Immigration and Refugee Decision-Making: The Vavilov Effect?

It has been a while since I’ve blogged. The last few months have been—in a word—chaotic. I’m hoping to blog more regularly going forward now that some of these things have settled

One of the areas where administrative law really comes to life is in immigration decision-making, particularly front-line decision-making like visa decisions or humanitarian and compassionate decisions [H&C]. This is where the pressures, incentives, and moral worldview of “street-level bureaucrats” in particular contexts can tell us about how decisions affecting all-too-real rights and interests are made. The area, though, presents all sorts of challenges for those studying the law of judicial review.

First, immigration visa decision-making is also just one particular iteration of a broader reality: the inexplicable diversity of administrative decision-making. That diversity leaves monist accounts of the administrative state wanting. Expertise—advanced by the Progressive school as a core reason for delegation and deference—presents a different empirical reality in these contexts. In other words, this is not the labour board or the human rights tribunal where we might have more confidence in the “expert” nature of the decision-maker. In this context, not only is “expertise” not to be assumed, but what it means on the frontlines escapes easy definition.

Second, emerging democratic theories view the administrative state either as a place to facilitate and channel democratic deliberation or a place to encourage contestation (agonism). These theories are deeply insightful and may have resonance in other areas. But in some of these immigration and refugee cases, it is hard to say that there is anything substantively democratic happening. The only democratic argument is entirely formal: the delegation of power to officials to make decisions. This delegation of power must be respected, but the chances for contestation or facilitation seem far off.

Other features of front-line immigration visa decision-making present problems from the perspective of the law of judicial review. Notwithstanding what I say below, it was typically the case that visa decisions did not—and still, do not—require extensive reasons: Persaud v Canada (Citizenship and Immigration), 2021 FC 1252 at para 8. And in theory, this remains true post-Vavilov. What’s more, there was, and remains, a presumption that decision-makers considered all the evidence before her: Cepeda-Gutierrez v Canada, 1998 CanLII 8667. 

The combination of these rules, to my mind, creates an important tradeoff. On one hand, given the backlogs in this area of administrative decision-making, we may think that officers should not spend time writing extensive reasons. On the other hand, a paucity of reasons or an adequate record that “immunizes” decisions from effective review presents problems from the perspective of legality, but more directly, to the individuals who wish to seek judicial relief: see Canada (Citizenship and Immigration), v Canadian Council for Refugees, 2021 FCA 72 at para 102.

There should be some balance struck here. Post-Vavilov, courts in some cases are beginning to strike this balance. They have done so in favour of more substantive reasoning that addresses the legal and factual stakes to the party affected by a decision. In other words, in these cases, the courts are not abiding boilerplate and rote recitation of the facts. Nonetheless, they are not expecting long, involved reasons in every case, and they need not be perfect: the reasons can be short, but should be directed to the actual stakes facing the individual. In my view, this decisively moves the balance towards the ideal of legality, understood in this case as enhancing the role of the courts to ensure compliance with administrative law.

Here are some examples of what I am describing:

  1.  Singh v Canada (Citizenship and Immigration), 2022 FC 692

Here, Justice Diner describes well the post-Vavilov position on reasons:

[22] Visa officers are certainly entitled to deference, but only where their findings have at least a modicum of justification. That was entirely absent here. In the age of Vavilov, the Court cannot defer to reasoning missing from the Decision, or fill in that reasoning for administrative decision-maker. Lacking justification, the matter will be returned for redetermination

2. Rijhwani v Canada (Citizenship and Immigration), 2022 FC 549

This was a denial of a permanent residence application where the applicant plead H&C grounds. The applicant specifically pointed to establishment and hardship as supporting her application. The Officer did not address these factors in detail. The Court says, at para 17: “It is particularly important that when there are few factors raised—in this case only hardship and establishment—that the Officer addresses the rationale clearly for each.”

This did not occur here. Noting, at para 10,  that “brevity cannot excuse inadequacy” the Court takes issue with the “two significant errors…in under a page of reasons” that characterized this decision.

3. Gill v Canada (Citizenship and Immigration), 2021 FC 1441

Gill was found inadmissible to Canada for five years by a visa officer because of misrepresentation; he failed to disclose an unsuccessful tourist visa application to the United States. Gill advanced the argument that his “misrepresentation” was actually an innocent mistake. He argued that the officer did not reasonably explain why he rejected the “innocent mistake” argument.

Specifically, the officer in this case apparently took—word-for-word—reasons that were given by a separate officer in another case that was reviewed in the Federal Court. Speaking of the Cepeda-Gutierrez presumption, the Court said, at para 34:

I note, however, that the use of identical template language to express not just the relevant legal test or framework, but the reasoning applicable to an applicant’s particular case undermines to at least some degree the presumption that the officer has considered and decided each individual case on its merits.

The Court did note, however, that templates can be useful tools in high volume-decision-making [33].

I do not present these cases to make an empirical claim about what any number of courts are doing post-Vavilov. This is impossible to do without closer study. But I can say that there are many more of these cases, and I recommend you consult my weekly newsletter if you are interested in reading more. In the meantime, I think we can draw some conclusions from these cases:

  1. There is something to be said for a signal sent by a judicial review court to administrators about what they should expect. Prior to Vavilov, decision-makers may have expected strong presumptions of deference and courts claiming that inadequate reasons did not provide a standalone basis for review. Now, decision-makers may expect a closer look if their decisions are reviewed, particularly in this front-line context. One hopes that this incentivizes structural solutions within administrative bodies. This should not be hard to expect from Immigration, Refugees, and Citizenship Canada, which houses Canada’s largest administrative decision-maker.
  2. No one should take this to mean that reasons need to be extensive in every case. But it should be taken to mean that boilerplate is presumptively problematic. This is because boilerplate, by its nature, does not respond to the individual stakes raised by many of the decisions in the immigration realm. This is, in part, the thinking behind the Vavilovian constraints. If the constraints bind differently in different cases—if Vavilov is truly contextual—then boilerplate is a non-starter because it will generally fail to account for the context of various decisions.
  3. Nor is this emerging line of cases overly onerous for administrative decision-makers or front-line officers. Again, the reasons need not be perfect, need not look like a judicial decision, and need not be extensive. But they must address the actual legal and factual issues at play. If a decision-maker cannot do this, then one should wonder why they were delegated power in the first place.

At any rate, this is an area that I hope receives more attention going forward.

Boilerplate in Decision-Making

Administrative boilerplate is probably legion in government, but of course, this is an empirical question. Nonetheless, I have read enough cases to know that individuals at the foot of administrative power—many times in front-line decision-making— are at least sometimes faced with deciphering reasons that purport to have “considered all the factors.”  Confronted, as well, with a strong presumption that decision-makers considered all of the evidence in the first place (Cepeda-Gutierrez), it is theoretically hard for applicants to move beyond boilerplate.

Besides internal administrative mechanisms that could—but may not—discourage this sort of behaviour, judicial review doctrine in Canada is starting to take notice of it. Here are a few recent cases:

Gill v Canada (Citizenship and Immigration), 2021 FC 1441

In this case, a visa officer in New Delhi used almost identical language to reject Gill’s application as another visa officer used in another denial out of New Delhi. The Court said [34]: “I note, however, that the use of identical template language to express not just the relevant legal test or framework, but the reasoning applicable to an applicant’s particular case undermines to at least some degree the presumption that the officer has considered and decided each individual case on its merits.”

Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157

In this case, the Federal Court of Appeal chastised the Patented Medicine Prices Review Board for, among other things, “conclusory” analysis that purported to consider all the evidence [43]. This was important for the Court: “At best, on this point the Board obfuscated, making it impossible for a reviewing court to know whether the Board has helped itself to a power it does not lawfully have. By obfuscating, the Board has effectively put itself beyond review on this point, asking the Court to sign a blank cheque in its favour. But this Court does not sign blank cheques. Administrators cannot put themselves in a position where they are not accountable.”

Publicover v Canada (Attorney General), 2021 FC 1460

In this case, the Minister of Fisheries and Oceans denied a request for a  lobster licence transfer. In her reasons, the Minister stated that she had considered “all the relevant circumstances” [16]. The Court was troubled by this boilerplate, because it did not show that the Minister connected her analysis to the actual law and policy governing the decision [62, 66].

These cases represent a decisive shift from pre-Vavilov caselaw. Gone is Newfoundland Nurses, which permitted courts to take these boilerplate statements and “supplement” them: Nfld Nurses, at para 12. Underlying this doctrinal innovation was an unqualified presumption about administrative decision-making: “To me, it represents a respectful appreciation that a wide range of specialized decision-makers routinely render decisions in their respective spheres of expertise, using concepts and language often unique to their areas and rendering decisions that are often counter-intuitive to a generalist” [13].

In the context of boilerplate, Nfld Nurses makes little sense. This is because boilerplate reasons do not do anything to show expertise or the use of specialized concepts or language. It is merely a “say-so” of the decision-maker. Even on the Dunsmuir standard, it was always hard to say–with a straight face– that this sort of reasoning is “justified, transparent, and intelligible.”

Second, Vavilov’s renewed focus on justification and a “reasons-first” approach will be, I think, a boon for those challenging front-line decision-making. There are necessary caveats: reasons are not always required, and in many administrative contexts (such as high-volume study permit decision-making), “extensive reasons are not required” (see Niyongabo v Canada (Citizenship and Immigration), 2021 FC 1238 at para 12). But even in these areas, courts could be more willing to subject front-line decision-making to a slightly higher bar in terms of reasoning.

Third, I think this turn of events marks a tension between the Cepeda-Gutierrez presumption of consideration and the culture of justification endorsed in Vavilov. This tension was pointed out, as I noted above, in Gill. The presumption of consideration makes sense from an efficiency standpoint: after all, legislatures delegate to decision-makers for a reason, and when they do, courts should generally not go on a line-by-line treasure hunt for error. But at the same time, these efficiency concerns should take a decidedly second place: as noted in Alexion, judicial review becomes difficult when there is only boilerplate shedding light on an ultimate decision; this is to say nothing, of course, of the dignitarian reasons why reasoned decision-making is desirable (see, for a recent analysis of these issues, Janina Boughey).

This is all for the best. Boilerplate may work well in a “top-down” culture of decision-making in which those subject to administrative power and courts are in the thrall of purported administrative expertise. No need, on this account, for a decision-maker to show their work; the “just trust us” ethic is what governs. But Vavilov has arguably changed things: gone is the presumption of expertise, and gone should also be the presumptions about reasoning. If expertise exists, it can and should be demonstrated through persuasive and responsive reasons that allow a court to determine the legal basis of a decision.

What Does City of Toronto Mean For Administrative Law?

The Supreme Court released its much-anticipated decision today in Toronto (City) v Ontario (Attorney General), 2021 SCC 34. While others will address the nuances of the case, the majority generally puts unwritten constitutional principles into a tiny, little box. It says that because “[u]nwritten principles are…part of the law of our Constitution…” [50], unwritten principles only have two practical functions: (1) they can be used in the interpretation of constitutional provisions [55]; (2) they can be used to “develop structural doctrines unstated in the written Constitution per se, but necessary to the coherence of, and flowing by implication from, its architecure” [56]. In this category, the Court uses the example of the doctrine of paramountcy, the doctrine of full faith and credit, and the remedy of suspended declarations of invalidity.

I applaud the majority opinion for clarifying the role of unwritten constitutional principles. For my part, I think the functions they have outlined for unwritten principles give those principles a meaningful role in the constitutional structure while giving priority to the text. The majority aptly underscores the worry with unwritten principles–they are so abstract and potentially endless–and negates that worry by ensuring the text as a control on the use of these principles. Even better, the majority closes the door on the rather pernicious attempt to read municipalities into s.3 of the Charter [5].

But that is not my concern for today. What does any of this have to do with administrative law?

Post-Vavilov, there was a good argument that unwritten principles–the Rule of Law specifically–could have independent force in limiting state action in some way on the standard of review–put more bluntly, that the Rule of Law could invalidate certain legislative rules governing standard of review. The Court says, for example, that “where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law” (Vavilov, at para 35). It goes on to outline categories of questions–like constitutional questions–that demand a correctness standard because of “respect for the rule of law” (Vavilov, at para 53). This raised the argument that if a legislature were to prescribe a standard of review of reasonableness on a constitutional question, such a standard would not be given effect to by a court because it transgresseses the “limits imposed by the rule of law.”

On first blush, City of Toronto tends to throw cold water on the argument. Its insistence that unwritten principles cannot invalidate legislation could mean that a court should give effect to a legislated standard of review on constitutional questions. And because there is no express constitutional provision insisting on a correctness standard on certain questions, on a strict reading of the City of Toronto majority opinion, there would be no power to invalidate that law.

This very well may be true, and yet I think there are a few ways to reconcile City of Toronto with Vavilov that leads to the same result that Vavilov seems to suggest–a court not applying (which is strictly, though perhaps not functionally, different from invalidation) a legislated standard of review of reasonableness on constitutional questions. Much of this argument hinges on s.96 of the Constitution Act, 1867.

First, it might be said that the Rule of Law as outlined in Vavilov is a necessary interpretive principle that should be used to understand s.96. That is, we cannot understand s.96–which contemplates federally-appointed superior courts–without understanding the traditional role of these courts to conduct judicial review of administrative action on a certain stringency on certain questions. In City of Toronto, the Court cites s.96-100 as an example of unwritten principles bolstering a constitutional principle, suggesting that “unwritten constitutional principles of judicial independence and the rule have law have aided in the interpretation of [ss.96-100], which have come to safeguard the core jurisdiction of the courts that fall within the scope of those provisions” [55].

I think to call any of the doctrinal innovations that have come to s.96 a result of “interpretation” stretches the term a bit far. On its face, s.96 is just an appointing provision. It may be one thing to interpret what the terms of that appointing provision are, but to construct doctrine on top of the provision–or to make it work in a constitutional structure–seems to be a different judicial function.

Secondly, and I think more persuasively, the Court notes that unwritten principles can develop structural doctrines that flow from constitutional architecture [56]. Again, the Court notes examples of this sort of doctrinal construction: full faith and credit, paramountcy, and even the legal result in the Quebec Secession Reference. As we see, some of these doctrines are quite particular to specific contexts–the Quebec Seccession Reference, for example. Others are more general. The doctrine of full faith and credit in the context of conflict of laws is a major doctrinal innovation that is not found anywhere in a specific constitutional provision. These doctrinal innovations can, in effect, change or invalidate legislation that conflict with them, though they are rooted in the text itself.

Vavilov‘s comments on standard of review best fall into this category. The standard of review framework flows from two unwritten principles themselves: legislative intent (perhaps partially reflected in the principle of “democracy”) and the Rule of Law. The Court conceives of the Rule of Law as generally the rule of courts, in that courts must retain a strong supervisory role over certain questions. It would upset the supervisory role of these courts to outlaw their ability to hold state actors to the strictest constitutional standard. This is but a logical extension of Crevier, which set the stage for an argument about the constitutionally-protected role of the superior courts.

An example and a caveat. First, the majority and dissent clash over MacMillan Bloedel. In that case, the Court arguably invalidated a legislative scheme that granted exclusion jurisdiction to a youth court. The City of Toronto majority says the holding in that case was based on the text of ss.96-101 and 129 of the Constitution Act, 1867 [50]. The dissent, on the other hand, cites para 41 of MacMillan Bloedel to suggest that the basis of the holding was the Rule of Law itself [176]. In my view, MacMillan Bloedel is a bit of both. The Court clearly bases its decision in s.96 (MacMillan Bloedel, at para 47). But it also says that the case is best understood “in a broader constitutional context, considering this jurisprudence along with the preamble to the Constitution Act, 1867, the principle of the rule of law, and the central place of superior courts in our system of governance” (MacMillan Bloedel, at para 2). To the extent these principles and s.96 were abridged, the impugned legislative provision was “read down” as “inoperative to deprive the superior court of its jurisdiction to convict the appellant of contempt in this case” (MacMillan Bloedel, at para 43). In MacMillan Bloedel, we have a constitutional text (s.96)–>supported by the Rule of Law (unwritten principle)–>a result that the core of superior court powers were protected in this case. Vavilov falls into this same category. We can see, then, that in some cases a legislative standard of review may be “read down” as a result of the standard of review doctrine spun out from the unwritten principles of legislative intent and the Rule of Law.

The caveat I wish to raise has to do with the Federal Courts. Section 96 does not speak to statutory courts, and in theory, the Federal Courts’ judicial review jurisdiction could be abolished tomorrow unlike the superior courts. All of this, then, would stop at the Federal Courts. But I do not think this is inevitable. Once a statutory court has been made under s.101 of the Constitution Act, 1867, one might make the argument that so long as such a court exists, its powers should be construed as broadly as the powers of a superior court under s.96. But I do not commit to this argument in full, except to say that it makes practical sense to me and would uphold a consistent judicial standard for administrative action across jurisdictions.

At any rate, I think City of Toronto–despite its strong language on unwritten principles–can be reconciled with Vavilov. And at the end of the day, the result may be the same: legislation that undermines an unwritten principle may not be “given effect” according to a doctrinal innovation, even if the legislation is not “invalidated” in a strict sense. This is the best way to undertstand Vavilov‘s standard of review framework.

“Administrative Sabotage” and the Ontario Human Rights Tribunal

Recently, Professor David Noll (Rutgers Law) posted a fascinating article called “Administrative Sabotage” on SSRN, forthcoming in the Michigan Law Review. You can view the article here, and Professor Noll wrote a fascinating thread outlining its main arguments. The abstract:

Government can sabotage itself. From the president’s choice of agency heads to agency budgets, regulations, and litigating positions, presidents and their appointees have undermined the very programs they administer. But why would an agency try to put itself out of business? And how can agencies that are subject to an array of political and legal checks succeed in sabotaging statutory programs?

This Article offers an account of the “what, why, and how” of administrative sabotage that answers those questions. It contends that sabotage reflects a distinct mode of agency action that is more permanent, more destructive, and more democratically illegitimate than other more-studied forms of maladministration. In contrast to an agency that shirks its statutory duties or drifts away from Congress’s policy goals, one engaged in sabotage aims deliberately to kill or nullify a program it administers. Agencies sabotage because presidents ask them to. Facing pressure to dismantle statutory programs in an environment where securing legislation from Congress is difficult and politically costly, presidents pursue retrenchment through the administrative state.

[…]

Professor Noll’s paper is a significant contribution, relevant outside of the United States. In fact, as I have written about previously (see Mark Mancini, “The Political Problem with the Administrative State” (2020) 2 Journal of Commonwealth Law 55) the Ford government’s treatment of the Ontario Human Rights Tribunal (OHRT) is a classic example of a government legitimately delaying appointments to stymie the practice of the administrative justice system. Professor Noll has now provided the theoretical and linguistic tools for us to understand this phenomenon in administrative government, even for us in Canada.

***

Noll’s focus is “the sabotage of statutory programs by agencies that administer them” [7]. In this, Noll’s project fits in a rich tradition of public administration scholarship that has studied the various ways in which bureaucrats can undermine policy objectives set by their enabling statutes, through mal -administration, “shirking” or drifting, or sabotage. Sabotage can be defined as bureaucratic action that “deliberately undermines policy objectives of the superiors” (see John Brehm & Scott Gates, Working, Shirking and Sabotage: Bureaucratic Response to a Democratic Republic, at 21).  Sabotage “involves a specific stance on the part of the agency toward the program it administers” and the stance “seeks to eliminate a program [the agency] administers” [8]. Sabotage is thus different from other bureaucratic phenomena, in that it involves a deliberate and intentional sacking from within of the agency’s ability to fulfill its delegated mandate [7]. A classic basic example of sabotage that Noll points out—and that I address in my paper on the OHRT—is “non-appointments”—failing to appoint agency heads, or other important positions, as the case may have it [30].

Administrative sabotage, in either Canada or the United States, is a destructive practice that undermines the legislative choice to delegate to agencies. As Noll says: “Rather than use delegated authority to enforce and elaborate statutory policy, an agency uses that authority to undermine the program it administers. In structural terms, this use of delegated authority is at odds with the principle of legislative supremacy” [10]. Once a legislature has delegated power to an agency, it is a condition of the delegation that the power be exercised according to the enabling statute. Agencies and politicians that fail to live up to these delegated terms—and worse, agencies and politicians that actively undermine them—act inconsistently with the power they have been given. Moreover, they act undemocratically—they undermine the legislative plan & bargain containing the conditions governing the administrative action.

Complicating this conventional picture is the emergence of theories of executive control over the administrative state and the desirability of political control as a constitutional matter. The unitary executive theory in the US, for example, generally holds that all executive power is placed in a President, and it therefore follows that the “executive”—including executive administrative agencies—must be controlled by the President (see, for the nuances, Seila Law). In Canada, we have a parliamentary system, but the gist is similar in at least some respects. Legislatures provide powers to executives and administrative decision-makers to make decisions. Legislatures also structure the relationship between the executive and the administrative state, creating and controlling powers of appointment, for example (see the classic example in Saskatchewan Federation of Labour, 2013 SKCA 61). A strong executive power advocate may claim that that the executive can lawfully engage in sabotage by appointing people who wish to undermine the agency itself. It can do so because the executive is the representative of the people, and thus is the politically legitimate actor, in contradistinction to unaccountable administrators.

In the US, the Trump administration furnished many examples of administrative sabotage, and it mooted the defense of the practice. A prominent example included Mick Mulvaney and the Consumer Financial Protection Bureau (the CFPB). The CFPB is in charge of imposing a variety of consumer financial laws. Mick Mulvaney, appointed the head of the CFPB, had previously indicated that he supported abolishing the CFPB [3]. Of course, by itself this is neither here nor there. But once Mulvaney became the head of the agency, on the conventional picture, he had no discretion to undermine the legislative bargain simply because he disagreed with it in principled. Yet he did so: he “declined to request money to fund the Bureau’s operations; installed “Policy Associate Directors” to shadow bureau chiefs protected by the civil service laws; rescinded, stayed, or delayed major rules on payday lending, overdraft fees, and student loan servicing…” [3]. Mulvaney justified these practices by appealing to the adage of “elections have consequences” [11].

Noll’s paper also explores the various reforms that might be adopted to stop sabotage. Noll shows how courts and Congress have been largely unable to control sabotage. Presidents and courts that have a reflexively anti-administrativist agenda may, in fact, be incentivized to exacerbate and permit administrative sabotage. But as a practical matter, there is another issue: many instances of “administrative sabotage” are simply not amenable to judicial review: “it is simple to invent technocratic explanations for agency actions designed to undermine a statutory program…”, and as such, there are evidential hurdles [13-14]. Noll suggests that specific statutory reforms that might shed light on the question, the goal of these reforms being that the statutory schemes are designed to prevent sabotage—“policymakers should not assume that programs will be administered in good-faith” [50]. Noll suggests statutory appointment qualifications consistent with the Constitution; and, notably for our purposes, endorses the proposition that broad statutory delegations (the norm since the New Deal) encourage sabotage [54].

***

There is much in Noll’s piece to recommend it to Canadians, but I want to focus on just two points: (1) Noll’s conclusions about delegated power; and (2) the case of the OHRT, arguably an example of Noll’s sabotage.

As noted above, and since the New Deal, scholars have argued—and sometimes assumed—that broad delegations of statutory power are desirable. So the old case goes, legislatures simply do not have the time and expertise to consider all the factors when legislating; and particularly in complex fields of regulation, it makes sense to delegate power to so-called expert agencies. As a descriptive matter, this is likely true, and for that reason, it makes sense for legislatures to “trade-off” political control for expertise (as Epstein & O’Halloran once put it).  But this does not speak to the degree to which this should happen. As I wrote in my article on the matter [94], and as Noll essentially argues:

The real problem with executive discretion, then, is not that it abridges independence; but that it has a potential of being misused to undermine the limitations on statutory power that arise in the context of a delegating statute. The goal should be to cabin executive discretion tightly so that it, necessarily, cannot undermine delegated legislative power. Broad delegations, on this understanding, should be avoided.

The point is that the solution to sabotage starts not with depending on the good-faith of administrators (as a previous generation of pro-administrativist scholars did), or depending on the political control exercised by an executive actor (who may have incentives to permit sabotage). Instead, it starts with the legislature slightly increasing the cost of legislating by keeping the possibility of sabotage in mind when legislating, and using its powers to put meaningful limits on delegated powers.

This raises an important point about independence. To simplify, in Canada, the independence of administrative decision-making is parasitic on the degree to which a statute permits that independence (famously, see Ocean Port). Statutes can either liberate or constrict executive control over the administrative state. One way for executives to control so-called “independent” tribunals is for the legislature to vest an appointment power in the executive. Assuming this power is exercised according to the terms of the statute, there is no constitutional objection; while independence of administrative decision-making may be a good in some cases, it is not self-evidently legally required (though see the reading of the caselaw suggested by Ron Ellis in his text, Unjust By Design). And political control by elected actors is desirable in a system of responsible government.

But again, this is only true to an extent. Sabotage is quite different from an executive exercising lawfully delegated powers of control; it is a situation where an executive or agency head may intentionally choose to exercise power it does not have to undermine the power it has been granted. The sin of omission here is not that the executive is simply choosing not to exercise delegated power; it is that the executive is actively using its position to undermine the entire statutory bargain setting up the agency.

And this is exactly what happened in the case of the Ontario Human Rights Tribunal. As late as January 2021, observers argued that “…Ontario’s human rights enforcement system has become dysfunctional” in part because “The final resolution of a claim can now take years for individuals who have experienced discrimination.” The cause of this delay: few of the human rights adjudicators whose tenure is at-pleasure have been replaced. I previously studied this phenomenon as an example of a situation where an executive was failing to implement delegated statutory power. Indeed, the relevant legislation delegates power to the Cabinet, who “shall” make appointments to the tribunal [my paper, at 82]. By failing to do so, the government created grist for the mill of its critics, who asserted—not unreasonably—that the government was intentionally starving the tribunal and delaying the resolution of claims.

The failure here is traceable, ultimately, to the legislature—though the executive undermining of delegated power is the evil to which the legislature should have turned its mind. The legislature enacted the tribunal, and it can rescind its powers tomorrow. But executives do not have that authority, which is why sabotage is undesirable. So, in the OHRT case, by failing to impose timelimits for appointments and a minimum number of members, the legislation grants easily-abused delegated appointment power to the executive. So, as Noll suggests, it was the breadth of delegated power that created the conditions for sabotage.

Canadians should pay close attention to Noll’s article. While there are obvious differences between the Canadian and American administrative states, the phenomenon of sabotage is likely a common evil.

Bill C-10 and the CRTC Debacle

Does it get much worse?

Bill C-10 has passed the House of Commons. For those unaware, the bill nominally involves “compelling companies like Netflix Inc and TikTok Inc to finance and promote Canadian content.”  Experts, like the University of Ottawa’s Michael Geist, are concerned about the far-reaching impacts of this law. The concerns mostly revolve around the idea that the government’s law may reach content produced on user-driven sites, targeting individual content creators rather than the “tech giants” that are the nominal targets of the law.

I agree with Professor Geist. I share deep worries about the chilling effect this, and other measures the government is introducing, will have on free expression. But that isn’t my area of interest or expertise, for the purposes of today. Instead, whatever the content of the law, no one can gainsay Professor Geist’s conclusion, upon the tabling of the bill, that it “hands massive new powers to Canada’s telecom and broadcast regulator (the CRTC) to regulate online streaming services, opening the door to mandated Cancon payments, discoverability requirements, and confidential information disclosures, all backed by new fining powers.” The wide-reaching delegation of power will, as is common in administrative settings, be used by the CRTC to the hilt. We should expect nothing different, and we should therefore be disappointed that Canada’s government did all it can to prevent the legislature from taking a hard look at this bill.

In Canada, most of our discussions of administrative law are synonymous with discussions of judicial review. That is, we tend to view the law of judicial review as the same as administrative law. The focus of most Canadian administrative law academics (myself included) is on the stuff of judicial doctrine; standards of review, procedural fairness, etc etc. But, in other jurisdictions, like the United States, legislatures and courts have indicated an interest in controlling administrative power themselves. The United States’ Administrative Procedure Act, despite its flaws, is at least a legislative indication that the administrative state can and should be controlled by the legislative standards regarding adjudication and rule-making.

No such interest evidently exists in Canada, as the Bill C-10 debacle shows.  Put aside, for the moment, the rather emaciated Statutory Instruments Act (see Neudorf, here for problems with this statute at 562 et seq, and my paper, here, for more). The efforts by the government (and other abettors) to do anything—whatever the optics—to limit debate and amendment of the bill are unfortunate:

All bills, no matter their consequences, should be subject to robust debate, in both Parliament and the public forum more generally. But this law, in particular, is troubling from an administrative law perspective. Parliament’s inability to even fully debate—let alone control—the mass discretion passed to the CRTC should worry all Canadians.

I accept the legitimacy of the administrative state, parasitic as it is on delegated power. But that’s the rub—the power is delegated, and amenable to control by the delegator. The legitimacy question is quite aside from the need for the formal, constitutional actors in our system (the legislatures, specifically) to fully and frankly debate the policy and legal implications of broad delegated power. In fact, legislatures may be the only ones with the power to do this in our constitutional order. Despite strong arguments to the contrary (see Justice Côté’s opinion in the GHG Reference and Alyn Johnson’s excellent paper here), I am not convinced that courts can pass on the constitutionality (let alone the policy implications) of the scope of broad delegated power. While courts are the only “independent” guardians of the Constitution (see Ell, at paras 3, 23), that does not mean that legislatures should bar themselves from considering the legalities and policy implications of their delegations.

It gives me no comfort that judges of the Supreme Court and commentators has referred to the CRTC as the “archetype” of an expert tribunal (see the opinion of Abella and Karakatsanis JJ in Bell Canada, at para 64; see also B. Kain, “Developments in Communications Law: The 2012-2013 Term—The Broadcasting Reference, the Supreme Court and the Limits of the CRTC” (2014) 64 SCLR (2d) 63). While it is certainly true that “we simply do not know what the typical bureaucratic objective function looks like” (see Gersen, here, at 335), there is clearly a risk that “[d]elegation can create iron triangles of policymakers insulated from public control…” (Gersen, at 345). This is even more apposite where the mandates that are implemented by administrative actors are vague and general, as they often are. While expertise may be a valid reason for delegation, there is an inevitable trade-off involved in delegating power to experts—there is always a risk of bureaucratic drift, or expansion of delegated mandates. The worry is multiplied when the legislature indicates little interest in debating the merits of delegated power. Indeed, perhaps the legislature has no incentive to control delegated power, except for the incentives provided by constitutional principles.

 And here, the CRTC has been given delegated power a country mile wide. As Geist noted on the tabling of the bill, many of the specifics of the bill’s new concept of “online undertakings” will be left to the regulator. For example, the third reading of the bill does not unambiguously say that it does not apply to users.  Much will be left in the hands of the CRTC through its regulation-making powers. We will not know the extent to which the market and users will be affected until the CRTC begins using its new-found powers.

Now, because of the parliamentary calendar, it does not appear  that the Senate will be able to pass the bill in time. This is good news, but it seems more fortuitous than anything. More of this vast delegated power appears on the horizon for other agencies, like the Canadian Human Rights Commission. A rigorous public will need to step in where the government has made it impossible for the legislature to fully examine the proposed law.

For What It’s Worth

University of Toronto professor Richard Stacey recently released an article in the University of Toronto Law Journal (paywalled, which is truly unfortunate), arguing that (among other things) the Supreme Court of Canada’s decision in  Vavilov “affirm[s]” the Supreme Court’s controversial decision in Doré  (340; see also 351). To be specific, Stacey says (340-341):

Read together, and building on a rich body of Canadian case law that came before,  Vavilov and Doré  definitively mark a culture shift way from an outcomes-oriented conception of judicial review toward one that engenders a culture of justification…

…in a culture of justification built on a robust conception of reasonableness, constitutional law and administrative law come together in a unified system of public law.

Stacey also makes a number of other arguments, including: (1) the culture of justification apparently endorsed in the same way in  Vavilov and Doré necessarily and logically excludes correctness review (see pg 349) and (2) so-called “Charter values” act as “justificatory resources” that together bind a unified system of public law, bringing  Vavilov and Doré  together (357 et seq). That is the core of Stacey’s argument: the so-called “unity of public law” thesis draws together a requirement that administrative decisions be justified.

Stacey’s argument is interesting, but ultimately unpersuasive. For one, it treads well-worn territory of “administrative constitutionalism” and “the unity of public law,” theories that—as I will argue—are actually undermined by  Vavilov’s formalism. While  Vavilov does put a focus on justification, Stacey’s article does not deal with the parts of  Vavilov that clearly work against his thesis: the dispatch of expertise as a factor governing the standard of review; and the retention of correctness review based on Rule of Law considerations, among other things. Secondly, Stacey’s article does not engage with key scholarship on this issue post- Vavilov that could both strengthen and undermine his case. Finally, Stacey attaches too much determinacy to Charter values, ethereal things that even their most ardent supporters must agree are relatively indeterminate: perhaps not of this world.

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Stacey sets out his argument on the first issue (the marriage between Doré  and  Vavilov) boldly: “The foundation of both cases is the same, and both judgments ultimately embrace the same conception of reasonableness” [351]. Stacey cites the Alsaloussi case out of the Federal Court, where the Court relied on  Vavilov in a Doré -type case to give guidance “on what a reasonable decision looks like” [351]. To Stacey, this case—and the theory—reinforces “how the two judgments help to draw administrative and constitutional law together in a single, unified system of law” [352].

As I have outlined previously, I do not see how this is the case, even on the terms of the reasonableness standard. Doré  was positively unclear about what administrators should do when faced with a Charter claim, beyond saying that an administrative decision-maker “balances the Charter values with the statutory objectives” (Doré , at para 55 et seq). The only question for a judicial review court is whether “in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play” (Doré , at para 57). But, unlike the Oakes test, and unlike  Vavilov’s list of constraints, the Doré -line of cases do not provide any guidance on how courts should conduct the proportionality analysis.  Vavilov provides a far more robust and detailed schema of reasonableness than Doré  does, and so to equate these cases on this front is ultimately unpersuasive. The similarity on the reasonableness front—if it exists—is cosmetic at best.

Stacey also does not address why  Vavilov’s comments on constitutional issues do not demand a correctness standard in the Doré  context. As a reminder, the Court in  Vavilov—while expressly excepting Doré  from the scope of the comments for now (see para 55)—said that “[t]he constitutional authority to act must have determinate, defined and consistent limits, which necessitates the application of the correctness standard” ( Vavilov, at para 56).  As I have said before, this should logically include Charter issues. But Stacey does not address this point, nor does he address important literature attacking administrative constitutionalism as a general theory (see Leonid Sirota’s paper here).

Moreover, Stacey does not address other post- Vavilov commentary that could actually strengthen his point. For example, Paul Daly argues that all issues going to the merits in  Vavilov are, on its own terms, subject to the reasonableness standard. I have my issues with this argument, but I think it is far more persuasive in support of Stacey’s argument than the evidence Stacey actually offers–in part because it takes Vavilov on it’s own terms.

Relatedly, Stacey argues that a joint-reading of  Vavilov and Doré  renders the correctness standard irrelevant (349). Yet this is not convincing to me. As I have argued, and as Professor Daly argues to a similar extent,  Vavilov is not just one thing, easily explained with reference to a catchphrase like “culture of justification.” There are various currents of administrative law thought coursing through the decision.  Vavilov’s comments on the Rule of Law, for example, are relatively formalistic, focusing on the role of the courts as the guardian of the Constitution. On the other hand, other parts of  Vavilov clearly draw from the justificatory school of administrative law thought, championed by scholars like David Dyzenhaus. As I have argued in previous work, these schools of thought can be complementary, but  Vavilov is clearly a product of pragmatic agreement, even if guided by principle to some extent. Professor Stacey does not address this reality when he excludes correctness from the standard of review equation, without as much as addressing the counter-arguments clearly presented in Vavilov. Indeed, if one follows  Vavilov’s formalistic side, correctness review still has a valuable—and formally required—role in Canadian administrative law.

Finally, I should draw attention to Stacey’s argument on Charter values. Much has been written on Charter values, and I need not reprise that literature to make my objection: Stacey’s focus on Charter values as justificatory resources is only useful if the set of justificatory resources is relatively bounded and determinate. While we cannot expect perfect or near-perfect determinacy in law, and moral reasoning with regards to rights-claims is inevitable, this does not logically entail an embrace of Charter values. The problem is that Charter values are endlessly indeterminate—they are not necessarily bounded by the text of the guarantees they are supposed to represent, and some Charter values could conceivably not be found in the text. Enterprising courts and litigants could pitch a value at high level of generality, leading to needlessly subjective moralizing about rights in a way untethered to the doctrine of various constitutional guarantees. Since there is no clear agreement on (1) how to determine what Charter values are relevant; (2) how Charter values are different than Charter rights; and (3) on how administrators are supposed to understand Charter values as distinct from Charter rights, this set of justificatory resources is not at all helpful to courts or litigants.

Tying together Stacey’s article is a common claim: “…I see no distinction between administrative and constitutional law in the first place” (357). Of course, this is a common (one might say orthodox) position. And yet it ignores an important function of constitutional law in relation to the administrative state—the Constitution (written and unwritten) is a limitation or constraint on government action (see  Vavilov, at 56). The hierarchy of laws exists for a reason, and under that hierarchy administrative discretion is parasitic on a statutory grant, which itself is subject to Charter scrutiny. There is no real, formal equality between administrative law and constitutional law: the Constitution is supreme, and it shapes and constrains government power. It does not liberate administrative discretion.

All told, Professor Stacey’s article contributes to the growing post- Vavilov literature. Unfortunately, I do not find it convincing.  Nonetheless, the Supreme Court will eventually deal with Doré  post- Vavilov. And until then, my opinion is worth as much as the page it’s written on, for what it’s worth.

On John Willis and the Pesky Politics of Administrative Law

John Willis was and is considered one of Canada’s most important administrative law academics. As a student of administrative law and the law of judicial review, one cannot skip Willis’ classic works, like his books “The Parliamentary Powers of English Government Departments” and “Canadian Boards at Work”—and his caustic papers, including his attack on the McRuer Report and his famous “Three Approaches to Administrative Law: The Judicial, The Conceptual, and the Functional.” Especially in this latter piece, Willis sets out his comprehensive functional theory of the law of judicial review—that theory holds that courts, with a typically “conservative” orientation, could never understand the difficulties of governments that, post-New Deal, were concerned with social welfare. Accordingly, courts should butt out, in service of the expertise, efficiency, and progressive orientation of administrative decision-makers.

While Willis should obviously be commended and respected as an eminent scholar of administrative law, there is a core problem at the centre of Willis’ thought that should stand as a warning for us in the modern era. Willis fundamentally viewed administrative law as a project of politics. As R. Blake Brown notes in this article, and as Willis himself always argued, the law of judicial review (and administrative law more broadly) was not about legal principles or controls on the administrative state, but was rather designed to limit the interference that legalist, conservative courts could wrought on tribunals pursuing the social good in an expert way. But this sort of thinking runs into two fundamental problems: (1) it ignores the fact that, strategically, administrative power can and has been used to fulfill the policy aims of governments who do not have any designs on social welfare goals—this was a clear blind-spot in Willis’ own work, one that led him to over-trust government; and (2) normatively, as recent Supreme Court and Federal Court of Appeal jurisprudence tells us, there is a meaningful difference between law and politics when it comes to the interpretation and application of laws governing judicial review. Granting deference based on the supposed underlying political motivations of particular decision-makers undermines this separation.

Let’s start by reviewing Willis’ functionalism. Willis self-described himself as a “government man,” and “what actually happens man.” By this he meant he was less concerned about the legal principles of a 19th century constitution, but rather was concerned with the making of “effective government” (see “Administrative Law in Retrospect” at 227). Functionalism crafted doctrine to align with the way government operates and the programs government is responsible for implementing. At the time of Willis’ writing, the struggle for government was the implementation of social welfare programs, closely associated with the New Deal. Delegation to administrative tribunals was one of the ways that these programs were implemented. A functional approach, then, would respect the legislative choice to delegate

In my view, deference to administrative tribunals in the functionalist mould was supported by a number of presuppositions about administrative decision-making, but the most important one for our purposes was what I call the “political” presupposition. Deference on the functionalist account was justified because of the apparent political valence of the decision-makers under review and what they were designed to achieve. Says Michael Taggart (at 257), describing the functionalists of the era:

These left-leaning scholars were deeply resentful of what they saw as conservative judges twisting the pliable rules of statutory interpretation to favour the existing order, privileging the rich and the powerful, and defeating the purposes of statutes intended to further the interests of the workers, the homeless, and the least well-off in society.

Deference on functionalist grounds was therefore a reactionary force, one that was a political project designed to fight back against the supposedly conservative orientation of the courts, that used legal principles to stunt the social welfare programs of governments.

Willis himself clearly fell in this category. A social democrat, Willis railed against any sort of thinking that would interfere with the prerogatives of government, undertaking social programs. He viewed government as fundamentally changing in light of the New Deal:

The State had changed its character, had ceased to be soldier and policeman, and was rapidly becoming protector and nurse…Again the right of the community bulk larger than the rights of the individual (See Parliamentary Powers at 13 and 51).

Risk described Willis’ functionalism as such:

Willis’ thinking about law and government can best be summarized by dividing it into three parts. The first is his observations and attitudes about government and its institutions….He perceive the nature and extent of the expansion of government, and its implications for the structure and functions of the legal institutions. He perceived a changing relation between the individual and the community, and how legislative policies were expanding the claims of the community against the individual, and circumscribing common law ideals….He had a great faith in experts, and he believed the courts should give liberal scope to the agencies on review (see Risk, at 545).

The political appreciation of administrative tribunals as representing the needs and wishes of the “community” was a constant thread through Willis’ scholarship advocating for a judicial “hands-off” approach to decision-makers like labour boards.

So, what are the problems with such an approach? To my mind, there are two. First, Willis’ political approach to deference fails on its own terms: it fails, on any complete account, to actually reach an ideal of social justice. This is because deference itself has no political valence, and can be easily used to vindicate decisions of administrators that run counter to social justice. And secondly, on principle, a political approach to deference runs counter to our positive law and to the good reasons for it.

Let’s first tackle the issue of social justice and its connection to doctrines of deference. As I’ve written time and time again, using deference as a means to reward the  decision-makers we like –because we ascribe to them some political ideal—is an unprincipled and politically naïve way to view the law. Let’s start with the latter contention. Willis’ supposition seems to be that courts themselves cannot be trusted to uphold the purposes of ameliorative legislation because of their conservative orientation. But it is not axiomatically true—and in fact, it seems bizarre—to suggest that deference will always serve to advance social welfare principles. It does no such thing.

The development of the administrative state is simple proof of this. When Willis was writing, he made the near-sighted appreciation that deference supported the administrative state as it existed at that time. At that time, observers were mostly concerned with labour tribunals, who were seen as consummate experts in their craft. But Willis either did not predict that deference would and could also have to attach to tribunals he did not appreciate under his social welfare rubric. That is, and I have said before, there are other aspects of the administrative state that do not map so neatly onto any past or modern description of social justice. Prisons, an area of interest for me, come to mind—perhaps the place where administrative discretion, at least prior to the CCRA, was most unbounded. Another example, that of immigration decision-making,  also comes to mind. What, beyond brash politics, justifies treating these tribunals any differently?  If one believes in deference, how can one say that prisons are any less deserving of deference than any other decision-maker?

This does not strike me as a consistent approach based on social justice. Later in Willis’ career, this thought must have occurred to him. That is because, in his “Administrative Law in Retrospect,” Willis addressed the question of a number “fashionable cults” which, to him, were negatively affecting the prerogatives of government:

This is very interesting coming from someone who is committed to social justice. How could it be consistent, if one accepts some political justification for deference based on social justice, for Willis to deny prisoners a right to be heard? Why are prisoners less good, in Willis’ eyes, than unions before a labour board? Willis’ myopic conception of social justice was profoundly underinclusive, even on its own terms.

Another explanation of this oddity is that Willis was not committed to social justice at all. Rather, it is very likely and possible that Willis was indeed a “government man” in the most literal sense of the term. Any action that could offend a government prerogative, in his eyes, was abhorrent. So the “cult of the individual,” and prisoners, all serve to run against government, even if government offends social justice. But this stands inconsistently with the idea of social justice. Social justice, on any cohesive account, is not about empowering government for the sake of government. The problem is that government can act in ways that contradict the theory of social justice

The above point challenges Willis on his own social justice terms, but there is an external, doctrinal reason to be wary of Willis’ approach to deference. It is indeed true that the fight for deference in Canada is overlayed by considerations of politics. After all, the laws delegating power to decision-makers—or laws that work to limit the scope of power for these decision-makers—are passed against the backdrop of a legislature that is a partisan organ. But that is a separate matter altogether from the actual legal justifications for deference, which like the interpretation of statutes, should be a separate concern from politics. Luckily, our law recognizes this fact clearly, and does so for good reasons. Vavilov, for example, does not base deference on any good-faith presumptions about the expertise of decision-makers. Now, the very fact that the legislature delegated power—any power—to any decision-maker is a fact worthy of deference. The tool of delegation as the grounds of deference has the benefit of being agnostic as to how one can judge, politically, particular tribunals. And Vavilov itself (at paras 120-121) cautions against reverse-engineering doctrine to suit a desired outcome. Clearly, Willis’ political approach to doctrine (and the arguably political approach of the common law courts) run afoul of our current law, which erects a clear separation between deference as a doctrine and the political results of a deferential approach. Justice Stratas in the Federal Court of Appeal has made a similar point in the context of statutory interpretation and judicial review: see Williams, at para 48; Cheema, at para 74; and Hillier, at para 33.

While that is the state of the positive law, it is the positive law for a good normative reason. It is orthodox today in the academy that law cannot be meaningfully separated from politics. It is even true that some say that any attempt to do so is necessarily “reactionary” or “conservative.” But this contention does not take account of the different parts of law-making and interpretation, and the very purpose of law itself. As I mentioned above, it is of course true that laws reflect the political consensus of the legislature at the time they are passed. It would be wrong and overbroad to suggest that the making of law is or should be divorced from the political process: indeed, it is the function of our legislatures to make laws that, at least in theory, are undergirded by the support of a majority. However, this is a completely separate act from the interpretation of laws. Laws, in order to be consistent with at least one aspect of the Rule of Law, must be general rather than specific; and when a judge interprets a law, she does so to give the meaning to the text, context, and purpose of the law that is enacted on the page (even purpose, as I discuss here, is usually and ultimately guided by text). The task of interpretation of laws should not be governed by consideration of politics; of what this or that judge thinks of this or that tribunal. Should it be the case that judges grant deference because of their political views, we will go along way towards undermining our separation of powers between courts and legislatures, imperfect as it is in Canada.

Of course, it is impossible to say that politics will never enter the interpretive activity. But that is a different question altogether than how doctrine is constructed. Ideally, the way we theorize deference and interpretation should not be based on political musings; rather, theory should be based on the foundational principles of our legal order, including the choice of a legislature to delegate power and the core interpretive function of the courts. It might be orthodox to suggest otherwise these days, but in my view, the very purpose of law in the law of judicial review is to enforce the limits that legislatures themselves provide—no matter how wide or loose they are—on administrative decision-makers. It should not be the role of the courts, as Justice Stratas so eloquently says in the above-cited decisions, for courts to pick winners and losers based on politics.

Back to Willis. John Willis’ contributions to Canadian administrative law will live for the ages. But his approach to the law of judicial review should not be celebrated wholesale. Willis’ cardinal mistake was falling victim to the game started by the “conservative” common law courts. If it is true that those courts struck administrative decisions because they did not appreciate the social welfare function of those agencies, that runs counter to our governing law and the good reasons for it. But today, Willis is still celebrated; the common law courts are not. I think it is fair and appropriate to draw attention to the blindspots in Willis’ theory: his myopia regarding what he thought was “social justice”; and the specious attempt to import deference based on some political justification.

Doré Revisited: A Response to Professor Daly

Over on Administrative Law Matters, Professor Paul Daly argues that Doré  actually “emerges strengthened” from Vavilov. Professor Daly’s post responds to my own paper (The Conceptual Gap Between Doré and Vavilov) and post, where I argue the opposite. In this post, I would like to respond critically to Professor Daly’s interesting and provocative arguments. I first recap my position on the matter. Then, I review Professor Daly’s arguments, and respond in turn. In whole, I remain convinced that Doré is inconsistent with Vavilov. Specifically, I disagree with Professor Daly that the presumption of reasonableness applies to Charter issues arising in the scope of administrative jurisdiction. Moreover, I disagree that Vavilov’s articulation of reasonableness review is functionally similar to Doré’s. As it turns out, these disagreements matter for the continued propriety of Doré post-Vavilov.

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As I wrote in both my paper and post on the matter, there are key tensions between Vavilov and Doré  that deserve some attention.

These tensions arise with respect to both selecting and applying the standard of review. On the selection front, Doré  reasonableness is based on a functionalist idea, where the expertise of decision-makers in deciding constitutional matters is presumed (see Doré , at para 46). This justified the selection of a reasonableness standard of review when an administrative decision is challenged as unconstitutional—even though a correctness standard applies when a statute under which an administrator may operate is challenged (see Vavilov, at para 57).   However, Vavilov resiled from this presumptive stance on ordinary questions of law, instead rooting the presumption of reasonableness review on the fact of delegation, not expertise (see Vavilov, at para 30). This, to my mind, illustrates an inconsistency: why would a court presume expertise on constitutional matters, but not on ordinary legal interpretation (the stuff of Vavilov)?

On the application front, I argued that Vavilov probably introduced stricter reasonableness review than the sort of reasonableness review envisioned in Doré and later represented in its progeny (for example, TWU). This is because there are aspects of Vavilov that are more formalist: for example, the focus on the statute as the “most salient aspect” of the legal context relevant to judicial review (Vavilov, at para 108). Transposed into the Doré  context, this might mean that decision-makers should focus on the existing constitutional text instead of abstract values. I also admitted in my paper that Vavilov isn’t just one thing—there is a focus on developing a “culture of justification” in administrative decision-making (see Vavilov, at para 2; The Conceptual Gap, at 13-14). But even this is inconsistent with Doré , which said very little about the sorts of reasons required in a constitutional context; in fact, no guidance was given in Doré  at all, except to say that decision-makers should balance “the Charter values with the statutory objectives” (Doré , at para 55). Contrast this with Vavilov’s detailed approach to reasons-giving, and we see not only an inconsistency, but a schism.

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Not so fast, says Professor Daly. For him, when it comes to both selecting and applying the standard of review, there are no great tensions between Vavilov and Doré.  Indeed, for Professor Daly, “…Doré  emerges strengthened from Vavilov, not weakened.” This is because “…the excision of expertise from the process of selecting the standard of review means that the presumption of reasonableness review certainly applies to Charter issues.” Vavilov indeed does draw a distinction between “merits” review, under which reasonableness presumptively applies, and issues of procedural fairness (see Vavilov, at para 23). If this is the case, expertise no longer matters one way or another to determining the standard of review. Professor Daly further argues that the exercise of discretion implicating constitutional matters is different than pure challenges to statutes under the Charter. In the latter case, uniformity is required, on Vavilov’s own terms. But in the former case: “…answers can legitimately vary as between different regulatory regimes: for example, what is a proportionate restraint on freedom of expression in the workplace may not be proportionate in a municipal election campaign…”

When it comes to applying the standard of review, Professor Daly notes that “[t]here is nothing formalist about the detailed articulation of reasonableness in Part III of Vavilov” (though he goes on to concede that “[s]ome components of Vavilovian reasonableness review can fairly be described as formalist or Diceyan”). He concludes that “[a]dministrative decision-makers can continue to contribute to our collective understanding of the Charter in its application to particular regulatory settings.”

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While I will note areas of agreement, I must strenuously disagree with much of what Professor Daly says about Doré in light of Vavilov, when it comes to selecting the standard of review. The core disagreement between our positions lies in how far each of us would extend the presumption of reasonableness. For Professor Daly, the presumption applies to Doré -type issues. But for me, the presumption of reasonableness outlined in Vavilov must necessarily exclude Doré -type issues. This is for two reasons. First, the presumption, rooted in legislative intent, cannot apply to Charter issues—the legislature cannot intend anything with respect to the depth of scrutiny used by a reviewing court on constitutional matters. Second, the standard of review applied to Charter issues should not depend on the context in which these issues are raised: either way, the Constitution is a fundamental constraint on government actors, requiring uniform interpretation by the courts.

Let’s begin with the first argument by reviewing the conceptual basis for the presumption of reasonableness. As the Court notes in Vavilov, the presumption of reasonableness review is based on the “very fact that the legislature has chosen to delegate authority…” (Vavilov, at para 30). In other words, “[t]he presumption of reasonableness review…is intended to give effect to the legislature’s choice to leave certain matters with administrative decision makers rather than the courts” (Vavilov, at para 33). Legislative intent guides the presumption of reasonableness review, at least on ordinary questions of law. The fiction being deployed here is that the legislature intended deference when it delegated authority to an administrative decision-maker.

While it might be defensible to suggest that a legislature intends deference when it delegates (though such a suggestion itself requires a leap of logic that some might find implausible), it is another thing altogether to impute to the legislature an intent to defer on constitutional matters. This is because  legislatures cannot meaningfully alter the depth of constitutional scrutiny afforded its own enactments by courts. Such alteration would strike at the core of powers exercised by judicial review court. Specifically, the Supreme Court has held that legislatures do not have the ability to “limit judicial review of constitutionality” (see Amax Potash Ltd Etc v The Government of Saskatchewan, [1977] 2 SCR 576, which was rendered in the context of a division of powers case, but with comments equally applicable to Charter issues). Vavilov alludes to this limitation more specifically. It says that legislatures can only specify the standard of review “within the limits imposed by the rule of law” (Vavilov, at para 35). The Rule of Law includes “constitutional questions” which include challenges to statutes on division of powers and Charter grounds. On these questions, correctness rules the day, and the legislature’s intent is of no moment.

Is the same true for exercises of administrative discretion implicating the Charter? It should be, because the legislature cannot do indirectly what it cannot do directly. The legislature should not be able to escape the full scrutiny of the courts under the Constitution simply by delegating. An adjunct to this principle was set out in Eldridge, at para 42, in the context of Charter applicability. There, La Forest J, relying on his decision in McKinney, noted that legislatures should not be able to evade Charter responsibility by simply delegating power. While this decision was rendered in terms of Charter applicability, the same principle applies to questions of standard of review. The level of scrutiny applied by the Court should not differ depending on whether the legislature decides to delegate. Put differently, courts should not impute to the legislature an intent to alter the status quo ante of correctness review simply through the act of delegation.

Put this way, if we cannot speak of a legislative intent to defer on constitutional matters regarding statutes, the same is true on matters arising in administrative jurisdiction. Applying the Vavilov presumption to these questions would mean that we can implicitly conclude that the legislature intended deference on these constitutional matters. But for the reasons above, if we apply the same rules to administrative discretion implicating the Charter, then we cannot speak of a legislative intent on these matters either. Put simply: the legislature is constitutionally incapable of possessing an intent when it comes to the standard of review courts apply on constitutional questions, no matter the context in which the questions arise.

This leaves an important question: if the Vavilov presumption does not apply to Dore-type issues, where do these issues fit in the Vavilov framework? In my view, Doré -type questions involve the Rule of Law, warranting correctness review, as described in Vavilov. While Professor Daly notes that challenges to administrative discretion may admit of more than one answer, one must remember that we are speaking of the Constitution’s protections, not of the ability of administrators to have more lee-way in the context of their regulatory regimes. These issues are still constitutional questions that require a uniform interpretation by the courts, even if the issues arise in challenges to administrative discretion. In fact, the power of judicial review exercised in constitutional and administrative contexts derives from the same source. As Justice Beetz noted in Syndicat des employes de production du Quebec:

              Furthermore, I do not see why different rules would be applied in this regard depending on whether it concerns judicial review of an administrative or quasi-judicial jurisdiction, or judicial review of legislative authority over constitutional matters. When the courts of law have to rule on the validity of a statute, so far as I know they do not ask whether Parliament or the legislature has expressly or by implication given ss. 91  and 92  of the Constitution Act, 1867  an interpretation which is not patently unreasonable. Why would they act differently in the case of judicial review of the jurisdiction of administrative tribunals? The power of review of the courts of law has the same historic basis in both cases, and in both cases it relates to the same principles, the supremacy of the Constitution or of the law, of which the courts are the guardians (at 443-444).

Putting aside the old administrative law language of “jurisdiction” and the fact that we currently accept reasonableness review on the merits, there is an overall point here the bears repeating: even if a constitutional issue arises in administrative proceedings, it is the same power of judicial review that is exercised by a court when it reviews statutes for their constitutionality. The role of the courts should be the same in each context: as guardians of the Constitution, courts must render uniform interpretations of the Charter, even in cases of administrative discretion.

Relatedly, there is also an important perspective to consider here: that of the holder of the right. How does one explain to her that her right means something different because an administrator made the decision? How does a Court conclude that the Constitution’s meaning could potentially be different—not for reasons of text, precedent, or structure—but because the procedural trappings of a case happen, fortuitously, to be different? Administrative exigency is no excuse—or at least, not a good one—to limit one’s Charter rights.  (see, for more on the arbitrariness of Doré, Evan Fox-Decent and Alexander Pless, “The Charter and Administrative Law: Cross-Fertilization or Inconstancy?” in Lorne Sossin & Colleen Flood, eds, Administrative Law in Context (Toronto: Emond Montgomery, 2012) at 431).

Professor Daly might respond that the Constitution could mean different things in regulatory contexts.  But this point seems to view the matter from the wrong perspective. The question is not what makes the most sense for administrators given the different contexts that they render decisions. The question, instead, is whether there is some principled reason, besides administrative exigency, for a lower standard of scrutiny to be deployed when reviewing administrative decisions under the Charter. As I’ve written before, doctrine should not “require the weakening of constitutional norms to suit the prerogative of administrative decision-making.”

***

With my remaining space, I’d like to turn to the issue of applying the reasonableness standard. Here, I agree with much of what Professor Daly says. As he notes, and as I argue in my paper, there are tensions in Vavilov’s articulation of reasonableness review (see the Conceptual Gap, at 15). I acknowledge, specifically, that aspects of Vavilov reasonableness may have a Diceyan quality to them, while other parts of Vavilov are more designed to encourage space for decision-makers to justify their decisions to the public (Vavilov, at para 14). Other aspects of Vavilov are not formalist at all—for example, the recognition that administrative justice need not look like judicial justice (Vavilov, at para 92). On this, I think there is agreement.

But this does not change the fact that there are aspects of Vavilovian review that are decidedly formalist, and which conflict with Doré on its own terms. Recall that the governing statutory scheme will be the most salient aspect of the legal context relevant to judicial review (Vavilov, at para 108), with the principles of statutory interpretation acting as necessary constraints on decision-makers. As noted above, if we transposed this requirement into the constitutional context, we would expect the Constitution—specifically, its text—to be even more fundamental than statutes, to the extent that decision-makers must always consider the Charter within their scope of discretion (Doré , at para 35; Slaight Communications, at 1077-1078). As I note in my paper:

Recall that Vavilov, in the context of legislative interpretation by administrators, asked decision-makers to focus on a number of “constraints” that would determine whether a particular decision is reasonable or not. Some of these constraints are particularly relevant to the constitutional context. For example, in the context of assessing the reasonableness of a decisionmaker’s constitutional conclusions, Vavilov’s focus on the “governing statutory scheme” could easily simply be rebranded as the governing constitutional text; precedent, in both contexts, would be relevant; and the principles of statutory interpretation emphasized in Vavilov could become the principles of constitutional interpretation in the Doré context. Additionally, the Court could impose explicit reasoning requirements on all of these constraints; where they are in play, decision-makers should reason in relation to them, just as the Court asked decision-makers to reason respecting the Vavilov constraints (The Conceptual Gap, at 26).

And more specifically, the exercise of discretion under the Charter still requires justification. This was not alluded to in Doré, and yet Vavilov centres the entire edifice of reasonableness review on this principle. Justification, for example, requires the consideration of “…the perspective of the individual or party over whom authority is being exercised” (Vavilov, at para 133). Where rights and interests are stake, one must assume that the standard must be something more than being “alive” to the Charter issues at stake, as the majority concluded in TWU. While I acknowledge that TWU was a law society case, where reasons take on a different character, I must note the dissent’s point of view in TWU. Arguably, the dissent’s comment is more in line with what Vavilov requires:

While the Benchers may not have had a duty to provide formal reasons…the rationale for deference under Doré —expertise in applying the Charter to a specific set of facts…–requires more engagement and consideration from an administrative decision-maker than simply being “alive to the issues,” whatever that may mean… (TWU, at para 294).

In sum, I continue to believe, despite Professor Daly’s strong arguments, that Doré  is vulnerable to attack after Vavilov. While I would be prepared to make arguments that attack Doré  head-on, there is value in comparing Vavilov to Doré. Far from emerging strengthened, I continue to hold the view that Doré requires assimilation to the Vavilov framework. But I part ways with Professor Daly on precisely how this is done.

The Common Good Administrative State

The Internet has been captivated by Professor Adrian Vermeule’s provocative essay in The Atlantic on so-called “common good constitutionalism” (CGC). CGC could be describes as part of a larger theory that co-blogger Leonid Sirota calls “right-wing collectivism,” which “blends support for using the power of the state to advance traditional moral values, a hostility to free markets, and nationalism.” CGC picks up the mantle in the legal realm, with Vermeule suggesting that “substantive moral principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read in the majestic generalities and ambiguities of the written Constitution” should be the starting point for interpretation. These substantive principles include

…respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality”—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority.

CGC is clearly distinguishable from other political and legal theories of interpretation. It does not ally itself with originalism, in that originalism is not expressly designed to promote certain substantive political aims. On the other hand, CGC does not take freedom of the individual as the dominant good in a polity, as libertarians might. Instead, CGC intends to promote substantive conservative ideals in constitutional law.

This is a rough-and-ready description of CGC, and for those who want a more in-depth description of the theory’s substantive ends, Leonid Sirota has written a post on CGC here, and others have written well-justified critiques of Vermeule’s position. My goal in writing today is to suggest some implications of CGC for administrative law and the delegation of power to administrative agencies. I do not think that a state or court that sets out to accomplish what Vermeule suggests would be able to avoid delegating power to agencies—this Vermeule seems to acknowledge. The question is whether such delegation is desirable, and whether the conservative adherents of Vermeule’s theory would themselves accept an ever-growing administrative (rather than democratic) behemoth.

I first describe what Vermeule says about the administrative state in his controversial piece and a related piece. Then I address some implications of CGC for administrative law and delegation. My view is that CGC depends–crucially–on the administrative state to effectuate its aims. But there is no guarantee that the administrative state can be wielded to achieve those goals.

**

Vermeule spends the majority of his time talking about the ends associated with his CGC, and rightly so: these are controversial aims that run against orthodox opinion and established authority. However, he does devote some time to discussing how his CGC will affect the “structure and distribution of authority within government.” It is worth quoting the entirety of what Vermeule says about administrative agencies and bureaucracy; clearly, these institutions form the means to Vermeule’s ends:

As for the structure and distribution of authority within government, common-good constitutionalism will favor a powerful presidency ruling over a powerful bureaucracy, the latter acting through principles of administrative law’s inner morality with a view to promoting solidarity and subsidiarity. The bureaucracy will be seen not as an enemy, but as the strong hand of legitimate rule.

This is the entirety of what Vermeule says about bureaucracy in his piece, but there is a lot of meaning packed in these words. The last link in Vermeule’s comments links to another piece he wrote in which he discusses the ability of the administrative state to actively promote religion. In this piece, Vermeule suggests that “specialization” in administrative agencies is neither here nor there on religion, because “specialization is an intrinsically neutral institutional technology.” Vermeule says, on this basis:

So the administrative state, in my view, is an institutional technology that can be put to good or bad ends, and is no more intrinsically hostile to religion than is, say, the use of written rather than oral communication.

[…]

Let me distinguish two ways the administrative state could be put to beneficial use to promote religion. One is by clearing away legal and economic obstacles to religious practice, obstacles thrown up by other sorts of institutions; another is by directly and affirmatively promoting religious values.

For Vermeule, then, the picture seems to be of an administrative state actively advancing a certain discretionary agenda, perhaps unconstrained by constitutional or legal arguments that might confine that discretion, with the gargantuan task of promoting “solidarity and subsidiarity.” Unfortunately, no matter whether such a state is desirable, I do not find such a state practical in any sense of the term.

**

Consider, first, the supposition that the bureaucracy would be “strong” in itself, acting under a “strong” Presidency. This comment seems to recall the unitary executive theory, under which “whatever authority the executive has must be controlled by the President.” This includes bureaucratic agencies operating under the President. These sorts of agencies can be contrasted with independent agencies, typically styled as such because their heads are removable by the President only for cause (though see Vermeule’s piece here). On the unitary executive theory, bureaucrats fall under the control of the President, exercising his constitutionally-delegated Article II authority.

At first blush, the unitary executive theory might appear to be a normatively desirable way to control bureaucrats. After all, Article II is clear that it is the President who holds the executive power, and so any exercise of that power must be controlled by the President. This theory has infiltrated the Supreme Court of the United States’ cases, particularly the so-called “Peek-a-boo” case (PCAOB v Free Enterprise Fund).

But practically, I have always been skeptical that the unitary executive theory is any more than a constitutional ideal rather than a practical, empirical fact. That is, it is somewhat of a legal fiction. The President of course cannot control every executive agent. And this is where Vermeule’s use of the administrative state as an instrument of CGC will falter. The political science and public choice literature is rife with theories of bureaucratic “drift,” under which agency members might “drift” from the statutory authorization giving them power. The same type of executive drift is possible from the perspective of the President; where preferences diverge between career staff and bureaucrats may have ideas of their own. After all, “…agencies (often have different goals than politicians or different judgments about how best to achieve those goals.” (see Jacob Gerson’s piece here). In the United States, for example, Jennifer Nou has written about civil servant disobedience, an increasingly prominent phenomenon during the Trump era. What is the Vermeulian plan for a disruptive civil service, with its own preferences, and its own agenda? In other words, do we think a strong bureaucracy will fall in line to CGC?

For example, one form of contestation might arise when a CGC President wants to promote “subsidiarity.” What incentive is there for a national administrative agency to embrace the principle of subsidiarity in the exercise of its legal functions? This seems to be a situation where there could be a classic preference divergence, where in the halls of power there is probably an incentive to arrogate more and more power to federal authorities over local authorities.

The upshot of Vermeulian CGC is that it would, I suspect, necessitate a mass amount of delegation to administrative agencies (though Vermeule does not expressly say this). Keeping in mind that Congress already has a difficult time in deciding how to monitor its delegations of power, and given that the pace and breadth of delegation seems to grow year over year, I have no faith that a CGC-based state would be able to control the mass delegation it plans. And it is worthwhile to question whether more delegation to administrative agencies is at all desirable.

These concepts are not new, and are fairly simple to understand. But they represent general rules about how the bureaucracy operates. There is no guarantee that a strong bureaucracy, as Vermeule wants it to be, will be a faithful agent for the President.

**

But let’s assume that such a unity of identity and purpose is achievable—the administrative state, under this understanding, could become a tool for CGC and its programs. But this illustrates the problem with administrative power, based on it is upon contested notions of expertise and the “science of administration”: these tools can be easily co-opted and turned against CGC. On this account, the administrative state could be a self-defeating enterprise for CGC.

It is interesting, at least to me, that Vermeule calls the administrative state a neutral “institutional technology.” This might be strictly true, but it harkens back to an era when we spoke of ideas of strictly neutral expertise, or of the administrative state’s neutral status as a collection of good-faith individuals working towards the public good. One of the notions inculcated by the administrative law functionalists of a previous generation (like Wilson, Landis, and Goodnow) was the idea that administrative technology should be kept independent from the travails of politics. On this account, the administrative state might be described as a neutral technology.

But as I have written before (and as Vermeule seems to tacitly acknowledge), there is nothing technological or neutral about the administrative state. As mentioned above, agents within the state may have their own goals. But more importantly, if delegation is the so-called “engine” of the administrative state, then the currency we are really speaking about in administrative law is power. Power is what administrative agents act on when they create rules and make decisions. Courts are primarily concerned with whether these rules and decisions fall within the scope of the enabling power, and/or whether the power exercised by delegated officials is justified. Power, then, is given by the legislature to the delegated actor, and it is that power we should be concerned with.

Vermeule accepts that this power can be used to advance religious goals, or perhaps goals centred around the constitutional aims of CGC. But it is just as likely that this power can be co-opted by bureaucrats, courts, or politicians or judges of a different stripe, to advance an exact opposite version of the “common good.” As I wrote before:

Progressives have spent more than a generation asking courts to stay out of the business of administration, especially because of their supposed conservative and market-based political philosophy. This largely worked. The administrative state is now entrenched in many common law countries. But administrative power knows no ideology. Its only ideology is power, in a raw sense. That power—being judicial, legislative, and executive power merged—can be wielded by those with anti-progressive goals, or more dangerously, by those with authoritarian tendencies who seek to “throw things into confusion that he may ride the storm and direct the whirlwind.”

The number of times this has happened in administrative law history are too many to count: but consider the use of administrative agencies by FDR to advance the New Deal, and then the capture of these agencies some 50 years later by President Reagan to advance his deregulatory agenda. Recall that Chevron deference was introduced during the Reagan era, and served to assist the Reagan administration’s environmental agenda. The administrative state’s allyship with power makes it a dangerous tool that can be used for partisan or political ends that CGCers would find abhorrent. 

This is not, in itself, a bad thing. In fact, it subjects the administrative state—to the extent permissible with preference divergence—to the democratic accountability of elected officials. But let’s not pretend that the administrative state can be a neutral technology that always and everywhere can be transformed to CGC ends.

**

If the administrative state is fundamentally about power, then we should be careful about its exercise. This is the traditional way we view power in constitutional law and administrative law. For example, judicial review in Canada is concerned with surveillance of lower decision-makers in order to ensure precise conformity to their enabling statutes (see Wall, at para 13; Vavilov, at paras 108-110). The same is true in the United States. CGC, then, turns the typical discussion of judicial review of administrative action on its head. Instead of discussing how best to control administrative decision-makers through doctrine, CGC seems to harken back to an old era of administrative law theory, where there is an implicit trust in administrative decision-makers to simply do the right thing. For the reasons I’ve noted above, it is unlikely that this will ever be the case. But as co-blogger Leonid Sirota points out, there is a downfall to assuming that power can simply be trusted to a massive administrative state, advancing the “common good” (whatever that turns out to be defined as):

From this recognition there should proceed, as I repeatedly insisted my post on the corrupting effects of power, to a further acknowledgement of the importance not just of moral but also of institutional and legal constraints on power. We must continue to work on what Jeremy Waldron describes as “Enlightenment constitutionalism” ― the project of structuring government so as to separate out and limit the power of those whom Professor Vermeule calls “the rulers” and empower citizens. This project recognizes the need for power but also its temptations and evils, and the fallibility of human beings in the face of these temptations and evils. As James Madison, in particular, reminds us, we should strive to so design our institutions as to make these human weaknesses work for us ― but we can only do so if we are acutely aware of them.

Much administrative law is best conceived in this light. We are talking, after all, about the law which governs administrators—the judicial and legal controls that we apply to ensure the legality of state power. The worry is even greater in administrative law contexts, because Parliament can easily escape the strictures of judicial control by delegating power away. Judicial review, on this front, is concerned with managing the risks associated with delegated power, and the discussion should be the best doctrine to effectuate that concern. But CGC seems to unleash the administrative state, putting trust in the bureaucracy to achieve its aims. This, to my mind, is a classic mistake.

**

Of course, I cannot address all of the implications of CGC in this (relatively) short post. I have tried to focus on a few implications for the world of administrative law. The metes and bounds of CGC will, hopefully, be fleshed out in further academic debate and discussion. For now, though, I am skeptical that the mass delegation of power that CGC will likely entail to the administrative state will be worth the risks associated with that delegation.

 

 

 

CBC v Ferrier, 2019 ONCA 1025: Considering Consideration of the Charter

Part II of a two-part series on Doré.

 

Yesterday, I wrote about why Doré was under stress in the aftermath of Vavilov. Today, I write about a new case out of the Court of Appeal for Ontario (per Sharpe JA) that demonstrates why Vavilov means that Doré is sitting in a tense situation. While Ferrier should not be taken as the death knell for Doré—or even an indication of such—it is an indication of the tension that Vavilov arguably introduced into the world of Doré.

In Canadian Broadcasting Corp v Ferrier, the question involved “the openness of police board hearings” [1]. Under the Police Services Act, s.35(4), subject to certain exceptions, “police services board hearings are presumptively open to the public” [3]. In other words, section 35(4) sets out the test for whether a hearing should be closed.  In this case, the relevant decision-maker decided that the hearing should be closed. The CBC and others argued that the decision-maker “failed to pay adequate attention to the s.2(b) Charter right to freedom of expression by failing to require an open hearing” [4]. Specifically, the applicants argued that the so-called Dagenais/Mentuck test applied to the case: “[t]his test applies to discretionary decisions limiting freedom of the press in relation to court proceedings” [15]. The decision-maker, though, rejected the application of this test because (1) Dagenais/Mentuck apparently only applies to situations in the courtroom and (2) the relevant statute (s.35(4)) prescribed the proper test for determining whether to hold a closed hearing, and that statutory test ousted the consideration of Dagenais/Mentuck.

In addressing the standard of review, the Court was in an awkward position, because “[t]his appeal had been argued and a complete draft of these reasons had been written before the Supreme Court released its decision in [Vavilov]” [29]. Nonetheless, the Court went on to assess the standard of review under the Vavilov framework.

The main question in determining the standard of review was the proper decision under review, and the authority under which the decision was made. Sharpe JA concluded that the relevant decision was whether the Dagenais/Mentuck standard applied [32-33]. In other words, the relevant decision under review was the decision-maker’s refusal to apply the Dagenais/Mentuck test in view of the s.35(4) statutory test. To Sharpe JA, this was a decision reviewable on a correctness standard [33]. In drawing this conclusion, Sharpe JA drew a distinction (on standard of review) between cases where a Charter right was considered by a decision-maker and cases (as here) where the Charter right was expressly not considered:

[34] If the Charter rights are considered by the administrative decision maker, the standard of reasonableness will ordinarily apply.

[35] On the other hand, the refusal or failure to consider an applicable Charter right should, in my opinion, attract a correctness standard of review. As the Supreme Court explained in Dunsmuir, at para. 60, citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 62: “where the question at issue is one of general law ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’ … uniform and consistent” answers are required. See also Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555, at paras. 20-21. This is confirmed by Vavilov, at para. 17: “[T]he presumption of reasonableness review will be rebutted…where the rule of law requires that the standard of correctness be applied. This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies”.

[36]       The s. 2(b) Charter right to freedom of expression and freedom of the press relied upon by the appellants is both a matter of central importance to the legal system and a constitutional question.

In other words, Sharpe JA’s reasoning is that decisions whether to consider Charter rights at all are reviewable on a correctness standard, because such decisions are both constitutional questions and questions of central importance to the legal system, under the Vavilov framework. But once an administrator has considered Charter rights, the consideration of those rights are subject to a reasonableness standard.

Two things are notable about this distinction, taking into account pre-Vavilov precedent. First, prior to Vavilov, the decision of whether Charter rights had to be considered on the facts was not prescribed a specific standard of review by the Supreme Court, and otherwise was subject to a reasonableness standard in the Federal Courts. In Singh, for example, the Federal Court of Appeal was asked to determine whether s.110(4) of the Immigration and Refugee Protection Act [IRPA], which prescribes the conditions under which new evidence can be admitted in an appeal to the Refugee Appeal Division [RAD] exhaustively prescribed the conditions under which evidence could be admitted. An intervenor argued, for example, that “the RAD had to go beyond the requirements set out in s.110(4) and was obligated to proceed with a [Doré analysis].” [56]. However, the Court concluded (1) that s.110(4) exhaustively set out the conditions under which new evidence could be admitted, vitiating the need for a Doré analysis [62] and (2) even taking account of the fact that this argument was made, the Court ultimately concluded that the interpretation of a provision such as s.110(4) is reviewable on a standard of reasonableness [29]. This is because, among other things, the question was “not a question of law of central importance to the legal system as a whole…[23].

It is true, as Professor Daly points out on Twitter, that Sharpe JA’s approach is substantially similar to the approach adopted by the Supreme Court with respect to the duty to consult, as noted in Rio Tinto. There, a distinction was drawn between cases where the decision-maker decides whether it must consider the duty to consult (reviewable on a correctness standard) and cases where the decision-maker has consulted and it is up to the court to assess the adequacy of the consultation (reviewed on a reasonableness standard). More broadly, the distinction here—similar to the one drawn by Sharpe JA—is based on a traditional sort of test for standard of review: questions of law (existence of legal duty) are reviewable on a correctness standard; questions of mixed fact and law are reviewable on a reasonableness standard.

But the analogy to duty to consult is not entirely convincing. For one, in some cases, a duty to consult may not need to be considered by an administrative decision-maker—since the enabling statute may not mandate it (see Rio Tinto, at para 67). But Doré speaks in far more reaching terms: “Rather, administrative decisions are always required to consider fundamental values” (Doré, at para 35, emphasis in original). Following this line of thinking, Doré and its progeny have not adopted the distinction between power to consider a fundamental right and the consideration of that right, for the purposes of the standard of review (though I note Moldaver J’s reasons in Ktunaxa as approaching this bifurcated analysis). As noted above, in Singh, whether a decision-maker must address the Charter is a matter of statutory interpretation, normally reviewable on the standard of reasonableness (see also Deri, at the Federal Court, on this note).

This distinction, then, in the Charter context is not common.  Indeed, Sharpe JA seems to imply that Vavilov broadened the categories of cases in which correctness review would apply. The distinction drawn by Sharpe JA seems to give broader effect to the Dunsmuir correctness categories of “central questions” and “constitutional issues.” Take the central questions category. Following Singh, the question of whether a statute ousts the need to consider judicially-constructed tests was not a “central question” of importance to the legal system. But now, given Vavilov’s comments on the Rule of Law and the need for determinate final answers on important issues of legal interpretation (Vavilov, at para 53), it appears that there is extra grist for the mill for judges to expand the scope of the category, despite the Vavilov majority’s warnings otherwise (see Vavilov, para 61).  Moreover, on the scope of constitutional questions, and on Doré’s own holding, a distinction was not drawn between cases where a Charter argument was considered versus cases where they were not considered but should have been. The Court has never explicitly endorsed this proposition with reference to Charter rights.  Doré, instead, simply says that a decision which balances the Charter value with the statutory objective is reasonable (Doré, at para 58). Ipso facto, a decision which does not will be unreasonable, and so a decision that fails to even take account of a Charter value will be unreasonable (for an example, see Abdi, at para 30 ). But this was not a question of correctness, at least on Doré’s standard. Sharpe JA takes a different approach, relying on Vavilov.

One could make a convincing argument, then, that Vavilov changes  the pre-Vavilov state of affairs as it applies to Doré and other categories of correctness review. In other words, Ferrier eats into Doré’s domain.

That is one point, in itself. But another is that, in my view, Sharpe JA does not take the point far enough, and in failing to do so, creates a distinction that is unworkable.  In truth, the distinction between cases where Charter rights were considered and those where they were not is not a strong one on which to rest a difference in the standard of review. This is because of what Vavilov says at paras 55, 57:

Questions regarding the division of powers between Parliament and the provinces, the relationship between the legislature and the other branches of the state, the scope of Aboriginal and treaty rights under s. 35 of the Constitution Act, 1982, and other constitutional matters require a final and determinate answer from the courts. Therefore, the standard of correctness must continue to be applied in reviewing such questions: Dunsmuir, para. 58Westcoast Energy Inc. v. Canada (National Energy Board)1998 CanLII 813 (SCC), [1998] 1 S.C.R. 322.

[…]

The constitutional authority to act must have determinate, defined and consistent limits, which necessitates the application of the correctness standard.

In other words, “the constitutional authority to act”—whether Charter values are considered or not—necessitates the application of the correctness standard. More broadly, the application of the correctness standard in these circumstances “respects the unique role of the judiciary in interpreting the Constitution and ensures that courts are able to provide the last word on question for which the rule of law requires consistency and for which a final and determinate answer is necessary” (Vavilov, at para 53). In my view, this is true when a court analyzes whether a decision maker was required to consider Charter rights, and in cases where the decision-maker actually analyzed the Charter rights. In both cases, there is a substantial constitutional component to the analysis which implicates the need for the court to have the final say on the law: the court is required in both cases to assess the application and scope of constitutional rights. Even when considered in respect of facts or proportionality analysis, a court is still required to construe the scope of constitutional rights.

Some might argue with my position here. For example, as I mentioned in my previous post, Vavilov explicitly does not overturn Doré, and also does not explicitly mention questions of the “Charter” falling within the scope of its comments on “constitutional questions.” But it would be hard to distinguish between these cases. In other words, what is the compelling justification to treat Charter cases separately from all other questions of constitutional law, and going a step further, what is the justification for distinguishing cases where the Charter was considered versus where it was not? Whie one might say that the factual component changes things, in both cases, involving considering whether Charter values arise because of a relationship to a statute and cases where Charter values were considered, it is the court’s task to delineate the scope of constitutional rights. This is true in both the abstract and as applied to proportionality analysis. If this is true, the distinction, then, falls apart.

Ferrier, then, is an interesting case study in how Vavilov interacts with Doré. And at least on first blush, the interaction is tense.