The Diceyan Trope

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

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

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

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

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

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

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

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

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

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

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

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

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

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

At the Executive’s Pleasure

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

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

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

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

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

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

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

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

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

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

The Administrative Law “Trilogy”: The Stare Decisis Trap

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Supreme Court’s Unreasonable Reasons Doctrine in Admin Law

Why Newfoundland Nurses should be overturned and a recent FCA case adopted as a new starting point.

In Sharif v Canada (Attorney General), 2018 FCA 205, the Federal Court of Appeal (per Stratas JA) was faced with the herculean task of trying to do the impossible: review nothing. Indeed, that is what is asked by the Supreme Court when it says that courts should supplement the reasons of decision-makers. Sharif is the latest in a growing list of cases that demonstrate the fallacy of the Court’s approach. There are two reasons why Sharif’s reasoning demonstrates the flaws with the Court’s doctrine of supplementing reasons: supplementing reasons skewers itself on the Supreme Court’s own concept of deference; and a doctrine of supplementation creates perverse incentives for decision-makers.

First, to Sharif. The Chair of the Warkworth Institution Disciplinary Court convicted Mr. Sharif of “fight[ing] with, assault[ing] or threaten[ing] to assault” another person under the Corrections and Conditional Release Act [CCRA]. In making the decision, the Chair only made a few factual findings: (1) he attempted to keep his meal tray out of a correctional officer’s reach; (2) this conduct invited physical contact either by Mr. Sharif or by the officer [17].

Fatally, Stratas JA noted that the Chair did not analyze the provision of the CCRA under which he convicted Sharif—and that led him to obviously (but implicitly) conclude that Sharif’s action of keeping his meal tray away from the officer was “figh[ting] with, assault[ing] or threaten[ing] to assault.” But to Stratas JA, this “[fell] short of affirmative action or aggression with physical consequence” [23], the condition required under the CCRA. The Chair’s reasons did not contain a finding of aggressive conduct [25].

At this point, the Supreme Court of Canada’s conclusion in Newfoundland Nurses enters the fray. The Court there confirmed Dunsmuir’s selective citation of an academic article, reasoning that judicial review courts may provide reasons that were not but “could be” offered by the decision-maker. Courts should “supplement [reasons] before [they] seek to subvert them” [12] by looking to the record; additionally, inadequacy of reasons is not a standalone basis for review [14]. To the Court (through Justice Abella), this doctrine was consistent with Dunsmuir’s requirements of “justification, transparency, and intelligibility” [13].

Justice Stratas declined to supplement the Chair’s non-existent reasons, even though he looked to the record as instructed by Newfoundland Nurses. In fact, he concluded that, looking to the record, the Chair “declined to find that Mr. Sharif’s conduct was aggressive” [27]. Applying Newfoundland Nurses, and doing anything more to determine whether the ultimate outcome was reasonable, would amount to  “impersonation” of the decision-maker (Bonnybrook, at para 91 per Stratas JA in dissent—but with no quarrel from the majority). To Justice Stratas, doing so would usurp the role of the decision-maker, or otherwise speculate as to what the decision-maker thought about the relevant legal analysis. Here, the reasoning was plainly deficient. The Court could not conduct judicial review.

Having concluded this, Justice Stratas refused to take Newfoundland Nurses any further. In effect, he concluded that the lack of reasoning was a standalone basis for review. And he was right to do so. This is where Newfoundland Nurses goes wrong and Sharif should be followed. Reasons are a window into a decision. The decision-maker has been delegated power to make decisions; and the reasons offered are important for the court to determine the legality of a decision. If decision-makers are incentivized to provide inadequate reasons, but courts cannot intervene on those decisions, the administrative state is evasive of review. A court ginning up supplementary reasons only exacerbates this concern by providing cover for bad and inexpert decision-making.  Sharif raises this concern on two fronts, and I would take the reasoning in the decision further to bar all supplementation.

As Justice Stratas notes in the decision, supplementing decisions can be fundamentally corrosive of the separation of powers between the judiciary and the legislature. The task on judicial review is to police the boundaries of the administrative state (Wall, at para 13), with the appropriate degree of deference indicated by the legislature.   It is not giving “respectful attention” (Dunsmuir, at para 48) to the reasons the decision-maker offered if the court is, as Newfoundland Nurses instructs, permitted to recreate a decision from the record that the decision-maker did not make. The Justice Abellas of the world forget that reasonableness is a standard of review. If a decision-maker offers nothing, how can a court review—or even give deference—to something that does not exist? It is profoundly disrespectful of the (supposedly expert) delegated decision-maker to impose a court’s own reasoning, but it creates a situation where that disrespect begets insulation. By saving the administrative state from its own poor reasoning, courts will end up reviewing its own reasons, not the decision-makers. And decision-makers will use their delegated authority to make decisions that courts cannot review on the merits.

But the downstream effect of this doctrine of deference is likely also corrosive. A decision-maker under Newfoundland Nurses can provide one line of reasons knowing that courts can look to the record to supplement the decision. But this is not judicial review in any meaningful sense. The job of a judicial review court is to review a decision, not conduct documentary discovery.  A bare record is a necessary but insufficient condition for meaningful review. Reasons—addressing the main legal issues and engaging with the core interpretive difficulties—are vital. When a court supplements a decision, decision-makers can relax, knowing that the margin for error is quite wide. And in cases where the decision-maker has some control over compiling the record, the doctrine incentivizes the piling of documentary evidence into the record, without having to engage with the difficult legal questions, knowing that courts could–somewhere–find a justification.

In this sense, for a lawful administrative state, it is not enough that the outcome of a decision be supported by the record. The administrative decision-maker–the merits-decider–must herself support that outcome with reasons springing from her own pen. A court on judicial review must take those reasons for what they are, not create incentives for a free-riding administrator to depend on an expert court to cover for legal mistakes. This is all the more important where important liberties are at stake.

Sharif pushes back on these perverse incentives by demanding more. It asks decision-makers to explicitly set out the basis of the decision, and justifies the revocation of the lifeline granted to them by Newfoundland Nurses. It restores a modicum of respect for Parliament’s choices. Newfoundland Nurses should be rejected. Sharif is a good start as a replacement.

 

Vavilov: Doing the Administrative State’s Dirty Work

Over the next few weeks, I will be taking some time in this space to summarize the submissions in the upcoming Dunsmuir review: the cases of Vavilov and Bell/NFL. Today I will focus on Vavilov, and the proposals offered by both the Appellant (the Government of Canada) and the Respondent (Vavilov) for the standard of review of administrative action. As I’ll explain, on balance, the Respondent’s formulation is most consistent with the fundamental function of judicial review.

I should note at the outset that I am the Vice-President of the Advocates for the Rule of Law group, which is intervening at the Court in the Vavilov and Bell/NFL appeals. My comments below should be read as only my view on the merits of the parties’ submissions.

Facts

In many ways, Vavilov is a perfect case to test the merits of Dunsmuir. It is a case of pure legislative interpretation. Under the Citizenship Act, persons generally born on Canadian soil receive Canadian citizenship (under the principle of jus soli embedded in s.3(1)(a) of the Citizenship Act). There are, however, exceptions contained in s.3(2)(a), (b), and (c) of the Citizenship Act:

(2) Paragraph (1)(a) does not apply to a person if, at the time of his birth, neither of his parents was a citizen or lawfully admitted to Canada for permanent residence and either of his parents was

(a) a diplomatic or consular officer or other representative or employee in Canada of a foreign government;

(b) an employee in the service of a person referred to in paragraph (a); or

(c) an officer or employee in Canada of a specialized agency of the United Nations or an officer or employee in Canada of any other international organization to whom there are granted, by or under any Act of Parliament, diplomatic privileges and immunities certified by the Minister of Foreign Affairs to be equivalent to those granted to a person or persons referred to in paragraph (a).

The Vavilov case turns on s.3(2). Vavilov was born in Canada to Russian parents who were spies for the Russian government. The parents lived in Canada under assumed identities. But for Vavilov, he was always Canadian. He did not have any suspicion that his parents were covert agents.

In 2010, while living in the US with his family, the FBI arrested his parents. This was the first time that Vavilov was made aware of his parents’ identities. Subsequently, the Registrar of Citizenship cancelled Vavilov’s citizenship, on the conclusion that s.3(2) of the Citizenship Act applies. To the Registrar, since Vavilov’s parents were not citizens or lawfully admitted to Canada, and because they were “employees of a foreign government” under s.3(2)(a), Vavilov was not entitled to citizenship.

The Federal Court of Appeal disagreed with the Registrar’s conclusion. On the standard of review, the Court noted that this is a case where the margin of appreciation was exceedingly narrow for the Registrar, for three reasons: (1) the interests of the individual affected were elevated in this case; (2) the Supreme Court had conducted searching review of immigration matters in its recent cases and; (3) the reasons were inadequate.

On the merits, the Court concluded that the words “…employee in Canada of a foreign government” must be read ejusdem generis with the words preceding it. According to the Court, the common theme underpinning the s.3(2)(a) category was the concept of diplomatic privileges and immunities. Section 3(2)(a) was designed to apply only “to those employees who benefit from diplomatic privileges and immunities” [45]. This conclusion was supported by the context of the provision. Sections 3(2) (c), for example, referred to privileges and immunities granted to persons referred to in s.3(2)(a), indicating a legislative intention that persons in s.3(2)(a) are only those with privileges and immunities. International law also supported this conclusion—the Citizenship Act “borrows many of the same phrases that the Vienna Convention on Diplomatic Relations uses in the context of diplomatic immunity” [74]. Under the Vienna Convention, certain employees of a foreign government have immunity, specifically persons connected with the diplomatic mission. Persons not associated with the diplomatic staff are outside of the Convention, and to the extent that Convention is adopted into Canadian law, Vavilov’s parents were therefore outside the Citizenship Act exception to jus soli citizenship [58].

For our purposes, the Federal Court of Appeal’s concerns also extended to the process of reasoning by the Registrar. The Court noted that “[O]n the central statutory interpretation issue before us, the Registrar said nothing” [38]. The Registrar, as is common in administrative law, apparently relied on a report prepared by an analyst. But that report “contains only one brief paragraph on the statutory interpretation issue, and a very limited one at that” [39]. The Court was concerned that the decision was immunized from review, because it could not be sure that the central statutory interpretation issue was even considered.

The Government’s Submissions

With the facts of the case in the backdrop, the Government began its submissions by outlining its proposal for revisions to the standard of review framework set out in Dunsmuir. The government set out its proposal clearly in the first paragraph of its factum:

The standard of review should be deferential, subject only to limited exceptions where the foundational democratic principle and the rule of law make it clear that the courts must have the final word.

The motivation behind this proposal is the mere fact that the legislature granted authority to an administrative body [49]. To the government, delegation=deference.

So, we have a rule (rather than a presumption) of deference for even more matters than Dunsmuir and its progeny prescribed. Notably, no longer do we have the correctness categories of true jurisdictional questions or the category of questions of central importance to the legal system and beyond the expertise of the decision-maker.  This general category of deference applies not only to the result reached by the decision-maker but its process of reasoning. For the government, administrative decision-makers under the ambit of government should not be expected to undertake the type of statutory interpretation analysis that courts undertake [4]. And, the decision-makers should not be expected to make explicit findings on matters of statutory interpretation [60].

The only exceptions to this general rule of deference are constitutional questions (where a law is challenged before a decision-maker on constitutional grounds) and on issues of procedural fairness.

On the merits, the government argues that there was a cogent basis for the Registrar’s decision. The government highlighted that in previous versions of the Citizenship Act, there was a requirement embedded in the citizenship exception that representatives or employees of foreign governments have official accreditation, or any connection to a diplomatic mission [84]. That requirement no longer exists, and the Registrar pointed this out, concluding that the wording in s.3(2)(a) was meant to encompass additional individuals beyond just those with immunities and privileges. Since the decision-maker canvassed this legislative change, some case law bearing on the problem, and other factors, the government argues that this is a sufficient basis to uphold the legality of the decision on its deferential standard.

It appears, for the government, that this alone is enough on its prescribed intensity of review. The government argues that if there are “additional relevant interpretive factors which the administrative decision-maker did not consider, a court may examine such factors in order to discover whether the administrative decision-maker’s interpretation can be sustained” [89]. These “additional relevant interpretive factors” are the text, context, and purpose of the statute that the Registrar was tasked with interpreting. On an interpretation of these factors, the government argues that the decision is legal.

Vavilov’s Submissions

The Respondent’s proposed standard of review framework is from a different world than the government’s. He proposes a two-part framework. First, so-called “discretionary decisions” are reviewed for reasonableness. Second, questions of law are reviewed on a correctness standard. On this second prong, the Respondent concedes that the view of the decision-makers on the “purpose and policy of its own statutes will continue to deserve respect” [59]. However, courts will still have to review the administrative decision-makers’ view of its enabling statute, independently.

The Respondent also, instructively, responds to the government’s proposed standard of review framework. He first notes that while deference to administrative decision-makers presumes trust on the part of these decision-makers, “It is worth recalling that some of the most regretted episodes in Canadian history were the work of federal statutory decision-makers exercising delegated authority” [33]. And, the Respondent also notes that the government’s submission was basically an attempt to insulate its statutory decision-makers from review. Under the government’s formulation, for example, expertise is also always presumed—“no matter how limited the statutory discretion that Parliament gave to the decision-maker or how insubstantial their real expertise” [53]. Particularly on this front, the Respondent notes that the Registrar under cross-examination said that she was “not a lawyer” and therefore did not know the legal “significance” of words in the provision [102].

On the merits, the Respondent argues that the Federal Court of Appeal’s interpretation was right, particularly noting that the Registrar/analyst interpretation did not address the legislative context of s.3(2), particularly s.3(2)(c).

Analysis

In my view, the Respondent accurately describes the implications of the government’s view. Particularly, the Respondent’s proposal is better than the government’s on a number of fronts if we view the matter from the basis of the fundamental function of judicial review—quite aside from any constitutional mandate for superior courts to police the boundaries of the administrative state.

First, most of Canadian administrative law doctrine is premised around the idea that the administrative state is a collection of virtuous experts creating good public policy and fairly adjudicating disputes. But the Respondent points out that this is far from the case. In fact, the state’s statutory creations have been perhaps the greatest purveyor of discriminatory treatment in the history of Canadian society. Far from being “flexible and expert,” (Edmonton East, at para 22) sometimes administrative decision-makers have been unfair, discriminatory, and even racist: particularly, the examples cited by the Respondent of the deportation of Japanese Canadians and the experience of Aboriginal peoples with residential schools are apposite. This is not to say that government agencies today have designs to discrimination. But it does mean that government agencies can make irrational decisions—particularly ones that are inconsistent with enabling law or the facts and record before it.

So, contrary to current scripture, it is not unreasonable that some would question the lawfulness of state action at the outset. And this is where the idea of a going-in rule of deference loses its force. The government wishes to create a system where state action is presumably lawful; where the mere fact of delegation speaks to the degree of deference owed by courts to a decision-maker. But on simple logical terms, a decision of a government to delegate to a satellite decision-maker says nothing about the degree of deference owed to that decision-maker by courts. Governments delegate to administrative decision-makers for a whole host of reasons: (1) the legislature does not want to spend the time setting up a complex regulatory scheme ex ante; (2) the legislature doesn’t care about the intricacies of the particular issue at hand, and wants someone else to deal with them; (3) the government legitimately feels that it does not have expertise in a particular matter; (4) the government does not want to make politically-charged decisions and wants to foist the political heat on someone else. More reasons abound. But the very fact of delegation says nothing about how courts should view that delegation, given that the reasons motivating delegation are so variable.

Quite the opposite from the traditional story, the potential for legislatures to shirk responsibility for important matters may invite scrutiny by courts. Delegation creates a form of distance between legislatures and decision-makers that makes it difficult for courts to conduct review. The idea is that a law passed by the legislature sets a standard—and decision-makers, relying on their own practices or ideas of what is right, and the informational asymmetry that they enjoy, can “drift” from the text of the law by which they are bound. This principal-agent problem invites, rather than counsels against, the scrutiny of courts.

On this front, the government’s standard of review proposal makes it more difficult for courts to determine whether a decision-maker is acting lawfully. Perhaps the most pernicious of the proposals is the idea that courts should presume deference on implied interpretations of law. One of the most common rationales for deference, put forward by the government above, is the idea that Parliament’s decision to vest power in an administrative decision-maker in the first place is legally significant. Even if we accept this logically deficient rationale, deferring to “implied” interpretations of law raises the prospect that the court is deferring to nothing. This is because it will be difficult for courts to determine whether the interpretive difficulty faced by the decision-maker was even addressed, let alone in a substantive way, if there is only an “implied determination.” Not to mention, of course, that if Parliament delegated to a decision-maker the power to make a decision, we should expect that a decision be made, not merely “implied.”

This is even more so where there are multiple analytical paths to a particular result. It may be easy in some cases for courts to draw a direct line to a particular analytical path from a result—in such cases, it may be easy to say what sort of interpretation is “implied” (putting aside the objection that it is the job of the decision-maker to positively pronounce on the matters it has been entrusted with by the legislature). But in most cases, if it is truly the case (as most argue) that statutes can fairly bear more than one meaning, then the reasoning employed to get to a certain result is quite important on judicial review. Where the decision-maker has multiple options, and has failed to pronounce on its reasoning, the court is left in the unenviable position of having to guess. In all cases, the quality of the reasoning adopted by the decision-maker—whether it addressed the text, context, and purpose of the statute, which cabins its discretion (McLean, at para 38)—is key. For the government to claim that these are mere “additional interpretive factors” is simply incorrect when it is the quality of the reasoning that determines whether a particular interpretation is lawful.

Vavilov shows why the government’s proposal is so flawed on both of these fronts. Even though we always presume expertise by decision-makers, the decision-maker in Vavilov basically admitted that she had no idea about the central interpretive difficulty in the case. She said she did not understand the terms of legal significance. The result she reached evinced this lack of understanding; she failed to take account of the whole of s.3(2) of the Citizenship Act and barely pronounced on the key interpretive difficulties. Yet, the text, context, and purpose of statutes are key to determining the range of reasonable outcomes available to the decision-maker. So, it is not true to say hers was a decision that fell within a range of reasonable outcomes, as Justice Gleason at the Federal Court of Appeal did in dissent. Quite the contrary, her decision was flawed precisely because her reasoning was flawed and wanting. It was unclear whether she took a proper analytical path to her decision. And yet, the government asks courts, on a hope and a prayer, to defer to this sort of reasoning merely because it is implied.

As Justice Stratas said in Bonnybrook, it is not the job of courts on judicial review to impersonate the decision-maker and fill in the gaps in deficient decisions. Yet the government’s proposal asks courts to do just that. Putting aside the constitutional objections to this posture, it fundamentally misconceives what courts are supposed to do on judicial review. Judicial review is designed to ensure decision-makers act rationally and according to law.

Courts cannot be conscripted into service by the administrative state to do its dirty work.

 

 

Anglin: Administrative Lawmaking

How administrators could make law in the dark of night.

In Anglin v Chief Electoral Officer, 2018 ABCA 296, the Alberta Court of Appeal dealt with a hidden issue in administrative law: to what extent are administrative decision-makers required to follow guidelines specifically contemplated by legislation?

In Anglin, the Chief Electoral Officer of Alberta imposed a $250 fine for breaching the Election Act. Anglin had typographical problems: “the sponsorship information on his election signs was printed in a font size smaller than that required by the Guidelines established under the Act, and was not sufficiently legible.” Anglin argued that the guidelines established by the Chief Electoral Officer do not constitute law and cannot form part of the governing statute, and as such a breach of the guidelines is not a contravention. To Anglin, there was no legal authority to impose an administrative penalty for breach of the Act [3].

The legislative context was dispositive to the Court. Under s.134 of the Election Act, candidates must ensure that ads comply with certain requirements “…in accordance with the guidelines of the Chief Electoral Officer” (s.134(2)). Under s. 134(3), the Chief Electoral Officer is required to “establish guidelines respecting the requirements referred to in (2)” which deals with sponsorship information. The specific guidelines adopted in this case prescribed a legibility requirement along with a minimum font size.

Based on this “clear” language [9], the Court concluded that the statute itself incorporates the Chief Electoral Officer’s guidelines, and that the legislature “has the power to delegate and the guidelines, like other forms of subordinate or delegated legislation are all forms of law.” This delegation, to the Court, “is incidental to legislative sovereignty.”

The Court’s reasoning raises significant problems from a democratic perspective, even though it is likely consistent with governing authority; my problem is with that governing authority itself. The making of guidelines and soft law, taken too far and unrestricted by legislatures or courts, can do an end-run around the democratic channels of adopting law, susceptible as those channels are to citizen input.

We have a few rules, insufficient as they are, to control this risk. For example, a decision-maker cannot bind herself to non-binding guidelines to the exclusion of governing law; this would be a “fettering of discretion” (see Thamotharem, at para 62).  Despite express statutory authority to issue guidelines, those guidelines may not “have the same legal effects that statutory rules can have. In particular, guidelines cannot lay down a mandatory rule from which members have no meaningful degree of discretion to deviate, regardless of the facts of the particular case before them” (Thamotharem, at para 66). At the same time, for example, guidelines issued by the Human Rights Commission have been held to have the full force of law, even if they are formulated solely by the Commission (see Bell, at para 56).

The image of a spectrum is helpful here. As noted in Thamotharem, we could have guidelines that are issued without any statutory authority whatsoever—these guidelines are still, in the traditional account, useful for guiding the administrator’s decision and providing a foundation for reviewing its legality. At the other end, we could have guidelines that are adopted according to specific delegated authority, and which must be followed as if they were law; the Anglin case is a good example. In the middle, we could have a broad legislative authorization that allows an agency to simply issue guidelines without any indication as to whether they must be followed or not.

From a fundamental democratic perspective, all forms of guidelines issued in any of these ways are trouble for different reasons. If the guidelines in the first case are applied as if they were law, we have a classic fettering problem. If the guidelines in the third case are applied as if they were law, the people subject to the guidelines have no say over binding law to which they are subject. Perhaps one could argue that these democratic issues could be excused because (1) the legislature has the undisputed authority, short of constitutional constraints, to prescribe the level of procedure required for internal agency workings and (2) perhaps this is the price of a more efficient government. But the problem remains.

One might say that the Anglin case, from a democratic perspective, is not problematic at all; after all, here the legislature has said itself what is supposed to happen. But in reality, the situation is more serious. In every case, the legislature has approved the Chief Electoral Commissioner’s making of guidelines, and his power to apply them as if they were law formulated and adopted by the legislature. And from a public administration perspective, this is completely understandable. Why would the legislature want to expend the cost of conducting a deep dive into the font sizes required on a sign? This is, on the traditional account, clearly a matter for “expert” administrators.

But if we view the problem from first principles, the legislature has in effect delegated the actual power of making the law to the Chief Electoral Officer. And if we accept that such guidelines are “hard law,” then we must accept that the law could be passed in the dark of night, because administrative agencies control how and when these guidelines (read: laws) are adopted. The answer that the legislature authorized the delegation puts form before substance. The question is whether the legislature should be able to delegate the power to the Chief Electoral Officer in the first place, given that this law will not be adopted in the ordinary course of the normal legislative process.

The context of font sizes is a bad example for this argument because it is relatively unimportant. But if we allow this form of delegation writ large, extremely broad delegations of law-making authority would be permitted. A statute could simply have one line, saying “The Administrator of [whatever agency] is entitled to make Guidelines which have the force of law.” Because there is no restriction on the power to make laws in substance, these guidelines would bind as if they were law under the current authority.

The US has some experience with this phenomenon, with its nondelegation doctrine. In practice, United States courts rarely interfere with broad delegations. But at least they have a doctrine—that a delegation must be accompanied by an “intelligible principle” to guide agencies. Here, there is no such controlling doctrine.

A restriction on Anglin-type delegations would actually likely attack very few delegations and interfere minimally with good government. The delegation problem does not arise as strongly—(ie) as a strict form of delegation in substance—in a case where the legislature authorizes the agency to make guidelines to structure its discretion. Without knowing for sure, I’d imagine this is a more common form of delegation. But where the legislature simply allows an administrator to make law itself, this seems to be a bridge too far.