exercise s.96 functions, acting as members of a court of inherent jurisdiction. This sets up an interesting set of incentives. In order to make statutory bodies immune from review, Parliament could set administrative decision-makers composed in part by s.96 judges—perhaps composed of just one s.96 judge among other lawyers. On the CJC argument, this body would be beyond review without a right of appeal. Parliament could use the Constitution to game the fundamental principle of administrative law.

The real question is whether judicial review by the Federal Court infringes the judicial independence of a s.96 judge. Judicial independence has some textual mooring (ss. 96-100 of the Constitution Act, 1867 and s.11(d) of the Charter), but it is an “unwritten constitutional principle,” which guarantees “administrative independence, financial security, and security of tenure” (Provincial Judges Reference, at para 118). The CJC says that security of tenure is at stake, as removal of a judge requires an impartial process. The Court in the Provincial Judges Reference said something similar regarding financial security, but I am not sure the same result is compelled in these circumstances. It is not as of the Federal Court is some government administrative body that could allow the executive to interfere in the workings of the CJC—thus breaking the wall that should be set up between judiciary and executive. The Federal Court is itself independent. In the ordinary course, again, constitutional principles do not compel a particular legislative process or system. It simply requires a reality; that judges and executive/legislatures be separate.

Finer legal points also work against the CJC (though I note the CJC’s very sophisticated statutory analysis-see the factum below). The CJC argued that it is not subject to review in the Federal Court because the Federal Courts Act expressly excludes s.96 judges—and the power of the CJC is rooted not in a federal law (the Judges Act) but in a constitutional principle. The CJC says that if the Judges Act were removed tomorrow, the authority of the judiciary to investigate other judiciary members would remain. Again, on this I recoil instinctively. The CJC makes decisions as an institution—this the CJC recognizes. That institution, separate from its individual members, is created by statute. The Judges Act is one statutory manifestation that implements the principle of judicial independence, but is not the only one and perhaps not even the best one.

The CJC also points to s.63 of the Judges Act, which says that the CJC is deemed to be a “superior court.” In written argument, the CJC spends a lot of time discussing this deeming provision. I’m alive to the idea in statutory interpretation that a deeming provision creates a virtually irrebuttable legal fiction, but an unconstitutional statutory provision (deeming or no) cannot stand. An attempt by Parliament, through a deeming provision, to establish a s.96 court runs into constitutional problems on federalism grounds and on the Crevier grounds noted above. Even if this was not so, the particular deeming provision in this case is similar to ones that exist in other statutes. For example, the Canadian Transportation Agency similarly has “…all the powers, rights and privileges that are vested in a superior court” (Canadian Transportation Act, s.25). Yet no one argues that this provision alone grants the Canadian Transportation Agency the power to act as a superior court beyond powers pertaining to the procedures of the Court.

Finally, the context of the decision indicates that the CJC is aware of its statutory character. As noted by Paul Warchuk, the CJC tried once—the right way—to amend the Judges Act to make itself immune from review. A few years ago, the Minister of Justice sought recommendations on how to amend the Judges Act. The CJC recommended at that time that it be put beyond the ordinary judicial review procedure, subject only to an appeal to a statutory appeal body.

The CJC failed in these efforts, which basically mirror its submissions in Girouard. But implicit in this attempt is a recognition by the CJC that it is a statutory body subject to review by the Federal Courts system like any other federal body. After all, Federal Court judges are superior court judges (see s.4 of the Federal Courts Act, which establishes the Federal Court as a “superior court of record”). I’m not sure what changed between this recognition of its status and the Girouard case.

Overall, while counsel for the CJC argued the best case it could and ably so (whatever my opinion is worth), I’m less inclined to support the argument because of its implication: a further extension of the administrative state into unknown terrain. The coup failed this time, but as I’ve written elsewhere, the administrative state is a fickle bedfellow.

NB: To be fair, I’ve attached the CJC’s submissions below. Thanks to Alyssa Tomkins, counsel for the CJC, for sending them over.

Mémoire CCM

The Bowels of Administrative Law

Administrative guidelines that make it difficult to challenge the administrative state.

In the United States, the Administrative Procedure Act governs federal administrative decision-making. Among other things, the APA prescribes a number of minimum standards for what I call the “bowels” of administrative law—the ugly business of rules, regulations, and guidelines adopted under statutory authority that touch the everyday person.  For example, when an agency promulgates rules made pursuant to congressionally delegated authority, the agency must provide the public with adequate “notice and comment” procedures, calibrated to the importance of the rule. On the other hand, rules that are merely policy or interpretive guidelines are generally not subject to notice and comment procedure. When an agency, however, exercises its delegated powers, it must provide adequate notice and comment.

In my view, the APA provides some acknowledgement that internal agency guidelines, even procedural ones, could impact substantive rights. It presents a supralegislative standard that certain procedural guidelines must meet if there is a chance that the rights and interests of citizens could be impacted. This, to my mind, is the primary function of the notice and comment procedure. It gives citizens the right to have a say on the sorts of rules that may adversely impact their ability to challenge administrative action. It is an attempt to reconcile the deep constitutional challenge of the administrative state with the rights and freedoms of individuals.

In Canada, on the other hand, little academic work focuses on the sort of internal agency guideline I’m concerned with—putatively procedural guidelines, adopted under statutory authority, that could have a significant impact on the ability of claimants to challenge administrative action. This could leave administrative decisions insulated from challenge. Putting aside the historical work of John Willis, a notable recent exception is the work of Lorne Sossin, who in a series of articles fleshes out a framework for classifying the wide gamut of agency guidelines and directives that could structure the broad statutory discretion of an administrative decision-maker. Professor Sossin has done a service in this regard, and I can do no better than a piece by Professor Sossin and France Houle. But I merely wish to underline a point made by Professor Sossin and Houle. In Canada, we have not grappled with the role that procedural guidelines could play in impacting the ability of citizens to challenge the state.  Relatedly, we have not addressed what role citizens should and do play in the formulation and adoption of these guidelines.

From one perspective, agencies empowered by legislatures can be seen as operating in a deeply democratic space to which courts should defer. By that, I mean that agencies particularize democratic mandates adopted by the legislature in a way that the legislature simply cannot.  Agency guidelines can develop the legal order or fill gaps in it. Much like a principal-agent relationship, the agency stands at the “hard end” of administrative law, achieving the legislature’s goals while efficiently and expertly managing disputes. As Metzger and Stack argue, we must view this business of administrative law as “administrative government” in an “administrative world”—these tribunals are fundamental parts of the law-making state in the modern world. It follows that overbearing “legal” norms should not be used to disincentivize the development of agency and policy guidelines.

But we know in Canada that, even when acting pursuant to statutory authority, administrative decision-makers do not have free rein. According to Roncarelli, there is no such thing as untrammelled discretion that can operate without regard to some intelligible statutory delegative principle. At the same time, beyond this general proposition, there is no general doctrinal guide for when courts should be skeptical of internal, procedural guidelines that could impact on the ability of litigants to challenge administrative action–with or without adherence to a statutory delegation.

A statute, for example, that delegates an agency the full power to develop rules of evidence leaves a great deal of discretion to the agency to decide on the sort of disclosure it must grant a claimant. Short of a constitutional challenge based on the case to meet principle and principles of fundamental justice, an agency could limit the disclosure of evidence to a claimant. This might seem benign. But it could make more difficult challenges to administrative action because a claimant may not have the best evidence to challenge the administrative decision. The effect? Less investigation of administrative action.

Standing rules are a better example. The legislature could delegate broad power to an agency to determine who has standing to challenge decisions. Any procedural rule adopted under this broad authority could be legal, but that same rule could pose problems for other rights and interests.   On one hand, if the agency adopts a liberal standing rule, more claimants will be let through the door and have the ability to hold agency decisions to account. Such a rule would exact a cost in the coin of agency resources, and that alone may impact the ability of the agency to efficiently respond to other complaints. On the other hand, a restrictive standing rule exacts a cost in a very different currency: the rule of law. If, under broad statutory authority, an agency adopts a standing rule that permits the denial of standing to many claimants, an administrative decision could be practically immunized from review. The concern is that the administrative state could  use the statutory authority it has been given to entrench its own power or the power of stakeholders. In such a situation, an agency could insulate itself from meaningful review while still acting within the four corners of a statute.

This is not a hypothetical situation. In Delta Air Lines v Lukacs, the Supreme Court recently dealt with the Canadian Transportation Agency’s interpretation of its own rules for standing, governed by a broad statutory authority. In that case, it did not appear that the Agency adopted a written rule for the situations in which it would grant standing. But it did adopt a particular version of the common law test for standing that made it more difficult for claimants to challenge the Agency’s action. While the Supreme Court held that this version of the common law test was inconsistent with the Agency’s enabling statute, what about a case where there is a restrictive standing guideline that is consistent with the enabling statute? In such a case, many claimants could be excluded. And the worry is that an agency could be insulated from review based on an arbitrary guideline.

The difficulty of addressing this problem should not be understated. In fact, this may not even be a “problem” that can be addressed through the courts. As noted above, the use of so-called “soft law” can be placed on a spectrum. As KC Davis noted in his important work, Discretionary Justice, we could have mere policy directives moving along into quasi-legislative rules. On the former end of the spectrum, such guidelines may not have the force of law. Even quasi-legislative rules that as Sossin and Houle note could develop or interpret the legal order may not themselves be justiciable. If these guidelines are adopted within the bounds of statutory authority, what warrant does a court have to intervene?

I’m not opposed to this line of thinking, because legislative intent defines the scope of agency authority. At the same time, there is something unsatisfying about the conclusion that agencies can themselves lower the probability of their decisions being scrutinized by litigants and ultimately courts. For that reason, as the Americans determined, the legislature is probably the best place to reckon with the difficult balance required between the delegation of power to administrative decision-makers and the ability of claimants to challenge agency action. A legislature could prescribe standards that allow claimants to have a say in the sorts of guidelines adopted by an agency. I do not expect such legislative guidance to come any time soon. But one could hope for the regulation of administrative law’s bowels.

 

Taming the Administrative State

Two books in the administrative law literature

In the spirit of the upcoming review of Dunsmuir by the Supreme Court, I’ve read two important books about administrative state skepticism in the United States: Phillip Hamburger’s The Administrative Threat; and Joseph Postell’s Bureaucracy in America: The Administrative State’s Challenge to Constitutional GovernmentBoth books address the constitutionality and necessity of the “administrative state,” and I see some of these conclusions transferring to the Canadian context. What follows is my tortured look at the problems of constitutionality and necessity with a Canadian twist.

Hamburger’s short, pithy text is a condensed version of his other important work, Is Administrative Law Unlawful? The Administrative Threat starts from an historical perspective and builds a sustained response to the administrative state. Hamburger analogizes modern administrative power to the English prerogative power. This prerogative power was famously abused, it was absolute, and it operated outside of the law—it was, according to Hamburger, “extralegal.” To Hamburger, the Star Chamber is the quintessential example of such power.

Hamburger argues that the US Constitution from the beginning barred such prerogative power, repackaged in “administrative” terms. Articles I (legislative power exclusively in the Congress) and III of the US Constitution (judicial power exclusively in the courts), block “irregular” or “extralegal” power, according to Hamburger. When decision-makers create binding rules, they operate outside of the constitutional structure. The worry is more pronounced when decision-makers combine rule-making (legislative), adjudicative (judicial), and investigatory (executive) functions. From a separation of powers perspective, we should be  concerned about such power concentrated in the hands of bureaucrats.

On the other hand, Postell’s book attempts to place the administrative state and its challenges in the context of American constitutional history. Postell argues that “administrative state skepticism,” far from being a new, radical movement, is entrenched in the idea of American constitutionalism. Similarly, to Postell, modern administrative law insufficiently addresses the threat of the administrative threat and its combined executive, judicial, and legislative power. Postell’s review of history demonstrates how Americans have dealt with the threat of administrative power, if imperfectly.

What do these books have to say to Canadians? The books basically assault (1) the constitutionality of the administrative state and deference to it and (2) the necessity of the administrative state. These arguments can transfer, if uneasily, to Canadian law. It’s worth mooting them out to see where they go, if we view a generalized notion of the separation of powers as a worthy organizing principle of the legal system.

Canada’s separation of powers is in part rooted in the judicature provisions of the Constitution Act, 1867. Section 96 protects the role of superior courts of inherent jurisdiction. Parliament cannot divest these courts of their core powers, while non-core powers can be divested if they were not exercised exclusively by superior courts in 1867, or if they were but the broad policy context of the decision-maker transforms the decision-maker’s function (Reference Re NS Tenancies Act).

It could be tempting in the Canadian context to say, as Hamburger does in the American, that the vesting of power in administrative tribunals somehow deprives the constitutionally protected courts of their powers of adjudication and interpretation of law. At first blush, there is no case for this in Canada, because the “core” of s.96 powers is drawn narrowly, and clearly law adjudication and application is not part of that core. For example, the Federal Court is a statutory court created under s.101 of the Constitution Act, 1867.  The Supreme Court itself is a mere “s.101 court.” Yet both courts clearly have the power to interpret and apply law, and that power does not derogate in any meaningful way from the power of s.96 courts to do the same. If the logic follows, therefore, there is no constitutional problem with similarly constituting administrative tribunals.

But this is an unsatisfying conclusion, because there is a meaningful distinction between s.101 courts, for example, and administrative decision-makers. Most importantly, the former can stand in review of the latter (ie) the Federal Court to the Refugee Appeal Division. And there are certain principles that thelcourts must uphold–judicial independence, the Rule of Law, the list goes on. In upholding those principles in cases, the courts must interpret and apply law against the delegated decision-maker. One has a supervisory function over the other, a constitutional role recognized as a part of the Rule of Law. On this question, the distinction is not between s. 96 courts and all other decision-makers, but rather between supervisory courts and other statutory creations.

So, even if interpretation and application of law is not a core function of courts, it is a function on judicial review conducted by courts. This function of law  interpretation and application is something quintessentially judicial. The transfer of these powers to statutory institutions, created by the government that adopts the laws under interpretation, seems to remove something from the uniformity required by the Rule of Law and implicit in ss. 96 and 101. Law that is interpreted by a thousand statutory creations cannot be a uniform law interpreted and enforced across the legal system by courts with a constitutional connection. If this is a constitutional problem, it would require a recognition that s.101 courts (and perhaps other supervisory courts) have some higher constitutional purpose alongside s.96 courts. Such an argument is not new,  and in my view, it is implicit in the Rule of Law, the requirements of judicial review, and legal uniformity. Delegation (read: divestment) of the powers of s.96 and 101 courts would, on this account, raise constitutional concerns.

This is a rough-and-ready attack on delegation, but it is admittedly not where the debate currently is in Canada.  Instead,  Professor Glover recently asserted that the administrative state could be constitutionally mandated.  But the same concerns I’ve noted above are relevant here. Apart from whether the administrative state is constitutional in the first place, the effect of constitutionally entrenching the administrative state (whatever that term means) would be the establishment of at least some adjudicative bodies alongside s.96 courts. Yet the Supreme Court has said that legislatures and Parliament cannot, in effect, constitute s.96 courts (see McEvoy, at 719). More importantly, it would be an odd constitutional mandate that requires the legislature to maintain an aspect of the Constitution through ordinary legislation, putting it in the realm of majority control. This is the opposite of what a Constitution is about–putting certain matters beyond the reach of the majority.

If we accept that there may be constitutional concerns with delegation, deference to that delegation should similarly raise problems. As Hamburger notes, deference has a little explained practical effect. When courts defer to administrative decision-makers in Canada, they effectively impose an onus on claimants to rebut a presumption of legality. Government lawyers have the upper hand—the decisions of their own statutory creations are what they defend. This raises a question of doctrinal independence, though emphatically not independence in the traditional, judicial sense. On questions of law, as Dunsmuir notes, a core function of s.96 courts (which extends to all judicial review courts) is the enforcement of that law against administrative decision-makers.  But deference to the administrative state dilutes that enforcement function, sacrificing it at the altar of expertise, while giving the government an upperhand. The concern here is that the decision under review is viewed as presumptively legal when there is no reason to presume it so.

This raises the necessity question, and whether administrative law and its doctrines can save us from the constitutional worries associated with the administrative state. Or perhaps there is another option. The books raise the prospect that we may not need the administrative state if we embrace certain constitutional principles.

To Postell, the administrate state is broken, and we do not need it in its current form. More importantly, administrative law can’t save us. As I have written before, and as Postell demonstrates, the tools of delegation and deference are used as quintessentially political tools. From the New Deal to the conservative counter-revolution, deference evolved as a way for governments to impress on courts their political will—their desire to limit the supervisory function of courts. These tools have operated at the same time as the administrative state has grown, an insatiable beast eating up more basically adjudicative and legislative functions.

Yet, the answer is not necessarily a strict politics-administration dichotomy. Instead, Postell puts forward the idea of a “constitutional administration,” where representation and republican protections are the organizing principles of the administrative state, rather than rule by experts.  Postell points out that contrary to scholarly “consensus,” antebellum America was not a place of robber-barons and laissez-faire, but instead a place where this constitutional administration flourished. There was an administrative state, and much of it operated at the state and local governments, subject to strict judicial review. At the national level, a stricter separation of powers governed, based on principles of non-delegation of legislative powers and strong-form judicial review. These forms of regulation, though based on simple principles rather than variable forms of expertise, accomplished the policy goals of the era.

In contrast, modern administrative state sympathizers argue that complex problems require complex solutions and that an expert administrative state is required to efficiently manage public policy. First, one has to seriously query whether the administrative state any longer accomplishes this goal, if it ever did. Expertise is not empirically demonstrated by administrative state defenders. And not all administrative tribunals are “flexible” (whatever that means), quick, and cost-effective, like the Court seemed to think in Edmonton East .As an example, the wait time for a refugee hearing before the Immigration and Refugee Board is currently 20 months.

More fundamentally, and as Richard Epstein points out, a complex society does not necessarily require complex rules in a complex bureaucracy. Simple legal rules based around the common law can transform and adapt to exigencies of modern society while similarly protecting individual liberty. Further, much of the administrative state is executive action that could be completed by the executive itself, as Hamburger notes. If the legislature stays in its lane by adopting clear rules, and the executive completes its executive functions, the combination of powers in the administrative state is avoided.

None of this should be construed as a full acceptance of either Hamburger or Postell’s thesis in the Canadian context. A simpler system of administrative law based on republican principles is not doable in Canada. But both authors give us something to think about. It might be worthwhile thinking about taming the administrative state.

CHRC: The Presumption of Reasonableness and the Rule of Law

Worries about the upcoming review of Dunsmuir

The Supreme Court of Canada released a number of decisions in the last few months on standard of review. Many of these decisions are probably noise rather than signal, in the language of Professor Daly. One, however, sheds some light on an important issue before the SCC’s revisit of Dunsmuir: CHRC v Canada (Attorney General), 2018 SCC 31 [CHRC]. What is the role of legislative context in rebutting the presumption of reasonableness?

CHRC says there is no role. This is inconsistent with the Court’s own cases, and doctrinally, it subverts the role of courts in seeking legislative intent to determine the standard of review. This is another milestone in the Court’s tortured administrative law jurisprudence, and it brings no hope for the upcoming review of Dunsmuir.

***

CHRC involved two human rights complaints before the Canadian Human Rights Tribunal [CHRT]. These complaints centred around the Department of Indian and Northern Affairs’ previous practice of “enfranchisement.” Under this practice, the government stripped individuals of their Indian Act status and denied the children of these people from registering as status Indians—for example, a child born to a status Indian mother who married a non-status man. In response to this discriminatory policy, Parliament enacted remedial provisions which enabled persons affected by the policy to re-register under the Indian Act.  Further reforms granted registration eligibility to children affected by the enfranchisement policy.

The two complaints were centred around the amended registration provisions in the Indian Act, which need not be exhaustively described—in essence, the claimants argued that the remedial provisions were insufficient because they permitted continued discrimination on the basis of enumerated grounds [1].  The claimants framed their challenge under s.5 of the Canadian Human Rights Act [CHRA], and alleged that the Department of Indian and Northern Affairs Canada engaged in a discriminatory practice in the provision of services.

Both complaints were dismissed on the basis that the claimants’ challenges were legislative challenges to the status registration requirements under the Indian Act. The CHRA confers remedial authority to the CHRT to render conflicting legislation inoperable, but a remedy could only be granted in circumstances where a discriminatory practice has first been established [56]. But the CHRT concluded that “legislation per se” was not a discriminatory practice in the provision of services, and for that reason, the complainants’ cases could not constitute a discriminatory practice.

***

The Supreme Court majority decision was written by Justice Gascon. To the majority, the CHRT was “called upon to characterize the complaints before it and ascertain whether a discriminatory practice had been made out under the CHRA” [30]. As a result, the Court reasoned that this was an issue of home statute interpretation inviting the presumptive standard of reasonableness.

The majority next considered whether the presumption was rebutted, concluding that the case did not fall into any of the categories for correctness review established in Dunsmuir. It then turned to the so-called “contextual approach” to determine whether it rebutted the presumption of reasonableness review. That “approach” was essentially a carry-over from the pragmatic and functional era, consisting of four factors which could indicate a different standard of review than the one indicated by the presumption: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue; (4) the expertise of the tribunal.

The majority noted that a presumption of reasonableness is designed to “prevent litigants from undertaking a full standard of review analysis in every case” [45]. Context, then, should play a “subordinate role”, and should be “applied sparingly” [46]. Putting context in its place, to the majority, would forego the uncertainty and debate over the standard of review.

The majority emphatically disagreed with the opinion written in CHRC by Cote and Rowe JJ, which noted that correctness would apply wherever the “contextual factors listed in Dunsmuir point towards correctness as the appropriate standard” [73]. Instead, the majority noted that where the presumption of reasonableness applies, an adoption of a contextual approach would “undermine the certainty this Court has sought to establish in the past decade” [47]. The majority concluded that “…dissatisfaction with the current state of the law is no reason to ignore our precedents following Dunsmuir” [47]. On the facts, the majority nonetheless applied the contextual analysis and concluded that the presumption of reasonableness was not rebutted.

In a concurring opinion, Rowe and Cote JJ disagreed with the majority’s obiter comments on the contextual approach. They reasoned that the approach to standard of review set out in Dunsmuir is “manifestly contextual in nature” [78]. To Rowe and Cote JJ, a contextual analysis must be undertaken where the categories inviting correctness review do not apply.  On the facts of the case, Rowe and Cote JJ would have found the presumption of reasonableness rebutted because of an absence of a privative clause and the potential for conflicting lines of authority because the CHRT does not interpret the CHRA in a discrete administrative regime [90]. Brown J concurred on similar grounds.

***

In my view, the two concurrences clearly had the better of the argument here. First, the majority’s approach continues a hard-line approach to the presumption of reasonableness that is inconsistent with Dunsmuir and post-Dunsmuir cases. Second, a presumption of reasonableness that is never rebutted is contrary to the concept of judicial review.

It is unusual—in the strongest sense of the term—that the majority rooted its endorsement of the presumption of reasonableness in terms of precedent. It noted, for example, that resort to the contextual approach would “undermine the certainty this Court has sought to establish in the past decade.” This is an unexpected remark. The Court has done much in the last decade on administrative law, but establishing certainty is not on the list. Putting aside all of the other issues—which are many—the problem of context provides a good example of the Court’s odd inability to apply its own precedents.

Legislative context is integral to determining the standard of review because legislatures, not courts, can set the standard of review. Dunsmuir recognized this when it held that “[T]he analysis must be contextual” [64].  This is about as clear as it gets for the Supreme Court in administrative law.  As Justice Bastarache, one of the authors of Dunsmuir said in the recent Dunsmuir Decade series, none of the categories inviting a particular standard of review—including the presumption of reasonableness—were meant to be set in stone. Dunsmuir only said that deference would “usually result” when a decision-maker interprets its home statute [54].

And this is how the Court applied the presumption of reasonableness in subsequent cases. There are a number of cases in which the Court looked to context to determine whether the presumption was rebutted; by my count, at least the following: Entertainment Software Association v SOCAN, 2012 SCC 34; Rogers v SOCAN, 2012 SCC 35; Marine Services International v Ryan Estate, 2013 SCC 44; McLean v British Columbia (Securities Commission), 2013 SCC 67; Tervita Corp v Canada (Commissioner of Competition), 2015 SCC 3; Mouvement Iaique Quebecois v Saguenay, 2015 SCC 16; CBC v SODRAC, 2015 SCC 57; Edmonton (City) v Edmonton East (Capilano) Shopping Centres, 2016 SCC 47 (though noting Justice Karakatsanis’ skeptical remarks regarding the contextual approach); Barreau de Quebec v Quebec (Attorney General), 2017 SCC 56; Williams Lake Indian Band v Canada (AANDC), 2018 SCC 4; Groia v Law Society of Upper Canada, 2018 SCC 27.

I repeat these cases for dramatic effect. It is an example of the Supreme Court saying one thing and doing another—something some judges of the court recognized was a risk in administrative law in Kanthasamy [112]. In CHRC, there is no explanation for why context should be abandoned, especially in light of all of these precedents and Dunsmuir’s clear, unequivocal statement.  Shouldn’t certainty be one of the underlying goals of doctrinal reform, particularly in this troubled area? Changing approaches year-to-year does not provide any guidance to courts and litigants.

Quite aside from the lack of consistency in the Court’s standard of review framework, a presumption-only approach also frustrates the search for legislative intent. “Legislative context” as Justice Brown noted in CHRC is really just a proxy for determining legislative intent. When one speaks of “legislative context,” one means statutory indicators that set the standard of review implicitly: statutory rights of appeal, signs of concurrent jurisdiction, privative clauses, statutory indications of purpose, and the like. Or, perhaps there is explicit legislative guidance on the standard of review. It was always understood that these signs of legislative intent should bind courts; this is just an implication of the hierarchy of laws, under which courts must respect law absent constitutional objection.

The presumption-only approach in CHRC raises profound challenges to the task of courts on judicial review to determine legislative intent. The challenge can be framed in the classic “rules vs standards” debate in law and economics terms. The “rules versus standards” debate probably impacts every area of law, because laws and doctrine can be framed as either hard-and-fast “rules” or flexible “standards.” Rules have certain benefits—cost savings are achieved because the rule applies to the mass of legal situations, and there is no need to conduct a case-by-case investigation. But rules can be overbroad—if they are not appropriately tailored, they can apply in situations where the underlying justifications for the rule do not exist.

The presumption of home statute interpretation can be viewed as an overbroad rule, because on the happening of a certain event (home statute interpretation), the content of the law is defined (deference). It is rooted in the justifications of expertise and legislative intent.  But because the CHRC approach tells lower courts not to look to context, we simply never know if the legislature intended a standard of review other than the one indicated by the presumption. The presumption could apply in cases where the legislature did not intend reasonableness, even though the Dunsmuir factors (which could be understood as standards) implicitly set a different standard of review.

Not to put the point too strongly, but if this is the case, what is the point of a standard of review analysis? Couldn’t we create some sort of computer program in which cases are filed and the standard of review is selected by the computer? The point of the Dunsmuir factors is individual tailoring—they are designed to be applied by courts in cases where a statutory indication of legislative intent is evident. This requires some human appreciation of what an enabling statute implicitly sets the standard of review to be. But if judges simply say “reasonableness” all the time, the role of courts on judicial review is reduced to rote copying of a paragraph saying that deference applies, even where it should not.

This goes to the point of judicial review. The role of the courts on judicial review, as noted in Bibeault, is so important that it is given constitutional protection [126]. That role, rooted in the Rule of Law, is to authentically determine what the legislature intended the standard of review to be. When the Court binds itself to its own presumption–simply an evidentiary device–it subordinates its constitutional role to the police the boundaries of the administrative state.

The systemic costs of the CHRC approach are  exacted in the Rule of Law and against the constitutional role of the Court. As Leonid once wrote, judicial review can be understood as a cost-benefit analysis. While the costs saved through the presumption may be high, the potential costs of imposing the wrong standard of review could lead to more administrative decisions being upheld than what the legislature intended. The effect is case-by-case, an administrative state turned loose, increasingly unmoored by law. CHRC sanctions this unleashing of the administrative state.

This is not to say that the reasonableness review urged by CHRC is inconsistent with the Rule of Law (though I think there is a case to be made on that front). But expanding the class of cases in which reasonableness should and does apply, when that expansion is not mandated by law, presents a serious challenge to the Rule of Law and the role of courts in enforcing it.

CHRC worries me on this front. It demonstrates that the Court is not looking to the underlying constitutional precepts of judicial review. It does not seem to have seriously considered the costs to its approach. Nor is it even attempting to distinguish its own precedents in creating its new approach. Observers should worry about where the Court’s mind is going in advance of its planned review of Dunsmuir.

Administrative Law’s Virtues and Vices

What Joseph Raz’s classic Rule of Law article tells us about administrative law

Joseph Raz’s article on “The Rule of Law and Its Virtue” (eventually incorporated in the collection of essays The Authority of Law: Essays on Law and Morality) is well known, mostly for the argument that the Rule of Law should not be confused with good law, and that a legal system can be thoroughly iniquitous while still complying with its requirements. The Rule of Law (I follow Jeremy Waldron’s practice in capitalizing the phrase), Professor Raz famously says, is like the sharpness of a knife: a knife needs to be sharp to be useful, and a legal system should comply with the requirements of the Rule of Law to be effective, but that tells us nothing at all about whether the knife is being used to cut bread or to kill people, and whether law is used to protect or to repress them. Professor Raz describes his “conception of the rule of law”  as “formal”, (214) although a number of its tenets have to do with the operation of the courts, and best described (following Professor Waldron again) as procedural, rather than formal.

I think, however, that Professor Raz’s understanding of the Rule of Law amounts to a substantive one in one particular area, in which his insights are not, so far as I know, particularly appreciated: administrative law. Administrative decision-making and its review by the courts are at the heart of the Razian Rule of Law. The third Rule of Law “principle” Professor Raz lists, after the ones calling for “prospective, open, and clear” (214) laws and “stable” ones, (214) is that “the making of particular laws (particular legal orders) should be guided by open, stable, clear, and general rules”. (215) This is a warning about the dangers of administrative (and executive more generally) discretion:

A police constable regulating traffic, a licensing authority granting a licence under certain conditions, all these and their like are among the more ephemeral parts of the law. As such they run counter to the basic idea of the rule of law. They make it difficult for people to plan ahead on the basis of their knowledge of the law. (216)

This is not to say that no executive power can be exercised consistently with the Rule of Law. Professor Raz suggests that the problem with its “ephemeral” nature

is overcome to a large extent if particular laws of an ephemeral status are enacted only within a framework set by general laws which are more durable and which impose limits on the unpredictability introduced by the particular orders. (216)

This framework includes

[t]wo kinds of general rules … : those which confer the necessary powers for making valid orders and those which impose duties instructing the power-holders how to exercise their powers. (216)

The former are the substantive statutory (or prerogative) basis for the exercise of executive power. The latter, which I think would include both procedural rules strictly speaking and those guiding the administrative decision-makers’ thought process (such as the prohibition on taking irrelevant considerations into account or acting for an improper purpose), form an important part of administrative law.

Professor Raz’s next Rule of Law “principle” is that of judicial independence. But the way he explains is also directly relevant to administrative law. Professor Raz points out that

it is futile to guide one’s action on the basis of the law if when the matter comes to adjudication the courts will not apply the law and will act for some other reasons. The point can be put even more strongly. Since the court’s judgment establishes conclusively what is the law in the case before it, the litigants can be guided by law only if the judges apply the law correctly. … The rules concerning the independence of the judiciary … are designed to guarantee that they will be free from extraneous pressures and independent of all authority save that of the law. (217; paragraph break removed)

Although Professor Raz does not explore the implications of this for administrative law (why would he have, in the post-Anisminic United Kingdom?), they seem obvious enough. Only independent courts applying the law, and not acting on extra-legal considerations can assure that the law is able to guide those subject to it. Administrative decision-makers, however, typically lack anything like the safeguards that exist for the independence of the judiciary. In Canada, in Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 SCR 781,  the Supreme Court has held that there is no constitutional requirement of administrative tribunal independence. In Saskatchewan Federation of Labour v Government of Saskatchewan, 2013 SKCA 61, the Saskatchewan Court of Appeal upheld legislation that allowed an incoming government to summarily dismiss all the members of an administrative tribunal in order to replace them with those deemed more ideologically  acceptable. Indeed, for many administrative tribunals, their sensitivity to considerations of policy ― and ideology ― is part of their raison d’être. This makes it essential that independent courts be committed to policing these (and other) tribunals’ compliance with the law ― with the entire framework of stable general rules that guide administrative decision-making, both the limits on substantive grants of power and the procedure- and process-related administrative law rules. Judicial deference to non-independent, policy-driven administrative decision-makers is incompatible with legally bound adjudication that is necessary for the law to provide guidance, and is thus anathema to the Rule of Law as Professor Raz describes it.

Professor Raz’s next Rule of Law requirement is that “[t]he principles of natural justice must be observed”. This is a point that obviously applies to administrative law, as everyone now agrees ― in a (perhaps insufficiently acknowledged) victory for administrative law’s erstwhile critics. But here too it is worth noting Professor Raz’s explanation: respect for natural justice is “obviously essential for the correct application of the law and thus … to its ability to guide action”. (217) (Of course, respect for natural justice is important for other (dignitarian) reasons too, but they are not, on Professor Raz’s view, embedded in the concept of the Rule of Law.)

The following Rule of Law principle Professor Raz describes is that

[t]he courts should have review powers over the implementation of the other principles. This includes review of … subordinate … legislation and of administrative action, but in itself it is a very limited review—merely to ensure conformity to the rule of law. (217)

Although review for conformity to the Rule of Law is “limited” in the sense that it need not entail review for conformity with any particular set of substantive fundamental rights, it is nevertheless very significant. It means that the courts are empowered to ensure the consistency of administrative decisions with grants of power that purportedly authorize them, as well as with the rules that govern the procedures and processes by which they are made. And while Professor Raz does not explicitly address the question of how stringently the courts should enforce these rules, it seems clear that only non-deferential correctness review will satisfy the requirements of the Rule of Law as he presents them.

Finally, Professor Raz writes that “[t]he discretion of the crime-preventing agencies should not be allowed to pervert the law”. (218) He addresses the behaviour of police and prosecutors, and specifically their ability to exercise discretion so as to effectively nullify certain criminal offenses. Yet, presumably, similar concerns apply to administrative tribunals ― most obviously, those that are charged with the prosecution of regulatory offences, but arguably others too. Professor Raz’s argument seems to be only a special case of Lon Fuller’s insistence (in The Morality of Law) on “congruence” between the law on the books and its implementation by the authorities, at least insofar as it applies to the executive. (Fuller also wrote about the what congruence meant in the context of statutory interpretation ― something I touched on here.)

Why is this important? I don’t suppose that an appeal to the authority of Professor Raz will persuade the proponents of judicial deference to administrative decision-makers, in and in particular to their interpretations of the law. Those who defend deference argue that administrative interpretations are the law, so that there is nothing else, no statutory meaning meaning or independent standards, for the judges to ascertain and enforce. As the majority opinion in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 put it,

certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. [47]

In such cases, the Supreme Court held, the courts would only engage in deferential reasonableness review of the administrative decisions. Moreover, Dunsmuir suggested, and subsequent cases have confirmed, that all questions regarding the interpretation of administrative decision-makers’ grants of power (the first part of what Professor Raz describes as the framework of general rules governing the making of administrative orders) will be presumptively treated as having no “one specific, particular result”. I have already argued that this is an implausible suggestion, because

the great variety of statutes setting up administrative tribunals, and indeed of particular provisions within any one of these statutes, makes it unlikely that all of the interpretive questions to which they give rise lack definitive answers.

But Professor Raz’s arguments point to an even more fundamental problem with the pro-deference position. Those who defend this position are, of course, entitled to their own definition of the Rule of Law, which is a fiercely contested idea. If they think that the Rule of Law does not require the existence of clear, stable, and general rules, or that it can accommodate “particular laws” not guided by such general rules, well and good. (It is worth noting, however, that Dunsmuir itself embraced an understanding of the Rule of Law not too distant from that advanced by Professor Raz: “all exercises of public authority must find their source in law”. [28]) But I do not think that the proponents of deference have a response to the underlying difficulty Professor Raz identifies. In the absence of general rules that are stable enough not to depend on the views each administrator takes of policy considerations, or simply in the absence of an enforcement of such rules by independent courts, people will find it “difficult … to plan ahead on the basis of their knowledge of the law”, “to fix long-term goals and effectively direct one’s life towards them” (220). As Professor Raz notes, this compromises respect for human dignity, which “entails treating humans as persons capable of planning and plotting their future”. (221)

I do not mean to exaggerate. As Professor Raz and other Rule of Law theorists note, compliance with the Rule of Law is a matter of degree. Deferential judicial review of administrative action is a failure of the Rule of Law as Professor Raz understands it, but it is hardly the worst failure one can imagine, at least so long as some meaningful review is still involved. (Suggestions, such as that recently voiced by Chief Justice McLachlin in West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, that there can be “unrestricted” [11] delegations of regulatory power are disturbing in this regard, but perhaps they only need to be taken seriously, not literally.) Nevertheless, and whether or not the proponents of judicial deference to administrative tribunals recognize this, deference does undermine the ability of citizens to rely on the law and to plan their lives accordingly. To that extent, it does amount to mistreatment by the state, of which the courts are part. It needs, at the very least, to be viewed with serious suspicion, and probably outright hostility. An administrative law that takes the requirements of the Rule of Law seriously has important virtues; one that does not is mired in vices.

No Shortcuts to Legality

Justice Stratas on the limits of the judicial practice of making up reasons for administrative decisions

What are the courts to do when reviewing an administrative decision that doesn’t meaningfully (or indeed at all) address a key issue? This is one of the issues that faced the Federal Court of Appeal in Bonnybrook Industrial Park Development Co Ltd v Canada (National Revenue), 2018 FCA 136, decided last week. The case involved the review of a decision of a Minister that some provisions of the Income Tax Act had the effect of preventing her from granting a taxpayer a waiver of or an extension of time to comply with certain filing obligations ― both of which appeared to be contemplated by other provisions. The Minister’s explanation for reading the statute in the way she did was conclusory to the point of non-existence, leaving the Court to guess at her real reasons ― and indeed uncertain whether she had even turned her mind to the issue.

On the issue of the waiver, the Court is unanimous in sending the matter back to the Minister. Justice Woods, for the majority notes that “[t]here is no evidence that the Minister gave any consideration” [30] to the matter; Justice Stratas agrees. However, the majority, while acknowledging “concerns” with the inadequacy of the explanation given by the Minister, accepts to review her decision on the extension of time, taking the government lawyer’s arguments to “supplement[]” this explanation. [33] Justice Stratas dissents from this approach, and his reasons are worth paying attention to.

Justice Stratas insists that an administrative decision that is reviewed on a reasonableness standard ― as interpretations of administrative tribunals’ “home statutes” usually are ― must be explained. While a reviewing court can sometimes draw inferences from the record supporting an administrative decision about how and why certain issues were resolved, in the presence of only a conclusory “bottom-line position”, its “ability to conduct reasonableness review is fatally hobbled”. [88] Even deferential review does not require a court to take administrative interpretations of law on trust. Nor is appropriate to  take the lawyers’ submissions as the equivalent of the decision-maker’s reasons; in this case, to do so would amount to “a bootstrapping of the Minister’s decision after she became functus officio” [73] ― that is to say, after she no longer had the authority to decide the matter.

And, since the Income Tax Act requires the Minister to decide whether to grant an extension of time, it is quite inappropriate for the courts to interpret the relevant provisions for the first time on judicial review. That would be “doing the job of statutory interpretation and reasons-writing that the Minister should have done”. [74] As Justice Stratas pithily points out:

My job is judicial review of the Minister, not judicial impersonation of the Minister. I do not work for the Minister. I am not the Minister’s adviser, thinker, or ghostwriter. I am an independent reviewer of what the Minister has done.

In conducting review, I am entitled to interpret the reasons given by the Minister seen in light of the record before her. Through a legitimate process of interpretation, I can sometimes understand what the Minister meant when she was silent on certain things.

But faced with a silence whose meaning cannot be understood through legitimate interpretation, who am I to grab the Minister’s pen and “supplement” her reasons? Why should I, as a neutral judge, be conscripted into the service of the Minister and discharge her responsibility to write reasons? Even if I am forced to serve the Minister in that way, who am I to guess what the Minister’s reasoning was, fanaticize about what might have entered the Minister’s head or, worse, make my thoughts the Minister’s thoughts? And why should I be forced to cooper up the Minister’s position, one that, for all I know, might have been prompted by inadequate, faulty or non-existent information and analysis? [91-93]

Would that the Supreme Court were always so clear. And would that the majority in this case, which apparently shared these concerns, and indeed gave them effect in disposing of one of the issues, had been more consistent.

The Supreme Court, of couse, has grappled with the issue of judicial “supplementation” ― which, as in this case, often means making-up ― of deficient administrative reasons in the course of reasonableness review. This problem arises because in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 the Court had endorsed the suggestion, first made by David Dyzenhaus, that courts ought to defer not only to the “reasons offered” by administrative decision-makers, but also to those “which could be offered in support of a decision”. [48] This suggestion has always sat uneasily with the statement, made in the previous paragraph of Dunsmuir, that “[i]n judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process”. [47] Justice Stratas refers to the latter passage in explaining why reasonableness review is impossible when administrative decisions are not explained. Perhaps the high point of deference to “reasons which could be”, but were not, “offered in support of a decision was th Supreme Court’s decision came in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, where the majority spent 20 paragraphs making up missing administrative reasons in order to purportedly defer to them. In a blog post (which Justice Stratas cites, for which I am very grateful!) I described this process “playing chess with [one]self, and contriving to have one side deliberately lose to the other”.

Justice Stratas notes, however, that the Supreme Court has, at least on occasion, been more sympathetic to the idea that there must be limits to judicial “supplementation” of non-existent administrative reasons. In particular, Justice Stratas cites Delta Air Lines Inc v Lukács, 2018 SCC 2, for the proposition that while “reviewing courts … are supposed to supplement the reasons of administrative decision-makers in some circumstances, in effect participating in the reasons-giving process”, [76] they are not “require[d] … to figure out … the merits of the matter, decide the merits for the administrator, and then draft the administrator’s reasons”. [77] Filling in gaps in an adminsitrative decision-maker’s reasons is one thing; writing these reasons on a blank slate is quite another.

This is a plausible, but arguably an optimistic view of Delta, which after all did say that “[s]upplementing reasons may be appropriate in cases where the reasons are either non-existent or insufficient”, [23] and sought to distinguish precedents where the Supreme Court had done just that ― albeit not Edmonton East which, as Justice Stratas points out, it did not mention. Moreover, more recently, in  Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, the Supreme Court again upheld largely unexplained administrative decisions (including one taken in unreflecting obedience to a referendum of a law society’s membership), instead of remitting them to the decision-maker.

That said, there is enough confusion and uncertainty in the Supreme Court’s jurisprudence in this area that it is difficult to fault lower courts that interpret this jurisprudence, Dworkin-fashion, to make it the best it can be, whether or not the Supreme Court itself would have treated with equal consideration. And that’s precisely what Justice Stratas does in Bonnybrook, by going back to the principles underpinning administrative law, and following their implications to a rule that can, and ought to, be consistently applied. As Justice Stratas points out, the law is not a tool for the ratification of the diktats of power, and the courts are not mere rubber-stampers of ukases. For administrative decision-makers, there are no shortcuts to legality, and for the courts, no quick fixes for administrative failures.