A Perspective from the North

A review of Jeffrey Pojanowski’s “neoclassical” approach to administrative law

Jeffrey Pojanowski, whose contribution of “A View from South of the Border” to the Dunsmuir Decade symposium readers may recall, has posted a very interesting paper on “Neoclassical Administrative Law” on SSRN. (The article is to be published in the Harvard Law Review later this year.) Although written in an American context, Professor Pojanowski’s article should be read north of the border too, because it is framed around the tension that is central to Canadian, as well as if not more than, American administrative law: that between the Rule of Law and (what we in the Commonwealth call) Parliamentary sovereignty. Professor Pojanowski’s solution to this tension ought to be appealing in Canada ― though accepting it would require giving up some of the assumptions that are built into our administrative law.

Professor Pojanowski starts by describing three ways of addressing the conflict between the courts’ role of saying what the law is and the legislatures’ prerogative of committing certain governance issues to the resolution of administrative decision-makers. What he terms “administrative supremacy”

sees the role of courts and lawyers as limited to checking patently unreasonable exercises of power by the administrative actors who are the core of modern governance. To the extent that durable, legal norms are relevant, the primary responsibility for implementing them in administrative governance falls to the discretion of executive officials, who balance those norms’ worth against other policy goals. (7)

“Administrative skepticism”, by contrast,

rejects deference to agency interpretations of law, even if the agency is charged with administering the statute. Deference shirks the judicial duty to say what the law is and introduces a pro-government bias of dubious constitutional provenance. (14)

As for those cases where the lawyers’ traditional interpretive tools are of no avail, because the administrative decision-maker has been given a policy-making role, “the [American] administrative skeptic is more likely to recommend an approach that is both more radical and more modest: invalidating the provision on non-delegation grounds”. (16-17)

Finally, the approach Professor Pojanowski terms “pragmatist” “seeks to reconcile the reality of administrative power, expertise, and political authority with broader constitutional and rule-of law values”. (18) It is relatively deferential to administrative interpretations of law, but makes “certain exceptions, such as withholding deference on major questions or jurisdiction”, (18) and “may … demand evidence that the agency engaged in reasoned decisionmaking” (18) even on those issues where it is normally prepared to defer, both interpretive and policy ones.

In jurisprudential terms, administrative supremacy comports with “a form of legal realism that dissolves the line between legal interpretation and policymaking”, deeming “most interesting questions of legal interpretation … inextricable from legislative policy choices”. (13) The skeptical position embraces A.V. Dicey’s vision of ordinary courts interpreting law as the keystone of the Rule of Law. The pragmatist view reinterprets the Rule of Law as involving “requirements of fair participation and reasoned justification”, and asks the courts to enforce these requirements, rather than to impose their view of what the law actually is.

Professor Pojanowski articulates and begins the defence of another approach to administrative law, which differs from those just outlined, though it has some affinities with each of them, perhaps especially the skeptical one. This “neoclassical administrative law … is skeptical of judicial deference on questions of law but takes a much lighter touch on review of [administrative] agencies’ procedural and policymaking choices”. (23) It seeks to preserve, indeed it emphasizes, the distinction between law and policy, and makes the courts masters of the former while asking them to stay out of the latter.

In part, this is motivated by a “formalist” rejection of the “legal realist premise that all interpretive uncertainty involves policy choices calling for political accountability and non-legal expertise”. (27; footnote omitted) To be sure statutes sometimes employ language that is only amenable to policy-laden elaboration (such as “in the public interest”); such elaboration should be the preserve of administrative decision-makers, subject only to a thin rationality review. However, this is precisely because in such “cases … there is no surface upon which traditional lawyers’ tools can have purchase”, (31) and the obverse of accepting this is a denial of “the more generalized presumption of implicit [legislative] delegation of interpretive authority”, which is no more than “a legal fiction delicately veiling a functionalism that dare not show its face”. (26) Legal questions, even difficult ones that have “more than one reasonable answer”, (33) can and ought to be answered by the courts, although “reviewing judges are likely to confer at least some mild epistemic authority on expert agencies”. (25n) In addition, the “neoclassical” position rests on a belief in the importance of the legislation governing judicial review of administrative decisions, especially (in the United States) the Administrative Procedure Act.

But while the “neoclassical” approach is similar to the skeptical one in its confidence in the law’s autonomy from politics and policy, it does not go as far in its rejection of the administrative state. It does not seek to reinvigorate the constitutional non-delegation doctrine (which holds that only the legislature, and not its creatures in the executive branch, can make law). Instead, “[t]he neoclassical approach turns down the constitutional temperature”, (36) accepting that the administrative state’s rule-making and discretionary powers are here to stay. It, in other words, “classical Diceyan public law theory adapted and persisting in a new regulatory environment”. (38)

Professor Pojanowski ends by addressing some potential criticisms of “neoclassical administrative law”. Of greatest relevance to Canadians will be his admission that

much here turns on interpretive method. The extent to which appeal to craft determinacy is plausible goes a long way toward deciding whether neoclassicism is promising or misguided. Furthermore, if interpretive formalism is inferior to strong purposivism or dynamic statutory interpretation, the case for deference is far stronger. Those methods explicitly, and to a greater degree, call for interpreters to consider policy consequences and evolving public values alongside, and sometimes above, formalist tools. The more those values infuse legal interpretation, the stronger the bite of arguments for deference based on political accountability and technical expertise. (40; footnote omitted)

Professor Pojanowski points out, however, that the pragmatist view, at least, is also tenable only if there are legal answers to at least some interpretive questions, which its adherents exclude from the scope of judicial deference.

I find Professor Pojanowski’s summary of the various existing approaches to administrative law illuminating, and his own “neoclassical” approach, mostly compelling. As a matter of first principle, I might be attracted by anti-administrativist skepticism but, especially in Canada, it is not a plausible position. Whatever might be the persuasiveness of the originalist arguments in favour of the non-delegation doctrine, and of strict separation of powers more broadly, in the United States, I doubt one can take them far in Canada. Subject to (somewhat vague) constraints on legislative abdication, the delegation of discretionary and rule-making authority is within the powers of Parliament and the provincial legislatures under the Constitution Act, 1867. The question, then, is not whether we can burn the administrative state to the ground, but whether we can ensure that it remains subject to law. The “neoclassical” understanding of administrative law is a better way of doing that then the available alternatives.

At present, Canadian administrative law is torn between “administrative supremacy” and “pragmatism”. Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, the soon-to-be-former leading case, is representative of the pragmatic approach, with its insistence that

[i]n judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [47]

By contrast, cases such as Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, which allow unjustified, unreasoned administrative decisions to stand in the name of an (almost?) irrebuttable “presumption of expertise”, epitomize administrative supremacy. That said, even the pragmatist strand of Canadian administrative law is infected with a metastasizing belief in the absence of legal answers to interpretive questions which in Dunsmuir and elsewhere has been said to warrant thoroughgoing deference to administrative interpretations of law.

In the circumstances, even reasserting the belief in the law is in fact autonomous from policy and politics, and that interpretive questions must be resolved by relying on legal rather than on administrative expertise, is a tall order. Professor Pojanowski points out that this belief goes hand in hand with a commitment to interpretation based “on the text’s original meaning, statutory context and structure, linguistic canons, and perhaps historical intent … rather than normative canons or legislative purpose at a high level of generality”. (34) Contrast this with the broad pro-regulatory purposivism of cases like West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 SCR 635, and you will see just how far we have to go. Yet West Fraser, with its purported acknowledgement of an “unrestricted delegation of power” [11] to an administrative tribunal, illustrates the dangers of the prevailing Canadian approach.

That said, I have a couple of interrelated concerns about Professor Pojanowski’s approach. The broader one has to do with judicial review of policy decisions, including “interpretation” (or rather construction) of such terms as “reasonable” or “in the public interest”. I am inclined to think that the approach to (constitutional) construction set out by Randy Barnett and Evan Bernick in “The Letter and the Spirit: A Unified Theory of Originalism” is apposite here. A reviewing court should ensure, not that just that the administrative decision is rational, but also that it is a good faith attempt to further the original purpose of the statutory provision on which it is based and of the statute as a whole. While legal craft may not be able to tell us how best to serve the public interest in a particular regulatory context, it can help shed some light on statutory purpose. Indeed, I think it is necessary that courts, rather than administrative decision-makers naturally incentivized to overvalue to importance of their perceived mission and to underrate the countervailing considerations that may well have led a legislature to limit their ability to advance their agenda, be the final arbiters of statutory purpose. As Justice Rand famously said in Roncarelli v Duplessis, [1959] SCR 121

In public regulation … there is no such thing as absolute and untrammelled “discretion” … there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption. (140)

A related but more parochial concern has to do with constitutional law. Whatever deference might be warranted to administrative decision-makers engaged in the policy-laden elaboration of vague statutory terms, none should be accorded on constitutional issues. As a matter of the positive law of the Canadian constitution, the courts are the supreme arbiters of its meaning, against the executive branch as well as against the legislative. This question, if I understand correctly, does not even arise in the United States, but so long as Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 remains on the books, it must be flagged in the Canadian context.

Another somewhat parochial question that the “neoclassical” approach to administrative law would force us to confront is that of what to do about a large number of statutory provisions that Canadian courts have so far more or less deliberately ignored or distorted beyond recognition. These are, on the one hand, “privative clauses” that purport to preclude review of administrative decisions; and on the other provisions such as section 18.1(4) of the Federal Courts Act, sections 58 and 59 of the Administrative Tribunals Act of British Columbia, and other provisions that seek to guide judicial review of administrative decisions. Privative clauses would be unconstitutional if taken literally; but instead of holding them unconstitutional and simply ignoring them as nullities, Canadian courts (used to) affect to take them seriously rather than literally, as indications that the decisions of tribunals protected by such clauses should be given greater deference. As the “presumption of deference” spread, even this position has become increasingly meaningless. Meanwhile, as co-blogger Mark Mancini has pointed out, in Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339, the Supreme Court subverted the guidance that section 18.1(4) provides, insisting on imposing its own views on the standard of review applicable to decisions of federal boards and tribunals. The Supreme Court has similarly ignored provisions creating statutory rights of appeal, treating appeals from administrative decisions like judicial reviews.

Professor Pojanowski calls for such legislation to be taken as binding law rather than guidelines to be subsumed into or overridden by the Suprme Court’s own views about judicial review. This should be the obvious thing to do: statute trumps the common law. However, there is a catch; two even. First, the principle of legality holds that common law rights, including the right to access courts, including, I think it is fair to say, for the purposes of judicial review, cannot be abolished by implication. I’m not sure whether this has repercussions for interpretation of legislation that guides judicial review, but it might in some cases. Often, however, the legislation is quite clear. Notably, section 58 of the above-mentioned BC statute requires review for patent unreasonableness, including on questions of law in the case of certain tribunals. I think the courts would need to squarely face, in an appropriate case, the question of whether legislatures are constitutionally permitted to set the bar so high. And the courts should stop pretending to attach any significance to unconstitutional privative clauses.

Professor Pojanowski has articulated an approach to administrative law that is at once principled and (relatively) realistic. It responds to concerns that animate not only American, but also Canadian law, and should therefore be of considerable interest to us, not just as a comparativist curiosity, but as a source of compelling ideas. For this approach to take hold in Canada, long-held assumptions will require revision, and difficult questions will need answering. Yet it is quite clearly superior to available alternatives. Count me a cautious neoclassicist.

Our Government

Some implications from Jody Wilson-Raybould’s testimony


I hesitated to write a post on the bombshell testimony of former Attorney General Jody Wilson-Raybould. The facts are constantly evolving, much of it involves politics rather than law, and though we have benefitted from cogent legal commentary on the relevant legal principles, I should let that commentary stand rather than contribute my (underdeveloped) two cents on it. That said, I want to highlight an obvious but important institutional fact that arises out of this imbroglio, but that is somewhat orthogonal to the context of the Attorney General’s control over prosecutions. Madison might have been right to say that if men were angels, no government would be necessary; but it appears that governments can’t save us from the devil, either.

Much of the story of the 20th century was a victory of progressivism—by which I mean the school of thought that emphasizes “civil service” values, and technocratic government—over legalism. Roughly speaking, it was this underlying philosophy that occasioned a mass transfer of power from legislatures to the executive in Canada and the United States. Then, a further subdelegation occurred from the executive to experts, policy-makers, and tribunals within the executive branch. In theory, the incentive structure this set up was a trade-off of control for lower-cost, expert decision-making. Legislatures could not attend to the small, minute details of “post-roads,” for example, so they delegated that power to the executive and its agents to solve. The legislature lost control over the issue, but in return received better public policy decision-making, with a dash of independence to boot. The whole idea was to enable non-partisan decision-making at a lower cost that permitted better public policy.

While some still champion this rather mythical description of how politics and government work, a more hard-nosed reality emerges from the Jody Wilson-Raybould affair, putting aside the important principle of prosecutorial independence. We see a cabal of people in Ottawa—unelected, unaccountable—carrying the balance of power. These people, ostensibly surrogates of the Prime Minister, say that they do not want to talk about legalities. They want to line up op-eds in newspapers to provide cover fire for their humdrum attitude toward law. They don’t like certain laws if they were not adopted by a Parliament in which their party controlled the majority of the seats.  They do all of this, apparently, to save their electoral prospects. In other words, it appears that some of the most powerful people in the country, in the Prime Minister’s office, are driven by the incentive of electioneering rather than the law.

This might be like calling the sky blue. Obviously politicians want to be elected. But so much of our system—and the philosophy of progressivism that informs attitudes of deference towards legislatures and administrative actors—runs on the idea that there are these islands of expertise and independence in a system otherwise tainted by politics. But with the rise of the PMO, the mass delegation of legislative power to Ministers, and the concomitant rise of influence of those like Michael Wernick in the Privy Council Office, experts are always subordinate to politics.

What’s more we have to be realistic about who we empower when we delegate power. Formally, of course, it’s the executive: but underneath the veil, it’s Gerry Butts, or whoever is next in line. The whole project of independent decision-making, even parts of the project that are protected by constitutional principles, is always up for grabs in a system in which the primary incentive is electoral success driven by apparatchiks.

Some might draw the opposite inference from the whole affair. After all, Jody Wilson-Raybould emerges as a champion of the Rule of Law. She successfully stood up to pressure from the Prime Minister and his subordinates. But one person is a thin reed on which to rest our hopes for good institutions. The regularity of scandals in Canadian politics is just a symptom of the broader reality that the incentives structure of the system—perhaps of every political system—is towards a greater concentration of power at the expense of other ideas: independent decision-making, expert decision-making, even the Constitution or the laws. If Jody Wilson-Raybould was a victim of those incentives here, perhaps we should rethink the mass delegation of powers to those—like members of the Ontario Human Rights Tribunal—who have no constitutional principles to protect them.

There is a lot of nuance to the entire affair because of the role of the Attorney General in the Westminster parliamentary system. I cannot speak to the doctrine governing that issue. But it is enough for me to say that there are no angels, not even in government. The SNC-Lavalin affair might make us rethink the extent to which we entrust governmental actors with power, even with the best intentions.

Justice Beetz’s Unity of Public Law

What an old SCC case tells us about the unity of public law

Much has been written about the so-called “unity of public law”: the extent to which various fields of public law draw upon the same values and inspiration. If this sounds onerously academic, it is not. In fact, it is a unified theory of public law that justifies Doré, the ill-regarded case that attempts to equate judicial review of administrative action with judicial review of administrative determinations of constitutional law. Indeed, as part of the unity of public law, some suggest that administrative law values should not be dismissed, and should be regarded as a rich set of insights that can define the scope of constitutional review. For many, the conceptual bedrock for this idea is the decision in CUPE v New Brunswick, in which the Supreme Court advanced the idea that administrative decision-makers were valuable participants in the system of laws, owed deference and respect. That decision was fortified later, so the story goes, by Baker.

The idea that an ill-defined set of administrative law values—or administrative actors—can define the scope of constitutional review is far from certain. It is the Constitution that is supreme over ordinary law, and if anything, constitutional rights should trump whatever values we can extract from administrative law. This of course assumes that administrative decision-making has any extricable values that underpin it at all. To take the point further, rather than allowing the administrative law tail to wag the constitutional law dog, as in Doré, perhaps the reverse should be true. Whatever the Constitution prescribes should set the minimum standards for administrative decision-making.

An old Supreme Court case takes an admirable crack at defining this relationship. As far as I know, Syndicat des employés de production du Québec v CLRB, [1984] 2 SCR 412 is not a case that appears on most administrative law syllabi in Canada, nor is it a case that appears in the pantheon of administrative law classics. But a comment in the case from Beetz J, for the Court, suggests that the unity of public law should not be a one-way ratchet—it should not require the weakening of constitutional norms to suit the prerogative of administrative decision-making.

I need not address the facts of the case, except to note that at issue were two conclusions drawn by the Canadian Labour Relations Board in the context of a case involving the CBC. The first found that employees of the CBC were in an unlawful strike position because they refused to work overtime. The second was remedial in nature, ordering the union representing the employees and the CBC to arbitration.

The legal context at the time, of course, distinguished between errors of law going to jurisdiction, which were reviewed de novo by a judicial review court, and errors of law that were made in the jurisdiction of the decision-maker, reviewed on a highly deferential standard of patent unreasonableness. The Board attempted to argue, outside of these standards, that its remedial order was “not unreasonable or wrongful” [440]. But the Court concluded that the question of remedy was a question of jurisdiction, not one to which the patent unreasonableness standard applies [443]. For the Court, this question went to the basic power and authority of the Board.

Beetz J analogized the authority of the courts to review for these jurisdictional issues to the same authority that undergirds constitutional review. In a passage that should receive far more attention, Beetz J said:

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

This statement tells us much about how judicial review should operate today, and just how far off the track we have gotten.

Consider, first, the question of jurisdiction. It is true that the Syndicat case focuses on the now-retired metaphysical difference between a “patently unreasonable error” and “an error of jurisdiction.” As the Supreme Court noted in the recent CHRC case, the scope of “jurisdictional error” is narrowing, and for good reason. As Stratas JA outlined in great detail in last year’s Access Copyright case, when courts review administrative determinations of law, there is no principled reason to draw a distinction between errors of law going to jurisdiction or errors of law going to substantive statutory provisions. Administrative decision-makers are creatures of statute, and any error of interpretation should be reviewable in the same way, subject to the standard of review set by the governing legislature. Put this way, everything could be an error of jurisdiction—or as Justice Scalia put it, “statutory authority”—because a decision by an agency that misinterprets a provisions of its enabling legislation, jurisdiction or not, is an error of law.

If that is true, what Beetz J says is quite insightful. Rather than suggesting that the Constitution must adapt to administrative law values, he suggests that administrative review should adopt to constitutional standards, because review of the legislation for its constitutionality and review of administrative decisions engage the same judicial review function. This is an eminently reasonable position in a number of ways. First, it does not lessen the force of the Constitution in the administrative law context. While Beetz J was obviously talking about the division of powers, one of the most important critiques of Doré is the chance that it invites two definitions of constitutional rights, with a weaker one subordinate to a judicial policy of deference in administrative law. But, if a court views its power as deriving from the Constitution in either case, it should “not act differently” in the administrative law context. The same rigorous constitutional standards should apply in either case.

Second, Beetz J is aware of the maxim that legislatures should not be able to do indirectly what they cannot do directly. There is a clear incentives problem with allowing a legislature to escape judicial scrutiny under the Constitution by simply delegating powers to agencies. A less intensive standard of review for administrative decision-makers compared to legislatures would incentivize this delegation.  For obvious reasons, the legislature should not be able to escape the most intensive constitutional scrutiny available by simply enabling someone else.

Finally, it consistently interprets the role of the courts across institutional contexts. If it is true that the Charter made the courts “guardians of the Constitution,” as so many argue it did in the context of constitutional review, why should that role be weaker in the context of administrative decision-making?

What is remarkable about Syndicat, in terms of the unity of public law, is that it comes after CUPE. CUPE is regarded as some Newtonian moment of discovery, in which courts finally shared the mantle of the rule of law with agencies. Syndicat suggests that CUPE was not as dramatic as some say it is. In fact, it suggests that at least one enterprising judge believed that CUPE did not alter the traditional hierarchy of power between courts and agencies. It is the Constitution that governs this entire relationship, and for Beetz J, the Constitution prescribed the same standards of review in both settings. Why we would sacrifice this fundamental bedrock for the rarefied values of the technocracy is unclear.

The Statement of Principles

Thus far, I have stayed out of the controversy surrounding the Statement of Principles [SOP] because I have nothing new to add. Leonid has, in a series of posts, outlined the in-principle objections to the SOP, while others have suggested that the SOP is a modest, necessary remedy for a difficult problem.

But as the debate has evolved, I think something has been lost in the shuffle. Let’s assume that the SOP is constitutional. There are still a number of unanswered questions about the efficacy of the SOP, the way it was adopted, and the strength of the evidence underlying it. Related questions: does the SOP do anything to actually rectify the problem it identifies? And if not, if we believe that the objectors to the SOP are acting in good-faith, shouldn’t we expect better from the LSO given its status as a regulator in the public interest? I think so. That the SOP is toothless is a sign of regulatory excess and pointless, costly regulation that won’t even accomplish the goal it sets out to solve.

I do not purport to say anywhere here that discrimination is not a problem. The experience of racialized licensees should be prioritized, and the LSO should be applauded for turning its mind to this issue at all. At the same time, I think it is important that we do not denigrate the sincerity of the “conscientious objectors” to the SOP. I need not link to the various hues-and-cries on Twitter, assaulting people like Leonid and Murray Klippenstein for being racist, privileged, etc etc. I think we should take as a given that the conscientious objections are rooted in deeply-held philosophical commitments. For that reason we should respect them. Leonid’s objection, for example, is exhaustively set out in his post here, where he outlines the genesis of his general philosophical orientation and how it applies to the SOP. We should assume that if the SOP is enacted, it will exact a constitutional cost—one that may or may not rise to a constitutional violation, but a cost nonetheless.

The SOP was adopted as part of a suite of initiatives designed to address the problem of systemic racism.  The SOP is one requirement that exists in this suite of initiatives. The collection of initiatives was occasioned by a long consultation period, along with a study designed by the LSO and a communications firm “to encourage law firms to enhance diversity within firms, based on identified needs, and create reporting mechanisms.” The study consisted of:

  • Interviewing key informants
  • Organizing, managing, and recording the discussions in 14 focus groups with racialized lawyers and paralegals
  • Organizing, managing, and recording the discussions in two focus groups with non-racialized lawyers and paralegals; and
  • Designing a 35-question survey and collecting data from a large group of lawyers

Somehow, from this process, the SOP was born.  None of the evidence gathered in the study pointed to the SOP as a necessary—or even desired—policy mechanism to accomplish the goals of the overall LSO Equity, Diversity, and Inclusion [EDI] Initiative. The causal link between the SOP and “accelerating culture shift” was never explored by any data in the study. All that was established by the study was that there was, indeed, discrimination in the profession.

But even on that score, there is no clarity on the breadth of the problem, and for that reason, no clarity on the mechanisms required to solve it. In this case, the challengers to the SOP have outlined some compelling reasons in an expert report why we might doubt that the SOP is a tailored, evidence-based policy—assuming, again, that the criticisms of the SOP levelled by a number of quarters is in good-faith. For one, there is a major confirmation bias issue in the study commissioned by the LSO. Survey respondents were already aware about the goals of the study. Participants in the focus groups were separated based on whether they were racialized or not, which does not lend itself to a random discussion of the issues. Perhaps most prominently, there was a sampling bias problem that led to the data underpinning the recommendations presented to Convocation—only a small portion of the over 40 000 licencees responded to the survey data, and according to the expert report, “it is possible that some licensees completed the survey multiple times…”

None of this should be taken as a given simply because an expert says so. This is an expert report filed by a party in the litigation. But it at least raises legitimate questions about the methodology underpinning the solution adopted by the LSO. Clearly, discrimination might be a problem in the profession, but we have no idea how much of a problem it is.

Even if we had some scope of the problem, the SOP is not necessarily linked to solving it. If we assume that objectors to the SOP are acting in good-faith, and therefore we believe that there will be some cost to them associated with abiding by the LSO’s edict, then we should be doubly sure the SOP will actually do something to solve the problem it purports to solve. But the LSO has offered no evidence that this particular policy mechanism is required, cost-efficient, or is even relatively better than other options. Nor has it explained why this policy mechanism is necessary for the soundness of the rest of its EDI policies.

Why should anyone care about this? Shouldn’t the LSO simply just be able to act in the face of a problem?

We know that inclusion in the legal profession is a problem, but as a regulator with delegated legislative authority under the Law Society Act, the legislature implicitly subjected the LSO to democratic norms. It established a system of elections in the enabling legislation itself, which can be interpreted to express a legislative desire to ensure that there is some accountability mechanism within the LSO for the exercise of its powers that are legislative in character. The LSO has the power to compel licensees through rules and bylaws, none of which need to be subject to any approval by the Cabinet (unlike the exercise of delegated legislative power to make regulations—see 63(1) of the Law Society Act). While there is an obvious mechanism to hold benchers and the administration of the LSO accountable through elections, the power of compulsion that the LSO exercises—and the broad powers it has been conferred by legislatures and the courts—counsel in favour of holding the LSO to robust standards of evidence-based policy-making. In other words, not only do we need to know that discrimination is a problem, we need to know whether it is truly “systemic” in order to craft appropriate solutions.

There is no evidence, even on a common-sense basis, that the SOP will do anything to solve the problem it identifies, assuming the problem is framed as the LSO says it is. One might say that the SOP will force licensees to reflect on the things they must do to ensure a more inclusive profession. I think this is Pollyannaish. More likely, people will file rote statements without reflecting on them, as Atrisha Lewis points out. Or they will simply write something that fits with what the licensee perceives the LSO to want. Unless the LSO is going to police the substantive content of each filing, there will be no way to know who is genuinely reflecting on the issue. Given the vagueness of what constitutes a “violation” of the requirement, we can expect  discretion of prosecutions under the Law Society Act against those who do not adopt a “proper” SOP. The costs continue piling up when one thinks of defending the SOP in court, and the cost of enforcement.

Someone has to ask if the EDI initiative requires this SOP given the costs it exacts against principles of good government and against the good-faith constitutional objectors. The SOP seems to be questionable response to a problem of unknown proportions that raises significant constitutional concerns, even if those concerns do not constitute an in-law constitutional violation. I gather that the LSO perhaps did not expect this to be an issue, and are now painted into a corner. Like most administrators, they do not want to cede any regulatory power. So they must defend the SOP in court. But I think even they must recognize that the SOP is probably a bad policy mechanism for the problem of discrimination, no matter its scope.

The LSO should be held to a higher standard than this. We should expect evidence-based policy-making in the administrative state, especially where the LSO has the means (through the exorbitant fees it charges) to conduct properly designed research studies and to lessen the informational uncertainty designed to solve the problem. Some literature in administrative governance focuses on the cost of acquiring information within public institutions. Here, the costs for the LSO on this particular problem are not particularly high. And yet, we are left with a dog of a policy mechanism, one that is unlikely (even on a common sense basis) to solve the problem it purports to solve. At the same time, the costs of implementing it and enforcing it—both monetary and constitutional—are high.

All of this puts the SOP on the horns of the dilemma. Either it does something to accomplish the goal it sets out—it compels people to concern themselves with EDI as the LSO understands it—or it does nothing to accomplish anything, in which case its costly. Surely our public regulator, that we ensconce in yearly fees, can do better.

This is fundamentally different than the claim that the SOP doesn’t go far enough. The problem is that it doesn’t go anywhere at all. I doubt it will solve any problem whatsoever.

A Small Win on Admin Law Expertise

I’ve written before how the Supreme Court’s approach to expertise is wrongheaded in a number of ways. Practically, by saying that expertise “inheres in a tribunal as an institution,” (Edmonton East, at para 33), the Court has simply asserted a fact that is unlikely to be empirically true across the mass of varied decision-makers. Rather, “a tribunal” is not “an institution.” The administrative state consists of many institutions, some expert, some inexpert, deciding many different questions. This is all in addition to the formal point that, in absence of legislative language specifying expertise as a reason for deference, courts do not have carte blanche to make up reasons for deference that the legislature—which created the decision-maker—would not have approved.

The Federal Court of Appeal’s recent case in CPR v Univar, without taking as hard of a line on expertise as I have above, did interestingly justify the assertion of expertise in the particular case. I view this as a positive development from the Supreme Court’s neo-Cartesian  “I-say-therefore-it-is” reasoning in Edmonton East.

CPR v Univar involved a “level of service” complaint under the Canadian Transportation Act. Univar is a distributor company located on the island of Richmond in BC. Richmond is connected to CP’s rail system through a bridge. That bridge was damaged by a fire, and CPR instituted an embargo prohibiting movement of rail over the bridge. It later denied service at all to Univar because, to CPR, “the fire was a force majeure event” causing irreparable damage. Univar claimed that this denial of service breached the level of service obligation under the Act.

The Canadian Transportation Agency [CTA] found in favour of Univar, concluding that CPR breached its level of service obligations “except for two ‘reasonable pause’ periods arising from force majeure events” [9]. In reviewing this decision, the Federal Court of Appeal (which hears direct statutory appeals from the CTA), concluded that the standard of review applicable to the CTA’s decision was reasonableness. In part, this was because of the hornbook law statement that “decision-makers’ interpretations of their home statue, with which they have particular familiarity call for deference when judicially reviewed” [14].

The Court could have stopped there, as the Supreme Court does. Luckily, it did not. It is worth reproducing the Court’s explanation of why the home statute presumption makes particular sense in this case [15]:

This Court has recognized on a number of occasions, and in various contexts, the Agency’s expertise (Canadian National Railway Company v. Richardson Limited, 2015 FCA 180 at paras. 25-31; Canadian National Railway Company v. Canadian Transportation Agency, 2010 FCA 65 at paras. 27-29; Canadian National Railway Company v. Greenstone (Municipality of), 2008 FCA 395 at para. 52). Such expertise is particularly obvious when adjudicating level of service complaints under the level of service provisions of the Act. As this Court stated in Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79 at para. 72 (Emerson Milling), the assessment of the service level obligations “lies at the very bullseye of its regulatory know-how and mandate, the very reason why Parliament has vested the Agency with jurisdiction over the merits of cases like this and has left us with just a reviewing role.

This sort of analysis is clearly an improvement over the Edmonton East approach. To be fair, it does stop short of endorsing the formal notion that expertise should be specified by the legislature, as Rennie J and Nadon J did in their reasons in Bell. Nonetheless, the Court in CPR v Univar at least does some work on the practical criticism of expertise.

This is an important development. One of the flaws of the institutional expertise justification advanced by Karakatsanis J is its lack of empirical justification when considering the sorts of questions a decision-maker might have to confront. In a statutory scheme like the Act, the Agency assesses many sorts of claims, some that are closer to its core mandate. There is no reason to presume that because a tribunal is expert in one particular area of its statutory mandate that it will be expert in all of the areas of its mandate. CPR v Univar seems to implicitly endorse this proposition, if only by suggesting that the level of service question is a core question of adjudicative policy that clearly engages the CTA’s expertise.

By at least explaining the reason why it afforded deference with reference to some empirical benchmark, the Court of Appeal significantly improved the Supreme Court’s justification-wanting reasoning for deference. That’s a small win, in my book.

The Diceyan Trope

Metaphors, labels, and particular phrases seem to be a constant theme running through Canadian law. In virtually every area of public law, the Supreme Court deploys clever labels and metaphors to convey ideas that are bundled with certain inferences or assumptions about the ideas themselves. The most famous, perhaps, is the living tree model of constitutional interpretation, which is so ingrained that it has taken academic articles to dislodge its place in the constitutional zeitgeist. Other examples abound.

On one hand, these linguistic devices are useful shorthand. Rather than explaining complex concepts, they allow the Court and others to quickly express a complicated idea in a way that lawyers and academics can understand. On the other hand, they shortcircuit critical analysis of the ideas they represent. Rather than acting as useful stand-ins for complex ideas, I fear that they have become broadside representations of certain way of viewing Canadian law; concepts that, through frequent usage, have become immovable stones that represent closely-held positions.

Perhaps this is most evident with one of the most widely-deployed tropes: the attack on one of the dark lords of administrative law, A.V. Dicey.

I confess that the inspiration for this post was Justice Abella’s recent speech in New Zealand, in which she, as usual, attacked the “Diceyan” conception of administrative law. Lest one should think this is an isolated incident, this Diceyan label also infected the Vavilov and Bell/NFL hearings at the Supreme Court, when one intervener argued that other Commonwealth jurisdictions have gotten by without a standard of review analysis, and a judge retorted that this is because they are trapped in a Diceyan mode of law. As Audrey Macklin explains respecting this exchange, “[The] insinuation behind this remark is that these benighted commonwealth judges are trapped in some nineteenth century intellectual dungeon.”

I fear that this insinuation is the one meant by Justice Abella. Bundled within the Diceyan attack is a number of presuppositions. As far as I can tell, the attack on Diceyanism is an arrow in the quiver of those judges and scholars who were inculcated in the New Deal and Keynesian era of technocracy, expertise, and social policy.  Often called administrative law “functionalists,” (people like John Willis and Harry Arthurs) the functionalists worried about Diceyan administrative law as a way to fill-in conservative ideals under the rule of law rubric. To their minds, cases like CUPE [1978] best recognize the social policy aims of tribunals and their technocratic expertise.

I’ve written before about why these arguments are ill-fitted to the modern administrative state.  Administrative decision-makers now no longer operate in a narrow field of social policy, but also inhabit the most repressive areas of the state: prisons and border officers, for example. Technocratic expertise is one thing, but legal expertise is quite another, and decision-makers are now tasked more than ever with deciding complex legal problems for which they are not necessarily trained. Put differently, there is no reason to believe that an expert in subject-matter A will necessarily have expertise in legal area B. Nor is there any reason to believe that the expert will be able to explain her conclusions in language that permits accountability through judicial review–this is the problem of immunization to which the Federal Court of Appeal is increasingly drawing attention.  The assumptions underlying the functionalist view, if they ever existed, no longer exist as a general matter.

In fact, there is much about Dicey to be admired. The first consideration, though, is determining what Dicey actually meant. While functionalists try to paint Diceyan as a rank anti-administrativist, there is some nuance to his position. Dicey was comparing with a particular style of administrative law—“droit administratif”—which Dicey thought was alien to English legal principles. Particularly, he believed that a separate body of law governed relationships between citizens and the state, as opposed to citizens and other citizens. State actors were not subject to scrutiny by the ordinary courts, but rather special administrative courts. The concern for Dicey wasn’t the exercise of delegated power—he actually allowed for the exercise of legislative powers by delegated actors in the English context, entities like municipal bodies. Instead, it was the worry that different rules might privilege state actors. This concern still worries us today.

But administrative law as we now know it is not about granting rights and privileges to state actors (putting aside ideas of qualified immunity). State actors are subject to the ordinary jurisdiction of the courts. The only doctrine that dilutes this oversight is self-imposed: doctrines of deference that courts created themselves to grant delegated actors “policy space.” No matter, while administrative law as we know it arose subsequent to Dicey, Dicey is probably not as radical as his opponents make him out to be.

What’s more, Dicey’s fundamental principles remain relevant today. His explanation of the rule of law contained within it the seeds of a more substantive approach, one of “legality” underlying all exercises of public power. This is still a useful and important concept, particularly as we consider how best to control discretion exercised by administrative actors. There is nothing in Dicey’s principle of legality that implies a necessarily conservative orientation. All it insists is that courts have an important, perhaps exclusive, role to play in policing the boundaries of the administrative state.  And unless we are willing to attack the independence of judges by insinuating that their policy preferences infect their judicial duty, maybe we should not be so worried about courts like the functionalists were.

More broadly, Dicey did attempt to wrestle with the distinction between parliamentary sovereignty and the rule of law, as I outline here. This is a concept that continues to bedevil us today in discussions about standard of review, and the extent to which Parliament’s law should oust the ability of the courts to review decisions on a de novo basis. As Mark Walters aptly noted in his contribution to the Dunsmuir Decade symposium:

Dicey made some mistakes and the punishment for his sins seems to be that his name is forever associated with that flawed “Diceyan” understanding of public law. However, some of the most difficult and underappreciated passages in his famous book, Law of the Constitution, come in the course of an attempt to explain how judges may resolve the tension between the rule of law and parliamentary sovereignty—passages which make little sense unless we assume that the “spirit of legality” that he says shapes all legal meaning is a substantive ideal that justifies and legitimates the exercise of governmental powers

This Diceyan concept—identified by Walters—is still centrally important today. But it has been forgotten, in part due to the negative inference drawn by those who label particular proposals as “Diceyan.”

This is not to say that these arguments are altogether immune from attack. For example, it is controversial to say that courts should have an exclusive role to play in the rule of law. In the modern era, a focus on courts also tends to crowd out discussion about the best controls on administrative discretion that exist: those imposed by Parliament itself.  I also think that Diceyanism can be used to justify an all-out, Phillip Hamburger-style attack on the existence of the administrative state writ large. For some, this is a good thing. But for others, there may be reason to think Diceyanism is open to abuse.

My point here is not to say that Dicey was right or wrong–clearly, like most humans, he was a bit of both. Either way, to my mind, it is not a foregone conclusion that Diceyan administrative law is a wholly improper theory of the administrative state. Like most theories, Diceyan administrative law contains important principles that should animate future research directions, but it is not a cure-all. Invoking the Diceyan trope does little to further intelligent debate about what administrative law should look like in the 21st century.


Why I oppose the Law Society of Ontario’s “statement of principles”

I have repeatedly argued, here and elsewhere, that the Law Society of Ontario’s requirement that its members “acknowledge[] [an] obligation to promote equality, diversity and inclusion generally, and in your behaviour towards colleagues, employees, clients and the public” by means of a “statement of principles” is wrong in principle, illegal, and unconstitutional. Fortunately, Ryan Alford and Murray Klippenstein are challenging the validity of the Law Society’s demands, backed by the Canadian Constitution Foundation. For my part, I have provided an affidavit for their application (which has been served on the Law Society, but not filed with the court just yet), primarily to illustrate that the “statement of principles” policy applies far more widely than do non-discrimination obligations under the Ontario or federal human rights legislation, to which the Law Society has been endeavouring to misleadingly equate it.

But of course the affidavit is also an opportunity to explain why I oppose the Law Society’s demands, and will not comply with them, so I thought it worthwhile to reproduce an adapted version of it here. (I have removed some of the affidavit-y bells and whistles, so that it reads more like a normal post, and have added some links.) Of course, since an affidavit is meant to be a personal statement, not legal argument, it is a more personal and less argumentative text than my normal posts. Here goes.

I am a Senior Lecturer (a position equivalent to that of an Assistant or Associate Professor) at the Auckland University of Technology Law School. I hold degrees in civil law and common law (BCL/LLB (Hons)) from the McGill University Faculty of Law, as well as a Master’s degree (LLM (Legal Theory) and a doctorate (JSD) from the New York University School of Law.

I was called to the Bar in June 2010 and have been a member of the Law Society of Upper Canada, now the Law Society of Ontario, (the “Law Society”) in good standing ever since. However, I am not and have never been a practicing lawyer. From September 2010 to August 2016, I was a full-time student; since August 2016, I have been a full-time academic. I have no clients and no employees. To my knowledge, no one among my co-workers is a fellow licensee of the Law Society. I have resided in New Zealand since August 2016, and have not resided in Ontario since August 2010.

My Interest in Freedom of Conscience and the Rights of Others

My research interests range broadly across constitutional and administrative law, with a focus on Canada. Among the areas on which I have published is the freedom of conscience and religion. My LLM thesis, subsequently published as a peer-reviewed article, was concerned with religious exemptions and the Rule of Law, exploring the importance of individual conscience in reconciling the claims of religious believers and the demands of legal conformity. Another of my peer-reviewed articles argued that the reference to the Queen in the Canadian citizenship oath infringes the freedom of conscience of those republicans who are required to take it.

In addition to scholarship, I have written about freedom of conscience and religion in multiple posts on the award-winning blog Double Aspect, which I created in 2012, of which I first was the sole author (until July 2018) and now am a co-author. In particular, I have been critical of various attempts in Québec to deprive state employees of their right to wear so-called “ostentatious religious symbols”. I have also published an op-ed on this issue. I also published multiple posts on freedom of conscience of republicans objecting to the citizenship oath.

In this work, as well as in writing on a number of other issues (notably relating to freedom of expression in the electoral context), I have consistently championed the rights of individuals and groups with whom I profoundly disagree, including many whose views I reject. I have defended religious exemptions and other forms of accommodation for religious believers, but I am agnostic. I have defended the freedom of conscience of republicans, but I am a monarchist. I have defended the freedom of expression of student movements and trade unions, but I strongly disagree with the aims of both.

The Statement of Principles Requirement

At the December 2, 2016 meeting of Convocation, the Law Society adopted the requirement that each licensee “create and abide by an individual Statement of Principles that acknowledges [his or her] obligation to promote equality, diversity and inclusion generally, and in [his or her] behaviour towards colleagues, employees, clients and the public”.

I learned of the adoption of the Statement of Principles requirement after the fact, via an e-mail sent by the Law Society on September 13, 2017, entitled “New Obligations for 2017 — Actions you need to take”. That e-mail said that: “You will need to create an abide by an individual Statement of Principles that acknowledges your obligation to promote equality, diversity generally, and in your behaviour towards colleagues, employees, clients, and the public.” Until then, I had not received any correspondence from the Law Society on that topic or which alluded to it, and was not aware that Convocation had adopted the Statement of Principles requirement.

This requirement is applicable to me as a licensee of the Law Society, even though I am not, and never have been, practicing law in Ontario, and, to my knowledge, have no colleagues, students or subordinates who, are licensed to practice law in Ontario. As the Law Society explains on a “Frequently Asked Questions” page on its website, “[i]f you are licensed by the Law Society, you must meet this requirement regardless of whether you are currently practising law or providing legal services”.

I have not complied with the Statement of Principles requirement. I have provided the following explanation for my refusal to do so in my 2017 Lawyer Annual Report:

No existing legislation, primary or delegated, imposes on me or on any lawyer in Ontario an obligation to promote equality, diversity and inclusion. In particular, human rights legislation and the Rules of Professional Conduct prohibit engaging in discrimination, but say nothing of promoting any particular values or ideals. The Law Society has no right to be demanding that its members acknowledge an obligation that does not exist, and one that could not be constitutionally imposed, since in a free society, the state or its instrumentalities, such as the Law Society, have no business imposing values on individuals, much less demanding that individuals promote values. The Law Society’s policy in this matter is no less totalitarian than the arbitrator’s letter denounced by a majority of the Supreme Court in National Bank of Canada v Retail Clerks Int’l Union, [1984] 1 SCR 269.

I have elaborated these views in a series of blog posts, listed below, which I invite the Law Society to read:


Reasons for My Objection to the Statement of Principles Requirement

I consider myself a conscientious objector to the Statement of Principles requirement, and will not comply with it in the future. As noted above, I have a longstanding interest in freedom of conscience, and have displayed a consistent and public commitment to the rights and freedoms, especially those having to do with belief and expression of belief, of individuals and groups whose religious, moral, or political opinions I do not share. I claim the same freedom for myself.

I regard the Statement of Principles requirement as a violation of my freedom of conscience, freedom of opinion, and freedom of expression. The requirement states that I must promote specific values: equality, diversity, and inclusion. I believe that promoting values requires me to hold them. Otherwise, this promotion would be insincere; indeed, it would be a lie. And it is my sincerely held belief that, as a free individual, I must only hold those values that I freely choose for myself, and must not embrace those values imposed by an authority exercising coercive powers conferred by the state — i.e. the Law Society.

My fundamental belief that a free individual must choose his or her own values, think for him- or herself, and reject the authorities’ views of what he or she must believe in, which animates my scholarship and blogging on freedom of conscience and compels my refusal to comply with the Statement of Principles requirement is a product, in part, of family upbringing, and in part of my broader philosophical views.

As to the former, I was born in what was still the Union of Soviet Socialist Republics, and my parents took pride in ensuring that my brother and I grew up speaking Russian at home and aware of Russian history after our move to Canada. Part of my parents’ endeavours — indeed a very substantial part — involved exposing us to the stories of Soviet dissidents, people who, in various ways, stood up to a brutally repressive regime for their right to believe and to say their own, rather than the regime’s truth. The circumstances of a free and democratic society such as Canada are hardly comparable to those of the Soviet Union, but the moral imperative to live the truth as one sees it is no less pressing in this more benign setting.

As to the latter, I have been heavily influenced by Lord Acton’s liberalism, and, in particular, his admiration for “[t]he true apostles of toleration” — “not those who sought protection for their own beliefs, or who had none to protect; but men to whom, irrespective of their cause, it was a political, a moral, and a theological dogma, a question of conscience involving both religion and policy”. Hence my advocacy for the freedom of conscience and expression of those with whom I disagree; but one can still, I trust, be a defender of toleration while claiming its benefits for oneself. Lord Acton summarized the role of freedom of conscience in modern history thus:

With the decline of coercion the claim of Conscience rose, and the ground abandoned by the inquisitor was gained by the individual. There was less reason then for men to be cast of the same type; there was a more vigorous growth of independent character, and a conscious control over its formation. The knowledge of good and evil was not an exclusive and sublime prerogative assigned to states, or nations, or majorities.

It is my most deeply and conscientiously held belief that I must defend “the ground gained by the individual”, and the individual’s prerogative to maintain his or her independent character. I must resist if I can, and certainly lend no support to the attempts of “states, or nations, or majorities” — including a majority of the Benchers of the Law Society — to claim for themselves the “sublime prerogative” of knowing good and evil, and cast those subject to their jurisdiction all of the same type.

In addition to this overall outlook, I believe that my professional position as a scholar means that I must resist any attempt to make me adhere to or promote specific values chosen by an external authority. Academic freedom — which I regard not only as an entitlement but also as a responsibility — is a right, and arguably a duty, to pursue truth, however uncomfortable or unpleasant it might be to authorities and others. This pursuit, in my opinion, is incompatible with an undertaking to promote specific values. If my research leads me to conclusions that I or others regard as incompatible with or even opposed to a given value, so much the worse for the value in question.

I would add that, at a high level of generality, I find the values to which the Statement of Principles requirement refers attractive. However, my understanding of these general values is quite different from that which animates the Statement of Principles requirement. I believe in equality before the law, and reject the value of an equality of outcomes. I believe that diversity is primarily desirable if it embraces a plurality of views and perspectives on human flourishing, and not only of demographic backgrounds. Similarly, I believe that inclusion must extend to those who think, and not only those who look, unlike the majority. As a result, expressing support for these values, at the command of the Law Society, would risk communicating adherence to beliefs that I do not hold, and would thus force me to express statements I would not otherwise express.

Concluding observations

As explained above, I refuse to comply with the Statement of Principles requirement. I regard it as incompatible with my rights and duties as a free person, my professional responsibilities as a scholar, and, above all, my conscience.

If the requirement that I hold and promote values chosen by the Law Society is not repealed or invalidated, I will cease being a member of the legal profession in Ontario. This is not an outcome I desire — I would not have paid substantial fees for years for the privilege of this membership which is not necessary for my academic position and from which I derive no financial gain if I did not value the connection with the profession. However, I simply cannot remain a member of the legal profession in Ontario if to do so would violate some of my most deeply held conscientious beliefs.

We’ll see what happens with this. In any case, I am very grateful to Professor Alford and Mr. Klippenstein, as well as Asher Honickman who is litigating the case, and the CCF for fighting the good fight. And don’t forget that, in parallel, there is another front on which this fight can be fought ― the upcoming election for benchers of the Law Society. Vote, and throw the bums who imposed the “statement of principles” requirement out!