Because It’s (The End of) 2019: Focusing on Legislative Meaning in Judicial Review

For Canadian legal watchers, specifically administrative law aficionados, 2019 has been a year of frustration and “confusion and contestation.” On one hand, we await guidance from the Supreme Court in Vavilov and Bell/NFL regarding the standard of review of administrative action. In other ways, we have seen interesting trends from the Supreme Court on other issues, including statutory interpretation more generally. And what’s more, we have also seen developments in other administrative law topics that have evaded general commentary.

While I cannot review all of the developments here, I want to focus on three sets of cases that bring to bear interesting debates over the role of interpretive principles in Canadian administrative law. Each case or set of cases, in their own way, demonstrate that much of the law of judicial review is fought on the terrain of statutory interpretation; or at least, that is the way it should be. Normatively, I think these cases and their circumstances demonstrate that the Supreme Court, in its upcoming review of Dunsmuir, should be focusing on giving effect to the legislature’s meaning in particular provisions when it delegates power to administrators. Right now, the doctrinal mechanisms employed by the Court fail to focus on what the legislature actually meant when it delegates power; for example, they fail to give effect to signs that the legislature might have intended a broader curial review, instead presuming deference. This is a problem from the perspective of the hierarchy of laws. Court-made tests can be ousted by the legislature. It is this hierarchy that the Court has ignored.

On to the cases:

  1. Vavilov and Bell/NFL

I have summarized and analyzed Vavilov and Bell/NFL in a series of posts over the last year: see Vavilov, Bell/NFL,  and further analysis. My general take on these cases is that they have been built up to be far more than what they turn out to be. This is true for a number of reasons. First, the Court is institutionally ill-positioned to affect broad change to all of the problems plaguing Canadian administrative law. The problems are wide-ranging, and could be implicated by the facts of the various cases, but it is unlikely that a deeply-fractured court will agree on these matters. Think about it: all under the auspices of the standard of review, the amount of discord in the court’s cases outline the range of problems courts will have to address. Will the Court follow on cases like Tervita and Rogers, giving more weight to legislative signals implying that the legislature wanted broader curial review? Or will the Court double down on the presumption of reasonableness, entrenched in Edmonton East and CHRC? What about the role of reasons—will the Court hold fast to Newfoundland Nurses and Agraira (at paras 57-58) which permit supplementation of reasons where they are non-existent, or will it go further than Delta Airlines, where the Court held that lower courts cannot cast aside decision-maker reasons in favour of their own?

This plethora of interpretive problems poses a larger problem for the Court: how will it deal with its own precedent? As I note here, the Court seemed reticent to revisit its own precedents. But to my mind, this was the entire point of calling for submissions on the nature and scope of the judicial review superstructure. And if adherence to precedent is an issue for the Court, it should consider that two common exceptions to stare decisis include workability and reliance interests. In truth, it is hard to rely on something unworkable. Most would agree that Canada’s current approach to judicial review of administrative action is unworkable. The Court should not stand on precedent in dealing with this mess.

Perhaps most difficult of all the issues is the role of statutory interpretation principles in combination with a regime of deference. I have written about this issue before, but to my mind, this is the core issue raised by Vavilov et al. The dominant approach, as of now, is that courts should defer to interpretations of law, regardless of the grant of authority passed from the legislature to particular decision-makers.

This, to my mind, is a mistake. Courts should be carefully parsing statutory grants of authority, according to the ordinary tools of statutory interpretation, to determine the range of options open to the decision-maker at hand. Each grant of authority will be different; so the range of options may be different in each case. Sometimes, the range of options will be just one: McLean. Justice Stratas’ opinion in Hillier outlines this approach well: see paras 13-17. Other cases have outlined different approaches: see Mason and Simon Fraser. The point is that, ultimately, the interpretive task—focusing on what the legislature meant when it delegated power to the administrator– must be first and foremost when courts are determining the extent of deference owed. Courts should not be focusing on “expertise,” “access to justice,” or other policy considerations in determining the amount of deference owed to a decision-maker. Instead, as I noted in my paper Two Myths of Administrative Law:

The answer goes back to the fundamental basis of the administrative state, namely, its genesis in statute. Considerations that are not rooted in statute could point to an answer on the standard of review that undermines what the legislature specified in statute. For example, if expertise is considered a reason for deference, but there is no indication of expertise rooted in statute…a court could apply a deferential standard of review where the legislature impliedly indicated that it preferred a less deferential standard of review.

2) Telus v Wellman/ Rafilovich

The Supreme Court’s recent statutory interpretation cases also have a bearing on administrative law. If, as I advocate (and as affirmed by Stratas JA in Hillier) the Court indeed focuses on the rules of statutory interpretation as the methodology by which we conduct reasonableness review–to determine the range of options–then it matters what the Court actually says about statutory interpretation.

Both Rafilovich (which I first analyzed here) and Telus v Wellman (which I first analyzed here) present a defensible approach to statutory interpretation that should be deployed in administrative law cases. The basic idea is this: when courts are interpreting statutes, under the dominant “purposive” approach to interpretation, courts must be careful not to use purpose to override clear text (see Hillier, at para 25; Cheema, at paras 74-75). This means that the selection of the appropriate purpose matters. As I wrote in my piece “Statutory Interpretation from the Stratasphere” Adv Q., courts must be careful not to select a purpose at a higher level of abstraction, or that is far removed from the interpretive provision at hand, when interpreting statutes. In Telus, the issue was whether a general principle of access to justice should lead to one interpretive outcome over another; Moldaver J for the Court held that a rarefied idea of access to justice should not “be permitted to distort the actual words of the statute, read harmoniously with the scheme of the statute, its object, and the intention of the legislature, so as to make the provision say something it does not…the responsibility for setting policy in a parliamentary democracy rests with the legislature, not the courts…[i]t is not the role of this Court to re-write legislation” (Telus v Wellman, at para 79). In Rafilovich, the Court was faced with two duelling purposes stated at the same level of abstraction. The Court chose the purpose most local to the text that had to be interpreted; not some overall, abstract purpose that might have a greater bearing on other parts of the statute. In analyzing Rafilovich, I wrote:

In this case, the most local purposes to the dispute at hand were the purposes speaking of access to justice and the presumption of innocence, assuming these purposes were identified correctly. Why must these purposes be prioritized over the general purpose? Because of the principle of democracy. The use of different language to express Parliament’s law in the legal fees provisions should lead to different interpretive outcomes. By this, I mean that ensuring crimes does not pay may be an overall purpose of the proceeds of crime provision, but Parliament clearly used different language and a different approach in the legal fees provisions. This different approach must, consequently, reflect different legislative purposes, as the legislative history in the case outlines (see para 39 et seq—though I cringe at the reliance on legislative history writ large). The court must give “purpose and meaning to each provision” (at para 20).

Why does this matter for administrative law? If courts use the principles of statutory interpretation to discern the scope of deference owed to a particular decision-maker in the context of a particular legal provision, the selection of the wrong purpose may distort the range of deference owed. For example, if a court selects a highly abstract purpose to interpret particular text, the range of reasonable outcomes may actually be greater for a decision-maker than what the text of the statute might allow. As I wrote in my Stratasphere piece.

If a court abstracts a statutory purpose which is not substantially reflected in text, a broader foundation for deference may result. Because the text, context, and purpose of a statute control the range of reasonable outcomes available to a decision-maker, a purpose which is excessively broad will permit more reasonable options for a decision-maker, beyond what the actual text of the statute provides. In an extreme example, if a court claims that a statute is designed to affect the “public interest,” almost any interpretation rendered by the decision-maker would satisfy the reasonableness standard, because the term “public interest” permits many reasonable outcomes, as defined by the court. Characterization of purpose at this level is contrary to the comments in Williams and Cheema, which ask courts to identify the range of reasonable outcomes defined by the legislature. Otherwise, courts put the cart before the horse. Text is the method by which purpose is achieved by the legislature; purpose defined by the court does not dictate text.

Taken together, Rafilovich and Telus v Wellman pull back on the more extravagant interpretive approaches endorsed by the Supreme Court in its administrative law cases. A classic example is West Fraser. On land owned by West Fraser, a worker employed by an independent contractor suffered a fatal accident. The British Columbia Workers’ Compensation Board [Board] fined West Fraser for breach of a regulation it created, according to a broad statutory power under the British Columbia Workers Compensation Act to create such regulations for health and safety purposes. The legal basis for the fine was a provision of the Board’s enabling statute, which allowed the Board to “impose on an employer an administrative penalty” for breach of regulations. Whether the Board could impose a fine on an owner, when the relevant provision of the statute only indicates that employers could be fined, was a key question on appeal.

The majority opinion, written by then-Chief Justice McLachlin, held that the Board was entitled to extend the fine to West Fraser as an owner. This conclusion flowed directly from the framing of the enabling statute’s purpose at a high level of abstraction. Chief Justice McLachlin wrote that the statute was “meant to promote workplace safety in the broadest sense.” In light of this broad purpose, the Chief Justice also addressed external factors to the statute, including the reason the regulation was adopted: as a “response to a concern in the province about the growing rate of workplace fatalities in the forestry sector.” In whole, Chief Justice McLachlin’s opinion implicitly said that any interpretation with some connection to a “health and safety” purpose would be reasonable.

This seems wrong, in face of what Telus v Wellman and Rafilovich teach. At the very least, there is a tension in the case law. In my view, the tension should be resolved in favour of what Telus v Wellman and Rafilovich have to say. This simply follows on what I said above; administrative law is really just a specialized branch of statutory interpretation, nothing more or less (Bibeault, at para 120). If that is the case, the legislature is the keeper of the keys, and the court’s job is to survey the bounds of this delegated power. Focusing on the text and properly-interpreted purpose is the key issue, particularly because the principles of interpretation—used to ascertain what the legislature meant—are the only tools we have for the job (see Mason, at para 20).

3) The Court of Quebec

The need to focus on legislative meaning does not just arise in the abstract. Indeed, it also influences specific problems in administrative law in different jurisdictions. Consider the case of the Court of Quebec. The Court of Quebec is a statutory court, with appeal powers over various administrative decision-makers in the province of Quebec. In what I call the Quebec Reference, the issue facing the Court was whether it was unconstitutional for the Court of Quebec, sitting in direct appeal of these decision-makers, to apply the principles of deference—the argument was made that doing so usurps the s.96 powers of the superior courts.

The Court ultimately held that there was no constitutional problem with the application of deference. It did so, in part, because of Supreme Court precedent which held that the Court of Quebec is required to apply principles of deference (Proprio Direct, at para 20), and more generally, that rights of appeal do not mean that broader curial review should follow (Dr. Q, at para 34; Saguenay, at para 38). But as I argued here (and as I will argue in an upcoming CJALP piece in 2020), the jurisprudential requirement of deference removes a “core” part of the superior court’s jurisdiction—the “exercise of a superintending and reforming power over the provincial courts of inferior jurisdiction and provincial bodies” (MacMillan Bloedel, at paras 34-35). The jurisdiction is abrogated, because if the Court of Quebec applies deference, then the task of the Superior Court is merely to determine whether the Court of Quebec’s decision is reasonable. This creates a “double deference” problem: see Prof. Daly’s post, here. Under these circumstances, the court jurisdiction of the superior court is imperilled.

There are a number of solutions to this problem. One, advocated by Professor Daly, is to treat the Court of Quebec as a generalist, appellate tribunal—under such circumstances, it would not apply the principles of judicial review. But this runs directly into Supreme Court precedent  that treats the Court of Quebec  as a judicial tribunal required to apply principles of deference (see Proprio Direct, at paras 17-20; not to mention existing jurisprudence at the Quebec Court of Appeal).

In my view, the Court of Quebec saga illustrates the problems with the Supreme Court’s failure to give effect to the legislature’s intent when it created the Court of Quebec. This is a recurring problem in the Court’s administrative law jurisprudence writ large; as I noted above, the same problem occurs when the Court applies the standard of review of administrative action. When a legislature creates a statutory court, and nourishes it with rights of appeal, it does so for a reason; one can impute an intent to the legislature that it intended to supply the relevant standard of review. In such cases, there is no reason to apply the common law position of deference because statutes override the common law. This was basically the position of Rothstein J, in Khosa. In that context, the Supreme Court majority held that the ordinary principles of judicial review apply when the Federal Court reviews decisions of federal decision-makers. But the Court gave no effect to the Federal Courts Act, which establishes certain grounds of review that could also be said to imply standards of review (see s.18.1(4)). Rothstein J noted that “a common law standard of review analysis is not necessary where the legislature has provided for standards of review” (Khosa, at para 99).  Instead, where the legislature has done so, the common law idea of deference melts away. It is for the legislature, not the court, to evaluate expertise by including a privative clause if it sees fit to mandate deference.

Had Rothstein J’s position been adopted, we would have no problem with the Court of Quebec, because it would not be applying principles of judicial deference—it would apply appeal principles. For this reason, the saga of the Court of Quebec actually illustrates the perversity of the Supreme Court’s reversal of the hierarchy of laws. Because of its failure to give effect to legislative meaning, it has presumed a standard of deference that apparently goes across all decision-makers, failing to take account of the statutory contexts of each particular decision-maker. This, for the reasons I’ve outlined above, seems plain wrong.

Conclusion

While I cannot survey every development in administrative law/interpretation in this post, and while I barely scratched the surface of the topics I did cover, I have tried to showcase three groups of cases that outline a core difficulty in the Canadian law of judicial review: the failure of the Supreme Court to give effect to legislative meaning. This problem stretches across areas of administrative law. One hopes that the Trilogy will solve this problem, but my hopes are decidedly low.

 

Can the Administrative Process Achieve Social Justice?

Can administrative law achieve any ideal of social justice? The answer is perhaps yes. But there is nothing built-in the system to encourage this result. For that reason, deference to administrators because of the political aims they might pursue is a week reed on which to rest a more general case for deference.

This much was made clear to me when I read a recent piece by perhaps the most revered administrative law scholar in Canadian history, John Willis. Celebrated in the academy, Willis is best known for his piece on administrative law functionalism (John Willis, “Three Approaches to Administrative Law: The Judicial, The Conceptual, and the Functional” (1935) 1 U.T.L.J. 53), laying out his view of administrative law as a body of law that should charitable to the aims and expertise of administrators—fundamentally, in their good-will as holders of the public trust, and in their ability to deliver impartial, efficient justice relative to the courts. The idea was that courts should defer to administrators for this reason. Willis was at heart a social democrat, as noted in this paper sketching an intellectual history of administrative law in Canada. The underlying philosophy was a belief in government, in contrast to a belief in judges, who were said to stultify the development of the social welfare state in favour of the common law. Indeed, Willis self-described himself as a “government man.”

The administrative law functionalists were politically-minded people, advancing a political agenda against the common law judges. But their argument for deference was also admittedly political. Says  Michael Taggart (at 257):

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.

One might see, here, a commitment to social justice broadly conceived. But the functionalists, and the way they taught us to think about administrative law, had significant blindspots, in an ideological sense. Not all causes were equally represented in their social justice mindset. Read, for example, this quote by Willis in his “Administrative Law in Retrospect” at 227, in which Willis decries growing trends to subject the administrative process to norms of transparency and accountability:

I am thinking particularly of a number of currently fashionable cults and the damage they may do to effective government if they are allowed to infiltrate too deeply into the procedural part of administrative law: the cult of ‘the individual’ and claims by prisoners in penitentiaries, complaining of their treatment there or applying for parole, to a formal ‘right to be heard’; the cult of ‘openness’ and claims by the press to the right to dig into confidential government files; the cult of ‘participatory democracy’ and claims by ‘concerned’ busybodies to the right to be allowed to take court proceedings to curb, say, alleged illegal pollution or alleged dereliction of duty by the police.

One need not belabour the point; to the extent Willis is representative of a functionalist mindset, the commitment to social justice only went as far as required to protect the prerogatives of government. This is an empty form of social justice, one more attuned to the preservation of government as a functioning institution than the use of government to achieve outcomes that improve social welfare. This might be a legitimate aim, though one should wonder why courts should have any involvement in propping up modern government. But let’s not pretend it is an ideal vision of social justice.

What’s more, the vision ended up being remarkably short-sighted. Nowadays, the administrative state is most problematic in areas which affect the least well-off, including those that Willis slagged in his article: prisoners, those suffering from pollution, immigrants and refugees, and social assistance recipients. How can a broader theory of delegation to administrators, based on the relative conservatism of courts, miss out on all of these people?

This illustrates a broader point, about which the real functionalist motivations shed light. Delegation to administrators, no matter the substantive or pragmatic justifications for it, is about power. Whether it is a delegation of legislative power, an executive power of appointment, or otherwise—delegation is about a transfer of a power from one entity to another. In this case, it is a transfer of power from one branch of government to another—most notably from the legislative to the executive. The power of the executive branch is aggrandized by delegated power. The functionalists, at least Willis, understood this, By trying to fend off pesky “prisoners” and “busybodies,” the functionalists directed their attention as much to courts as to litigants seeking to challenge executive action in courts. The effect of their doing so was the preservation of administrative power.

As I’ve previously written, the upshot of this is that power can be wielded in either direction. Executive power in particular can be put towards social welfare ends. But power is inherently neutral, and is shaped by the person wielding it. Administrative power, just as much as it can be used for social welfare ends, can also be used to stymie social welfare goals. This much the administrative law functionalists teach us.

CARL v Canada, 2019 FC 1126: Administrative Delegation and Guidelines

How far can an administrative agency go before it fetters its decision-making discretion? This is an important practical question. On one hand, the Federal Court of Appeal has recognized that agencies can issue guidelines—even in absence of any legislative authorization to do so (Thamotharem, at para 56), in part because agencies are masters in their own house (Prassad, at 568-569). One might argue that such a power is important and necessary for good government. But on the other hand, agencies cannot bind their own decision-makers through non-legal, non-binding policy guidelines—this impinges on the necessity, at common law, for decision-makers to exercise their functions independently. How do we square this impossible circle? How does independence—central to the Rule of Law, subject to statutory constraints—govern the efficiency of the administrative state?

The case of CARL v Canada, a recent Federal Court case, attempts to address this problem. In this post, I first address the issue at play in CARL. Then I address implications of the decision for good administration. Specifically, I argue that the Parliament should resile from broad-based delegations that empower decision-makers to issue guidelines; instead, these delegations, in order to respect the common law principle of independence, should clearly delineate when and where it is appropriate for decision-makers to bind themselves. The desire should be for more specificity in delegation.

Issue

CARL involved a challenge by the Canadian Association of Refugee Lawyers (CARL) against four so-called “jurisprudential guides” [JG] issued by the Chairperson of the Immigration and Refugee Board [the Board], purporting to guide other members of the Board. Under s.159(1)(h) of the Immigration and Refugee Protection Act [IRPA], Parliament has authorized the Chairperson of the Board to issue JGs, which are guidelines based on model decisions by other decision-makers on the IRB. CARL challenged four JGs (Nigeria, Pakistan, India, and China) on different grounds, only one of which is relevant for us here: “Do the impugned JGs unlawfully fetter Board members’ discretion and improperly encroach upon their adjudicative independence?” (para 55).

After concluding that the JGs in question permissibly specify issues of fact for decision-makers to consider, the Federal Court turned to the main issue of fettering. The Court, after considering the principle of adjudicative independence at common law (there was no Ocean Port argument about statutory ousting; see para 147), started the analysis by stating that there was no authority which permitted a decision-maker “to issue a JG or other “soft law” instrument that constrains the complete freedom of quasi-judicial decision-makers to make their own factual determinations, free from pressure or inducement from others” (102). The Court distinguished this sort of guideline from other situations, such as where a Minister issued his own policy guidelines (see Maple Lodge), and a situation where an adjudicative decision-maker bound itself as to its own procedures (Thamotharem).

The question of whether a guideline impermissibly fetters the discretion of a decision-maker turns on a basic distinction; whether a guideline purports to specify factual circumstances beyond the circumstances before a decision-maker (see para 172). It is fair game, in other words, for a guideline to set out general considerations that a decision-maker should undertake. It is not fair game for guidelines to impose “…an expectation that factual conclusions will be adopted or a requirement to provide reasoned justification as to why such conclusions were not adopted” (see para 150). A lack of indication in a guideline, for example, that each case should be judged on its own merits could be a significant problem (para 139). On the basis of these principles, the Court found that three of the four JGs presented a fettering problem.

Analysis

One might say that this case is largely a run-of-the-mill, administrative law case. One could be right. But normal cases sometimes present an opportunity to grapple with difficult and fundamental issues in administrative law. On that front, there are two main issues that this case raises: (1) the proper balance between administrative efficiency and Rule of Law concerns and (2) the specificity of Parliamentary delegation on these issues.

In my view, the Court in CARL basically outlines the correct principle at the outset when it said that

As far as factual determinations are concerned, the principle that “s/he who hears must decide” is sacrosanct. It is a fundamental pillar of the rule of law. It cannot be sacrificed on the altar of achieving greater consistency and efficiency in administrative decision-making (at para 1).

In absence of statutory ousting, the Court is absolutely correct—independence is an important virtue, connected to the Rule of Law. Where statutes are truly ambiguous, the courts should guard against encroachments on the principle of independence which at common law is extended to administrative decision-makers (see Matsqui). This is because of the Rule of Law itself. For example, Joseph Raz argued in his “The Rule of Law and its Virtue” that an independent judiciary is an integral component of the Rule of Law. It is impossible for all to be subjected equally to the law if the arbiter of the law is not separated from all the parties in front of it. This has particular resonance in administrative law. If an administrative decision-maker is to administer the law through delegated power, it should remain separate and apart from its controller, a particular executive actor. This is all subject, of course, to statutory constraint; the principle of parliamentary sovereignty takes priority over common law independence.

This seems easy enough in the abstract. But the problem becomes more difficult when we are speaking about when administrative decision-makers themselves purport to bind their own discretion in the name of efficiency. Here, the Court’s concern is right on point. The delegation of power to agencies is motivated, in large part, by efficiency concerns. The argument runs something like this: Parliament cannot make, and the executive cannot administer, all of the law required to run a country at any particular point; so Parliament delegates power away to do these things to so-called expert tribunals to take advantage of their expertise, and so that the laws can be administered and made efficiently in order to keep up with modern necessities. I have significant problems with this traditional story, but let us assume it is true. The delegation of power to publish JGs is important from an efficiency perspective, because it creates economies of scale. These economies of scale are particularly directed towards issues of fact, which might arise across factual contexts—this is true with regard to refugee determinations, where the same conditions and facts may frequently arise in relation to specific countries. Those who might view administrative decision-makers as repositories of expert efficiency could say that the frequent issuance of JGs under appropriately delegated authority is highly desirable. The creation of economies of scale in the administrative state—a foundational principle of efficiency—is exactly what we expect from administrative decision-makers.

But the cost of efficiency could come against the judicial independence component of the Rule of Law. If, in the name of efficiency, administrative decision-makers purport to limit the right of individuals to a common law, independent decision-maker, it is clear that the administrative efficiency concern must give way. In this sense, there is no real balance to be had between efficiency and independence. Independence must govern, absent a statute saying otherwise. Experts should be on tap, not on top.

This is particularly true in refugee contexts. Refugee determinations are not a place to experiment with economies of scale. These determinations must be based on the inherent qualities of a refugee claimant’s circumstances. It is an individual assessment. In that context, independence takes on even greater importance. Attempting to completely stultify that process through internal guidelines is profoundly corrosive of a refugee’s right to determination on the facts.

This relates to the second concern. When Parliament delegates power to create JGs in s.159(1)(h), it does so in capacious and ambiguous language:

s.159(1) The Chairperson is, by virtue of holding that office, a member of each Division of the Board and is the chief executive officer of the Board. In that capacity, the Chairperson

[…]

(h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons, to assist members in carrying out their duties.

Such a delegation illustrates the broader point about efficiency that characterizes the act of delegation itself. Parliament saw fit, in this delegation, not to specify the kinds or scope of JGs that would be permissible or impermissible. For example, the Court in CARL had to decide whether JGs could be issued in respect of issues of fact. Further, it is unclear just how far a JG should be able to go, if indeed such an instrument could be used to specify issues of fact. Rather than specifying these matters, the delegation is broad-based, purporting to clothe the Chairperson of the IRB with authority to issue guidelines of any sort. But clearly, such guidelines could be problematic from an independence perspective. These sorts of broad delegations, while lawful and constitutional, are undesirable from a good governance perspective. They fail to adequately state up front the sorts of considerations that decision-makers and courts should take into effect when issuing and reviewing JGs. The failure to do so rests a great deal of authority in administrative decision-makers to issue any number of JGs, with the only control an application for judicial review.

The weight of controlling administrative discretion cannot be borne by the courts alone. Parliament, too, has a role to play in good governance; by issuing clear, legislative rules that bind these decision-makers in the exercise of their authority. The goal of such rules would be to clearly demarcate where common law protections begin and end. Put differently, administrative decision-makers should not be able to, internally, subvert the common law of independence without Parliament’s express imprimatur. Otherwise, the game is rigged from the inside.

The Empire is Still Strong: A Response to Prof. Daly

Over on Administrative Law Matters, Prof. Daly writes that “[a]nti-administrativists have not had a good couple of weeks.” So his argument goes, in the last number of years “the administrative state in the United States has been under sustained attack, traduced as illegitimate and a betrayal of the commitment of the Founding Fathers.” This “cartoonish version of modern public administration” with “quavering judges unable or unwilling to get in its way” apparently met three defeats in three separate cases at the United States Supreme Court this spring: (1) Gundy, a non-delegation challenge, which I wrote about here (2) Kisor, a challenge involving the doctrine of deference which applies when administrators interpret their own regulations and (3) Dept of Commerce v New York, the census case, in which so-called “hard look review” was deployed by the Court. To Prof Daly, each of these cases represents the victory of well-developed administrative law principles over broad-side constitutional challenges to the administrative state. In this sense, “anti-administrativists” indeed had a bad few weeks.

I view the matter quite differently. Each of these cases actually shows how the “anti-administrativist” position has gained some traction, such that administrative state sympathizers like Justice Kagan must respond and incorporate them. In different ways, each case represents at least a partial triumph for positions and tools of administrative law that have roots in what Prof Daly calls the “anti-administrstivist” position.

Before moving to the cases, a note first about terminology. The term “anti-administrativist” implies that there is some objection to administrators writ large. But virtually no one makes this argument—not even Gorsuch J, who in Gundy did not criticize the very act of delegation to administrators itself, only the practice of legislative delegation. Much administrative law criticism sounds in bringing doctrine into a more coherent state, with a greater tie to fundamental constitutional arrangements. Jeff Pojanowski’s article, Neo-Classical Administrative Law, is a good example of this sort of argument. Accordingly, I will not use the term “anti-administrativist,” because it catches too much criticism: criticism that is not necessarily opposed to administrators making decisions, but that is instead focused on rooting those decisions in legislative authorization or other constitutional norms.

In terms of the cases cited by Prof Daly to support his argument, consider first Gundy. There, Justice Kagan interpreted the statute at issue to avoid a non-delegation problem, noting that delegation problems are in reality problems of statutory interpretation. To be sure, this was not a success for those who believe in a strong-form version of the non-delegation doctrine. Some of Kagan J’s opinion reads as a paean to administrative law functionalism, speaking for example to the modern “necessities of government” and concluding that if the statute at issue was unconstitutional, “then most of Government is unconstitutional.” But at the same time, the actual conclusions in Kagan J’s opinion are not at all monolithic. Rather than simply stating that the delegation passed muster under the easy-to-satisfy “intelligible principle” test, she took pains to qualify the delegation according to the text, context, and purpose of the statute. This had the effect of narrowing the delegation to avoid the sort of broad non-delegation problem that Gorsuch J saw in the case.

What motivates this sort of reasoning? It is very similar to the adoption of a clear statement rule, used variously as substantive canons of statutory interpretation in the United States. Clear statement rules work like this: absent a clear statement in the legislation, courts will not presume a certain result. Usually that certain result is contrary to some constitutional norm or value, even though the result is not an in-law constitutional violation. As William Eskridge explains, the Court has variously deployed this sort of reasoning in the context of delegation problems, “refer[rring] to the non-delegation idea as a canon of statutory interpretation rather than an enforceable constitutional doctrine.” Why? Because the US Constitution vests all legislative power in the Congress, and statutes (laws) cannot be made without bicameralism and presentment. This was the approach adopted in the Benzene Case, for example, where the Court interpreted a delegation to OSHA to create a “safe and healthful workplace.” The Court interpreted the statute to prevent the broad delegation, imposing a requirement of cost-benefit analysis on the agency.

Kagan J’s opinion is basically the same. She qualified the delegation with reference to the broader statutory scheme. She would only do this to avoid some delegation problem that engages a core constitutional presumption against delegation, as Eskridge points out. The result was an interpretation of the statute that avoids constitutional problems that many of us who oppose widespread delegation would find problematic. In this sense, constitutional objections to widespread delegation found their way into Kagan J’s opinion.

Consider next Kisor, the regulatory deference case. Kisor reformulated so-called Auer deference to administrative interpretation of regulations, which simply held that a court would only interfere with such an interpretation if it was “plainly erroneous or inconsistent with the regulation.” But Kagan J, in a majority opinion, came to a very different view of the conditions for the engagement of now-renamed “Kisor deference.” This opinion had the effect of cabining deference such that it only applied when the underlying justifications for it—legal and epistemic—were truly present. Consider each of the steps of Kisor deference, as explained by Chris Walker and excerpted by Professor Daly:

  1. The regulatory provision must be “genuinely ambiguous” after applying all of the traditional tools of interpretation (Chevron step one).
  2. The agency’s regulatory interpretation must be “reasonable,” and “[t]hat is a requirement an agency can fail” (Chevron step two).
  3. The agency’s regulatory interpretation must be the agency’s “authoritative” or “official position,” which means it must “at the least emanate from [the agency head or equivalent final policymaking] actors, using those vehicles, understood to make authoritative policy in the relevant context” (some version of the Mead doctrine/Chevron step zero).
  4. The agency’s regulatory interpretation must implicate the agency’s substantive expertise (some version of Skidmore deference).
  5. The agency’s regulatory interpretation must reflect “fair and considered judgment” — not an ad hoc litigating position or otherwise an interpretation that causes regulated entities unfair surprise (existing Christopher exception to Auer deference).

Each of these steps reflect varying justifications for deference that must actually be present before deference follows:

(1)-(2): Genuine ambiguity engages the presumption that if the legislature spoke clearly to a matter, its view must prevail over contrary interpretations by an agency. This is related to fundamental constitutional ideals of congressional/legislative superiority over a mere delegated body.

(3) and (5): Authoritativeness and fair and considered judgment reflects the requirement that agencies must adequately explain their conclusions, so that courts can conduct the constitutional act of judicial review, and so that the public can understand their conclusions. Both of these conditions are important for the public acceptance and legality of the administrative state, as noted in the Commerce Department case discussed below.

(4) Truly-existing expertise is an epistemic reason for deference, as Prof. Daly points out in his book, A Theory of Deference in Administrative Law. While it may not be a legal reason for deference (and hence not a very persuasive reason for it), it at least shows that Kagan J was concerned with ensuring that deference should apply when the reasons for its justifications are present.

So, Kisor is actually a representation of a much more constitutionally-justifiable doctrine of deference that is consistent with critiques of the administrative state as untethered to and uncontrolled by constitutional norms. Kisor is driven by a need to cabin deference to the situations where it is most justifiable, especially with reference to constitutional norms that require congressional text to govern and judicial review to be available and effective. This is in direct contrast to the Supreme Court of Canada’s unprincipled, automatic doctrine of deference.

Finally, consider the Commerce Dept case concerning a citizenship question on the census. The problem here was the Government’s explanation for why it wanted such a question. As Chief Justice Roberts explained:

We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process…[W]e cannot ignore the disconnect between the decision made and the explanation given. The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.

This formulation of the requirement of so-called “hard-look” review frames the problem as one of public justification so that courts can scrutinize administrative action, as a corollary to the Rule of Law. To Professor Daly, this means that the “anti-administrativists’ caricature of fawning judicial servility to technocratic masters” is incorrect. But it is useful to note that the tools used to restrain judges pointed to by Professor Daly developed because of important critiques of the administrative state. Hard look review developed because of a broad trend towards pluralism, as explained by Martin Shapiro. This pluralism, which supported broader standing rules to challenge administrative action, also supported the creation of a new ground of review to ensure the adequacy of judicial review and the public justification of administrative actions. This trend was decidedly skeptical of administrative power, on the theory that agencies were “captured” by regulated parties. Far from being a welcome tool of administrative law, hard look review was and remains deeply contested. Those who might consider themselves Wilsonian progressives would balk at hard look review, even on procedure, because it means that courts are readily interfering in the policy and discretionary judgments of so-called “experts.” This says nothing of hard look review on substance. But administrative skepticism, and the requirement of public justification, cuts hard the other way in hard look review—which also means, like liberal standing rules, that agencies must be ready to defend its action before the courts and in the public eye (the APA is broadly representative of this trend).

For these reasons, each of the cases identified by Prof. Daly are not rejections of administrative skepticism. Rather, they are incorporations of a certain idea of administrative law as a control over the fiat of administrators. In this sense, reflexive deference and delegation met strong judicial rules and attitudes about controlling the administrative state. This might not amount to “anti-administrativism” but it means that the administrative critique is not without its judicial defenders. Professor Daly and I get to the same place; there are tools of administrative law available to control administrators. It just depends on whether judges use them, and from where they come.

All or Nothing At All?: Restricting the Growth of the Administrative State

Non-delegation limits do not spell the end of administrative government.

The Supreme Court of United States (SCOTUS), in the recent Gundy decision, once again rejected a challenge to a delegation of legislative power based on the so-called non-delegation doctrine. The non-delegation doctrine, in theory, holds that all legislative power rests in Congress, and so by necessary implication, Congress cannot delegate that power away to agencies without an “intelligible principle” to guide the delegation. In practice, the SCOTUS has only ever sustained a non-delegation challenge in a handful of cases in the New Deal era, instead endorsing wide delegations of authority to any number of administrative bodies for over 70 years. One might say that the Court’s reluctance to invoke the non-delegation doctrine is due to the important fuel that delegation provides to the administrative state. Indeed, one might argue that such widespread delegation is necessary for the project of “modern governance.”

But this is not necessarily true. Much of the discussion of limitations on the administrative state speaks in large generalities, and Gundy is no exception. The spectre of the destruction of the modern government that Americans (and Canadians) have come to know is always invoked by those who seek to preserve its power. But, if the non-delegation doctrine is constitutionally justifiable, its invocation in any of its instantiations will not end up destroying modern government. This is because non-delegation limits do not speak in absolute prohibitions, but rather limits in degree and emphasis; shifting the onus back to Congress to legislate within the confines of the Constitution. Canadians should take note and remain wary of arguments advanced by those who reject constitutional limits on administrative power based on functional scares.

***

Gundy involved a delegation of power from Congress to the Attorney General, under the Sex Offender Registration and Notification Act (SORNA). Under SORNA, it is up to the Attorney General to decide whether the statute’s requirements for registration of sex offenders convicted before the enactment of the statute apply.

Nonetheless, based on existing doctrine, Kagan J for the plurality said that the delegation in SORNA “easily passed constitutional muster.” This is because, to Kagan J, the SCOTUS in a previous case had already cabined the Attorney General’s discretion in this regard by requiring that SORNA apply to all pre-Act offenders “as soon as feasible.” Taken in light of the context, text, and purpose of the statute, the Court found that the delegating language was sufficiently cabined in order to provide an intelligible principle, because the Attorney General’s discretion is limited to deciding when it is feasible to apply the statute. The Court, then, interpreted the statute to avoid the non-delegation problem, as it had done years previously in the Benzene Case.

This conclusion appeared driven not only by the law, but by the consequences of permitting a non-delegation challenge to succeed. Kagan J frighteningly noted that “…if SORNA’s delegation is unconstitutional, then most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs.” Alito J concurred in the result, but noted that should a majority of the Court wish to revisit the non-delegation doctrine, he would.

Justice Gorsuch penned an important dissent. In it, he criticized the plurality’s apparent waving-away of the delegation problem. In the litigation, the Department of Justice did not concede that the Attorney General was required to apply the statute to pre-Act offenders “as soon as feasible.” More to the point, the Attorney General has wide discretion to select the offenders, if any, that should be subject to the statute. For Gorsuch J, “[t]hese unbounded policy choices have profound consequences for the people they affect,” including criminal defendants. In light of Gorsuch J’s problem with the SORNA delegation, he proposed a new test. That test would permit Congress to delegate the power to “fill up the details” of a statute—so delegation would not be prohibited outright. And, the delegation of power may make the “application of that rule depend on executive fact-finding.” But for Gorsuch J, the intelligible principle doctrine “has no basis in the original meaning of the Constitution, [or] in history” and should be replaced by a basic requirement that Congress make the necessary policy judgments.

In response to the problem that some have raised that Gorsuch J’s test would spell doom for the administrative state, he responded as such:

The separation of powers does not prohibit any particular policy outcome, let alone dictate any conclusion about the proper size and scope of government. Instead, it is a procedural guarantee that requires Congress to assemble a social consensus before choosing our nation’s course on policy questions….Congress is hardly bereft of options to accomplish all it might wish to achieve.

***

I think Gundy contains within it a number of important implications for the delegation of legislative power that apply in both Canada and the United States. The first question is whether it is really true, as Kagan J notes, that non-delegation would render most of government unconstitutional; the second is the sort of limits that one could envision applying to delegations of power.

The Kagan J criticism is a classic functionalist proposition. So the argument goes, if the Court enforces a non-delegation norm of any sort, it would interfere with the practical ability of agencies to implement their enabling statutes, hobbling modern government. And to some observers, it wouldn’t take a full-fledged non-delegation doctrine: even some limitations on administrative government could have “pernicious consequences.” But this strikes me as a vast overstatement, and a self-defeating one at that. First, if Kagan J is right that most of government constitutes a delegation problem as the Constitution is interpreted, what does that say about modern government? It says that government as constituted is a sprawling beast that has far outpaced the Constitution. Some might respond: who cares? But for anyone who cares about the Rule of Law, and government by law, the Constitution reigns supreme over the fiat of administrators. And if one is a legal formalist—as I am—then the arrangement of an extra- constitutional government is itself a problem for both intrinsic and instrumental reasons.

But I do not think what Kagan J says is true, on the facts of Gundy or generally. First, Gundy involved a very particular type of delegation: the power to essentially decide how a statute applies, if at all. Some might say that these sorts of delegations exist all over the map, and they may be right. But one can draw a meaningful distinction between delegations that are meant to “fill in the details” of a statute, even in a legislative sense, and delegations designed to give power to an administrator to decide how, when, and to whom a statute applies, as in SORNA. Gymnastics around “feasibility” aside, SORNA delegates wide power for the Attorney General to decide the scope of application of a statute. This allows him to make law outside of the requirements of bicameralism and presentment. And for instrumentalist reasons, this is a problem: the Rule of Law requires predictability, and why should those deserving the presumption of innocence be subject to the whims of a chief prosecutor as to whether their conduct violates the law?

Now consider the consequences if a non-delegation limit is imposed on Congress. This would not render most of government unconstitutional, nor would it have “pernicious consequences.” Such arguments mistake the mere existence of a limitation for its extent. No one—not even Gorsuch J—is suggesting that delegation itself is unconstitutional. Such a finding would, indeed, render unconstitutional administrative government. But limiting delegation to simply require Congress to speak in more detail would only minimally increase the transaction costs of legislating while paying much more ex post in terms of predictability and consistency with the Constitution. It is unclear to me why the proponents of the administrative state fight even this requirement.

And this flows into the second question. Assuming the non-delegation doctrine is constitutionally justifiable, there are any number of limits that could be imposed on delegations, each of which would not hobble the ability of government to delegate. Courts could require Congress to speak using a clear-statement rule when it chooses to delegate legislative power. This would be on the theory that the delegation of power has the risk to be extra-constitutional, and should be treated with caution from a Rule of Law perspective. The SCOTUS already accepted this sort of requirement in the Benzene Case, when it interpreted the statute at issue to avoid the delegation problem in absence of any clear statement in the legislation. While clear statement rules of this sort could be attacked from the perspective that they allow courts to put their fingers on the scale in favour of certain interpretive outcomes, one might respond that the preferred outcome in this case is one protected by the Constitution in the form of a limit or restriction on delegation. It is apparent that requiring Congress to use a clear statement would likely do nothing to stop modern government.

Courts could also simply enforce the intelligible principle doctrine on its own terms. That is, courts should simply ask whether there is a “principle” that is “intelligible.” Intelligibility would impose some requirement on courts to actually interrogate the policy aims of a delegation to determine its internal consistency, and perhaps question whether it actually provides guidance to executive officials. A principle that is unintelligible will not provide guidance. One could meaningfully question whether courts have actually applied the existing doctrinal instantiation of the non-delegation doctrine on its own terms.

Finally, non-delegation limits might be imposed by the elected branches: this was the approach that was seemingly advocated by then Professor Antonin Scalia in a paper he wrote after the Benzene Case: (the questions raised by delegation “…are much more appropriate for a representative assembly than for a hermetically sealed committee of nine lawyers”). Congress could simply start to speak clearly. The incentive for Congress to do this might be political. As I have noted elsewhere, the delegation of power can be wielded in either direction. Gundy provides a great example. The delegation of power to the Attorney General to decide when, how, and to whom a law applies is a great deal of power. Right-wing legislators might predict that, when they are not in power, such a power might be used against political causes they support. In the US, Democrats are already seeing how powers can be abused by the Attorney General. Of course, the power of the executive can filter through executive agencies, as well. If Congress itself recognizes the ability for delegated power to be used for ends with which it may not be sympathetic, it may have an incentive to limit and control delegation within constitutional limits.

None of these limitations spell the end of administrative governance. Far from it. I fear that the death knell of administrative government is a rhetorical tool used by administrative law functionalists who wish to preserve the power of the administrative state. But as Gundy shows, the powers conferred on executives by Congress can be vast—and the delegation of vast power can be abused, contrary to constitutional limits. All actors in the system have the ability and the responsibility to prevent that abuse, as a corollary to the Rule of Law.

The upshot of all of this is that the administrative state is likely here to stay, but it does not have to remain in its current form to be successful or useful. It can move towards consistency with the Constitution at a small marginal cost to its supposed efficiency and effectiveness.

Judges are Subject to Law, Too

Last summer, I wrote a blog post about a concerning case out of the Federal Court, Girouard v CJC. The gist of the case was the claim by the Canadian Judicial Council (CJC) that their reports, recommendations, and decisions in the course of the investigation of a judge were not subject to judicial review under the Federal Courts Act.

For the reasons I outlined in my blog post, this argument was both surprising and unfortunate:

I see this case as an extreme example of the modern trend of administrative law: towards more regulation and more administrative decision-makers that have court-imposed “unlimited” powers (see West Fraser, at para 11). Once we accept even one instance of such a decision-maker, vested by statute, we have to conclude that no court can speak ill of that “unlimited” decision-maker. Obviously this has profound effect on the Rule of Law, individual liberties, and due process. Take this case–dissenting members of the CJC were concerned that certain anglophone members of the CJC could not evaluate the entire record, which was in French. This implicates the fairness of the process for Justice Girouard. A purpose of judicial review is to ensure this basic fairness, but if we make administrative decision-makers beyond reproach, we sit them alongside the basic law of the land–the Constitution. And of course, legislative bodies acting alone cannot establish new constitutional provisions.

And, because of finer legal points, I thought that the CJC’s case was weak. For example, though the membership of the CJC is made up of s.96 judges, which would counsel a restrained approach to judicial review, the premise of the CJC is as a “statutory investigatory institution, vested with powers only so far as the statute allows.” The CJC is, like all administrative decision-makers, rooted in statute. And as a result, the membership of the CJC does not bear on the question of whether it is subject to review.

Luckily, the Federal Court of Appeal recently affirmed the Federal Court’s holding that the CJC is subject to judicial review. This is the right result, and one that prioritizes the rule of law—the supervision of all state actors, regardless of their status, under higher law—over administrative fiat, even fiat issued by judges.

It is worthwhile to explore the Federal Court of Appeal’s reasoning to see why the court got the case right. Under the Federal Courts Act, the definition of a federal board was recently confirmed by the Supreme Court in Mikisew Cree—a judgment to which Chief Justice Wagner, who is the head of the CJC, signed his name. Section 2 of the statute defines a reviewable “federal, board, commission or other tribunal” as one that exercises statutory powers or powers under an order made pursuant to Crown prerogative (Mikisew Cree, at para 18). Here, we see the idea that the root of agencies subject to judicial review in the Federal Courts is fundamentally statutory in character. On this front, the Court reviewed its test in Anisman, which provides that a court, to determine whether a body falls within the Federal Courts Act, must consider the source of the powers exercised and the nature of those powers (see para 37).

Consider first the source of power. Here, the Court—as I did in my blog post last summer—drew a sensible distinction between the CJC as a statutory institution and its membership. The Court noted that without statutory nourishment, the CJC would not exist—it exercises no inherent powers simply because it is made up of s.96 judges (see paras 41). Moreover, the nature of the powers exercised by the CJC are not judicial, adjudicative powers per se. Rather, the CJC exercises powers that are fundamentally administrative in nature; those powers are inquisitorial, investigative, and not powers exercised by s.96 judges as s.96 judges (see paras 77-78). Since both the source and nature of the powers exercised by the CJC are rooted and defined by statute, and are typical administrative powers, it follows that they can easily fit the definition of a federal board under the Federal Courts Act. On this front, it is important to note that the CJC could have been expressly excluded from this definition by Parliament, but it was not.

There was another argument raised by counsel for the CJC based on 63(4) of the Judges Act, which deems the Board or an inquiry panel a “superior court” (see para 81). It followed, according to counsel, that this deeming clause must be read in its ordinary meaning, such that it was at least colourable that the Board should have “all the attributes” of superior court jurisdiction; and therefore, should be excluded from the definition of a statutory body under the Federal Courts Act.

Notwithstanding that this argument runs up against the stubborn fact that the CJC exists only because of a statute saying so, the Court rejected this argument on other grounds. The text of the so-called deeming provision, notably, did not denote that the CJC’s jurisdiction should expand to the full powers of a superior court, beyond the procedural powers required to manage inquiries. Notably, if Parliament wanted the CJC to be a court of superior jurisdiction, it could create it as such under s.101 of the Constitution Act, 1867, under which the Federal Court was created. But it did not do so. Absent a clearer statement, the CJC should not be presumed to possess full superior court powers, just as the Canada Transport Agency, with a similar deeming provision, is not presumed to carry those powers.

The final part of the judgment, which should be particularly commended, is the Court’s focus on the implications of the CJC’s arguments for the rule of law. Shielding the CJC from review would amount to a situation where an administrative decision-maker—simply because of some of its membership, and even though it exercises public functions—can evade the strictures of public law. In a government of laws, the possibility for this should be foreclosed. This is true no matter who makes up the overall administrative body.

Overall, there are two important points to this case to which I should draw attention. First, and as I have said time and time again, the administrative state exists not because of any constitutional mandate or legal principle other than statutory enactment. Judges attempting to insulate themselves from review could be successful if the administrative state existed as a matter of constitutional law. Indeed, there are some that argue that there are constitutional foundations to the administrative state. This sort of argument, in my view and with all due respect, is clearly wrong. And the Federal Court of Appeal seems to agree. Even when we are talking about judges, the fact that the CJC’s existence is because of statute is the definitive answer to any claim that it cannot be subject to the rule of law. Put differently, imagine the incentive effects of an opposite conclusion. Parliament could staff administrative agencies with judges, making them evasive of judicial review, and simply state that the Constitution protects the body of which they are members as part of the “constitutional administrative state.” No one should accept this line of reasoning.

Second, the fact that the court rooted its consideration in the rule of law is important. The Court could have simply analyzed the applicable law, which clearly ran up against the CJC’s claims. But it went further at para 103 by rooting the conclusion in the idea that all public officials—no matter their own august judicial status—should be subject to the dictates of law. In today’s day and age, this is a reminder that we all need.

 

The New Administrative Law II: Why Defer?

Part II of a two-part series on administrative law

In Part I of this series on administrative law, I set out the reasons why the Progressive mode of thinking about the subject has lost force in the 21st century. The basic point was that the Progressives—who thought agencies could be staffed by expert, well-intentioned people to achieve progressive goals—assumed too much. In today’s day and age, deferring to agencies on the basis of expertise or their particular substantive goals would mean drawing a consistent rule that applies to inexpert agencies and those who do not hold progressive goals.

In truth, though, this tells us nothing about what sort of judicial review doctrine should be adopted by courts—what the posture of courts should be on judicial review. The only reason I needed to write the first post in the series is because the Progressives, who are the architects behind today’s administrative state, made these weak reasons for deference the basic building blocks. The Progressives made it so political appreciations of agencies justified a deferential posture. The problem with these assumptions, though, is that they require a constant justification according to empirical facts, and a costly court-led investigation into the reasons for deference in every case. The assumptions must be true. And if they are not true, the reasons for deference melt away.

More importantly, these functional reasons for deference are not legal reasons for deference. As Justice Scalia said, they are not reasons for motivating a court to refuse to take an independent view of an agency decision.

So, the first post in this series was not a post I wanted to write, because expertise and the political goals of an agency should be wholly irrelevant to judicial review. But it was a post I had to write, because these reasons for deference need to first be put aside before embarking on a far more ambitious task: describing a defensible doctrine of judicial review.

In the spirit of the Court’s upcoming administrative law trilogy decisions, I invite readers to take a step with me into a world where there is no administrative law doctrine—but there are courts and administrative agencies. Let’s say that there is no court-made law governing the relationship between courts and agencies. All we have is our Constitution and the principles that animate it, and statutes

Luckily for us behind this veil of administrative ignorance, the Constitution itself gives some thought to how Parliament and courts should interact. When Parliament passes law, absent constitutional objection, its law binds because of the idea of parliamentary sovereignty. Putting aside thorny issues of an unconstitutional delegation of power or other constitutional challenges to administrative discretion, most administrative issues are just ordinary, hum-drum stuff involving an exercise of discretion or the interpretation of a statute.

When an administrator is delegated power under Parliament’s law to make determinations, issue rules and regulations, or adjudicate disputes, its power is confined by the statute that creates it. The administrator cannot make a decision forbidden to it by statute. Traditionally, in the common law, it was the job of the courts to interpret the limits of statutory bounds and say when a decision-maker took a decision that was not prescribed by statute. In other words, courts interpret statutes to give effect to legislative meaning regarding agencies. Courts do not invent standards to govern those agencies.

In this way, the concept of jurisdiction at common law was an attempt to synthesize parliamentary sovereignty with the rule of law. Of course, jurisdiction became a problematic concept, for the same reason that the Progressive approach to administrative law is problematic. It read a judicial conservatism into the statutes adopted by Parliament, just like Progressives wanted judges to read labour-friendly standards of review into the law. But the concept that jurisdiction was getting at—the “statutory authority” of the decision-maker—was basically sound. The idea, expressed in Bibeault, that all of judicial review is fundamentally a matter of statutory interpretation is the simple reality of the matter.

This raises the question: when does a court defer under this arrangement? In my view, the only legal and constitutional basis for deference is when a legislature expressly or implicitly says so. I have already expressed why functional or policy reasons for deference are underwhelming reasons for a court to take a hands-off approach in the interpretive process. They are empirically doubtful, and do not legally bind, because it is Parliament, not the courts, that prescribe the level of deference.

When Parliament expressly provides in a statute for the standard of review, the issue is easy. Parliament’s law binds. The trickier question exists, in the vast number of cases, where Parliament or legislatures do not expressly provide for a standard of review, and courts must do the best they can with the statute in front of them.

This moves us from the world of abstract principles in the technical, doctrinal question of judicial review: which doctrinal tools should courts use to approximate legislative meaning on standard of review when there is no clear legislative meaning available? There are any number of options, but one can divide the world into two different types of legal doctrines: rules and standards. A standard might look something like the Dunsmuir factors, in which courts are asked to look to the various indicia like the expertise of the decision-maker, the nature of the question at issue, or the existence of a privative clause or a statutory right of appeal; the former a non-binding sign that courts must defer, the latter a sign that legislatures contemplated a more searching standard of review. The goal of the standard is to take into account “context” to approximate all of the conditions under which deference could exist.

One could also imagine a rule. This has been the approach adopted by the Supreme Court as of late. In both Edmonton East and CHRC, the Court went to pains to explain that its preferred approach was a presumption of deference, based on the expertise of the “tribunal” as an “institution.” To the Court, a strong-form presumption of deference is designed to simplify the standard of review analysis and “get the parties away from arguing about the tests and back to arguing about the substantive merits of their case” (Alberta Teachers, at para 36, citing Dunsmuir, at para 145).

There are costs and benefits to both rules and standards, the complexities of which I cannot explore here. But, in at least one respect, the costs of standards cut hard in the direction of rules when it comes to administrative law: that is, the costs of “compliance” with a standard are likely exponential in a world where administrative agencies take different forms, carry different legislative, executive, and judicial functions, and take on varying policy tasks in complex regulatory environments. It is difficult for litigants to approximate the standard of review under the current scheme, because they cannot be sure with any degree of regularity what the standard will be in their case. There is also a kernel of truth in the Court’s reasoning about deferential presumptions: at the very least, they focus the parties in on the merits at the expense of the rather abstract standard of review.

But the standard of review, nonetheless, is integrally important in a world where government action is confined by law. It prescribes the conditions under which unelected judges can interfere with the actions of delegated actors, acting under authority delegated to them from elected actors. It is important to get the question right, as a matter of the rule of law. But it is also important to stabilize the law, also as a matter of the rule of law.

How do we balance these considerations? I favour a rule of interpretation similar to the one advanced by Martin Olszynski: there should be a presumption of correctness review. That presumption would operate under the well-supported idea that the legislature must affirmatively—explicitly or implicitly—speak before a court will infer deference. In other words, deference does not accrue to administrative agencies from the heavenly font of judicial chambers. It does not exist in the ether because of some expertise-worship or the desires of progressives; after all, experts should be “on tap, not on top.” Deference is, in reality, only a legal matter—only prescribed by legislators—and must be fairly interpreted to exist by courts.

The rule can be slightly relaxed when we come to understand under what conditions deference should operate. A privative clause, within constitutional limits, should bind courts and be a sign of deference—it should operate as a statutory “clear statement rule” that deference was intended by the legislature. In less clear cases, such as when statutes delegate power in broad terms (the classic “public interest” delegation is an example), courts should also defer, on the grounds that legislatures would have spoken more specifically if it wished the agency to have a more limited range of factors to consider in making a decision. Where a legislature uses a “statutory recipe,” deference should be very narrow, perhaps non-existent: if an agency has a list of factors to consider, it must consider that list, nothing more or less.

Of course, what I have said here is open to criticism (Professor Daly, for example, wrote a piece a few years back criticizing this line of thinking; I responded to Professor Daly’s piece, here). And nothing in here is necessarily new. Justice Stratas, for example, has written decision after decision at the Federal Court of Appeal level along these lines. Nonetheless, the contribution I seek to make here must be read in light of my previous post. My conclusions can be summarized as follows:

  1. Legislatures are sovereign within constitutional limits.
  2. This means that when legislatures delegate power, within constitutional limits, courts (as unelected actors) should respect the will of elected actors. This is a simple corollary of the English Bill of Right
  3. On that logic, it is for the legislature to tell courts just how far courts can go. In the state of nature, courts must fairly interpret those boundaries.
  4. Courts should not read progressive (or conservative) justifications for deference into the law. Courts should not presume expertise where it does not exist. Courts should not presume that agencies are owed deference because they are part of the “social welfare” state. In the latter part of the 20th century, the courts swerved in the direction of leftist politics rather than law. That tendency should be guarded against, not only because it is wrong as a matter of law, but also because it is empirically untrue. But so should the tendency to shift in conservative directions.
  5. The best rule, with this in mind, is a presumption of correctness review, with the onus on the legislature to stipulate if it wishes more deference in the context of particular statutes, using either (a) privative clauses/statutory rights of appeal or (b) broad language, implying that the legislature did not wish to limit the considerations an agency can take into account in carrying out its tasks.

The methodology here is not perfect, the considerations are not complete, and there is more that can be said. But at the very least, in this series of posts, I hope to have inspired a re-evaluation of the existing reasons why we defer to agencies. I also hope to have encouraged readers to reflect on the real reasons why we should ever defer at all.