Category: The Dunsmuir Decade

Dunsmuir 10 Years Later

The context, aims, and aftermath of Dunsmuir

The Hon. Michel Bastarache CC QC

At the outset, I should express my gratitude to Professors Daly and Sirota for the invitation to contribute to this remarkable project, including such a superb array of leading lawyers, scholars, and judges. I have encountered the challenges of administrative law for most of my professional life in various capacities, but the sheer diversity of diagnoses and prescriptions, from such a wide range of contributors with such disparate views and organizing premises, has been eye-opening. By my count, there have been calls to revive the patent unreasonableness standard and to eliminate standards of review entirely; calls to greatly expand and tightly limit deference; calls to jettison presumptive categories and calls for more categorization; calls for greater attention to theory and more steely-eyed pragmatism; calls to hew more closely to Dunsmuir and to cast it aside more or less entirely; and much else besides that.

Depending on how you look at it, Dunsmuir is a decision so poor that all can agree went wrong in every conceivable direction, even if they agree on nothing else; or it may be that by synthesizing previous decisions and providing useful guideposts, it managed to secure some modest measure of progress. That ultimate reckoning is a task I will leave to others. I can only say that the contributors have been imaginative, original, astute and perceptive, and reading them all together provides invaluable insight into the subject, for which I am personally grateful and from which I think others can benefit greatly.

Obviously, I have my own views on Dunsmuir and the cases that followed it, and will share a few of them. But my focus in this response is not to defend Dunsmuir from its many critics, but to hopefully provide some insight into what we were trying to achieve, the thinking that went into it, how the unique role of a Supreme Court judge manifested itself in the decision. I intend this not as an apologia, although it may seem that way sometimes; rather, I hope that a better idea of our processes and thinking might help inform and provide some context around the many insights contained in the contributions, and be of some value to students of administrative law, of which I remain myself. I offer these observations in that spirit.

Institutional Constraints

I will begin with the paradox within which Supreme Court judges operate: that we are at once enormously powerful and tightly constrained. Acting at the apex of a system of laws, and guarded by judicial independence, there are few options categorically off the table, at least in terms of developing the common law, of which administrative law is one part. At the same time, we are subject to a broad range of effective constraints, including those imposed by precedent, the autonomy of colleagues, the cases that come before us, and the arguments as framed and argued by the parties. The degree to which a judge feels constrained by any of these factors will vary depending on the judge and the case; I can only speak of my own views, and the extent to which these considerations informed my contribution to Dunsmuir.

From my perspective, it is rarely possible for judges, even Supreme Court judges, to rewrite the law from scratch, however much we may like to do so. We are neither scholars at liberty to develop innovative solutions entirely anew, nor a law reform commission. And while we have the luxury of time that many judges in trial courts do not, we still need to decide a good many cases each year. We do not have the opportunity to focus exclusively on a particular problem or agonize over a judgment for too long, nor can we address an area of law in every conceivable respect in a single judgment. As our individual records might indicate, we are only too human.

Moreover, to the extent we can provide solutions to particular problems, we must not only attempt to find solutions that are conceptually sound, but also practically workable. We realize that it is not helpful to create overly abstract standards, however theoretically pleasing, that judges cannot apply and litigants cannot understand. Especially in an endeavour as diverse as administrative law, which touches on so many aspects of the modern state, the importance of ensuring our judgments are practical and accessible is not to be underestimated.

Perhaps most importantly, Supreme Court judges do not operate alone. We operate within a framework defined by our predecessors, by the need to obtain consensus with our contemporary colleagues, and by the knowledge that there will be subsequent judges who will soon take the reins.

Therefore, in a case like Dunsmuir, we must not only attempt to provide guidance to lower courts, but also create a workable framework that is consistent with and synthesizes the wisdom of generations of judges who came before us. To borrow from Ronald Dworkin’s terminology, we must attempt to both “justify” the system of judicial review by placing it in its best light, and make sure our solution “fits” reasonably well with our past and current practices. We can move the law, but incrementally ― we cannot knock everything down and start from scratch, however much that may be our personal preference.

And when we attempt to move the law, we must do so in a way that satisfies at least four of our colleagues. I recall experiencing this difficulty early in my Supreme Court career, when I first tried to obtain support for a less daring change in Pushpanathan. Of course, it is always possible for a Supreme Court judge to set out his or her own personal vision of the perfect solution, but that is not always the way you make real progress. (I should not be taken to be diminishing the value of a strong and principled, if lonely, judgment; my Dunsmuir co-author’s concurring reasons in CUPE, of course, identified many of the concerns that led to Dunsmuir itself.)

The difficulty, of course, is seeking to reconcile considerations that may pull in different directions in the context of a particular case that needs to be decided. An innate sense of justice and view of a theoretically sound approach to a particular issue pulls one way; the equally firmly held views of colleagues may pull in another; the gravitational force of precedent may pull in a third; and the concern with ensuring not only conceptual coherence but practical workability may pull another way still. In this reality, compromise is unavoidable.

I will confess I often found managing this task challenging, as I think most Supreme Court judges do. And it was especially challenging in a case like Dunsmuir, involving an attempt not only to craft reasons that will have some lasting impact, but which touched on such an enormous range of circumstances. As difficult and controversial as many issues that reach the Supreme Court can be, they often only affect a small subset of the population or a narrow area of the law; changes to judicial review of the scale contemplated in Dunsmuir affect a good part of the Supreme Court’s docket, hundreds if not thousands of lower court decisions every year, and at least at the margins, the day-to-day interactions between members of the public and government.

In this institutional setting, you realize your limitations pretty quickly, and do your best to work within them. I turn now to our attempt to manage this reality in Dunsmuir, and the problems we were trying to solve.

Our Objective in Dunsmuir

When Justice Lebel and I wrote the decision in Dunsmuir, we were not naïve enough to think it would be the last word on judicial review. We were not trying to resolve all of the insuperable theoretical disagreements or irreconcilable precedents in this vast legal universe, which often go to the heart of public law theory and modern governance. We were ambitious, but not that ambitious.

Instead, we were trying to bring as large a reform as we could to deal with what we saw as immediate and, we hoped, manageable problems. Those problems have been described many times, but I will say a word on some of the considerations that motivated us to think that we should try to do more than simply resolve the case before us.

First, from a practical perspective, we recognized that judges would routinely spend as much or more time addressing which of the three standards of review properly applied as they did on the legality of decisions under review. As Justice Binnie observed in his concurring reasons in Dunsmuir, the courts had become “unduly burdened with law office metaphysics” (at para 122). While there were paradigmatic cases where the standard of review would be clear, such as labour arbitrators interpreting a collective agreement, the proliferation of administrative actors and bodies and the variety of issues that may come before them often made it difficult to determine what standard should be applied. We hoped to make that process easier, at least some of the time.

Second, the distinction between reviewing for ‘reasonableness’ and ‘patent reasonableness’, in our view, had no principled foundation. As mentioned in Dunsmuir, we considered that “it would be unpalatable to require parties to accept an irrational decision simply because, on a deferential standard, the irrationality of the decision is not clear enough”, and that it was “inconsistent with the rule of law to retain an irrational decision” (at para 42).

The primary difficulty, of course, was to determine when deference should be applied. One of our goals was to try to eliminate the need to undertake a full pragmatic and functional approach in every case. To that end, we attempted to provide principled and workable “guideposts”, while recognizing that we cannot provide more certainty than that.

We did not think that we could eliminate the pragmatic and functional factors entirely, however, simply because we realized the sheer breadth and diversity of the administrative state, and the ability of governments to come up with new and inventive ways of enforcing laws, delivering services, and carrying out social policies. Thus, if the standard of review had not been clearly identified in the past in relation to the particular body and type of decision, the court would still be able to consult the newly renamed standard of review factors.

It is true that the factors were not new, and did not lead to a clear or undisputable result in every case, but we saw no reason to abandon them. We believed, like many of our colleagues before us, that the standard of review factors – the presence of a privative clause, the purpose of the tribunal or other decision maker, the nature of the question at issue and the expertise of the tribunal – were the type of considerations that properly informed the question of how our courts should determine the appropriate degree of deference. Given the nature of the case itself, our analysis was prepared with adjudicative tribunals in mind; more attention would be paid to other actors in the administrative state in another context. But our hope at the time was that new decisions could fill that void, and that the retention of the standard of review factors gave the courts the tools to do so.

Having eliminated the patent unreasonableness standard, we were left with an obvious problem: what does “reasonableness” mean? One struggles to think of a concept as integral to so many areas of the law, and as stubbornly resistant to definition, as the idea of “reasonableness”. We recognized that we were unable to resolve that quandary in a way that could apply with precision to all of the varied circumstances that the courts would face, and therefore made no attempt to do so. What we did try to do was, again, to provide some guidelines or touchstones that fit with our understanding of the term as it had been applied in this context.

With our focus being on adjudicative tribunals, we were particularly concerned with their reasoning and decision making processes, to ensure that they demonstrate justification, transparency and intelligibility. But in our view, that did not exhaust the court’s supervisory task; we believed that one also must consider the outcome, and ensure that it was defensible in respect of the facts and the law. In this way, we attempted to reconcile and provide at least some structure to the types of decisions that the courts had, throughout modern history, determined were ‘unreasonable’. Our hope was that with the two flexible foundations for reasonableness review in hand, that subsequent cases would have the tools they needed to reach justice in individual cases, and develop the law accordingly.

Our objective in Dunsmuir was to create a framework for greater clarity moving forward, which both justified the use of judicial review, fit it into the framework of the cases that came before, and provided at least some workable guidance moving forward to be filled in and supplemented by future decisions. This provides a convenient segue into my next and final topic: the post-Dunsmuir cases.

Post-Dunsmuir

As just mentioned, our hope in Dunsmuir was to make some progress in both simplifying the standard of review analysis, and providing some workable guideposts and grounding for judicial review moving forward. It was an attempt to take stock of all the disparate and idiosyncratic decisions over the previous decades, and to synthesize it into a workable model. The success of such a project depends not only on the (always limited) abilities and foresight of authors, but also on the existence of other judges who agree with the project, both in terms of the foundational principles set out in Dunsmuir, and their application in particular cases.

Needless to say, such a consensus has been hard to achieve. I mentioned earlier that there have been cases decided since Dunsmuir that I would have decided differently, sometimes quite drastically. I will give a few examples.

In my view, in order for the Dunsmuir understanding of reasonableness to apply, there must be reasons and a rationale behind a decision. Unfortunately, this was set aside in Newfoundland and Labrador Nurses, and in Bernard v Canada (Attorney General) (2014) SCC 13. I also believe that legislative intent is still relevant, with the privative clause providing a strong suggestion that deference applies (see Dunsmuir, at para 52), and a right of appeal indicating otherwise. That is why, in my view, it is not acceptable to collapse appeal and judicial review, contrary to what was held in Mouvement laïque québécois v Saguenay (City), 2015 SCC 16. Professor Daly mentions that the leave requirement for an appeal and the differentiation between questions of law and questions of fact reveal an intention to have the question addressed by the courts. I agree.

In the Sageunay case, the court found that the presumption of deference had been rebutted; but I do not think there is or should be a legal presumption. The presumption of deference came from Alberta Teachers. As I understand Dunsmuir ― a necessary qualification, because I know my co-author signed on to the reasons in Alberta Teachers! ― we insisted on a contextual approach with general guideposts, which is inconsistent with a presumption of deference across the board. We simply said that, generally, reasonableness would apply in some circumstances (at para 54). We certainly did not say that correctness would no longer apply except in the case of four categories of decisions; the so-called correctness categories were examples of cases where correctness was obviously required. Beyond those categories, context would determine when correctness would be applied, and expertise would play a key role in those determinations. I might add that we did not say that expertise would be presumed, as some subsequent cases have held; in my opinion, deference had to be earned and justified in the context (at para 49). Deference is imperative for “processes and determinations that draw on particular expertise and experiences”, but not for all questions of law, merely because the question is raised by a decision-maker’s home statute. As Justice Slatter of the Alberta Court of Appeal put it, “these signposts were never intended to be hard and fast categories, and the standard of review analysis remains sensitive to the statutory and factual context.” Edmonton East (Capilano) Shopping Centres Limited v. Edmonton (City) 2015 ABCA 85 at para 23.

It also seems to me that some of the decisions that followed Dunsmuir were not based on a consistent principled approach, whether it be that in Dunsmuir or another; it seems clear to me that, in at least some cases, the Court wanted to expedite affairs that had dragged on for too long, and in the process, lost sight of the need for consistency (see Bernard, Canadian Human Rights Commission).

Indeed, I think there have been too many decisions that have cut against what we were trying to achieve in Dunsmuir, or at least have proceeded on an understanding of administrative law to which I do not personally subscribe. I did not expect the court to give leave soon after Dunsmuir to so many applicants; I thought it would give lower courts time to experiment so that future necessary changes could be better identified. I personally regret that the court tried to adjust the Dunsmuir approach so soon, and that it made decisions that were, in my view, inconsistent with Dunsmuir, while purporting to apply it. In my view, this created unnecessary confusion.

Suffice to say that there have been many decisions made since Dunsmuir that I would not have personally made. Differences of opinion are to be expected. I respect that. To a certain extent, this reflects the complexity of the subject, the wide variety of cases that may come before the Court, and the difficulty of creating a comprehensive solution that will suit every judge and work for every case in a field such as this. Whether the more significant departures reflect the limits and errors of the authors of Dunsmuir, a misapplication of it by subsequent judges, or a deeper disagreement with the project itself, I cannot say. The reality is that I cannot force others to follow the understanding of Dunsmuir that I would want them to follow, much less to resolve its unanswered questions and unavoidable ambiguities as I would want them resolved. And while that can be frustrating at times, it might ultimately be for the best.

That is because our common law system of judging depends on forging a consensus that persists over time, and proceeds on the assumption that the wisdom of judges collectively, acting incrementally, are better than a single judge dictating law for all time. While each individual judge is fallible and each judgment is flawed in the eyes of some, we must have faith in the collective abilities of the judiciary to work through and get us ever closer to where we should be. Like democracy as a system of government, I believe this widely dispersed, common law system is the worst possible process for judicial law making, except for all the others.

It is for this reason that while some might regret that our decision in Dunsmuir was incomplete or left important questions unanswered, I do not. I understand those who express this regret but can only say that it is not possible to produce such comprehensive and definitive answers to such monumental questions. All that we could do, in our short time on the Court, is to attempt to provide a theoretically sound and practical framework for the application of judicial review, and then to try to apply those principles in subsequent cases, to the best of our ability. I will leave it to others to judge our success in that project – the reviews appear to be mixed – and to the courts to do all that they can to improve upon that project moving forward. I have faith that they will do so to the best of their ability, as we attempted to do with ours.

L’ordre et le rêve

Le contrôle judiciaire après Dunsmuir

The Hon. Louis LeBel CC

Le texte n’appartient plus à son auteur; ce lieu commun de la critique littéraire s’applique particulièrement bien à l’œuvre judiciaire. Une fois déposé, le jugement s’incorpore dans un patrimoine commun, le droit ou le système juridique d’un état ou d’une communauté politique. Il tombera souvent dans le silence.

Parfois il connaîtra une notoriété, peut-être temporaire. Loué ou critiqué, il aura connu le sort que Voltaire au 18e siècle souhaitait à son œuvre, « que l’on en parle en bien, que l’on en parle en mal, pourvu qu’on en parle! » La lecture des contributions communiquées sur les blogues des professeurs Daly et Sirota confirme que tel a été le sort de l’arrêt Dunsmuir depuis 10 ans.

Cependant, puisque cet arrêt n’appartient plus à ceux qui l’ont rendu, il ne me semblerait pas approprié de m’engager dans une défense et illustration de ses mérites. Toutefois, je n’entends pas, même en ces temps de carême, me vêtir d’un sac de toile, répandre des cendres sur ma tête et commencer d’amères pénitences pour obtenir le pardon de la communauté juridique canadienne.

À l’occasion de ces 10 ans, je préfère partager quelques réflexions sur le contrôle judiciaire tel qu’on le connaît au Canada et sur la conception que l’on s’en fait. Le sujet m’a intéressé, bon gré mal gré, au cours de ma vie professionnelle comme avocat puis comme juge. Je pense d’ailleurs avoir plaidé mon premier dossier de contrôle judiciaire en 1964. Jusqu’à ce que je devienne juge, les affaires de contrôle judiciaire sont demeurées constamment une partie de mon horizon intellectuel. Il m’est arrivé aussi de donner quelques cours sur le sujet.

Puis comme juge à la Cour d’appel du Québec puis à la Cour suprême du Canada, les problèmes de contrôle judiciaire ont constitué une part substantielle de mon activité. Si ma mémoire est fidèle, vers 1996, les affaires de contrôle judiciaire représentaient environ 20 % du rôle civil de la division d’appel de Montréal. Cependant, si j’ai aimé le droit administratif, je n’ai jamais salivé à l’idée de plaider ou d’entendre une affaire de contrôle judiciaire. Je ne me souviens pas d’être parti entendre Dunsmuir en clamant le matin mon bonheur à mon épouse.

J’admets le fait de la popularité et l’abondance des activités de contrôle judiciaire. Je les ai considérées souvent comme des problèmes intéressants de procédure civile et de droit administratif. Elles représentaient une part complexe des tentatives d’aménagement du droit administratif ainsi que l’organisation des rapports entre les composantes d’un état démocratique moderne et des relations entre les groupes de toute nature qui forment la société civile.

J’ai donc vécu comme praticien et comme juge plusieurs systèmes de contrôle judiciaire et l’émergence de paradigmes divers gouvernant ceux-ci. Rien ne fut parfait et l’expérimentation s’est continuée. Après d’autres, j’ai apporté une contribution dont la nature fait elle-même l’objet de commentaires à l’occasion de cet anniversaire.

Il m’est arrivé de percevoir dans le fonctionnement du système de contrôle judiciaire un obstacle de l’accès à la justice ou à son efficacité dans les domaines relevant du droit administratif. Que l’on revienne à la case zéro après 15 ou 20 ans de débats judiciaires ne m’est jamais apparu comme une solution admissible, comme je reconnais volontiers l’avoir dit au cours d’une audience de la Cour Suprême, ainsi que le soulignait Me Gall dans sa contribution. Je demeure aussi inconfortable devant des systèmes qui, superposant des procédures de contrôle judiciaires à des régimes d’appel administratif créent une demi douzaine de paliers de juridiction. En réalité, mon intérêt pour le contrôle judiciaire correspond sans doute à celui du chirurgien devant un cancer du pancréas complexe.

Néanmoins, la question du contrôle judiciaire demeure présente et doit être traitée dans un système juridique comme celui d’un pays comme le Canada. Celui-ci reste soumis à la règle de droit comme la Cour suprême le rappelait dans le Renvoi sur la sécession de Québec[1]. Les structures constitutionnelles mises en place par la Constitution de 1867, notamment quant au rôle des Cours supérieures, rendent la question incontournable. Dans ce contexte, le contrôle judiciaire représente un mécanisme nécessaire pour assurer le respect d’un ordonnancement juridique fondamental. Cependant, il doit s’insérer dans la vie d’un état démocratique moderne dont les fonctions de réglementation sociales et économiques ont connu une forte expansion, bien que celle-ci n’ait jamais fait l’unanimité. Il s’inscrit dans les mécanismes d’un droit public, constitutionnel et administratif qui pénètre profondément toute la vie de la société canadienne.

Cette forme de contrôle de l’activité administrative implique nécessairement des conceptions diverses du rôle des tribunaux supérieurs et des mécanismes de formation du droit dans la société contemporaine. Il soulève aussi des interrogations fondamentales sur la nature du droit et des processus de sa formation de celui-ci, y compris au sujet de la nature et de la mise en œuvre des méthodes d’interprétation.

Des commentaires recueillis sur les blogues des professeurs Daly et Sirota, ressortent deux tendances fondamentales. L’une voit dans le contrôle judiciaire une méthode destinée à assurer l’ordre dans le système juridique canadien particulièrement à l’égard des questions de droit. Pour elle, le contrôle judiciaire, à la limite, ne se distinguerait guère de l’appel. Il laisserait sans doute la décision sur le fait au décideur administratif mais exigerait que la plupart des questions de droit soient réglées selon un test d’exactitude défini par les tribunaux supérieurs. Aussi, de fortes réserves se manifestent à l’égard d’une approche déférente qui permettrait aux tribunaux administratifs de définir leur conception de la conformité aux normes fondamentales comme la Charte canadienne des droits et libertés ou, au Québec, la Charte des droits et liberté de la personne[2].

Au fond, cette première tendance vise à l’unification des règles de droit et de leur mise en œuvre par le choix d’une norme d’intervention fondamentalement similaire à celle de l’appel civil ou pénal.

L’autre tendance découle d’une opinion toujours essentielle dans l’aménagement du système de contrôle judiciaire canadien, celle du juge Dickson, plus tard juge en chef dans l’arrêt Syndicat canadien de la Fonction publique, section locale 963 c. Société des alcools du Nouveau‑Brunswick[3]. Comme le note fort à propos la professeure Valois dans sa contribution à ce groupe d’études, elle étend clairement le droit du contrôle judiciaire au mérite de la décision administrative en la soumettant à une norme de rationalité au lieu de limiter l’intervention du tribunal supérieur à la définition de sa compétence et à l’examen des conditions dans lesquelles la décision a été rendue.

Cependant, cette extension s’accompagnait de la reconnaissance d’une forme de déférence en faveur du décideur administratif, même sur un grand nombre de questions de droit. Elle acceptait qu’il existe des dossiers où les choix interprétatifs de décideur administratif primeraient en dépit de désaccords potentiels avec l’opinion de la cour de contrôle. En ce sens, cette orientation qui s’est retrouvée dans des formes diverses d’aménagement du contrôle judiciaire depuis ce jugement, comporte une reconnaissance implicite qu’un système de droit laisse place à une marge de pluralisme juridique. Le droit n’est pas nécessairement univoque et une des fonctions d’un organisme administratif peut consister dans le développement de ses propres orientations juridiques. Un jugement, l’arrêt Domtar[4] admettait d’ailleurs cette possibilité en rejetant même les inconsistances des décisions d’un tribunal administratif comme justification à elle seule d’un exercice du pouvoir de contrôle judiciaire.

L’aménagement du contrôle judiciaire dans cette seconde tendance s’est réalisé, comme on le sait, sous des formes très diverses. La construction de l’œuvre se continuera inévitablement. Cependant, elle a reconnu l’existence d’une autonomie partielle des tribunaux administratifs, certainement sur le fait, mais aussi sur le droit au cours de tous les débats sur les méthodes de contrôle judiciaire.

Le débat incessant sur les normes de contrôle judicaire a d’ailleurs occulté en partie le développement du droit administratif comme tel. La focalisation sur les normes de contrôle et les problèmes d’accès à celui-ci a conduit parfois à négliger que le droit administratif se développait au niveau des juridictions inférieures qui régissent largement la vie quotidienne des membres de la société[5]. On oublierait parfois, à lire notamment une partie de la doctrine de droit administratif, que celui-ci ne se limite pas au contrôle judiciaire. Pourtant, l’examen d’une œuvre récente comme la 7e édition du traité de droit administratif du professeur Patrice Garant[6], confirme la diversité et l’ampleur du droit administratif. Cependant, le contrôle judiciaire tend à absorber toute l’attention. Parfois, sa conception exprime le rêve de la formation d’un ordre stable et de règles d’application quasi-automatiques, dispensant de l’exercice d’un jugement prudentiel. Cette approche oublie les exigences de la vie d’une société et l’importance de l’expérimentation juridique. Elle néglige aussi la nature du droit de l’interprétation juridique qui opère parfois comme mécanisme de création et non seulement, comme une technique mécanique de dégagement d’un sens caché d’un texte.

Le droit ne s’accomplit jamais définitivement. Des problèmes continuent à se poser. Je pense, par exemple, à l’intégration des questions d’équité procédurale dans le système de contrôle judiciaire. On peut aussi s’interroger sur la question des limites du système actuel de contrôle judiciaire et de sa capacité de s’adapter aux fonctions administratives autres que celles d’adjudication. Comment fixer les limites de ce contrôle et ses modes d’exercices particulièrement à l’égard de l’application des normes fondamentales par exemple dans le cas des fonctions de décision individuelle et de réglementation de l’administration publique.

L’essence du contrôle judiciaire correspond à des objectifs simples à définir : maintenir un ordre juridique stable sur des questions de droit fondamentales et assurer le respect d’un processus décisionnel rationnel et juste dans l’administration publique. La réalisation de ces objectifs demeure difficile surtout lorsque le contrôle judiciaire est trop souvent employé pour prolonger des débats devant la justice ou obtenir une seconde chance de modifier une décision prise en réalité dans les marges de la raison et de l’équité procédurale.

L’une des beautés du droit se retrouve dans la nécessité de faire appel à l’imagination au-delà des tentatives ou des espoirs de s’endormir dans un cadre formel immuable. Le présent débat sur les normes de contrôle témoigne de cette tentation et de ce défi. Il s’agit d’apprendre à contrôler le contrôle judiciaire.


[1] Renvoi relatif à la sécession de Québec, [1998] 2 R.C.S. 217.

[2] RLRQ, c. C-12.

[3] S.C.F.P. c. Société des Alcools du N.-B., [1979] 2 R.C.S. 227.

[4] Domtar Inc. c. Québec Commission d’appel en matière de lesion professionnelles, [1993] 2 R.C.S. 786.

[5] Voir: par exemple, P. Noreau, F. Houle, M. Valois, P. Issalys, La justice administrative : entre indépendance et responsabilité – Jalons pour la création d’un régime commun des décideurs administratifs indépendants, Éditions Yvon Blais, Cowansville 2014.

[6] P. Garant, Droit administratif, 7e édition, Éditions Yvon Blais, Cowansville 2018.

Looking past Dunsmuir: Beginning Afresh

Imagining stable and generally acceptable administrative law doctrine

The Hon. Justice David W. Stratas,
Federal Court of Appeal

The views expressed in this post are the author’s own and are offered for education and discussion purposes only.

Introduction

In my first article for the Dunsmuir Decade series, “A Decade of Dunsmuir: Please No More,” I suggested that Dunsmuir should no longer be followed. But what should take its place?

To some extent, I have already explored this: D. Stratas, “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency,” (2016), 42 Queen’s L.J. 27 (available online here).

To create a reliable, stable law of substantive review, we need to: (i) identify settled doctrine and well-accepted principles; (ii) deduce the operational rules from them, and (iii) take into account relevant, widely accepted judicial policies. 

Identification of settled doctrine and well-accepted principles

This step builds the solid and stable foundation upon which one can deduce operational rules to regulate this area of law.

As explained in my first article, operational rules developed in this way have every prospect of widespread acceptance, permanence and consistency of application. On the other hand, operational rules constructed out of judges’ personal views and say-so are not likely to survive the next set of judges on the court.

For too long in this area of law, judges have set out operational rules based on their own personal views of the proper relationship between the judiciary and administrative decision-makers and their own freestanding opinions—not well-settled doctrine and well-accepted principles of a longstanding and durable nature.

As we shall see, the settled doctrine and well-accepted principles that underlay this area of law aren’t just longstanding and durable. They are fundamental constitutional principles as well.  This adds force to the operational rules logically deduced from them. 

Some doctrine and well-accepted principles

Fortunately, settled doctrine and well-accepted principles are not hard to find. Dunsmuir did some of the work for us (at paras. 27-31).

Dunsmuir told us that two principles lie at the heart of judicial review and animate it: legislative supremacy and the rule of law.

The U.K. Supreme Court recently affirmed this same idea: Michalak v General Medical Council, [2017] UKSC 71; and see commentary here.

Legislative supremacy suggests that laws passed by legislators must be obeyed. The rule of law suggests that administrators must comply with certain time-honoured standards concerning decision-making processes and substantive outcomes.

The principles of legislative supremacy and the rule of law sometimes can pull reviewing courts in different directions: in some cases, the former tells us that legislatively created bodies with legislatively bestowed jurisdiction must be left alone to the extent the legislation provides (e.g., where the legislation contains a privative clause), but the latter tells us that courts can interfere if certain decision-making standards are not met. Sometimes these principles work in harmony (e.g., where the legislation allows for a full right of appeal).

There is a corollary of these two principles. The corollary also has constitutional force. Our law has a fundamental ordering, one so well-accepted that if any judges do not accept it, they ought to quit and run for public office instead. The principle? Unless valid constitutional concerns are present, laws passed by the legislators bind all, including judges: Imperial Tobacco. Judge-made law must work within the parameters supplied by legislation and cannot oust legislation: see the general discussion in D. Stratas, “The Canadian Law of Judicial Review: Some Doctrine and Cases” (October 21, 2017 version) at pp. 9-14 and 77.

Another principle also springs from the principle of legislative supremacy. But for clarity it is best identified as a separate principle. Where the legislator has vested decision-making power in an administrator and judicial review lies to a reviewing court, administrators and reviewing courts have two different, exclusive roles. Administrators are the merits-deciders and reviewing courts are the reviewers: see discussion in cases such as Access Copyright  at paras. 17-20; Bernard at paras. 17-19; Gusto TV at para. 11; Robbins at para. 17; Tsleil-Waututh at paras. 85 and 87. Each, bound by law, must stick to its role.

A fourth principle is the nature of the separation of powers. Like legislative supremacy and the rule of law, this too is a constitutional principle: Judges’ Reference; Babcock at para. 54.

How does separation of powers play out? In our system of government, government decisions can be placed on a spectrum.  At one end are legislators and their decisions to make laws. Then there are decisions by others, sometimes legislative in nature, on truly political matters or tough political questions about who gets what privilege or grant; in consideration here are political determinations and the government’s view, sometimes ideological, of what is best for all. A little further over are decisions, sometimes legislative in nature, on broad policy matters. Even a little further over are decisions on broad policy matters where some of the policies are informed by laws on the books. Further over are decisions based on a mix of policy matters, legal considerations such as the interpretation of legislation and the adjudication of rights and legal entitlements. Even further over are matters even more in the realm of fact-finding and legal adjudication, devoid of policy content. And then there are decisions pretty much indistinguishable from the matters courts typically handle, matters firmly in the realm of fact-finding, ascertainment of the law and application of the law to the facts, with a view to settling rights and legal entitlements without regard to policy considerations. And then, finally, at the other end of the spectrum there are courts adjudicating rights and entitlements.

Logically, at the legislative end of the spectrum, one would expect that courts would be reluctant to interfere. And absent constitutional concerns, they can’t on the grounds of justiciability. But go a little further in and we find administrators whose decisions are justiciable but who decide matters in a way that is quite alien to what courts do. Way at the other end, just before we reach the courts, one would expect that administrators such as these could be policed quite closely by courts; they are deciding matters and deciding in a way that is pretty much indistinguishable from what courts do.

Put bluntly, at one end, the matters being decided are not in the ken of the court or in its wheelhouse. And at the other, they most certainly are. This has obvious relevance to the intensity to which courts should review various administrative decisions. 

Deducing operational rules from the doctrine and principles: an introduction

Before deducing operational rules from the doctrine and principles, we must consider what sort of operational rules we ought to have in this area of law.

The consideration of this, below, draws upon a more complicated and vigorous debate in the United States concerning the desirability of rules, standards and principles to regulate subject-matters: those interested in pursuing this further can begin, e.g., here and here, and this is just the tip of a large iceberg.

For our purposes here and to keep things simple, I will posit that operational rules can come in two types: rigid and tangible rules and looser, more conceptual, flexible rules.

An example of the former is the test for an interlocutory stay or injunction: RJR-Macdonald. There, one must satisfy three rigid, tangible requirements.

An example of the latter is the test in negligence for determining whether a defendant has fallen below the standard of care expected of persons in the defendant’s position. To the extent that definition of the concept is required, the definition develops as cases are decided over time and it is discovered through good common law method. This is not an area where judges are shackled by a multi-branch test with rigid, tangible requirements that must be met. In the end, judges know the concept and they are trusted to apply it to the cases before them.

In the area of standard of review—determining the extent to which reviewing courts should interfere with an administrators’ decision—what’s best?

A scheme where there are a set number of categories—say, just two—with tangible rules about when each applies? And no flexibility within the categories to adjust the intensity of review? Just two intensities of review, and no others?

Or a more flexible, conceptual, non-categorical approach, one where we recognize that there is a spectrum of intensities of review that vary according to the context?

In the area of appellate review under Housen, the binary categories of review (correctness or palpable and overriding error) depending on whether the appellate court is dealing with questions of law, mixed fact and law, or pure fact makes sense because the context is relatively static. But the substantive review of administrators’ decisions must be different. A more flexible, conceptual, non-categorical approach makes sense because, as explained in the discussion of the separation of powers, above, the administrative context varies so sharply.

The contributions to the Dunsmuir Decade series suggest that most of our leaders in administrative law support a greater reliance on context for determining the extent to which reviewing courts should interfere with administrators’ decisions. I have found no wholesale endorsements of the presumptions set out in Dunsmuir. In academic papers, three of our most well-regarded and knowledgeable administrative law scholars agree that a more contextual approach is apt: P. Daly, “Struggling Towards Coherence in Canadian Administrative Law? Recent Cases on Standard of Review and Reasonableness”; L. Sossin, “The Complexity of Coherence: Justice LeBel’s Administrative Law” and G. Heckman, “Substantive Review in Appellate Courts Since Dunsmuir” (2010), 47 Osgoode Hall L.J. 751 at 778-79.

Judicial policies

In designing operational rules to govern this area of law, universally-accepted judicial policies about how legal proceedings should unfold—not the just the say-so’s and on-the-spot opinions of a particular constellation of judges at a particular moment about social and political values—should play a role. Where the doctrine and principles suggest a number of possible operational rules, the one that best advances these policies should be chosen.

The sorts of judicial policies I am thinking about are access to justice, judicial economy and minimization of litigation expense, as explained in leading decisions such as Hryniak, Danyluk and Housen.

And related to this are insights gleaned from a greater appreciation of the nature of administrative law and the values that animate it, values that judges in this area of law need to draw upon in exercising their discretions: see P. Daly, “Administrative Law: A Values-Based Approach” in J. Bell et al (eds.), Public Law Adjudication in Common Law Systems: Process and Substance (Oxford, Hart Publishing, 2015); and see how administrative law values were deployed to shape operational rules in Tsleil-Waututh, Wilson (F.C.A.) at para. 30, and Bernard.

In considering judicial policies, care must be taken not to elevate any one consideration too far and create operational rules that no longer reflect settled doctrine and well-accepted principles.

For example, minimization of litigation expense might cause some impulsively to advocate for operational rules that are hard-and-fast and simple to apply; some contributors to the Dunsmuir Decade series seem all too ready to go there, for the sake of simplicity.

But simple, one-size-fits-all approaches are at odds with the broad and varied nature of administrators, their decisions and their mandates. Nor are they rooted in settled doctrine and well-accepted principles and, thus, they lack persuasive force and permanency.

The result? Injustice is seen, judges start to chafe, they construct ad hoc exceptions upon exceptions to address the injustice, the longed-for simplicity is lost and, ultimately the operational rules, lacking persuasive force and permanency, join the graveyard of failed approaches over the last few decades.

We’ve seen this all-too-many times. The approach Dunsmuir replaced was called “pragmatic and functional.” It was replaced because it turned out to be neither pragmatic nor functional. The desire in Dunsmuir was about greater simplicity. So how did that work out?

Rigid, inflexible rules aimed at simplicity can be a siren song leading to disaster. And do not underestimate for a moment the simplicity that can emerge from clearly stated operational rules of a conceptual nature founded on definite, well-understood, longstanding doctrine and principles. 

Some possible deductions

What can be deduced from all of the foregoing?

1. Let’s begin with the idea that legislatively created bodies with legislatively bestowed jurisdiction must be left alone to the extent the legislation provides. Let’s combine this with the idea that laws passed by legislators bind all, even courts.

This suggests that reviewing courts must take note of what legislators have said in their legislation. In short, legislative interpretation must be a key part of the exercise of judicial review. In terms of when a reviewing court may intervene, what did the legislature intend?  (By the way, Dunsmuir said this at paras. 30-31, but Dunsmuir’s presumptions and contextual factors and cases post-Dunsmuir have largely ignored this.)

We interpret legislation—discover its authentic meaning—by examining its text, context and purpose: Rizzo and Rizzo; Bell ExpressVu; Canada Trustco. The focus is on what the legislators—the people with the exclusive right to make laws under ss. 91 and 92 of the Constitution Act, 1867—enacted, not what we would like to see enacted. We must do this neutrally and dispassionately without injecting into the analysis our own preconceptions about the extent to which courts should interfere with administrators’ decisions, our opinions about what is best for Canadians or our own musings about what we personally think is sensible and practical: Williams at paras. 41-52; Cheema at paras. 76-80.

This is something courts are very experienced in doing.

Implications can follow. While legislative text may permit a full appeal, this does not mean that a reviewing court may interfere whenever it wants. The legislation, properly interpreted, may suggest that restraint by the reviewing court is in fact warranted.

Where a securities commission makes a decision relying upon a complicated, relatively non-legal, policy-based understanding of the securities industry, did the legislature really intend that courts can interfere with the decision whenever they want to? When the legislation says that an administrator operating in a field that is outside of the ken of the courts can grant a licence when “it is of the opinion that it is in the public interest,” isn’t the legislator really saying that it is for the administrator to decide what is in the public interest with a minimum of interference?

2. Next, the rule of law.

Legislative text can bar an appeal or a review, for example by way of a clause called a “privative clause”. But that does not mean that a reviewing court can never interfere. As explained above, as a matter of legislative interpretation, the legislation, properly interpreted, may suggest that interference by the court in limited circumstances is warranted.

And even if the legislation truly bars appeals in all circumstances, the rule of law allows courts to interfere nonetheless: Crevier; Dunsmuir at para. 31.

But rule of law concerns vary in size and shape. Cases show that the courts’ sensitivity to rule of law concerns is accentuated by decisions that have significant impact on the individual. The more drastic the measure upon an individual, the more likely the court will be vigilant and ensure that the administrator has complied with basic and fundamental substantive and procedural standards of decision-making.

All are subject to law. No one can be a law unto themselves. All must be accountable to the public they serve. Accountability is a particularly important concern for administrators who are emanations of executive government, i.e., part of government as a whole.

Thus, administrators cannot be immunized from meaningful review by reviewing courts nor can they conduct themselves in a way that shields their decisions from review: Crevier, above; and see discussion in Tsleil-Waututh. This has implications for the giving of reasons: administrators must explain themselves sufficiently in order to be accountable to the public and they must say enough to make review possible.

3. In developing and identifying operational rules, courts should respect the third principle—that of the separate roles of the administrator as merits-decider and the reviewing court as reviewer. Operational rules cannot place the reviewing court in the position of merits-decider. This must shape some of our operational rules—e.g., rules concerning the admissibility of evidence in reviewing courts and the role that reviewing courts should play in coming up with reasons that the administrator should have given.

4. Let’s recap some of the above. Legislative interpretation is case specific. As mentioned above, the rule of law assumes greater or lesser prominence depending on the nature of the case. Different types of administrators have different types of decisions. And administrators occupy different positions in the spectrum of administrative decision-makers, at one end completely different from courts and what they do and at the other end virtually the same.

This suggests that the extent to which a court can interfere with an administrative decision must be a qualitative, conceptual assessment that results in a sliding scale.

It follows from the foregoing that the determination of the extent to which reviewing courts should interfere with an administrators’ decision—the intensity of review—is like a dimmer switch, not an on-off switch. Slotting cases into rigid single-standard categories like correctness and reasonableness is inapt.

A few words about a longstanding, uniquely Canadian predilection

For decades now, Canada has dealt with the intensity of review by constructing artificial categories of review and forcing judges to ram their cases into them. We also seem to venerate a superstructure of arcane rules decreeing what goes into what category. Chaos and constant revision is the result.

So we’ve suffered through categorizations into jurisdictional error and non-jurisdictional error, legislative, administrative, quasi-judicial and judicial decisions, categories of correctness, reasonableness and patent unreasonableness and, now, categories of correctness and reasonableness.

Consider for a moment what’s more likely to be true: as a result of Dunsmuir, Canada has found the magic elixir, the idea of two inflexible, single-standard categories of review, and everyone else in the world is silly not to do the same, or Canada is an outlier that stubbornly clings to an idea that everyone else has rejected for good reason?

And what’s the point of all the gymnastics and the spilling of so much ink on whether the standard of review is correctness or reasonableness—and then just doing correctness anyway?

And, with apologies to the majority in Edmonton East, what is wrong with contextual approaches anyway? What I advocate (see below) is not unlike the contextual approach of Baker for determining the level of procedural fairness owed. And Baker has brought relative calm to the law of procedural fairness. A contextual approach can do so here as well. The test for negligence is a contextual approach and no one is calling that law a never-ending construction site; it is reasonably settled in 99.9% of the cases it regulates. Over time, case-by-case, the common law gives a good measure of certainty and predictability.

Some suggested operational rules

From the foregoing, I suggest the following operational rules for this area of law. They are supported by settled doctrine, well-accepted principle and judicial policy. Because of that, if they are adopted, have every chance of widespread acceptance and permanence.

1. The intensity of review must be on a sliding scale that varies according to the terms of the legislation, the breadth of the discretion granted, the prominence of rule of law considerations (including the drastic nature of the decision upon the individual), the nature of the decision-maker and the nature of the decision. Administrators have varying margins of appreciation or ranges of what is acceptable depending on these circumstances.

Avoid rigid tests on this. Let reviewing courts stir all these factors into a pot and decide on the intensity, allowing them to express it in general but still helpful terms. Examples: Farwaha; Boogaard; Mills; Re:Sound; Delios; Abraham; Almon Equipment; Erasmo; Walchuk; Emerson Milling; and see P. Daly, “Struggling Towards Coherence in Canadian Administrative Law? Recent Cases on Standard of Review and Reasonableness” and D. Stratas, “The Canadian Law of Judicial Review: Some Doctrine and Cases” (October 21, 2017 version) at pp. 57-73. Of these, perhaps Boogaard contains the most comprehensive analysis and weighing of factors that can affect the intensity of review.

Indeed, some of these bear a remarkable resemblance to cases in other Westminster jurisdictions whose law is not as chaotic as ours: see, e.g., Wolf v Minister of Immigration, [2004] NZAR 414 (N.Z.H.C.); AI (Somalia) (“the lawfulness of the exercise of powers by a body that is unusually constituted must be judged against its nature and functions, powers and duties and environment in relation to those of other bodies”); Rotherham Metropolitan Borough Council v Secretary of State for Business Innovation and Skills, [2015] UKSC 6; R. v. Secretary of State for the Home Department, [2014] UKSC 60. This suggests that the Canadian cases, above, are on to something useful.

And let’s be honest: cases decided under the reasonableness standard do exhibit variable intensities of review. We see fussy review, not-so-fussy review, and correctness review.  This operational rule reflects what judges, cognizant of the relevant factors, are inclined to do anyway.

Under the approach I suggest, the strong, judge-made presumption of reasonableness adopted by the majority in Edmonton East would disappear, with legislative interpretation playing a greater role in the analysis amongst other factors.

Overall, this would result in more correctness review. Legislative regimes where there is no privative clause (often with a full right of appeal) and other legislative indicators of correctness review will often lead to correctness review; on the other hand, the assignment of power to administrators in specialized areas to grant to withhold licences or approvals based on public interest criteria will often lead to a more deferential review. A good discussion of this is here. The dissenters in Edmonton East are far closer to the approach I suggest.

A return to the old, discarded approach of correctness review for “jurisdictional questions,” recently advocated by a minority of the Supreme Court in Guérin, should be rejected for all the good reasons offered both long ago (see N.B. Liquor at p. 233) and recently (Halifax); and see the compelling majority reasons of the U.S. Supreme Court in Arlington.

“Correctness review for jurisdictional questions” is an example of the siren song of simplicity I spoke of above, one that leads to unprincipled word games and arbitrariness. Under my suggested approach, matters that the Guérin minority considers to be “jurisdictional” and that the administrator “must get right” are going to be matters of legislative interpretation that admit of few interpretive options, i.e., matters on which there the administrator will have little or no margin of appreciation. The Guérin minority could easily live with the operational rule I propose here; and it would be better and offer more permanence because it is based on settled doctrine and well-accepted principles.

2. Make more tangible and rigorous the assessment whether a decision passes muster under deferential standards of review. Identify specific circumstances that can take a decision outside the range of acceptability and defensibility. The cases cited under point 1, above, all do this. Examples include: disobedience with constraining legislation such as legislative recipes that must be followed (Almon Equipment and Emerson Milling); disobedience with mandatory principles such as procedural fairness, constitutional standards, other fundamental standards such as the need for reconciliation with Indigenous peoples and First Nations (Canadian Human Rights Commission); disobedience with court cases that are directly on point and cannot be distinguished on the facts or policy (Abraham; Emerson Milling). For a good approach to deferential review of administrators’ legislative interpretations, see Allen. For more, see D. Stratas, “The Canadian Law of Judicial Review: Some Doctrine and Cases” (October 21, 2017 version) at pp. 57-63.

Certain indicia or badges of reasonableness and unreasonableness can be identified from the case law. These can provide reviewing courts with useful illustrations: Delios at para. 27; Farwaha at para. 100; Re:Sound at paras. 59-61; Boogaard at para. 81; Forest Ethics at para. 69; and for a more complete list of badges, see D. Stratas, “The Canadian Law of Judicial Review: Some Doctrine and Cases” (October 21, 2017 version) at pp. 63-66.  This promotes certainty which facilitates access to justice by fostering predictability of result.

3. End de novo appeals to appellate courts. Judicial economy, access to justice and minimization of expense require this. Absent legal error, first instance reviewing courts deserve deference to their heavily fact-based assessments of the intensity of review. In other words, repeal Agraira and import Housen to govern appellate review.

4. Reviewing courts must stick to their role and not delve in the merits. Their job is to ensure that administrators required by legislators to grapple with a problem have in fact grappled with it. They are not to do the administrator’s job. Therefore, it is no part of the reviewing court’s function to redraft, correct or supplement administrators’ reasons for decision. Neither is it their role to detect error on the administrator’s part and then cooper up the outcome reached by the administrator—an outcome that an administrator might not have reached had it known of its error.

5. A corollary of the relative roles of reviewing courts and administrators is that administrators’ reasons must be sufficient to permit review and to fulfil their obligations of public accountability. A standard similar to that proposed in earlier, lower-court cases on adequacy of administrators’ reasons is designed to meet those objectives and, thus, is more doctrinally sound. Note that these cases sit comfortably with this recent U.K. Supreme Court decision on point.

6. The evidentiary and procedural law of judicial review must reflect the contrasting roles of reviewing courts as reviewers and administrators as merits-deciders. To a large extent, this is happening in the Federal Court of Appeal: see Access Copyright at paras. 17-20, Bernard at paras. 17-19, Gusto TV at para. 11, Robbins at para. 17, Tsleil-Waututh at paras. 85 and 87; and see cases from other jurisdictions referred to in these cases.

7. Judicial economy and efficiency require reviewing courts to take more seriously their remedial discretion. Although a decision is liable to be set aside and sent back for redetermination, that needn’t happen: MiningWatch Canada; Mobil Oil. Circumstances may suggest otherwise. Would any purpose be served in sending the matter back? Realistically speaking, is there only one correct or acceptable result and so there is no point in sending it back? Does chronic or severe maladministration by the administrator mean that the matter should not be sent back but rather should be determined, exceptionally, by the reviewing court? Are there important practical reasons why it should not be sent back? If it is sent back, can the reviewing court, while respectful of the administrator as the merits-decider, still offer guidance by giving fulsome reasons or imposing terms. See generally D. Stratas, “The Canadian Law of Judicial Review: Some Doctrine and Cases” (October 21, 2017 version) at pp. 102-109.

Deduced logically from settled doctrine and well-accepted principle and leavened by contemporary judicial policy, these operational rules will have real staying-power. They give us the best chance of finally ending the tumult and chaos that has afflicted this area of law for decades.

Personal comments

I am one of the last contributors to the Dunsmuir Decade series. On behalf of all of the contributors and on behalf of the administrative law community I would like to offer my personal congratulations and thanks to Professor Daly and Professor Sirota.

I congratulate them both for organizing and carrying out this Dunsmuir Decade series. Collectively, the articles are most illuminating. They have assisted the Bar, academia and the judiciary in understanding the latest issues in the law of substantive review of administrators’ decisions. We are all better for this.

Their blogs, Administrative Law Matters and Double Aspect, are such a service to the legal community. They keep us acquainted with important and interesting developments in administrative law and more generally in public law. To get such prompt insights on the latest legal developments from two cutting-edge experts is a real privilege. Even when we disagree with them, they cause us to reflect, question our preconceived notions, and think about what is correct. Because of the generous work of Professor Daly and Professor Sirota, often many of us end up in a better place in our own work.

Congratulations and thanks!

The Paradox of Simplicity

Dunsmuir failed to simplify administrative law; the framework that replaces it must account for the administrative state’s complexity

In Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, the Supreme Court sought to bring clarity and (relative) simplicity to the law of judicial review of administrative decisions, which as it acknowledged with some understatement “ha[d] not been without practical and theoretical difficulties, [or] free of criticism”. [39] But subsequent decisions, digesting, developing, and departing from Dunsmuir, revealed the futility of its promise of simplifying the law of judicial review in Canada. Practical and theoretical difficulties, and criticism, still abound ― at least when it comes to review of administrative decisions on questions of law. The law on this issue, as other contributions to this symposium note, is in a parlous state. The Supreme Court’s decisions fail to provide guidance to litigants and to lower courts. They are difficult to understand, unrealistic, and appear to do something very different from what they say they do. A fundamental re-assessment, of a magnitude at least equal to that of Dunsmuir, seems to be inevitable.

In my view, one reason why Dunsmuir failed to simplify and clarify the law of judicial review once and for all is the weakness and incoherence of the justifications it provided for judicial deference to administrative decisions. In this post, I review these justifications and argue that none of them can account for the broad scope of deference that Dunsmuir and subsequent cases mandate. Any attempt to reformulate the law of judicial review in the future must acknowledge the weakness of the available explanations for deference, and can only require courts to defer to administrative decision-makers in narrow circumstances where such deference would be well and truly justified.

* * *

Dunsmuir proclaimed that “determining the applicable standard of review is accomplished by establishing legislative intent”. [30] If courts were sometimes, or often, to defer to administrative decision-makers’ interpretations of law, that was because legislatures wanted them to do so. “The existence of a privative or preclusive clause”, [52] providing that an administrative decision was not to be interfered with by the judiciary, was the indication par excellence of the enacting legislature’s desire to commit the determination of issues arising out of the operation of a statutory scheme to a tribunal rather than a court.

But Dunsmuir itself and subsequent cases undermined what the simplicity of a hypothetical regime where privative clauses trigger deference ― and their absence, logically, leads to non-deferential review. For one thing, as Dunsmuir acknowledged, to the extent that they purport to oust judicial review completely, privative clauses cannot be given their full effect, because under the constitution “neither Parliament nor any legislature can completely remove the courts’ power to review the actions and decisions of administrative bodies”. [52] But even putting this constitutional limitation to one side, under the Dunsmuir framework a privative clause is not the only signal of deference. Indeed, according to Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, even a provision creating a right of appeal on a question of law, which seems like an explicit indication that a legislature does not want courts to defer to administrative decisions, is not enough to oust a “presumption of deference”, which thus takes on a life of its own, unmoored from legislative intention.

Another reason for judicial deference to administrative decisions, according to Dunsmuir, is that “certain questions that come before administrative tribunals” ― including questions of law ― “do not lend themselves to one specific, particular result”. [47] The multiplicity of possible answers to the questions facing administrative decision-makers combined with the need to “respect … the legislative choices to leave some matters” [49] to their arbitrament to justify deference.

The problem here is that there is little reason to think that the sets of questions of law that “do not lend themselves to one specific particular results” and of questions on which deference is required under the Dunsmuir framework (or the Dunsmuir framework as modified by subsequent Supreme Court decisions) are identical. Dunsmuir called for deference “where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” [54] or related common law rules. Yet the great variety of statutes setting up administrative tribunals, and indeed of particular provisions within any one of these statutes, makes it unlikely that all of the interpretive questions to which they give rise lack definitive answers. Perhaps the suggestion is that the very legislative choice of setting up administrative tribunals to address these questions means that legislatures think that these questions lack definitive answers, but that too seems implausible. A legislature may wish to set up an administrative tribunal for any number of reasons that have nothing to do with the existence or not of clear answers to interpretive questions: cost-effectiveness, accessibility, the need to execute a law (and not just adjudicate disputes), even patronage.

Finally, Dunsmuir insisted that courts need to defer to administrative decision-makers out of “respect … for the processes and determinations that draw on particular expertise and experiences”. [49] Since then, as the dissenting opinion in Edmonton East noted, “the notion of ‘expertise’ has become a catch-all trigger for deferential review”, [82] even though “this presumption of expertise has rarely been given much explanation or content in our jurisprudence”. [83] Meanwhile, the majority opinion suggested that expertise was independent of the qualifications or functions of administrative decision-makers. The very existence of a specialized tribunal made it an expert.

Perhaps the popularity of the presumption of expertise is due to the Supreme Court’s realization that the other justifications for deference are unpersuasive. Perhaps it is a convenient means to disclaim responsibility for decisions taken elsewhere (similarly, for instance, to the Supreme Court’s insistence, starting in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101, on deference to first-instance judges’ findings of legislative fact). Other contributors to this symposium challenge the notion of administrative expertise as a foundation for deference in greater detail. Suffice it for me to say that, just like legislative intent and the impossibility of a definitive answer, expertise is often a judicial fiction and thus an unconvincing justification for deference.

All this is not to say that there are no cases in which deferential review on a reasonableness standard would not have been intended by a legislature setting up an administrative tribunal, or in which there is indeed a multiplicity or a range of plausible answers to legal questions, or in which the administrative tribunal is (more) expert (than the reviewing court). My point, rather, is that, at a minimum, these justifications do not support deference across the board when administrative decision-makers are interpreting their “home statutes”, which Dunsmuir, and especially cases like Edmonton East require. Indeed, these justifications can operate at cross-purposes, as when the legislature authorizes appeals on questions of law from the decisions of expert tribunals, or when administrative decisions are insulated by privative clauses from review of their answers to questions which do in fact “lend themselves to a specific result”. The Supreme Court’s jurisprudence suggests that all these conflicts must be resolved in favour of deference, but it does not provide any explanation for why this is the case.

* * *

The Supreme Court, presumably, can see these difficulties as plainly as its critics. They might account for at least some of the frequency with which ostensibly deferential review exhibits no sign of deference at all ― another issue that other contributions to this symposium highlight. The only way forward, in my view, is for the Court to allow its explanations to match its decisions, and abandon the pursuit, or the pretense, of across-the-board deference. If deference is ever appropriate, it can only be justified with reference to the circumstances of particular cases. This is not the place for a full exploration of the circumstances in which courts ought to defer to administrative decision-makers on questions of law, if indeed there be any. I will, however, venture a few observations.

First, it should not be presumed that deference is due to all the decisions of a particular administrative tribunal or type of tribunal, or to tribunals interpreting a type of statute. As the dissent in Edmonton East pointed out, a single tribunal may be called upon to decide different types of issues, some of which implicate its expertise or involve policy considerations, while others do not. In particular, even if deference is appropriate to tribunal decisions fleshing out the meaning of vague terms such as “just”, or “reasonable”, or “in the public interest”, it does not follow that it would be called for when the same tribunals answer questions about, say, the relationship between provisions of a statute (even their “home” statute) or two related statutes. The former type of question calls upon the tribunals’ specialized knowledge of the standards of justice or reasonableness, or the requirements of the public interest in the field they regulate. The latter is concerned with more general legal skills which courts possess no less, and often more, than tribunals.

Further, even when dealing with a type of question answers to which would normally attract deference, administrative decision-makers are sometimes so constrained by judicial precedent that their decision-making is not meaningfully different from that of a trial court striving to apply appellate authority. The decision that led to in Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v Caron, 2018 SCC 3 is a good example, as the relevant analysis concerned the scope of the jurisprudence of the Québec Court of Appeal. In similar circumstances, a trial court’s conclusions would not be entitled to any deference on appeal. Why should the administrative decision-maker’s? Assertions to the effect that judicial review and appellate review are not identical are not convincing in those cases where the nature of the decision under review is such that they practically are.

Finally, and more substantively, it is important to recall what is at stake in judicial review of administrative decisions. Proponents of deference often think of it as a means of protecting the decisions of an administrative state devoted to economic regulation in the name of social justice, or at least of enlightened technocracy. But there is much more to the administrative state economic than labour boards or arbitrators, whose decisions supply a disproportionate share of material for the Supreme Court’s administrative law decisions. The law of judicial review of administrative action applies also to the review of correctional authorities, professional licensing bodies, immigration officers, human rights tribunals, even universities and municipalities, and much else besides. People’s ability to enjoy their property or to practice their profession, their right to enter into or to remain in Canada, even their liberty (or at least the conditions of their detention, which the Supreme Court recognizes as a liberty interest) can depend on the way in which an official or a body exercising powers (purportedly) delegated by a legislature interpret the law. Is it enough to tell them, as Dunsmuir effectively does, that it is sufficient that the interpretation that causes them to lose these rights or benefits be justified, transparent, and intelligible?

* * *

Dunsmuir sought to simplify Canadian administrative law by setting out a unified analytical framework based on “the structure and characteristics of the system of judicial review as a whole”. [33] As part of this process, it set out a number of justifications that were supposed to support a wide-ranging policy of judicial deference to administrative interpretations of law. Well-intentioned as it was, the attempt did not succeed. The justifications advanced in Dunsmuir cannot justify deference in many cases where the Supreme Court said it is due. The weakness of, and occasional conflicts among, the justifications for deference advanced in Dunsmuir have fostered renewed confusion in the law of judicial review.

It is important that this confusion be eliminated. Canadian administrative law is reaching a point where it can scarcely be called law at all, such is its inability to provide guidance to those who must apply it or predict how it will be applied. Yet ― perhaps paradoxically ― the way to clarity passes not through the application of a single all-encompassing principle, but through greater attention to the circumstances of individual cases. As these circumstances vary, so must the applicable rules. It is Dunsmuir’s attempt to deny or at least avoid this complexity that is responsible for its failure.

The Dark Art of Deference

Dubious assumptions of expertise on home statute interpretation

Mark Mancini, Clerk at the Federal Court of Canada

The views expressed in this post are the author’s own and do not reflect, in any way, the views of the Federal Court of Canada.

The 10th anniversary of Dunsmuir presents an opportunity to revisit perhaps its most controversial aspect: the seeds it planted for a presumption of deference on home statute interpretation. As Professor Daly notes, the presumption is a “black hole” which engulfs questions of statutory interpretation in administrative law: Paul Daly, “Unreasonable Interpretations of Law” in Judicial Deference to Administrative Tribunals in Canada at 235-36. To the Supreme Court, the presumption exists because  “expertise …inheres in a tribunal itself as an institution” (Edmonton East, at para 33).

In this contribution, I will engage with what I call the “dark art of deference” that Dunsmuir entrenched: the seamless transfer that courts make from expertise in policy to expertise in other matters, including statutory interpretation (Edmonton East, at para 83). The mere fact of membership in a shadowy guild of expertise does not a legal expert make.

Here, I aim to: (1) demonstrate that expertise writ large does not provide a sound justification for deference on questions of law, unless incorporated into the decision-maker’s enabling statute and (2) relatedly, argue that deference is not prescribed by extralegal justifications such as expertise, but only by statutory language, which determines the leeway a court should afford to a decision-maker. The presumption of deference, which could run against statutory language, should be abandoned.

My comments start from three propositions which are rooted in constitutional theory: (1) absent constitutional objection, legislation binds; (2) administrative decision-makers enabled by statute can only go so far as their home statute allows (3) it is a court’s job, on any standard of review, to enforce those boundaries; in American terminology, to “say what the law is” (Marbury v Madison; Edmonton East, at para 21).

***

As early as the seminal case of CUPE v NB Liquor, “expertise” has been used to justify deference on questions of home statute interpretation. Yet beyond this general proposition, Canadian administrative law history “reveals…that little work has been done to pinpoint exactly what the concept of expertise means…”: Laverne Jacobs and Thomas Kuttner: “The Expert Tribunal.” Perhaps as a result, the problems associated with expertise as a basis for deference have not been extensively explored.

Most basically, expertise may be a valid practical justification for deference, but it is hardly doctrinally valid. To treat a decision-maker’s decision as binding on the basis of expertise abdicates the role of courts in enforcing statutory boundaries. While the court still nominally retains this power under the presumption of reasonableness, the presumption is virtually irrebuttable.  As Justice Scalia once wrote:

If I had been sitting on the Supreme Court when Learned Hand was still alive, it would similarly have been, as a practical matter, desirable for me to accept his views in all of cases under review, on the basis that he is a lot wiser than I, and more likely to get it right. But that would hardly have been theoretically valid. Even if Hand would have been de facto superior, I would have been ex officio so. So also with judicial acceptance of the agencies’ views…

This criticism, compelling as it is, has not been so for Canadian courts, with Edmonton East as proof positive. Courts on judicial review do view expertise as a valid doctrinal reason for deference, and are willing to put aside their own interpretation of a statute in favour of a decision-maker’s. This could be defensible, at least practically, if courts deferred on the basis of expertise which existed empirically. But in the post-Dunsmuir world, courts do not investigate expertise empirically before determining whether the presumption of deference applies. The presumption, though justified by expertise, can exist despite it. Yet as Professor (now Premier) MacLachlan says, if expertise is to support a presumption of deference, interrogation of a decision-maker’s expertise cannot be avoided indefinitely.

In the “pragmatic and functional era” which predated Dunsmuir, the courts did not avoid the question of expertise in determining the standard of review. Even though privative clauses were given less emphasis as clear statutory signals (see Pezim and the discussion in Khosa, at para 87), there was still a focus on determining relative expertise. For example, in Pasiechnyk, the Court was faced with a question of home statute interpretation. The Court considered the composition, tenure, and powers of the Saskatchewan Workers’ Compensation Board before holding that the decision-maker was expert on the matter before it. In Pushpanathan, at para 33, the Court noted that “expertise must be understood as a relative, not an absolute concept” and reasoned that courts must conduct an analysis in each case to compare its expertise to the decision-maker’s on the matter before it.

Contrast Edmonton East, where there was an assumption of the decision-maker’s expertise, but no actual analysis. Professor Sirota calls this “post-truth jurisprudence” and justifiably so—the dissent noted that the decision-maker did not have expertise in matters of statutory interpretation, and noted that expertise acted as an unjustified “catch-all” for deference (Edmonton East, at paras 82-83).

The Edmonton East dissent points out the problem with an automatic presumption of deference.  The role of courts on judicial review, to have the last word on the statutory boundaries of administrative decision-makers, is limited to reviewing whether the presumption is rebutted. Unfortunately, Dunsmuir, let alone Edmonton East, gave little guidance on when the fortified presumption of home statute interpretation could be rebutted: see Justice Cromwell’s reasons in Alberta Teachers. If legislative intent is the “polar star” of judicial review (CUPE v Ontario (Minister of Labour), at para 149), the search for that intent is attenuated by a game of categorical whack-a-mole with the correctness categories set out in Dunsmuir.

A presumption could be a useful legal device if it were true that most administrative decision-makers were expert in matters of statutory interpretation. Perhaps, it could be argued, decision-makers develop “field sensitivity” in legal decision-making even if they are not expert at the outset.  As Professor Green notes, a presumption along these lines could save judicial review courts the transaction costs associated with conducting an exhaustive review of the expertise of decision-makers in every case.

But such a presumption is only useful if (1) the facts supporting its existence are generally, empirically true; (2) courts themselves actually conduct the analysis to determine whether the presumption is rooted in fact, as in the Pushpanathan analysis (assuming that something like “field sensitivity” could be measured empirically) and (3) there is clear guidance on how to rebut the presumption. None of these exist with the current presumption of reasonableness.

***

What is the alternative if expertise writ large is simply a bad proxy for deference in the post Dunsmuir world? The answer is that expertise could be a justification for deference, but it must be based in a statute which recognizes it with respect to the precise legal issue before the court. Professor Martin Olszynski argues that the court should adopt a presumption of correctness for home statute interpretation, based on the principle of legislative supremacy. I agree that legislative supremacy is a better justification for deference than an unsupported concept of expertise, but the simple fact that a decision-maker has been delegated statutory power is not enough to justify deference, and it is not enough to demonstrate that a decision-maker is expert. What matters is what the legislature says about the merits of the matter before the court, including whether the enabling statute codifies any indication of expertise on that matter.

The Supreme Court does not accept this position. In Khosa, at para 25 the Court noted that the mere fact of  delegation to a decision-maker justifies deference on the basis of generalized expertise. But this is imprecise. Simply because the legislature delegates power to a decision-maker says nothing about how intensely a court should review that exercise of power and it says nothing about the expertise of the delegated decision-maker. Any logical leap from the mere fact of delegation to deference is a legal fiction. As Professor Vermeule notes in his splendid book Law’s Abnegation: “The delegation fiction is modern administrative law’s equivalent of the fiction that the Queen-in-Parliament still rules England—although she is bound always to act on the advice of her ‘ministers’ ” (30).

While the legal fact of delegation is irrelevant to deference, the terms of the delegation itself are relevant. This is because a legislature may speak in capacious terms, setting out requirements for expertise in a decision-maker and justifying a wide scope of options for a decision-maker. It may also speak in narrow terms, implying the opposite. In other words, the legislature can mandate deference through language, and the court on judicial review can recognize this deference, and apply that range to the decision taken by the decision-maker. This is nothing more or less than statutory interpretation by the judicial review court; and there is no need for a complex standard of review analysis to determine the intensity of review. The Supreme Court in McLean recognized as much: sometimes, statutory language will only permit one reasonable outcome. But in other situations, where the court finds that there are multiple permissible outcomes available, a decision within the range will be legal.

This approach is consistent with the role of courts on judicial review to have a final say on the law. It is also consistent with the notion of deference “itself a principle of modern statutory interpretation” (McLean, at para 40), because a court will not interfere with an administrative decision unless the principles of statutory interpretation honestly say so. This is demonstrated on the facts of McLean. The Court upheld the interpretation of the British Columbia Securities Commission’s home statute because it fell within the range of alternatives which the statutory language could bear. On the interpretation undertaken by the Court of the text, context, and purpose of the statute, a number of reasonable options were available to the Commission, and it chose one. This meant its decision was reasonable.

The McLean approach moves us away from imputed expertise in the post-Dunsmuir world to a real analysis of the intent of the legislature. Under this analysis, there is no need for an abstracted notion of expertise justifying a lawerly presumption of deference; nor is there a need for the labels of “reasonableness” or “correctness.” There is only a need for a court to defer where there is some indication in language to do so, including a statutory indication of expertise.

This is similar to the approach to judicial review of agency determinations of law in the United States under Chevron. Under Chevron, unlike Canada’s current standard of review framework, there is no specific analysis to determine the standard of review. For all its warts, Chevron at least avoids the protracted standard of review analysis, with its attendant standards, presumptions, categories, and factors which are confusing for the most learned of administrative lawyers. Its focus is properly on the enabling statute.

In fact, Dunsmuir and its progeny complicate the fact that judicial review on questions of law is fundamentally about statutory interpretation, nothing more or less. While there may be some trepidation associated with using the principles of statutory interpretation to discern whether deference is due, this is unavoidable. If administrative decision-makers are set up by statute, we cannot avoid an analysis of the decision-maker’s statutory powers, and the principles of statutory interpretation are the best we have. The key point is that the principles should not be used to determine if the statute is ambiguous or not, à la Chevron—they should be used to determine whether the statute’s language is sufficiently “open textured” to justify deference.

To come full circle, how does this approach square with the problem of expertise? In Edmonton East, the Court listed a number of justifications for a presumption of deference, including “access to justice” and expertise. These justifications exist outside of the statutory context, in the abstract. They are not necessarily tethered to the scope of the delegation afforded to the decision-maker. However, if statutory language is the focus, expertise can be a supporting justification for deference if represented in statutory language. The problem with the current presumption of deference is that it is based on expertise which may or may not be represented in statute.

Dunsmuir, 10 years on, has instantiated the dark arts of deference into the fabric of the Canadian law of judicial review in a manner untethered to statute. This is not a welcome development. Expertise should not be a “free standing” justification for deference (Khosa, at para 84). Perhaps it is time to pull back the curtain on the dark arts and drill down to the root of the law of judicial review: statutory interpretation.

Transcending Jurisdictions

Teaching Dunsmuir in Australia

Narelle Bedford, Bond University

Australia. Canada. Kangaroo. Moose. The kangaroo and the moose are both uniquely adapted and suited to their environments. Despite these vastly different environments, the universal questions of life (movement, food and care of infants) are the same. It is in the answers to those universal questions that variations occur.

As it is with kangaroos and moose, so it is with administrative law in Canada and Australia.

I teach a full semester course in Canadian Administrative Law to Canadian students. In Australia.[i] The fact this course is offered there may be a surprise to some readers, but its existence is evidence of the impact of internationalization in legal education. The benefits of internationalization were outlined in a 2012 report on Internationalising the Australian Law Curriculum for Enhanced Global Legal Practice:[ii]

All law students’ thinking and learning is enriched by a curriculum which requires them to consider diverse approaches to common problems; to learn from differences but be alert for universals; to strive for best practice; to avoid parochialism, ignorance, and narrow‑mindedness; to cultivate the spirit and habit of open-mindedness and tolerance; and ultimately to make a contribution to advancing the common good.

Although administrative law may not be routinely thought of as a course with an international aspect, there are universal issues dealt with by administrative law in all jurisdictions – such as the regulation of executive power – that render it perfect to transcend jurisdictions. The same applies to the Dunsmuir decision.

Dunsmuir – the Australian context

The Canadian National Committee on Accreditation includes the Dunsmuir case as a prominent part of the substantive review component in the administrative law syllabus.[iii] The hurdle to teaching Canadian Administrative Law in Australia is finding ways to make it “authentic” to Canadian students who are already studying in Australia but would be seeking to return, write exams to gain Canadian accreditation and commence the journey to practice as lawyers in Canada.

Furthermore, in the book What the best law teachers do the authors identified a range of common traits amongst best law teachers that all were present regardless of jurisdiction.[iv] Amongst these was the ability to “actively engage” their students.[v] This concept has parallels to the “deep learning” (as opposed to surface learning) articulated by Professor Michael Head, who specialises in teaching Administrative Law in Australia and spent a semester at Osgoode Hall.[vi] With the key aims of authenticity and active engagement, I therefore offer two observations on teaching Dunsmuir in Australia.

Observation One – Identify the universals

By identifying the universals, even if the universals are questions ― such as how do the rule of law and legislative supremacy interrelate ― students can actively engage with topics and see their relevance regardless of the jurisdiction in which they may ultimately practice.[vii] Dunsmuir is relevant to all law students as it provides a structured consideration of key universal questions, for example deference, even though the answers may differ as between jurisdictions. Within deference, Dunsmuir grapples with questions of why, how, and when should courts defer to administrative decision‑makers.[viii] Through this discussion, broader and more fundamental questions inevitably arise, for instance what may be the parameters of judicial review itself. Moving beyond these questions, the case also raises aspects of procedural fairness including the ongoing discussion surrounding the importance of reasons and what courts should do in the absence of reasons or where only scant reasons are provided.

A further universal is the impact of privative clauses, especially given that both the Canadian and Australian parliaments/legislatures continue to insert them into legislation. Dunsmuir included privative clauses as one of the factors to be considered in a standard of review analysis, yet they are not in themselves determinative. The Australian position is similar but the means to get to that end is vastly different; in Australia the concept of jurisdictional error has a critical role.

Framing these topics as universal questions for all legal systems contributes to actively engaging students. Sometimes the detail of administrative law can be overwhelming for students who are encountering it for the first time. In an effort to help students embrace the subject, the universals provide a touchstone for them to return to as they develop their understanding of the subject. Understanding universal questions arise and that there are different ways of arriving at solutions and the solutions may ultimately be the same or may differ, helps students to appreciate the importance and complexity of administrative law in any society.

Observation Two – Embrace technology

Canadian Administrative Law is taught on campus in person via a two hour weekly participative lecture and a weekly one-hour small group tutorial of typically 10 to 12 students featuring lively discussion of problem‑based questions. To increase authenticity, I coordinated the production of a video featuring one of the Supreme Court Justices who wrote the majority judgment in Dunsmuir, Justice Bastarache. In the video he explains the key issues in Dunsmuir, the resolution reached in the case and its subsequent application. The video is played in four parts over four lectures on substantive review and also available at any time via the subject website.

The benefit of this particular technology assisted learning has been evaluated. I have collated and analyzed feedback from students spanning many semesters, and their reflections are typified by the following comments:

The Justice Bastarache videos provided a unique inside perspective on the reasoning process of the Supreme Court of Canada. The videos were helpful in illustrating that the highest court recognised the practical problem with the existing state of the law and had a clear purpose in mind when approaching Dunsmuir. It sought to clarify and better define the law surrounding judicial review. I appreciated the effort that went into obtaining these comments from the author of the judicial decision himself. The videos provided an invaluable supplementary perspective.

The videos reflected, through Justice Bastarache’s comments, the way that the Supreme Court balances its role with the will of the legislature reflected in statute. I found the videos showed a more humanised and personal look at the work of the court, illustrating that its decisions and that their effects are carefully considered beforehand.

Thus, the video capsule brings the case “alive” for students using technology and crystallises Dunsmuir’s practical relevance.

Conclusion

The universal issues raised in Dunsmuir endure and thus the case has the potential for enduring influence. As noted in respect of the 50th anniversary of the Roncarelli case, “normative understanding of the decision develops through reflection”.[ix] I hope this will also be true of Dunsmuir, so that judges, practitioners, and scholars are still analysing the case on the occasion of its 50th anniversary as we have for its 10th. The concept of a blogging symposium is consistent with my observations on teaching Dunsmuir in Australia ― identify the universals and embrace technology. Change is a constant, but I do note the Roncarelli analysis also included a perspective from an Australian scholar.[x] Long may the kangaroos and moose discuss and analyse the universals together and long may we teach each other’s significant cases to our students.


[i] Bond Law has been teaching a Canadian program for over 20 years. In 2015, Bond Law welcomed its 1,000th Canadian student.

[ii] Australia, Office of Teaching and Learning, Final Report on Internationalising the Australian Law Curriculum for Enhanced Global Legal Practice (2012).

[iii] The National Committee on Accreditation (NCA) is a standing committee of the Federation of Law Societies of Canada. The mandate of the NCA is to help Canada’s law societies protect the public interest by assessing the legal education and professional experience of individuals who obtained their credentials outside of Canada or in a Canadian civil law program, and who intend to practice in a Canadian common law jurisdiction.

[iv] Michael Hunter Schwartz, Gerald Hess & Sophie Sparrow, What the Best Law Teachers Do, (Harvard University Press, 2013).

[v] There is a substantial body of academic scholarship emphasising the importance of student engagement. For example, in legal education specifically see: Lillian Corbin; Kylie Burns, and April Chrzanowski, “If You Teach It, Will They Come? Law Students, Class Attendance and Student Engagement” (2010) 20(1) Legal Educ. Rev. 13 & Bonita London, Vanessa Anderson and Geraldine Downey, “Studying Institutional Engagement: Utilizing Social Psychology Research Methodologies to Study Law Student Engagement” (2007) 30 Harv. J.L. & Gender 389.

[vi] Michael Head, “Deep Learning and ‘Topical Issues’ in Teaching Administrative Law” (2007) 17 Legal Educ. Rev. 159 at 163. This built on research by the scholars who initially proposed the distinction between deep and surface approaches, see Ference Marton and Roger Säljö, (1976), “On Qualitative Differences in Learning: I—Outcome and Process” (1976) 46(4) Brit. J. Educational Psychology 11.

[vii] Graeme Orr argues both context and coherence are necessary in the teaching of public law in “Teaching Public Law: Content, Context and Coherence” (2015) 25 Legal Educ. Rev. 299.

[viii] As identified in Paul Daly, A Theory of Deference in Administrative Law: Basis, Application and Scope, (Cambridge University Press, 2012).

[ix] Genevieve Cartier, “The Legacy of Roncarelli v Duplessis 1959 -2009” (2010) 55 McGill L.J. 375 at 392.

[x] Mark Aronson, “Some Australian reflection on Roncarelli v Duplessis” (2010) 55 McGill L.J. 375 at 615.

Did Dunsmuir Simplify the Standard of Review?

An empirical assessment

Robert Danay, Justice Canada and UBC

(The author’s views do not necessarily reflect those of the Department of Canada or the Government of Canada)

While the Supreme Court issued three sets of reasons in Dunsmuir v New Brunswick,[i] all members of the Court agreed that the system governing the standard of review in administrative law had become too complex and was in need of simplification. Mr. Justice Binnie offered perhaps the most compelling reason to support this reform: access to justice.

The existing system, Binnie J argued, inflated the time and legal resources required to adjudicate what is supposed to be a quick and inexpensive way of challenging governmental decisions. As he persuasively put it (at para. 133) “[e]very hour of a lawyer’s preparation and court time devoted to unproductive ‘lawyer’s talk’ poses a significant cost to the applicant.…A small business denied a licence or a professional person who wants to challenge disciplinary action should be able to seek judicial review without betting the store or the house on the outcome.” As a decade has now passed since these words were penned, it behooves us to ask: did the Court in Dunsmuir succeed in reducing the legal resources devoted by litigants to debating the standard of review? As readers of Paul Daly’s Administrative Law Matters blog may already know, my preferred approach to answering such questions is through empirical analysis.[ii] This case is no exception.

As described in greater detail below, after reviewing a sample of 120 factums filed by litigants before and after Dunsmuir was decided, it would appear that the Supreme Court may not have been successful in reducing the legal resources devoted by parties to mooting the standard of review. This suggests that – as Madam Justice Abella recently argued in Wilson v. Atomic Energy of Canada Ltd.[iii] – significant new doctrinal changes may be needed in order to fully realize the goal of simplifying the standard of review for litigants and lower courts.

Methodology

Using WestlawNext Canada’s database of factums extracted from court files,[iv] I collected factums from judicial review applications and statutory appeals in the Ontario Divisional Court and the Federal Courts. With each jurisdiction, I collected the 30 factums in the database that were filed in the period immediately preceding the release of Dunsmuir (going back as far as July of 2006) as well as the most recent 30 factums found in the database (these span the period from September of 2013 to December of 2016).

As a rough measure of the extent to which parties spent legal resources on mooting the standard of review, I tabulated the number of paragraphs in each factum devoted to that issue as well as the proportion of the total paragraphs in each factum on the standard of review. Comparing the average of both figures from before and after Dunsmuir affords a crude assessment of whether the goal of simplifying the standard of review for litigants was successful.

With regard to the Ontario Divisional Court, the 60 factums that I examined concerned judicial review applications or statutory appeals of a variety of different administrative decision-makers, the most common being the Director of the Financial Services Commission of Ontario, a municipality, the Human Rights Tribunal of Ontario or the Environmental Review Tribunal. The 60 factums in the dataset that were filed in the Federal Courts primarily concerned a variety of intellectual property-related decision-makers such as the Registrar of Trade-marks and the Commissioner of Patents as well as the Canadian Human Rights Tribunal and adjudicators dealing with federal labour relations matters.

Results: No Apparent Reduction in Legal Argument on Standard of Review

The results of this empirical analysis suggest that the Court in Dunsmuir may not have been successful in reducing the legal resources that parties were required to spend in order to address the standard of review

With regard to factums filed in the Ontario Divisional Court, the average number of paragraphs dealing with the standard of review increased from 8.5 paragraphs per factum before Dunsmuir to 10.4 paragraphs more recently, representing an increase of 22%. Similarly, the average share of factums devoted to debating the standard of review increased after Dunsmuir, from 14.2% in 2006-08 to 16.5% in 2013-15, which represents an increase of 16%.

Danay1

The data from the Federal Courts exhibit a similar trend. The average number of paragraphs dealing with the standard of review increased from 2.6 paragraphs per factum before Dunsmuir to 3.4 paragraphs more recently, an almost 31% increase. On the other hand, the overall percentage of factums devoted to the standard of review in the Federal Courts remained unchanged at 6%.

Danay2

While this limited study has some obvious methodological limitations,[v] it does seem to suggest that the changes made by the Supreme Court to the standard of review in Dunsmuir have not reduced the extent to which parties must devote resources to arguing the standard of review.

Conclusion: Vindication for Madam Justice Abella?

The data reviewed above provide some support for the provocative position taken by Abella J in Wilson. In that case Abella J decried as “insupportable” the fact that a substantial portion of the parties’ factums in that case and the decisions of the lower courts were occupied with what the applicable standard of review should be. This, she suggested (at para 20), required the Court to “think about whether this obstacle course is necessary or whether there is a principled way to simplify the path to reviewing the merits.”

Madam Justice Abella’s proposed solution was to adopt a single reasonableness standard of review.[vi] While none of her colleagues were willing to endorse this proposal, Abella J conceded (at para. 19) that “[t]here are undoubtedly many models that would help simplify the standard of review labyrinth we currently find ourselves in.” If simplification in the name of access to justice remains a priority, members of the Court will need to explore and adopt such a model in the coming years. If they do, then that new model will be ripe for further empirical assessment when it is ultimately applied by litigants and lower courts.


[i] [2008] 1 SCR 190 [Dunsmuir].

[ii] See Robert Danay, “Quantifying Dunsmuir: An Empirical Analysis of the Supreme Court of Canada’s Jurisprudence on Standard of Review” (2016) 66 UTLJ 555 [Danay, Quantifying Dunsmuir].

[iii] [2016] 1 SCR 77 [Wilson].

[iv] WestlawNext indicates on its website that this database “includes facta extracted from the court files of significant court cases in every Canadian Common Law jurisdiction.” These documents are selected from cases that fall into 12 different subject areas including “Canadian Cases on Employment Law,” “Canadian Environmental Law Reports,” “Intellectual Property Cases” and “Municipal and Planning Law Reports.”

[v] Aside from the fact that the dataset of factums is not truly random, I have not sought to control for potentially confounding factors using a multiple regression analysis. For an explanation of why I tend to reject doing so see Danay, Quantifying Dunsmuir, supra note 2 at 576.

[vi] Ibid. at paras. 28-37.

Transparency and Institutional Bias in Canadian Administrative Law

Why the Dunsmuirian approach is not enough

Laverne Jacobs, University of Windsor

When it comes to the broad platform of procedural fairness, Dunsmuir itself says very little. Yet, the Dunsmuirian approach to determining standard of review has had a significant impact on the review of procedural fairness in Canadian administrative law.

In this contribution, I argue that despite Dunsmuir’s influence on procedural fairness generally, a Dunsmuirian approach without more is not enough to produce meaningful judicial review of the procedural fairness issues relating to independence and accountability. These issues are often presented through cases in which institutional bias is alleged on the part of the decision-making body.  As academics, lawyers, judges and legislators, we would be wise at this juncture to consider more closely the ways in which administrative law can serve to regulate issues of procedural fairness in the administrative state. I propose that we start this endeavour from a largely different perspective: with an articulation of the value of transparency and what it can bring to both public administration and to judicial review, using institutional bias as an example.

a) Dunsmuir and procedural fairness generally

The Supreme Court of Canada in Dunsmuir reduced the number of standards of review from three to two and set out what was hoped to be a simpler methodology for determining the appropriate standard of review. This change was made in response to the growing concerns that the standard of review analysis was becoming unnecessarily complex, time-consuming and confusing, to the detriment of both litigants and the development of the case law (see, in particular, Justice LeBel’s cri de coeur in Toronto (City) v CUPE 2003 SCC 63).

The paragraphs in the Dunsmuir decision that address the standard of review analysis deal primarily with how to determine which standard to apply (Dunsmuir, paragraphs 43-64). In brief, from these paragraphs, the reader learns that the reasonableness standard is animated by deference as respect and that this deference usually exists in situations where there is a privative clause, specialized expertise, and/or questions of law that stem from the tribunal interpreting its own statute or statutes closely connected to its function. Correctness is said to apply to constitutional questions regarding the division of powers between Parliament and the provinces, questions of true jurisdiction or vires, questions of general law that are of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise, and to issues regarding the jurisdictional lines between two or more competing specialized tribunals. Interestingly, procedural fairness is not highlighted in Dunsmuir as containing a set of questions to which correctness review applies (even though the nature of the procedural fairness obligations owed to a public servant is a key issue in the case). In the post-Dunsmuir jurisprudence, it is identified as such for the first time by the Supreme Court of Canada in Khosa (2009 SCC 12) (at para. 43) in the following year.

Yet, despite the affirmation that correctness should be the appropriate standard of review for questions of procedural fairness, in the post-Dunsmuir jurisprudence, one begins to see a door opening towards reasonableness for the review of certain matters within the procedural realm. Admittedly, the door had been pushed ajar much earlier with Baker [1999] 2 SCR 817 where the SCC had outlined five factors for determining the degree of fairness owed. The fifth of these factors requires a reviewing court to pay deference to the procedural choices made by the decision-maker. It wasn’t until the pronouncement by Justice Evans in Re:Sound v Fitness Industry Council of Canada 2014 FCA 48, followed by Justice Stratas’ even more direct grappling with the issue of whether deference should be given to certain procedural matters in Maritime Broadcasting 2014 FCA 59 , however, that the approach raised by Baker’s fifth factor was truly taken seriously. In Maritime Broadcasting, the standard of reasonableness was applied to a labour board’s choice of procedure for receiving the evidence and submissions of parties. The decision was appropriate in its context but the identification of matters of procedural fairness that should receive reasonableness review may be fine-tuned even further by a look at some of the instances in which reasonableness review may be more tricky to accept.

b) Institutional Bias as an Issue of Procedural Fairness

Disqualifying bias on an institutional level exists when a reasonable apprehension of bias can be raised in a significant number of cases before the administrative actor. Questions of disqualifying bias, including institutional bias, reside within the realm of procedural fairness.

A common way that institutional bias issues occur is as a result of unrevealed interactions between the executive branch of government in a way that either appears to have or may have had an impact on an administrative actor and/or the way that it is to determine an issue before it. For example, in the ALRB 2004 ABQB 63 case, the executive branch of government consulted the provincial labour board when it was revamping the province’s labour legislation. The purpose of the consultations was, in part, to obtain information from the Board about how the legislation was working on the ground. Much of the discussions were simply unknown, however, with the documents released in response to freedom of information requests made by two of the major unions arriving in redacted form.  The unions brought an application for judicial review, arguing that institutional bias tainted any decision relating to the provisions of the legislation involved in the legislative restructuring. Although their application was unsuccessful, the case raises interesting questions about the need to safeguard the adjudicative independence of administrative decision-makers as well as how to clarify the parameters of any accountability owed to the executive branch of government. Ultimately, guidelines on consultation between the board and the executive were created, setting out positive obligations regarding disclosure to the parties and to the public.

Another example may be found in Geza 2006 FCA 124, where, in the wake of a large influx of Hungarian Roma refugees, the Immigration and Refugee Board (IRB) worked with the executive branch of government to create a “lead case”. For the Federal Court of Appeal, Justice Evans held that although there was no single fact which on its own could establish a reasonable apprehension of bias, a reading of the totality of the evidence would suggest to a reasonable person that reducing the number of successful Roma refugee applications was among the goals of the design of the lead case initiative. This was enough to establish a reasonable apprehension of institutional bias.

It is well-established doctrine that protecting the independence of decision-makers serves the greater goal of ensuring that they can make decisions in an atmosphere free of inappropriate influence or interference. This in turn protects public confidence in the administration of justice (Valente v The Queen, [1985] 2 SCR 673,  Canadian Pacific Ltd v Matsqui Indian Band [1995] 1 SCR 3).

c) Transparency: Tempering Dunsmuir‘s Effect

The Supreme Court of Canada has not applied a Dunsmuirian approach (review conducted in a manner “respectful of the agency’s choices”) in a procedural case involving institutional bias. This is a good thing. The challenge posed by the Dunsmuir approach of allowing deference in procedural fairness matters is that it risks overlooking the direction of judicial review’s scrutiny. Dunsmuir’s reasonableness is best suited for litigious matters involving parties before the administrative actor. The concept of being respectful of agency procedural choices aligns most logically with choices made internally by the agency alone, based on its expertise and within the context of a specialized process designed to widely improve efficiency across the range of its cases.  In such cases, there may be an expertise in process developed by the tribunal that should be taken into account on judicial review. When it comes to matters involving the tribunal in relation to other institutional actors, however (for example, the executive branch of government), correctness review can provide a useful external check. By its very nature, correctness review as identified in Dunsmuir, focuses on external relationships. The Supreme Court of Canada in Dunsmuir lists examples of external relationships that should attract correctness review — for example, matters involving the tribunal in relation to other tribunals, matters addressing the constitutional division of powers.

In addition to the trend towards deference in the lower court procedural fairness jurisprudence, there is another element that may trigger the courts to lean towards reasonableness review in procedural fairness matters. This is the fact that procedural fairness issues may stem from the tribunal’s interpretation of its “home” legislation, such as its regulations relating to procedure or even its own soft law.

However, without more, a deferential approach could be problematic. An emphasis on the value of transparency would serve to guide both administrative action and judicial review. A norm or culture of transparency would ideally discourage the executive and the tribunal from creating scenarios that work against a particular group or party. Through a norm or culture that favours transparency, the very steps of creating a lead case like the one in Geza may have raised questions about whether the lead case initiative was justifiable, especially in light of the correspondence. Similarly, it may have prompted the Labour Ministry and the ALRB to consider developing disclosure guidelines at an earlier stage. We know a culture of transparency can be difficult to attain on the ground: examples relating to the inception of freedom of information legislation (Worthy) and even its impact after long-term use (Jacobs) show this.

Edging towards reasonableness review in situations of institutional bias could prove harmful to the development of good public administration. Transparency as a value needs to be ascertained within the administrative state, including through judicial review. Collectively, we should work towards this goal. Without more, a deferential approach could be detrimental to ensuring administrative justice.

A View from South of the Border

Dunsmuir, Chevron, and what Canadians and Americans can learn from each other about judicial deference and interventionism

Jeffrey Pojanowski, University of Notre Dame

First, I would like to thank Leonid and Paul for inviting me to contribute to this symposium. Reading up on Dunsmuir and its legacy has expanded my horizons on administrative law and introduced me to great Canadian legal scholarship. My sense is that Canadian administrative law scholars are engaged in important conversations with their counterparts in Australia, New Zealand, and the U.K., whereas U.S. scholars, per usual, are doing their own thing. For reasons I discuss below, that separation may make some sense. But I am also convinced that further conversation between these wings of Anglo-American public law is important, for we are all struggling with the tension between the supremacy of law and the need for sound, politically responsive policy in a complex world. To keep within the space allotted, I will focus on only one of the many comparative angles, namely the extent of correctness review in our two systems. (On the U.S. end, I will only be discussing federal administrative law, not the law governing review of agency action in state governments.)

Dunsmuir, especially as interpreted in Edmonton East, indicates a broad presumption against review for correctness. The exception for general legal questions of substantial importance is narrow, deference on Charter interpretations has taken a bite out of the exception for constitutional questions, and jurisdictional review is withering away. As indicated by the 5-4 vote in Edmonton East, however, this broad presumption of reasonableness is controversial, and there is some indication that a return to contextual factors will defeat a strong, rule-like presumption of reasonableness review.

In the United States, standards of review are (sometimes nominally) governed by a statute, the Administrative Procedure Act (“APA”), which separates questions of law, fact, and policy. As a result, unlike Dunsmuir’s transubstantive reach, we have three separate doctrinal hooks for review, though there is some overlap. For findings of fact, the “substantial evidence” standard is similar to the jury review standard, though with a mood that is a little more searching. On questions of policy, the “arbitrary and capricious” standard of reasonableness governs and, while it has its complexities, there is little doctrinal support for anything like correctness review. Thus, on questions of fact and policy, the U.S. tracks Canada in eschewing correctness review.

Judges and scholars in the U.S., however, are obsessed with judicial review of legal questions. Here, the landmark case is Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Chevron offers a deceptively simple test. First, courts ask, using the ordinary tools of statutory interpretation, whether the legislation speaks clearly to the question at hand. If so, that interpretation governs. If the question is unclear, the court then asks whether the agency’s interpretation is reasonable. If it is, that interpretation stands, even if it were not the one the court would have adopted under de novo review. Looming large above this two-step doctrine is the “step zero” question: when does Chevron apply, as opposed to a less-deferential standard of review? Even the most zealous judicial advocates of Chevron deference agree that an eligible interpretation must represent the agency’s authoritative judgment over a statute it administers. Without further qualifications, this strong Chevron approach would look much like the presumption of reasonableness review in Edmonton East.

Yet it is not that simple. In United States v. Mead Corp., 533 U.S. 218 (2001), the Supreme Court rejected a broad Chevron rule in favor of a standard. Even when an agency administers a statute, the Court will look for contextual factors to suggest an exercised delegation of interpretive authority from Congress to the agency. Most prominently, Mead links implied delegation to an agency’s power to make policy through reasonably formal measures, such as legislative rulemaking and procedure-heavy adjudication. Agencies that have those powers and use them have a much stronger chance of receiving Chevron deference on an interpretation than those that lack them or do not use them. In subsequent cases, most notably the healthcare case King v. Burwell, the Court has also indicated that on some legal questions of major importance, it would be implausible to infer that Congress intended deference, even if the agency administers the statute and uses formal procedures. Thus, unlike Dunsmuir, Mead carves out for non-deferential review some legal questions that reside under the aegis of agency’s statute.

Therefore, in the U.S. a rough contextualism reigns supreme, with defeasible rules of thumb about when one can imply a delegation of interpretive authority from Congress to the agency. As in Canada, there is substantial (though not unanimous) dissatisfaction with the doctrine from opposite ends of the spectrum. Those who complain about the unpredictability of the doctrine post-Mead would warn a Canadian pushing for contextualism to be careful about what you wish for. On the other side, a more legalist strain has attacked the legitimacy of any legal deference, claiming that it flouts the APA, abdicates judicial duty, or unfairly biases adjudication in favor of the government. Like Alberta is to Canada, this latter chorus is not the dominant voice in American jurisprudence, but it represents the most sustained attack on deference in a long while.

Arguments about deference touch on deep questions of jurisprudence that transcend national boundaries. But it is also possible to ask mid-level questions about whether, given a set of assumptions or features of a legal system, deference on questions of law makes sense. If a legal community has a uniform approach to statutory interpretation, correctness review might be easier to manage; similarly, deciding when an interpretation is beyond the realm of reason is more tractable if judges carry roughly the same measure. In the United States, there can be sharp disagreements among textualists and purposivists about what counts as a good argument, and thus what makes an interpretation “clear” or “unreasonable.” If the Interpretation Act and Elmer Driedger-style-purposivism lead to interpretive practice as uniform in action as it appears on the books, this suggests that, ceteris parabis, Canadian judges could feel more comfortable than their U.S. counterparts in patrolling agency interpretations of law.

But not all else is equal. If the ordinary science of statutory interpretation in Canada is broadly purposive, that could strengthen the case against correctness review on legal questions. As a legal realist would be quick to point out, picking a statute’s purpose, selecting the level of generality at which to describe the purpose, and making the consequentialist judgment about which interpretation promotes that purpose can be a deeply political and policy-laden endeavor, one that looks a lot more like making law than finding it. On those premises, the standard justifications for Chevron ring true; compared to courts, agencies have superior technical expertise and are more accountable to the political branches. Judicial review of law and policy blur in a way less amenable to the distinctly judicial craft.

In systems like the U.S. where interpretive formalism has much greater purchase, a root-and-branch defense of correctness review could have more stable ground. Where inputs like text, structure, and linguistic canons offer substantial guidance, a formalist judge could contend that resolving a disputed question of interpretation can be separated from the consequent policy implications. (She would be wrong if interpretive formalism is illusory, but she would be right on her own premises.) As I have argued, it is therefore telling that Chevron’s most prominent critics today are neoclassical formalists who resist strongly purposive and dynamic approaches to interpretation. This is not to say such formalists maintain that the law never “runs out” on judicial review. There will be questions, like whether an agency’s regulation is “in the public interest,” that are in fact not questions of interpretation amenable to the formalist toolkit, but rather placeholders for delegated policymaking and its accompanying reasonableness review. But for the formalist, the line between law and policy is sharper, or at least legal disagreement crosses into policy choice much further down the line than the standard interpretive legal realist story suggests. If so (a big if!), that would muddy the policy-based case for broad deference on questions of law.

This critique of reasonableness review on law is not the only one available, but it is the one underwriting deference skepticism in the U.S. today. A Canadian deference skeptic who also rejects interpretive formalism would have to pursue other avenues and explain why judicial policy balancing is superior to its agency counterpart. And, as American scholars like Cass Sunstein and Adrian Vermeule have both argued, that is a challenging task. On the other hand, American jurists and scholars who defend Mead’s contextualism and reject interpretive formalism might look northward to bolster their position by reading the burgeoning Canadian literature criticizing Edmonton East. And, thanks to the internet, such exchange does not require a passport, let alone a drive to the Peace Bridge crossing.

Deference with a Difference

Dunsmuir and Aboriginal Rights

Janna Promislow, Thompson Rivers University

The recent Supreme Court decision in Ktunaxa Nation v BC (Forests, Lands and Natural Resources Operations), 2017 SCC 54 treats both Charter and s. 35 rights in a single judicial review, providing an interesting case study to identify and consider points of difference between the application of deference in Aboriginal rights versus Charter contexts. The case involved a regulatory approval allowing the development of the Jumbo Glacier Resort, a proposed ski resort near Invermere, BC, on land identified by the Ktunaxa Nation as “Qat’muk”, the home of the “Grizzly Bear Spirit”. The majority, written by McLachlin CJC and Rowe J, rejected the claim that the Minister’s approval had violated the Ktunaxa’s freedom of religion under s. 2(a) of the Charter. The Minister’s conclusion that the duty to consult and accommodate the Ktunaxa’s claimed rights had been satisfied was also upheld as reasonable. The majority’s approach might be described as “separate paths” for Aboriginal and Charter rights, with the distinct breaches involved leading to mutually exclusive grounds for judicial review. The concurring minority, written by Moldaver J, agreed with the majority on the s. 35 duty to consult, but found an infringement of s. 2(a) that was nevertheless proportionate to the statutory objectives under the Doré/Loyola framework. In contrast to the majority, Moldaver J’s approach integrated Indigenous and Charter interests, at least in regard to the Charter right, such that the Indigenous character of the religious claim was significant, and the accommodations negotiated through s. 35 consultations were critical to the determination that the Minister’s decision was ultimately reasonable (an integration that was incomplete: see Naiomi Metallic’s post for a discussion of the definition of the statutory objectives in the proportionality analysis).

In spite of these quite different approaches, both the majority and minority addressed the question of whether s. 2(a) had been infringed by the Minister’s decision as a threshold question of constitutional law that attracted de novo review on the correctness standard,[1] achieving uniformity in their methodology of review that was absent in Mouvement laïque québécois v Saguenay (City), 2015 SCC 16. The duty to consult in Ktunaxa Nation (like many other cases), however, was not about whether a known right had been infringed, but rather the interim protection of “potential, but yet unproven” rights (Haida Nation v BC, 2004 SCC 73 at para 27). The process of consultation and ultimate decision attracted reasonableness, in line with the existing law on the duty to consult and in step with deferential review of discretionary decisions more generally. But the Aboriginal right or rights at stake were not determined before deference was applied. As McLachlin CJC and Rowe J emphasized, judicial review of administrative decisions for breach of the duty to consult is not the forum for pronouncements on the validity of Aboriginal rights claims: “To permit this would invite uncertainty and discourage final settlement of alleged rights through the proper processes.” (at para 84). By contrast, the lack of analysis of the Charter right by the Minister was no obstacle to the Court considering the scope of Charter claim on judicial review (at para 60). What explains this “incongruent” difference?

McLachlin CJC and Rowe J point to the need for a full evidential record to determine an Aboriginal right, beyond what might be entered for the purpose of the duty to consult, which requires only a preliminary assessment of the strength of the claimed rights (at para 84). The task of proving the existence of historically grounded Aboriginal rights may well be different from the task of demonstrating that the scope of a known Charter right includes protection in a given case. But is the difference of approach grounded in practical concerns about the proof of the rights (difference 1)? Or is it grounded in the jurisprudence that dictates a case-by-case proof of rights under s. 35, versus a proof of violation of a right under the Charter (difference 2)? If the practical concerns are the obstacle, Nova Scotia v Martin, 2003 SCC 54 and Paul v BC, 2003 SCC 55 suggest that other considerations take precedence over practical concerns in relation to access to constitutional arguments before administrative decisions-makers, including s. 35 rights. If difference 2 is the obstacle, the question becomes whether government’s obligation to consider the constitution when interpreting statutes and discretionary authority is really all that different when it comes to Aboriginal rights, including the “potential, yet unproven” ones. The discussion of Charter values after Doré, and the subsequent treatment of challenges that go to the scope of the rights on a correctness standard (such as in Ktunaxa Nation, and the majority in MLQ v Sagnuenay), might demonstrate that when a remedy is sought for an alleged breach of a Charter right, the values at stake transform into a dispute about the right that requires adjudication and articulation, whether by courts or tribunals, whether addressed de novo or not. Are the values behind Aboriginal rights not “rights-like” enough to require or allow for parallel treatment?

The second difference points to a third: the premise that Aboriginal rights and/or their accommodation should be articulated through negotiation. As the Supreme Court has stated repeatedly, in one way or another, s. 35(1) “provides a solid constitutional base upon which subsequent negotiations can take place” (R v Sparrow, [1990] 1 SCR 1075 at 1105; see also Delgamuukw v BC, [1997] 3 SCR 1010 at para 186). The negotiation of rights recognition gives rise to the constitutional duty to consult and accommodate to prevent the unilateral exploitation of claimed resources “during the process of proving and resolving the Aboriginal claim to that resource,” a process that the Court recognizes “may take time, sometimes a very long time” (Haida Nation, at paras 26-27). In the interim, however, the Crown retains the right and authority to continue managing the resources subject to Aboriginal claims, and to make “decisions in the face of disagreement as to the adequacy of its response to Aboriginal concerns.” (Haida Nation, at para 45). As McLachlin CJC and Rowe J acknowledge in Ktunaxa Nation, the consultation and accommodation process conducted by the Minister will not satisfy the Ktunaxa, “[b]ut in the difficult period between claim assertion and claim resolution, consultation and accommodation, imperfect as they may be, are the best available legal tools in the reconciliation basket” (at para 86).

If Aboriginal rights are “TBD,” what are “the proper processes” for the determination of Aboriginal rights that the majority in Ktunaxa Nation alludes to? A recent policy announcement by the Trudeau government suggests that creating specialized mechanisms for recognizing Aboriginal rights is finally on the policy agenda. The status quo is that Indigenous peoples can litigate their claims or attempt to work through comprehensive claims processes in relation to title and other s. 35 rights. It is old news that these treaty processes are deeply troubled, and that both litigation and negotiation generally take “a very long time,” a euphemism that buries concerns about expense burdens and access to justice. In Ktunaxa Nation, the majority plainly want to support the “proper” resolution of rights claims, but they do not question the access to “proper processes” before they defer to the Minister’s assessment of the Qat’muk sacred site claim, as part of their review of the adequacy of the consultation process under the reasonableness standard (at para 100). The implication of deference here is that if government manages legal risk by consulting beyond what the legal duty might require in relation to “weak” rights claims (as this particular Ktunaxa claim was assessed, reasonably so according to the Court), it is unnecessary for the Minister or the courts to fully articulate and assess that claim. How does such deference serve to support “a solid constitutional base” for negotiations? This point of deference in Ktunaxa Nation, however, is less about difference and more about the common administrative law theme of inconsistency given that earlier cases establish that deference is not owed on the preliminary assessment of the strength of the right and related determinations of the scope of consultation obligations: Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53 at para 48; Haida Nation at para 63.

A fourth difference to consider is structural, relating deference to the obligation to implement and respect constitutional rights in administrative decision-making. Under s. 32, the Charter applies to administrative delegates such that they must interpret statutes and make decisions that accord with the Charter. Deference is thus owed to administrative decision-makers who properly take Charter rights and values into account in their decisions because their area expertise includes respecting the Charter. Section 35 did not come with an application clause. Instead, the obligation to make decisions that respect and implement rights stems from the honour of the Crown. Haida Nation established that aspects of the duty to consult may be delegated but the honour of the Crown itself cannot be delegated (at para 53). In Clyde River v Petroleum Geo-Services Inc., 2017 SCC 40, the Supreme Court further explained: “While the Crown may rely on steps undertaken by a regulatory agency to fulfill its duty to consult in whole or in part and, where appropriate, accommodate, the Crown always holds ultimate responsibility for ensuring consultation is adequate.” (at para 22). “Reliance” rather than delegation ensures that at least some issues of accommodation and disputes about claims will find their way back to the ‘real’ Crown (see Clyde River, paras 28-29). This approach might suggest respect for “nation-to-nation” treaty relations (and arguably fail), but it also might signal the ongoing political quality of Aboriginal rights, even when the rights at stake were recognized through a modern land claim agreement, as they were in Clyde River. Why, then, is the responsibility to respect for these rights treated differently from Charter rights?

The incompletely delegable quality of the honour of the Crown appears to indicate that administrative expertise is limited, suggesting a re-examination of the premises for judicial deference to non-Crown agencies in such contexts is required. Deference to decisions by Ministers, whose actions directly represent the Crown, might also be inappropriate, or based on a different theory altogether: instead of, or in addition to, the “politics of deference”, there is an ongoing politics of sovereignty at stake. Alternatively, having waited for a negotiated solution for long enough, the courts might take a different tact by reviewing Aboriginal rights as parallel to Charter rights, and thus recognizing these rights as also “ripe” for implementation. Deference under that approach would presumably be more rigorous than reasonableness as it applies to review of discretionary decisions more generally; see, for example, the treatment of reconciliation, the honour of the Crown, and reasonableness in Kainaiwa/Blood Tribe v Alberta, 2017 ABQB 107.

Although it is obvious to me at least that constitutional Aboriginal rights must be implemented as rights, and on par with Charter rights, this view does not imply that approaches to deference in relation to Charter rights should necessarily be applied in relation to Aboriginal rights. Rather, the preceding comparison and identification of points of differences in the application of deference to the review of decisions implicating Aboriginal rights is the start of a bigger discussion. Do the differences identified hold up? Are they principled? Should there be deference in the review of government decisions that affect Aboriginal rights, and if so, why? And how should it be carried out? These are questions for another day.

[1] There is of course much to be said on the freedom of religion aspects of the decision; see, for e.g., Howard Kislowicz and Senwung Luk