At the Executive’s Pleasure

When Parliament delegates power to agencies, it does so for any number of reasons. At least in theory, Parliament could delegate to a tribunal because it genuinely believes that some particular problem requires expert treatment. Parliament could also delegate as part of a “make or buy” decision, in a Coasian sense: the costs of crafting legislation may be prohibitive, and it may make more sense for Parliament to set out the broad strokes and let the agency fill in the blanks. Or, sometimes problems require solving by an independent body. Tribunals, for example, could play an important role in this regard. For example, determining whether a government action is contrary to human rights law is likely best determined by an impartial adjudicator. In such cases, so the story goes, a so-called “flexible” tribunal is best suited to deal efficiently with these sorts of problems.

But the promise of true independence is not often (and perhaps never) realized, because its existence is determined by the legislature and the executive. This should make us question whether the model of administrative justice we currently employ is even working.

The Ontario Human Rights Tribunal is finding this out the hard way. Recently, it came to light that the tribunal is experiencing a shortage of adjudicators, causing mass delays. The shortage is due, apparently, to the Attorney General’s refusal (or failure) to fill vacancies. The Ministry of the Attorney General oversees the province’s tribunals, including the Ontario Human Rights Tribunal. Lawyers and observers have pointed out the effect that the Attorney General’s delay in appointing adjudicators has on procedural fairness rights, and the general efficiency of the administrative justice system. Some people may view this state of affairs as untenable and inappropriate state of affairs, inconsistent with the spirit of administrative justice. But, to my mind, it is predictable.

Why should we expect this? The Tribunal is a recipient of delegated power, under the Ontario Human Rights Code. But like many legislative delegations, power is also concurrently delegated to the executive. As the Supreme Court said in Ocean Port at para 24, this means that tribunals span the constitutional divide between executive and judicial powers, but are primarily invested with these powers by legislative delegation. They are “created precisely for the purpose of implementing government policy.” There is no constitutional principle requiring structural independence, and it need not matter whether the tribunal is adjudicative or regulatory in character.

The Human Rights Tribunal is no exception from the Supreme Court’s comments in Ocean Port. In this case, the legislation specifies the Governor-in-Council has power to make appointments (s.32(2)). The language presupposes that there “shall” be “members” of the Human Rights Tribunal, but how many is left unsaid, presumably up to executive discretion. Otherwise, the only legislative specification on appointments is that appointments must be made according to a particular process (s.32(3)). Other than that, how much members of the tribunal shall be paid (s.32(4)) and their terms of office (s.32(5)) are matters for Cabinet. Cabinet has a wide degree of discretion to shape the efficiency and responsiveness of the administrative process in the Ontario Human Rights Tribunal, supposedly an independent agency, perhaps the “Crown jewel” of administrative law.

The fact that the legislature—at least arguably—even permits this should make us question the actual degree of independence in the administrative state. In fact, recalcitrance in conducting appointments is just one of the many ways that the executive can undermine the project of administrative justice. It is also perfectly legitimate, should the legislation permit it, for a Cabinet, after an election, to fire all the members of a labour board and to replace those members with persons that it sees fit. And this is just on the topic of appointments. Ron Ellis, in his book Unjust By Design (ably summarized by Professor Daly here) goes into detail about the ways in which executive actors can undermine tribunal independence, in a way that undermines the project of administrative justice. Renewal of tribunal members is one way that the executive can do so, but one can also imagine considerations such as the power of the purse and general administrative reorganization as ways in which the executive can subtly (and not so subtly) control the success and efficiency of the administrative state.

This might all sound bad, but I for one, think that independence is an overrated virtue, and should be calibrated to the strength of the case for independence. There is clearly a case for the Bank of Canada to be independent. But one can imagine closer cases. After all, we live in a system of responsible government and political accountability, and creating islands of power without adequate oversight should be concerning. That said, there is clearly a need for the broader category of “independent agencies” in modern administrative decision-making.

So, how do we balance accountability with independence? I think we need to go to the source: Parliament and the legislatures. One way is to insist that Parliament, if it is to empower the executive with power over these tribunals, legislate more specifically. In the Human Rights Tribunal example, perhaps Parliament could specify a minimum number of adjudicators that must exist at a given time. Or it could delegate the power to the Cabinet to do so, but make it a mandatory requirement. More specificity in delegation, while increasing the costs of legislating, also helps to guide executive action and provide constraints on executive recalcitrance.

The Law Reform Commission, in 1985, recommended that the independent agency be decoupled from Cabinet, and instead be made to report directly to Parliament to remove the spectre of executive interference. This might seem desirable, but I fear it prizes independence over accountability. Having someone able to answer, on a day-to-day basis, for the tribunal activities (and to be accountable in a broader sense for the tribunal’s mandate) is an important accountability mechanism in and of itself. It may make more sense for us to expect Parliament to adequately debate and decide on the limits of executive action in relation to tribunals, and then expect responsible ministers to be accountable for whatever they do in relation to the tribunals.

Overall, there is a risk that tribunals merely exist at the executive’s pleasure. But legislatures themselves have made this choice. It is for them to solve.

Doré Adrift

Why the Supreme Court’s approach to the Charter in the context of administrative law fails to live up to its promises

When Dunsmuir came out, I was in the middle of taking administrative law in law school.  Our class had spent hours learning about “patent unreasonableness”.  But when Dunsmuir abolished it, the professor was faced with a dilemma for the exam: forget patent unreasonableness or pretend that Dunsmuir never happened?

While our professor chose the latter, I imagine admin law professors hope the recent reconsideration of Dunsmuir cases in Bell/Vavilov/NFL (the “trilogy”) will be not be decided during the semester.  While Dunsmuir itself appears to have had a shelf life of about a decade, Doré v Barreau du Quebec, 2012 SCC 12 is approaching the seven year itch. Doré, of course, changed how Courts decide whether government actors violate the Charter. Doré seems safe for now, even as the amici curiae in the trilogy wish to rework it.  But given the lack of longevity to administrative law decisions and its many critics, there is an increasing sense that Doré could (or should) soon belong to the growing graveyard of administrative law jurisprudence.

But offering a eulogy would be premature.  Instead, enough time has passed to conclude that, thus far, Doré and its progeny have disappointed based on the very implicit promises and rationale contained in Doré itself.

Doré’s Path

As many readers are aware, the 2012 decision in Doré abandoned Oakes formal multi-stage proportionality test for assessing whether government action and actors (i.e., tribunals and other government delegates) comply with the Charter.  The Oakes test was the test used by the Supreme Court between the 1989 decision in Slaight and Multani in 2006.  Doré has since been followed by the Court in Loyola (2015) and the twin TWU decisions (2018). Oakes still applies to reviewing the constitutionality of legislation.

Under an Oakes review, a Court first assesses whether a government decision limited the Charter in the first place.  If so, it moves to the second step where the state has the onus to prove:

  • the government’s objective is pressing and substantial;
  • the decision is rationally connected to the objective(s);
  • the decision minimally impairs the affected rights; and
  • there is proportionality between the decision’s benefits and harmful effects. 

For all of Oakesshortcomings, it was applied rather rigorously in the recent Canadian citizenship case and has been hailed by the UK Supreme Court as the “clearest and most influential judicial analysis of proportionality within the common law tradition of legal reasoning”.

Doré explicitly abandoned Oakes’ formal two-step approach in favour of a global assessment of whether:

“given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play” (para. 57).   

This loosely structured test is Doré’s “administrative law” approach to judicially reviewing government action.  Whereas the state has the onus to justify itself at each stage of Oakes, everything is “put on the scales” at once under Doré’s “more flexible” approach (paras. 36-37). 

Doré brought “Dunsmuir deference” to decision-makers’ decisions on Charter issues (paras. 36, 54-56; TWU, para. 79).  According to Dunsmuir, deference in judicially reviewing government action means that “courts will give due consideration to the determinations of decision makers” (para. 49) in deciding whether a decision “falls within a range of possible, acceptable outcomes” on a standard of reasonableness (para. 47).  In other words, a court will defer to a decision maker unless their decision is shown to be unreasonable and outside this acceptable range.  The alternative standard, correctness, means a court will take its own independent analysis of a decision, as it does with an Oakes review, and substitute its own view.

Doré’s Promises

Doré offered rationale and a number of promises to justify the break from Oakes.  This is a scorecard of how they have subsequently turned out:

1.The Expertise of Decision-makers.  The rationale in Doré for deferring to decision-makers on Charter issues is that, by virtue of their “expertise and specialization”, they will “generally” be in the best position to consider the Charteron the specific facts of the case” (paras. 47, 54; TWU, para. 79 (“typically”).  This suggests that some decisions don’t deserve deference. But this doesn’t appear to have held true.

One may have thought that the facts in TWU would challenge the supposed “distinct advantage that administrative bodies have in applying the Charter” (Doré, para. 48).  That is because in TWU, the administrative body applying the Charter, the Law Society of BC (“LSBC”), made its decision to bar TWU graduates from practicing law solely because of a popular vote of its membership.  This membership is what Chief Justice Bauman of the BC Court of Appeal facetiously referred to in oral argument as “the largest tribunal in British Columbia”.  While this decision was under judicial review, the LSBC itself conceded in its written submissions and in oral argument before the BCCA that the membership effectively made the decision.  Indeed, the referendum itself said the membership’s decision “will be binding and will be implemented by the Benchers”.  The lower courts unsurprisingly found this to be fettering by the LSBC “abdicating” its statutory duties. 

On this factual background, the dissenters in TWU, Justices Brown and Côté, sensibly stated that the “LSBC membership could never, through means of a referendum, engage in the balancing process required by Doré” (para. 298). However, the majority of the Supreme Court were forced to downplay the membership vote as being mere “guidance or support” (para. 50) in order to defer to LSBC’s “institutional expertise” (para. 50) and by extension the rationale for deference in Doré

But what kind of expertise did the majority require of the LSBC to justify any deference to it?  Surprisingly, the majority said the LSBC only had to be “alive to the [Charter] issues” (paras. 51-56).  Being “alive” suggests, perhaps, that deference is deserved for decision-makers who don’t drop dead before rendering a decision.

In assessing the rationale for deference in Doré, one must critically consider: what “expertise” and “specialization” did the membership of the LSBC bring?  Or the Benchers, who merely adopted the membership’s will?  Remarkably, the majority in TWU still deferred to the LSBC in spite of the LSBC urging the Supreme Court of Canada not to defer to them and apply a correctness standard instead.

In sum, when the rationale for deference is absent – expertise, specialization, and proximity of the facts to the Charter – deference still apparently applies in a Doré review.  It may be time to reconsider this.

2.Doctrinal Coherence.  One justification for discarding the Oakes framework established in Slaight was that Doré would lay down a new, solid legal foundation on which to construct coherent doctrine (paras. 35-39).  Doré itself said its administrative law approach was employed in cases such as Baker and TWU (2001).

If Doré’s goal was “to start from ground zero in building coherence in public law”, as the decision itself suggested (para. 34), the commentary on Doré cast significant doubt on its methodology and doctrine (calling E.T. v. Hamilton-Wentworth District School Board and Justice Stratas).  Almost seven years later, we still don’t know the basics about applying Doré in practice.  The majority of the Court has remained silent on a litany of criticisms of Doré (see point #4 below) – including ones made by members of the Court itself – having to do with the distinction between Charter values and Charter rights, the absence of the “prescribed by law” requirement in s. 1 of the Charter, and the identification of who bears the onus to prove proportionality under Doré.  (an interesting fact is that the Attorney General of Canada argued in the lower level courts in BC that the LSBC decision could not pass the “prescribed by law” requirement).

And while Doré suggests a court defer to a decision-maker’s own identification of the relevant statutory objective against the Charter (paras. 55-57), that approach was not followed in Loyola and TWU.  This departure has never been explained. The lack of clarity and consistency that Doré was supposed to remedy have caused new frustrations for lawyers and judges alike (again, see #4 below). 

I will add two thoughts.  First, a Doré review seems doctrinally flawed that a Court would defer to the state on whether the state has properly balanced the relevant Charter protections.  Why should the state get the first crack in deciding whether its own actions violate the Charter?  This deference gives the state a distinct advantage over Canadians whose rights are limited by effectively putting the onus on applicants to prove why the state is not owed deference (i.e., why it did not balance the Charter properly). This effectively reverses the onus in Oakes and deprives the Charter of its overarching purpose as a shield against the state. 

One wonders whether there is a principled limit to this reasoning.  If a government delegate is accorded deference to their decision, because of their “expertise and specialization” and familiarity with the Charter (Doré, para. 47), why should this not, in principle, extend to discretionary decisions of other government actors with expertise and specialization such as police officers or border agents whose actions are currently reviewed according to objective tests?  What is the principled reason that they are not afforded deference when the Court decides whether a detention violates s. 9 of the Charter, or their search engages s. 8 of the Charter, which protects against “unreasonable” searches? 

If the scenario seems absurd, consider that courts in BC have directly reviewed police decisions in issuing roadside prohibitions under Dunsmuir deference (!!).  If a Charter issue arose in such a case, “Doré deference” to the police officer’s decision would presumably apply.  In this way, Doré review could potentially erode Charter protections in contexts likely not anticipated by Doré.

Second, taking that dichotomy further, if legislative decisions by decision-makers are reviewed for Charter compliance under the test in Doré, as suggested by the majority in TWU (i.e., the LSBC benchers) (para. 54), what is the principled reason for utilizing Oakes, and not Doré, to review the constitutionality of legislation? 

If the answer is that rules of general application like legislation and regulations should be assessed under the more stringent Oakes standard, this has problematic consequences for the way government operates. The existence of Doré review for government actions means the government has an incentive to structure their power to confer broad discretion to govern opaquely by action, not regulations, so that those actions are reviewed under the deferential Doré review, rather than with the more stringent justification demanded by Oakes.  In other words, the mere existence of a Doré review provides an incentive for the state to provide its actors with Doré deference rather than an Oakes review (e.g., direct judicial review of the police issuing roadside prohibitions).

The different levels of Charter protection Canadians have against government actors means there is a hierarchy of rights protection depending on the identity of the state actor.  It also means there are increasing ways for the state to exploit that hierarchy as there is little incentive for the state to govern transparently or decision-makers to provide reasons when it can deferentially operate under an administrative apparatus free from an Oakes review.

3.An administrative law approach to the Charter should prevail.  This was the main promise of Doré: that Courts “embrace a richer conception of administrative law” by allowing a flexible approach that would be “nurtured” by the Charter (paras. 27-29, 37, 47).

Doré itself was criticised for failing to apply administrative law to critically engage in the reasons of the decision-maker. In Loyola, the Court moved back towards Oakes. It clarified that the Doré test incorporated the minimal impairment test (paras. 4, 41).  In practice, however, the government in Loyola failed the pressing and substantial/rational connection stages in Oakes (without referring to Oakes) in concluding that the decision failed to advance the ERC Program’s objectives in any significant way (paras. 6, 68, 148, 159).   The majority of the Court mystifyingly ignored applying Doré altogether in Saguenay, Justice Counsel, and Ktunaxa.

In TWU, and without citing a single case on the concept, the majority appeared to undermine the well-settled administrative law prohibition of fettering to achieve its result.  The administrative law professor must wonder: what does fettering mean anymore in light of TWU? (If you are one such professor, I would be keen to hear your thoughts). On the other hand, the majority in TWU borrowed from some of its recent administrative law decisions, while ignoring others, to justify the LSBC’s failure to provide reasons and provide post-facto justifications for its decision. 

And as noted by Mark Mancini, the simplicity of Doré was complicated by the subsequent decisions in Loyola, Ktunaxa,and TWU by introducing the threshold question of Oakes as to whether the Charter is limited in the first place. While this is a welcome development, the return of the two stage limitation/justification assessment is another shift toward Oakes (Doré, para. 29).

If practice makes perfect, the applications (or lack thereof) of Doré in Loyola, Saguenay, and TWU are underwhelming in terms of modelling an approach to judges and lawyers that infuses administrative law principles into its decisions.  The more Doré is applied, the more it is applied in a complicated manner.  The touted “flexibility” of Doré can be used to incorporate administrative law in theory, but it can also legitimize judicial preferences in practice.

4.Using Oakes for Administrative Law was Consistently CriticizedDoré justified abandoning Oakes because a few academics were “concerned” by Slaight, and academics were allegedly “consistently critical” of Multani, the last SCC decision that applied Oakes (paras. 27, 33-34). 

By comparison to Multani, Doré’s critics are legion.  In a similar six year time period, Doré has sustained an avalanche of academic criticism easily eclipsing Multani’s use of Oakes. Doré was mentioned unfavourably more than any other Supreme Court of Canada decision in Double Aspect’s “Twelve Days of Christmas” symposium (here, here, here, and here).  Doré been the subject of surprisingly candid criticism from appellate court judges.  In the twin TWU cases, four justices expressed concerns with Doré in response to TWU’s calls to fix Doré.  Justices Brown and Côté offered the stinging criticism that Doré “betrays the promise of our Constitution” (para. 266). 

To use a football analogy, will the Court continue to call seemingly ineffective passing plays when the crowd is screaming for them to run the ball?  Perhaps not, but with each passing decision of the Court, Doré’s critics are growing louder.

Conclusion

Judged on its own terms, Doré is struggling to achieve its vision.  This vision, however, comes at a cost to ordinary Canadians whose rights may be limited.  Given the never-ending construction project that is administrative law in Canada, practitioners “are placed in an impossible situation”.  The lack of clarity, varying simplicity, and unpredictability in a Doré review means lawyers are unable to effectively advise clients because they must speculate as to the possible outcome. Clients are left with uncertainty. If Doré stays on life-support, one wonders: who is being served by keeping Doré alive?

The Canadian Legal Mandarinate

Why we ran the 12 Days of Christmas symposium

On behalf of Leonid and I, I’d like to thank all of our readers for their interest in our recent 12 Days of Christmas symposium, which featured contributions from scholars on their five least favourite Supreme Court cases of the last fifty years. What started as a festive and fun holiday feature has made, I think, a much broader point: rather than glowing coverage of what the Supreme Court does, there is an audience and a need for more biting, critical commentary in Canadian law.

I say this because a not-infrequent response to our symposium asked why we needed to be so pessimistic. Why not ask people for their favourite Supreme Court cases? Doesn’t the world need more positivity?

Maybe it does, but I’m not sure there is a lack of it towards the Supreme Court in Canadian law. Of course, I don’t have empirical evidence to show that Canadian scholars are too deferential towards the Supreme Court and its judges. But it is interesting why our symposium struck a chord in the first place.   Over on profsblawg, Paul Horwitz explains why this might be. Horwitz received his law degree in Canada (University of Toronto), and notes that he practiced and published there as well. It’s worth reproducing a large part of what he said about his impressions of Canadian legal academic culture. It isn’t good:

 

I left Canada, where I received some of my legal education and practiced and published a little, long enough ago now that I am hopelessly out of date, despite following cases in some areas of law. But when I was there, the norms of the profession or society, the degree of consensus among a fairly small legal elite or Canadian mandarin class, and/or some other set of factors were such that there was little serious criticism of the Supreme Court of Canada and its decisions, and the criticism that did exist was treated more or less as coming from outliers.

[…]

I find the series educational and refreshing, and very different from anything I could have imagined reading in the period in which I studied and practiced in Canada. (Indeed, I remember publishing an article some years ago in a Canadian law journal–faculty-run and peer-reviewed, as most of them are–and being asked by the faculty editor of that journal to add some kinder and more complimentary text to balance my criticisms of a recent Supreme Court of Canada judgment.) That change is for the better. Although it might not be thought of in those terms by some of the existing and remaining legal and socio-cultural mandarinate in my native country, it enhances not only the ideological and philosophical diversity of the country and its legal profession, but also its regional and cultural diversity.

[…]

If strong criticisms of judicial opinions are acceptable, and I think Canadians, however politely, would agree that they are, then surely there must be room to criticize the words of individual justices who make extrajudicial statements about their rather grandiose role as the first and last word on their country’s “national values.”

This a powerful anecdotal account of how Canadians tend to react to those in judicial authority, and in response to those who do engage in critical analysis. Speaking for myself, I am unsurprised by Horwitz’s comments after writing this post on the reaction to Justice Abella’s comments about the role of the Supreme Court as the definitive font of authority on “Canadian values.” Many argued that Leonid and I went too far by drawing particular attention to Justice Abella’s specific comments. Others suggested that we should always tread carefully when criticizing judges, that we should always presume good-faith, and that we should speak about decisions and institutions rather than personalities.

As I’ve said before, if judges are going to assume the mantle of constitutional guardians, we all have the right (and the duty) to monitor their decisions. Given the heightened role that court has arrogated to itself, I see no quarrel with concerning ourselves with what the judges think and say, as well. But this isn’t strictly the point. Instead, it is enough to say that we already do a lot of celebrating of judges and judicial decisions in Canada. There was, of course, the rather drawn-out farewell tour for Chief Justice McLachlin, with growing tributes and nary a peep about her judicial missteps. Academic articles were written celebrating her as the “expositor of our constitutional values.” Justice Abella has also received her fair share of celebration, among academics and the bar alike. I think there is probably an interesting correlation between this judicial idolatry and the rather depressing statistics on ideological uniformity in law schools, but I need not explore that connection here.

I view the 12 Days Symposium as a product of supply and demand principles. If we take Horwitz seriously, and my own experience is consistent with his, then we have an abundant supply of “positive,” more deferential legal commentary in Canada. What is missing, and what our 12 Days contributors arguably provided, was a breaking point from the consensus. And judging from our readership and the spirit of the contributions, I think there is a real demand for this sort of work in Canadian legal academic circles.  Of course, I think this is broadly consistent with the entire premise of Double Aspect to begin with.

To be fair, a lot legal scholarship can’t and shouldn’t be put into the “positive” or “negative” column. Some work is empirical, and that work is in low supply in Canada, at least when it comes to public law. Robert Danay has done us a great service, in this respect, with his empirical work on Dunsmuir. But there is a decidedly normative bent to Canadian legal scholarship, and to that extent, there is such a thing as critical work.  Though I cannot purport to speak from great experience (and so I qualify my statements to a large degree), I view legal scholarship is something like calling balls and strikes. Sometimes, the Court gets it right, and we try to highlight that on Double Aspect when we can. Others do so too. But there is a distinct lack of critical commentary, and our contributors supplied the demand.

This answers the question of why we chose not to run a symposium focusing on the Supreme Court’s best cases—this is already out there if you look hard enough. And it’s also the reason why, speaking for myself, there is no need for an endless veneer of deference towards the judiciary. I can’t speak from experience to definitively conclude that there is a Canadian legal mandarinate. But I can say that there appears to be reticence about criticizing decisions and judges.

Double Aspect’s Twelve Days of Christmas

Announcing a riotous blogging symposium for the festive season

As the holidays are upon us, co-blogger Mark Mancini and I would like to invite you to join our very special celebration. In our capacity as the self-proclaimed lords of misrule of the Canadian legal blogosphere, we will be reviving the old tradition of festive subversion by marking the twelve days of Christmas with a blogging symposium highlighting Canadian legal scholars’ least favourite Supreme Court decisions.

Borrowing a model recently suggested by Damon Root for Reason, we have asked Canadian legal thinkers for lists of five particularly bad public law decisions from the period 1967-2017 (we decided to exclude this year’s cases to avoid too much bias in (dis)favour of the ones fresh on everyone’s mind), accompanied by brief reminders of what they were about and explanations about why they deserved to make the list. We will be taking a “large and liberal” approach to what counts as public law, and have invited contributors to use their own criteria for what makes decisions bad and worse. The only limit, other than the time range, that we have asked them to respect is that the decisions they list should not have been overturned.

Speaking of contributors, we are very grateful to all those who have agreed to take part. This was a bit of a last-minute idea, and it was very kind of people to take time, on short notice, out their busy pre-holiday schedules to join the fun here. In no particular order, the guests who will partying with us are:

  • Geoff Sigalet
  • Bruce Pardy
  • Gerard Kennedy
  • Kerri Froc
  • Asher Honickman
  • Joanna Baron
  • Maxime St-Hilaire
  • Michael Plaxton
  • Dwight Newman

For most (all, in fact, except for Professor St-Hilaire) this will be a first appearance on Double Aspect, and we are delighted to welcome them here in such festive circumstances. And of course Mark and I will be taking part in the celebrations too.

Now, perhaps you’ve noticed that this only adds up to 11 participants. One person, sadly, had to pull out at the last moment. We thus have a spot to fill. If you feel up to the task of penning a contribution quickly, please get in touch! If not Mark and I will round-up the proceedings with some concluding observations on Day 12.

Statutory Interpretation in Admin Law and the Supreme Court’s Trilogy

Over on Professor Daly’s blog Administrative Law Matters, Professor Audrey Macklin wrote what I would characterize as a confessional: an admission that the law of judicial review in Canada may be beyond repair. What Prof. Macklin proposes, in light of this realization, is a renewed focus on the principles of statutory interpretation, rather than a myopic focus on standard of review categories—a parochical Canadian invention. Prof. Macklin specifically argues that our disagreements should focus on “what ought to count in statutory interpretation, why it ought to count, and how it ought to count.” For Professor Macklin, external considerations such as access to justice and international law should inform statutory interpretation.

I agree with Professor Macklin—to an extent. I see Macklin as making two claims: (1) the rules of statutory interpretation should be used to replace the rigid categories of standard of review and (2) that the rules of statutory interpretation can be massaged to take account of “normative, policy, operational, and other considerations.” The first contention, I think, is desirable. The second, I worry, will lead to more uncertainty, asking judicial review courts to do more than they are designed to do.

Let’s take (1) first. On this front, Professor Macklin finds agreement with many existing allies. Advocates for the Rule of Law, in its submissions before the Court in Vavilov and Bell/NFL, basically made this very point. With submissions expertly argued by Adam Goldenberg, ARL asserted that the Court, in its attempts to simplify the standard of review, had actually made things worse. Instead, ARL argued that the “established tools of statutory interpretation” should be used in a three-step framework to determine the level of deference. First, courts should look to judicial constating legislation to determine the level of deference; explicit direction that exists, for example, in the Federal Courts Act (which, it should be said, was ignored by the Court in Khosa). Second, the decision-maker’s home statute may contain explicit or implicit legislative direction on the standard of review. A statutory provision allowing a decision-maker to grant licences “in the public interest,” if supported by relevant context and purpose, should allow more deference. Finally, courts should look to the specific textual provision under which the decision-maker made her decision. If not contradicted by context, (say, a statutory right of appeal), broad language in this respect should also mean deference.

This strikes me as a good way to proceed. I make similar arguments in a paper to be released in the Western Journal of Legal Studies in January, “Two Myths of Administrative Law.” There, I assert that toying around with presumptions, categories, and even standard of review labels (reasonableness and correctness), should not be the sum of Canadian administrative law. These legal devices should be scrapped, the focus should be on the principles of statutory interpretation, and signals of deference—for example, expertise—should only come into consideration where they exist in statutory text, context, and purpose. I don’t see Professor Macklin as disagreeing with any of this.

At the same time, Professor Macklin takes a first crack at defining the work the principles of statutory interpretation could do in judicial review. She claims that so-called “operational considerations” that influenced the Supreme Court in Alberta Teachers—such as efficiency—also mean that courts should take into account principles of access to justice and international law in statutory interpretation. To Professor Macklin, courts should take “all the arguments” seriously in a given case.

This, I think, is where Professor Macklin’s proposal introduces more uncertainty than it actually solves, and runs afoul of the very basis of the law of judicial review. Her extension seems to extend the task of statutory interpretation beyond its traditional realm of discovering the meaning of the legislature. Instead, she would make statutory interpretation a normative exercise, one that seeks to render an interpretation that best accords with any number of “external” considerations.

But if we are starting from scratch in developing doctrine for the law of judicial review, we should do so in light of that very fact: it is the law of judicial review with which we are concerned. Judicial review is not a free-standing inquiry into the legality of particular government decisions. When governments delegate away power to make decisions, it does so on a narrow basis—to decide which of Party A and B receives Licence X; to decide whether A’s zoning application is legal. This is the run-of-the-mill judicial review case. When courts review these decisions, they are usually bound to the record the decision-maker considered on review. The courts do not move beyond that record, which maps onto the scope of delegative power afforded to the decision-maker. As a result, and by design, the ancient writ of certiorari and the modern act of judicial review are first and foremost designed to “ensure the legality of state decision-making” (Wall, at para 13). Courts are equipped to make those decisions by rules of the record that mandate the production of all information considered by the decision-maker under its statutory mandate. In this respect, judicial review proceedings are designed to be quick and cost-effective.

There are two upshots of this ordering. First are the considerations that should inform the exercise of judicial review. In the Two Myths paper, I argue that such external considerations lack the imprimatur of legislative approval. In other words, they do not exist in the world with which judicial review is concerned. If judicial review is considered primarily with the supervision of state actors—what I call its “policing function”—then it must hew closely to the four corners of a statute. Anything beyond that is a concern for legislative actors, who are legitimately empowered to address broad, systemic concerns such as access to justice because of their particular institutional competencies. Any other positive policy entitlements—a right to access to justice, considerations of normative justice—are second to the immediate statutory context of a decision-maker’s decision in judicial review. That is not to say that these considerations are irrelevant. But they are distinctly second to the goal of a quick determination of legality “on the record.”

But there is a bigger practical concern here, beyond the issue of separation of powers. To my mind, Macklin asks judicial review courts to do more than they are designed to do, from a perspective of information. By using the principles of statutory interpretation to gaze beyond the four corners of a statute and into other complex, external considerations, judicial review becomes more of a legislative act rather than a pure adjudicative one. In this sense, the benefit of the principles of statutory interpretation—that they, as Macklin notes, put us on the same terrain—is lost. For example, what does a presumption in favour of access to justice mean in the context of particular cases? In absence of real information on what would facilitate access to justice in the context of a defined legislative scheme, how do courts make informed decisions on the matter? Even if they could, doesn’t this complicate the narrow and efficient basis of judicial review?

It is no answer to these problems to say, as Macklin does, that courts are informed by policy considerations when they rely, for example, on presumptions in favour of contract or liberty. These presumptions are of a different sort than the type advocated for by Macklin, at least in the context of access to justice. Most notably, they are negative in nature. But there are particular issues that distinguish these traditional presumptions from the sort of rule Macklin seeks to formulate. For example, in terms of contract, the presumption is justified as a policy matter from the perspective of information. Courts, for good reason, assume that parties enter bargains on the basis of mutual gains, which in turn enable social welfare gains. Courts (and legislatures) lack the information necessary to overturn the parties’ agreement and instead impose their own understanding of what would be an efficient outcome; transaction costs of doing so are high because the court lacks information. Macklin’s presumption (in favour of access to justice) is of a different sort; it asks judicial review courts to consider or act in areas where there is a distinct informational deficiency, at least in the context of particular judicial review cases.

The problem of information is not a practical concern that exists in the ether. It is directly related to the roles of various players in our democratic structure. Courts on judicial review are empowered to redress public law grievances caused by organs of the state; no more or less. As a result, they are given the information required to do so on the basis of the record. The realm of legislative action, on the other hand, is broader—and so legislatures are empowered with more information and more resources. None of this is a coincidence.

People might use a laundry list of adjectives to describe my preferred approach: “cramped,” “formalistic,” “Diceyan.” None of this, of course, is an answer. The bottom line: the law of judicial review, and the principles of statutory interpretation, cannot encompass all, or even most, of what we consider good and virtuous in the world. They can only accomplish their narrow but infinitely important goal. Any renovation to the law of judicial review that uses the principles of statutory interpretation cannot forget this.

The Administrative Law “Trilogy”: The Stare Decisis Trap

This post originally appeared on Advocates for the Rule of Law.

This week, the Supreme Court of Canada finally heard the consolidated appeals in Bell/NFL and Vavilov. ARL, expertly represented by Adam Goldenberg, put forward our submissions on the matter, which focus on a return to the basis of the law of judicial review: its statutory character.

During the hearings, one particular line of questioning posed a problem for this argument, which asks the Court to critically analyze all of its precedents, even those pre-Dunsmuir. Justice Moldaver, for example, suggested that one of the parties’ submissions in Bell/NFL would “take us back 30 years.” That comment was made as if it was undesirable to look to the foundations of the law of judicial review. Justice Gascon chided the same counsel for framing his submissions as a “minor adjustment,” suggesting that it was, in fact, a major overhaul. Again, the comment was stated as a decisive fact, acting as a criticism of the merits of the legal position.

This line of thinking, to my mind, is odd for at least two reasons.

First, when the Court granted leave to these cases and consolidated them, it invited a critical appraisal of its standard of review cases since Dunsmuir. Like all of the common law, Dunsmuir is a product of what came before it. Dunsmuir, for example, incorporates CUPE’s generally deferential posture without doing away with the pragmatic and functional factors outlined in Pushpanathan, Pezim, and Southam. The Court’s invitation of a critical appraisal should be taken seriously.

The line of questioning invited by Justices Gascon and Moldaver does not inspire confidence that the Court is serious about a full-blown reappraisal of Dunsmuir and what it contains. It may very well be that the line of questioning was aimed at protecting Dunsmuir from assault, on the grounds that it is not only good law, but workable and constitutionally acceptable law. But I heard no such robust defence of Dunsmuir, and it would be difficult to sustain one given the widespread discord it and its progeny have caused in the lower courts and among the academic community. To my mind, if the Court invited review of Dunsmuir, it should review. Weak appeals to stare decisis are not helpful.

On that note, the line of questioning is odd for a second reason: this seems like the perfect case, rare in the common law system, to tear down the precedent and critically interrogate first principles. I am alive to the concern this raises about reliance interests, certainty in the law, and the other virtues of a strong stare decisis rule. But the law of judicial review in Canada is so derelict of principle and unworkable that the reliance costs on it must be minimal. The costs of advice under the regime are already high, because (1) it undergoes constant change and (2) it is difficult for a lawyer to say to a client, with any acceptable probability, what the outcome of a case would be.

Given the already-high costs imposed by a strict rule of stare decisis in this case, it is a good opportunity to go back to first principles and create a modern law of judicial review. The key touchstones should be consistency with constitutional precepts and workability. But there is a challenge: reassessing the law of judicial review may invite a re-assessment of the foundational principles laid down in CUPE.

CUPE was about a labour board in a commercial context. Today, the administrative state is a much different beast. The same rule of deference formulated in light of the expertise and position of a labour board in the 1970s cannot be applied to the decision of an immigration official to deport someone in 2018. The positions of the immigration officer and the labour board are so vastly different that a law formulated in light of the former, 40 years ago, is difficult to apply to the latter today.

The challenge is for judges on the Supreme Court who were born and bred in the Keynesian 70s to accept another model of judicial review. CUPE is a sort of foil for this bygone era. The conception of administrative law, at that time, was its potential for redistributive social justice, and nowhere was the terrain more fraught than in the economics of labour. Deference to these sorts of decision-makers could be justified as a tool to empower them in the face of conservative judges. But today, administrative law is called on to do much more. Now, there is a worry (Vavilov is an example), of an administrative state that directly impacts the most personal individual rights. Administrative decision-makers can make life-altering decisions that bring to bear the most repressive arms of the state against vulnerable people. This has nothing to do with redistributive goals, the labour movement, or any other social goal. As such, it is difficult to apply the social-justice rationale of deference to these decision-makers.

The new administrative law, conceived as a sort of control on satellite decision-makers, must be attuned to the new administrative state. Accordingly, the judges should not keep themselves to any strict rule of stare decisis. They should review the interaction of any proposed framework with the intricacies of the modern administrative state. Anything less would be a wasted chance.

Lowering Expectations: The Supreme Court’s Standard of Review Cases

Why, sadly, Canada’s administrative law community should probably lower its expectations.

Next week, the Supreme Court of Canada will finally conduct its once-per-decade review of the standard of judicial review. In Vavilov, and Bell/NFL, the Court will hear about a number of issues: the standard of review on questions of law, the role of reasons in administrative law, and the role of so-called “jurisdictional questions,” among others. Many administrative law aficionados will pay close attention to next week’s hearings. I have outlined my proposals for how the Court should handle these cases and judicial review more generally (here, here, and here). But no matter what one thinks about the merits of the law of the judicial review in Canada, I do not think the Court will do anything in these appeals that will affect, in any substantive way, the standard of review.

I take as a given “Daly’s law”: that is, the idea that “the more excited administrative law aficionados are beforehand, the more disappointed they will be afterwards.” Evidence helps us with this conclusion. Most recently, many administrative law watchers had high hopes for the Court’s Tran case last year. Tran was an appeal from a Federal Court of Appeal decision, where the FCA expressly noted the difficulty of applying the Supreme Court’s standard of review precedents on questions of law. But Tran frustrated our expectations by simply saying that its result would be the same under any standard of review.

I do not think we will get a Tran-type conclusion in the Vavilov and Bell/NFL cases; I expect a bit more than that given the Court’s express request for submissions on the standard of review. But I do not think that the Court will do anything exciting or substantive in these appeals. And so, I think we should all temper our expectations.

The Court is notoriously divided on administrative law in general, and the divisions are deep and intractable on foundational questions. This makes it difficult to hope that the Court will come up with a workable and constitutionally justifiable doctrine. For example, the Trinity Western case, while focused on matters outside the direct scope of these appeals, demonstrated the fault lines in how the Court views issues of judicial review. The Court has also divided on the specific issue of jurisdictional questions: see Guerin and CHRC. In those cases, the dissenters viewed the category of jurisdictional questions as fundamental to the Rule of Law. On those terms, it’s difficult to assume there is much wiggle room for the dissenters on the category. What’s more, the Court has divided on the factors that rebut the presumption of reasonableness review. In Groia, Justice Côté would have found that the presumption of reasonableness review was rebutted by the fact that “the impugned conduct occurred in a courtroom…” [166]. This factor was previously unknown to the standard of review framework, and indicates the breadth of considerations that at least one judge is thinking about on the issues. Other cases demonstrate more fundamental problems. In West Fraser, then-Chief Justice McLachlin (with the agreement of five other judges) claimed that the decision-maker in that case was the recipient of the delegation received unrestricted powers because of an “unrestricted” delegation, and so was (presumably) owed unrestricted deference. This is a bold statement that is strikingly at odds with a fundamental concept of administrative law in Roncarelli: there is no such thing as untrammeled discretion. Naturally, dissenting judges found that the enabling statute actually did confine the decision-maker at issue in West Fraser.

The problem transcends administrative law and affects broader issues that define the parameters of the debate. In Mikisew Cree, the Court split over the circumstances in which the duty to consult attached to legislative action. Two judges (Abella and Martin JJ) would have found that the legislative process was “Crown conduct” subject to the duty, despite the fact that in the Westminster tradition, the entire law-making process is immune from judicial scrutiny. Here, we have a deep disagreement about the very nature of the Parliamentary system, one which foreshadows the more specific administrative law problems.

Further, the problems that the Court has to face are broad, and that state of affairs lowers the probability of any workable agreement. The problems range from how courts should select the standard of review (the status of the presumption of reasonableness; the status of the jurisdictional questions category; the role of constitutional questions) to how the courts should apply the standard of review (what is the role of the principles of statutory interpretation?; should courts supplement reasons?). There is no reason to think the Court will create a precedent on any one of these issues, let alone all of them. Yet each of them is vitally important and deeply contested.

The factional stasis at the Supreme Court is a real shame, because now more than ever there is an academic and judicial movement that has converged on the idea that at least some reform of the law of judicial review, even at the margins, is highly desirable. Very few people are happy with judicial review in Canada. This is an important opportunity to fundamentally question the foundations of judicial review in Canada, to create a workable framework that deals with the developing Canadian administrative state.

So, if I had my way, I would take the opportunity and start from scratch. I once believed, naively, that the Dunsmuir framework was workable. A lot of people think, with good reason, that only the extensions on Dunsmuir that have caused the most academic consternation—the presumption of deference introduced in Alberta Teachers and entrenched in Edmonton East; the completely unjustified “supplementation of reasons” doctrine that the Court created out of whole cloth in Newfoundland Nurses. Of course, these doctrinal innovations have made the law unworkable. But Dunsmuir itself is a problem because it creates a sort of centrifugal force with which the Court must contend. Its categories and factors will remain, even if Edmonton East, Newfoundland Nurses, and Alberta Teachers are expressly overturned. The categories and factors are intractable precisely because there is no sense of the relationship between them on first impression. They are not necessarily connected to what I have before called the fundamental premise of administrative law: its statutory character. It would be better for the long-run doctrinal clarity of the standard of review framework if the Court began its analysis from this fundamental premise, while critically questioning whether these categories and factors are necessary at all.

But because the Court cannot even find agreement on more mundane points, it pains me to predict that Dunsmuir will remain largely unscathed. That prospect disappoints me given the opportunity the Court has created for itself. But if nothing else, administrative law scholars will have another decade of work.