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.”

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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.

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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.

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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.

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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.

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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.

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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.

Day 12: Mark Mancini

Here are my three favourite dissents at the Supreme Court of Canada. All of my dissents are united by a focus on the Rule of Law and constitutionalism, traditionally understood. In other words, they prioritize constitutional text over abstract values; and they focus particularly on the hierarchy of laws under which the Constitution>statutes>the common law. These might be considered “boring” themes on which to base my dissents, but to my mind, these structural arrangements are fundamental to law in Canada. These dissents focus on the majority’s subversion or misapplication of these fundamental structural constraints.

The TWU decision was one of the most anticipated Supreme Court decisions in 2018. My favourite aspect of this dissent, penned by Brown and Côté JJ, was the rigorous attack on Doré/Loyola as an organizing framework to analyze the constitutional claims in TWU. The dissent admirably showed why these cases are inconsistent with the Rule of Law and constitutionalism.

The Doré/Loyola approach to assessing the constitutionality of decisions engaging Charter rights asks decision-makers to balance Charter values engaged on particular facts with statutory objectives arising in a statutory framework. Courts are supposed to defer to the decision-maker’s balancing of values and objectives. But the slippery nature of Doré/Loyola has been subject to widespread criticism (see my particular criticisms here). Brown and Côté JJ also pointed out the widespread problems with the Doré/Loyola framework: see para 302. But the majority largely ignored these problems, and the suggestion by interveners that Doré/Loyola were unworkable. In a laughably weak paragraph, the majority simply stated that Doré and Loyola are binding precedents [59], without any attempt to justify the approach from first principles.

Brown and Côté JJ’s dissenting opinion admirably dealt with the problems with the Doré/Loyola framework head on. First, the dissent stated that there is no pressing justification for a separate analytical track when speaking of administrative decisions, particularly because the traditional Oakes test is “already context-specific” [302]. Second, the dissent noted that Doré and Loyola permit statutory objectives to trump Charter rights—but such a situation is completely unjustified from the perspective of the Rule of Law and constitutionalism, under which the Constitution trumps potentially unconstitutional statutory objectives, subject only to reasonable limits under s.1—not statutory objectives writ large [305]. Finally, the majority’s navel-gazing with regards to Charter values received the dissent’s ire: these values—as opposed to Charter rights—do not receive constitutional protection [307], and should not because they are not law. Since they are “unsourced,” they can be “entirely the product of the idiosyncrasies of the judicial mind that pronounces them to be so” [308].

Brown and Côté JJ’s dissenting reasons sound in the Rule of Law and constitutionalism. Under Doré, as Brown and Côté JJ note, the traditional hierarchy of laws is perverted. The use of statutory objectives to moor the analysis means that rights can be infringed insofar as a decision limiting those rights is consistent with an enabling statute. This reverses how we typically understand constitutionalism. Under a system based on the Constitution, once a decision is found to limit a constitutional right, that decision is void insofar as it infringes the Constitution—statutes cannot save a decision that infringe the Constitution [305]. True, infringements of Charter rights can be justified under the Oakes test. But it is not only every statutory objective and means that are worthy of the Oakes imprimatur. Yet under Doré, “Charter rights are guaranteed only so far as they are consistent with the objectives of the enabling statute” [305].

More seriously, the use of Charter values allows for potential judicial expansion of rights beyond the text of the Constitution—that which is enacted by the people through democratic processes. As Brown and Côté JJ persuasively note, “values” lack doctrinal rigour, permitting judges to define rights as they see fit. This perverts the relationship that courts should have to constitutional text. The relationship is that of an interpreter, not a creator. Constitutionalism is as much about control on elected representatives as it is on courts, who are supposed to faithfully elucidate the existing Constitution, not create a new one.

At issue in the SFL case was a prohibition on striking interfered with s.2(d) of the Charter, protecting the freedom of association. The majority (Abella J) concluded that s.2(d) incorporated a right to strike, despite the fact that the Court had previously held that the right to strike is not constitutionally entrenched in Canada. While there had been changes in the s.2(d) jurisprudence in the intervening years, those changes, in my view, fell far short of endorsing a free-standing right to strike.

Yet the majority did so, powered by the reasoning that “It seems to me to be the time to [the right to strike] constitutional benediction.” This reasoning—a weak, unsupported assertion of judicial power—was the target of Rothstein and Wagner JJ’s partial dissent.

The dissent in SFL focused on two problems with the majority’s acceptance of a right to strike. First, it noted that constitutionalizing a right to strike upsets the prerogatives of the legislature and the executive, the branches constitutionality assigned to “balance competing tensions in making policy decisions” [115]. As the dissent posits, “Governments, not courts, are charged with adapting legislation to changing circumstances in order to achieve a balance between the interests of employers, employees, and the public” [120]. But secondly, to the dissent, the majority’s approach was inconsistent with existing precedent of the Court, undermining certainty in the law [137, 139].

Rothstein and Wagner JJ’s dissent is so powerful because it resists the judicial usurpation (“benediction”) evident in the majority reasons. It asserts that the text of the Constitution, not judicial predilections or results-oriented reasoning, should be the starting point of constitutional analysis. It refers to the importance of precedent as the bedrock of the legal system; precedent which the majority overrules for no convincing reason. It asserts that the court cannot usurp the power of the legislature in an area traditionally assigned to political channels. These are reminders that courts should keep in mind in the era of Charter adjudication.

Dissents are sometimes valuable because they have the potential to tell the future. Sometimes it takes a long time for a dissent to find majority support. But in Edmonton East, at least part of Brown and Côté JJ’s dissent received majority support in the Supreme Court’s recent administrative law re-do, Vavilov.

The controversy in Edmonton East centred around the selection of the standard of review. The majority (Karakatsanis J) ultimately concluded that a presumption of reasonableness review should govern, based on existing precedent. That presumption was justified by (1) the legislative choice to delegate in the first place [22] and (2) expertise, which “inheres in a tribunal itself as an institution…” [33] and (3) access to justice [22]. But Karakatsanis J, in her reasons, actually ended up strengthening the presumption of reasonableness, by rejecting the idea that a contextual analysis should not often rebut the presumption of reasonableness [35], and the idea that statutory rights of appeal cannot rebut the presumption of reasonableness [28].

Brown and Côté JJ took significant issue with all of this. In their view, the existence of a statutory right of appeal on certain questions of law and jurisdiction led to the conclusion in this case that correctness was the applicable standard [78]. To Brown and Cote JJ, statutory rights of appeal could be a signal that the legislature intended more intrusive review [73]. And the dissent was also reticent about the majority’s broad claims of expertise [83].

Brown and Côté JJ’s dissent is justified in principle. The selection of the standard of review is a matter of determining what the legislature meant when it delegated power to a decision-maker. This is because administrative actors are vested with powers only so far as statute provides, and it is for the legislature to prescribe the degree of deference courts must afford decision-makers [85]. This means that courts must carefully parse the delegation of authority to decision-makers, and the statutory context, to determine the degree of deference owed: statutory rights of appeal play a role in this task, as they signal that legislatures intended courts to interfere with a lower administrative decision as it would in any normal appeal. And expertise is not a good justification for a broad-based presumption of expertise, because legislatures may sometimes delegate to a non-expert decision-maker, and a decision-maker might not be expert on all the questions that come before it [85].

All of this, as noted above, was recognized by the Court’s recent opinion in Vavilov. Statutory rights of appeal now serve as valid legislative signals that correctness applies, on questions of law. Expertise is no longer a valid consideration in determining the standard of review. Brown and Côté JJ foretold the future, then, in their Edmonton East dissent.

Vavilov’s Reasonableness Standard: A Legal Hard-Look Review

In my first post on Vavilov, I celebrated the Court for finally bringing some sense to the Canadian law of judicial review. Particularly, I focused on three issues relevant to determining the standard of review: the banishment of jurisdictional questions, the introduction of statutory rights of appeal as a category of correctness review, and the sidelining of expertise from the task of determining the standard of review. I did not address what I consider the real meat of Vavilov: the application of the new, robust [13], reasonableness standard.

As I will set out here, this is the strength of Vavilov because it creates a real legal standard for deference that does not permit decision-makers to “drift” beyond statutory boundaries. It forces reasoning that is explicitly tied to the enabling statute, rather than extraneous “policy” factors. This is a form of legal “hard-look” review that will not enable decision-makers much room to justify outcomes that are inconsistent with the enabling statute or otherwise do not engage with core interpretive elements. Indeed, the enabling statute is “likely to be the most salient aspect of the legal context relevant to a particular decision” [108]. This overarching theory is employed in what the Court mandates for decision-makers, creating a framework, at least on questions of law, that looks something like this:

  • Decision-makers must render a decision that is consistent with the text, context, and purpose of the statute [120] (a focus on outcome)
  • Decision-makers must engage with the most pertinent aspects of text, context, and purpose, with only limited room for omissions where those omissions are “minor” [122], while writing reasons that justify these interpretive choices [84], showing that a decision-maker was “alive to these essential elements” [120].
  • Courts will no longer cooper up defective interpretations of law by ginning up their own reasons for decision [96].

Overall, these three restraints on administrative excess ensure that the statute—as interpreted by the decision-maker, through reasons—is the starting point for all administrative review. This does not abdicate a court’s function; fundamentally, the court will determine whether the reasons evince an engagement with the statutory context in a way that is justifiable and justified [86].

Take first the requirement that a decision-maker render a decision consistent with the text, context, and purpose of the statute. The focus here has two dimensions that make it ideal for the conduct of judicial review as a matter of appreciating statutory boundaries. First, the “reasons first” [84] methodology of the Court protects against what I call the real legacy of Dunsmuir: disguised correctness review. The evil of disguised correctness review was not that it unduly impacted administrative prerogative; it is that it potentially limited the scope of delegated power set by Parliament. The potential for disguised correctness review is now, at the very least, curtailed. Courts have to start with the reasoning of the decision-maker to determine whether it falls within the scope of the legislation [116]. That scope will sometimes be wide, sometimes be narrow, [110] but the administrative reasons, as they interpret the scope of the legislation, are the starting point.

What is to be avoided on this line of thinking is what Justices Abella and Martin did in the Canada Post decision. There, they largely reasoned from their own view of the statute at play, and used that reasoning to judge the decision-maker’s interpretation of the law. This seems odd, considering Justice Abella’s cries about deference in Vavilov itself. Nonetheless, this approach is not–and should not be–a majority approach.

But this is not the end of the inquiry. Ultimately, a court must review, and it will be the reviewing court’s decision as to whether the administrative decision-maker has made a decision that transgresses the scope of the statute. After all, “[i]t will, of course, be impossible for an administrative decision maker to justify a decision that strays beyond the limits set by the statutory language it is interpreting,” which justification is assessed “in the eyes of the reviewing court” [110]. Here, the court takes a meaningful role in determining whether the decision strayed beyond the scope of the legislation the decision maker is interpreting; the merits of a decision must be consistent with the text, context, and purpose of the provision [120]. Under this framework, then, courts have a meaningful role to play in implicitly determining the boundaries of statutory limits, in order to then determine whether the administrator’s interpretation can be justified by the legal constraints bearing on it. In other words, under Vavilov, the application of legal constraints is still a preserve of the courts.

Now, consider the requirement that a decision-maker must engage with the essential elements of statutory interpretation: the text, context, and purpose. Here, another balance is struck. On one hand, a decision-maker is not required to engage the formalistic tools of interpretation, at least in “every case” [119]. I take this to mean that decision-makers will not be required to apply ejusdem generis or noscitur a sociis, or other lawyerly lingo. But, it will be necessary for decision-makers to ensure that they do not miss the most salient aspects of text, context, and purpose—at least in some cases—lest their decisions be unreasonable [122]. Their reasons must evince that they weighed the interpretive tools of text, context, and purpose, determining in a given case which is dominant [120].

Ultimately, this is a good development. Administrative decision-makers do not have to dress up their reasons in legal garb, but if they are to be true participants in the legal system—and if they are truly joint partners in upholding the Rule of Law—their reasons must be cognizable to the rest of the legal system. Reasons that are written exclusively in the vernacular of a particular industry or policy area do no good to others seeking to determine whether the decision is consistent with particular statutory limitations. In this sense, while we cannot expect decision-makers to know semantic canons of interpretation, they must justify their decisions so that they are rendered in the language of the most basic tools of interpretation: text, context, and purpose. This is the language of law, and decision-makers, if they are to truly be partners in the enterprise, must speak it to some degree.

In particular, reasons serve a transmitting function on this account. They are a means to and end: the end of judicial review. Their purpose is ensure that courts can adequately assess whether decision-makers have justified their decisions in relation to statutory limits. In this way, the reasons requirement instantiated in Vavilov is ultimately tied back to the enabling statute, the fundamental basis of all administrative law.

Finally, and connected to the above, the importance of reasons means that courts cannot gin up reasons for decision when they are absent on a particular essential element [96]. Indeed:

Where, even if reasons given by an administrative decision maker for a decision are read with sensitivity to the institutional setting and in light of the record, they contain a fundamental gap or reveal that the decision is based on an unreasonable chain of analysis, it is not ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision.

Why shouldn’t this be permissible? As Justice Stratas noted pre-Vavilov in Bonnybrook (at para 93):

But faced with a silence whose meaning cannot be understood through legitimate interpretation, who am I to grab the Minister’s pen and “supplement” her reasons? Why should I, as a neutral judge, be conscripted into the service of the Minister and discharge her responsibility to write reasons? Even if I am forced to serve the Minister in that way, who am I to guess what the Minister’s reasoning was, fantasize about what might have entered the Minister’s head or, worse, make my thoughts the Minister’s thoughts? And why should I be forced to cooper up the Minister’s position, one that, for all I know, might have been prompted by inadequate, faulty or non-existent information and analysis?

Bonnybrook’s understanding is basically now the law in Vavilov. When administrative decision-makers are delegated power, they are delegated that power with the understanding that they will make decisions at first instance, not courts. If these administrative decision-makers fail to live up to that delegated mandate, that is no fault of the courts, and so it is not the job of the courts to make the decision for the decision-maker. It is, however, the job of the courts to render the decision unreasonable. This is particularly the case where there is a missing part of the decision on a core interpretive element, under which the result of the decision would be different (Vavilov, at para 122).

All together, what Vavilov has created is a new reasonableness standard that is tightly focused statutory limits, using statutory interpretation as a tool for discerning those limits. Of course, there are other “constraints” on decision-making that matter (see Vavilov, para 106) —but where we are talking about legal interpretation, legal constraints will be the most salient element of the decision-maker’s reasoning. Ultimately, this is a positive step forward, since all administrative law is a function of statutory interpretation and analysis.

Vavilov: A Note on Remedy

 

With all of the discussion of Vavilov’s revised standard of review analysis, one aspect of the decision has gone somewhat unnoticed: the renewed focus on the remedy in judicial review proceedings. I write today to discuss this “development” in the Canadian law of judicial review. While the Court certainly applied existing principles in declining to remit in Vavilov, it also seemed to focus on the weakness of the Registrar of Citizenship’s legal justification as a reason not to remit, relative to the more reasonable interpretation adopted by the Court. In other words, the gap between the Registrar’s interpretation’s and the Court’s was so great that remittal would serve no purpose. This assessment of relative arguments is in addition to the typical remedial analysis,  bolstered by other “public law values” and efficiency principles that might govern the analysis. Here, the principles underlying quashing and remittal as a unified remedy are counter-balanced by the need to ensure that erroneous administrative decisions that may have no chance of rectification on remit are not permitted to stand. This is not a drastic change in principle, but it is, perhaps, a change in emphasis, consistent with Vavilov’s overall focus on legal justification.

Generally in the Canadian law of judicial review, the appropriate remedy is to remit to the decision-maker: see  Delta, at para 31; Vavilov, at para 141. This is perfectly in line with the principles animating the reasonableness standard. Judicial review is not about de novo determinations of law, but about courts policing the boundaries of administrative decision-making to ensure  legality. In this sense, the substantive merits of a decision are made by the decision-maker, as delegated by the legislature: Vavilov, at para 142.

As Vavilov notes, though, this is not always the case.  Mobil Oil (at least in the context of procedural cases), and MiningWatch, (in the context of substantive cases) demonstrate that courts can decline to remit in reference to a “multi-factoral, contextual approach…” animated by principles of deference (see Cristie Ford, Remedies in Canadian Administrative Law: A Roadmap to a Parallel Legal Universe). One such contextual consideration—an important one in legal interpretation—holds that remittal can be declined where a “particular outcome is inevitable and that remitting the case would serve no useful purpose” (Vavilov, at para 142). This is particularly so, for example, where there is only one reasonable outcome to a decision (Vavilov, at para 125; see also LeBon, at para 14 re mandamus; ). Other efficiency elements play a role:

Elements like concern for delay, fairness to the parties, urgency of providing a resolution to the dispute, the nature of the particular regulatory regime, whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question, costs to the parties, and the efficient use of public resources may also influence the exercise of a court’s discretion to remit a matter, just as they may influence the exercise of its discretion to quash a decision that is flawed.

Generally, however, it is “exceptional” to decline a remedy in this way : see David Stratas, “Some Doctrine and Cases” at page 118. Now, however, I am less convinced that will be as exceptional as it once was. This is because in cases of very weak legal interpretation by an administrative decision-maker—even cases where the court decides that the interpretation of the provision as a whole  does not just admit of only one reasonable interpretation—a court is more likely to decline to exercise discretion to remit.

The facts of Vavilov provide support for this. In Vavilov, the Court unanimously concluded that the Registrar of Citizenship’s interpretation of s.3(2)(a) of the Citizenship Act was unreasonable. The majority noted that this was primarily a failure of justification:

As noted above, we would exercise our discretion not to remit the matter to the Registrar for redetermination. Crucial to our decision is the fact that Mr. Vavilov explicitly raised all of these issues before the Registrar and that the Registrar had an opportunity to consider them but failed to do so.  She offered no justification for the interpretation she adopted except for a superficial reading of the provision in question and a comment on part of its legislative history (my emphasis). On the other hand, there is overwhelming support — including in the parliamentary debate, established principles of international law, an established line of jurisprudence and the text of the provision itself — for the conclusion that Parliament did not intend s. 3(2) (a) of the Citizenship Act  to apply to children of individuals who have not been granted diplomatic privileges and immunities.

In an ordinary case, it might be argued that the Registrar should have another kick at the can. After all, the Registrar was delegated power to make decisions under the statute, and could offer a stronger justification for the decision she rendered, or make the decision that is consistent with the text, context, and purpose of the statute. Indeed, the Court noted in Vavilov that it was not pronouncing definitively on the meaning of s.3(2)(a), at least as applied to other facts:

That being said, we would stress that it is not our intention to offer a definitive interpretation of s. 3(2) (a) in all respects, nor to foreclose the possibility that multiple reasonable interpretations of other aspects might be available to administrative decision makers. In short, we do not suggest that there is necessarily “one reasonable interpretation” of the provision as a whole. But we agree with the majority of the Court of Appeal that it was not reasonable for the Registrar to interpret s. 3(2) (a) as applying to children of individuals who have not been granted diplomatic privileges and immunities at the time of the children’s birth.

However, the fact that the Registrar failed to justify her decision in such a drastic way undermines the purposes of remittal. The Court concluded that, in reference to the particular facts at play, there was (a) only one reasonable outcome to the decision as applied to the particular facts and (b) that the Registrar failed to consider the reasoning building blocks to meet that particular decision. In such cases, we are talking primarily about a failure of justification leading to an erroneous decision, and there was no evidence that justification could be offered one way or another on remit. The weakness of the justification, here, was a primary driving factor against remittal.

Other factors in the remedial analysis also seemed to play a role here. It would be inefficient, for example, to remit where the Court itself had determined that on these particular facts, there was only one reasonable interpretation on outcome. But the Court’s focus on justification is also evident: “[c]rucial to our decision is the fact that Mr. Vavilov explicitly raised all of these issues before the Registrar and that the Registrar had an opportunity to consider them but failed to do so” [195]. There would be no point in remitting where the Registrar had not grappled with the key interpretive issues the first time around, especially where the other interpretive factors pointed in the other direction. The gap here was too great to justify a remittal, in light of the other public law values governing remedy.

An interesting counterfactual is whether the Registrar could have offered reasons for her interpretation that engaged with the text, context, and purpose of the statute—in other words, could she have offered proper justification for its decision on the facts? This is an open question, as the Court declined to opine on “all aspects” of s.3(2)(a). But it is at least plausible, in other cases, that there could be two reasonable outcomes of a particular decision, but the decision-maker completely failed to justify one interpretation, such that it is now unavailable as a matter of justification on remit.

Again, this is not a change in remedial principle, but it is a welcome focus on legal justification as an ingredient in the remedial analysis. After all, that is Vavilov’s promise.

Canada Post: Vavilov’s First Day in the Sun

Vavilov didn’t have to wait long to have its first day in the sun. In Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67 (a 7-2 opinion, Abella and Martin JJ dissenting), the Court had its first crack at applying the revised standard of review framework set out in Vavilov. In my view, the Court did an admirable job in Canada Post, showing that at least when it comes to garden-variety administrative law cases, Vavilov is a durable precedent. The devil will be in the details: especially where reasons are non-existent.

In this post, I review the facts of Canada Post and the analysis of the majority and the dissent. Then I demonstrate why the majority had the better of the argument here, particularly on applying the reasonableness standard in statutory interpretation cases.

Facts and Opinions

Canada Post concerned a decision of the Occupational Health and Safety Tribunal of Canada (OHSTC). A union representative at the Burlington mail depot filed a complaint with Human Resources and Skills Development Canada, alleging that Canada Post was not abiding by its obligations under the Canada Labour Code [CLC]. The complainant claimed that Canada Post was failing these obligations because it was only inspecting—for health and safety—the Burlington depot itself, and not “letter carrier routes and locations where mail is delivered” [4]. This had obvious practical impacts, because “letter carriers travel 72 linear kilometres delivering mail to 8.7 million points of call” [4].

Following the complaint, an officer conducted an investigation and found that Canada Post failed to comply with s.125(1)(z.12) of the CLC, which provides that “the employer must ensure that every part of the workplace is inspected once a year” [5]. Canada Post appealed to the OHSTC, which rendered the decision under review. The decision-maker, an Appeals Officer, held that the CLC section only applied to the “parts of the work place over which the employer had control…” which did not include the mail routes and places where mail was delivered [5] The Appeal Officer looked to the text of the relevant section, the definition of “workplace” in the relevant part of the CLC, and the “remedial purpose of health and safety legislation” [17]. He ultimately concluded that since health and safety inspections were designed to “permit the identification of hazards and the opportunity to fix them or have them fixed,” control over the workplace was a necessary condition [19].

The Federal Court affirmed. The Federal Court of Appeal would have affirmed the original officer’s decision.

At the Supreme Court, Rowe J wrote for the majority. He first outlined that the decision would be assessed under the Vavilov framework, even though the result under the Dunsmuir framework would have been the same [24]. After quickly determining the standard of review of reasonableness under the Vavilov framework [27], Rowe J turned to applying the standard. He noted that Vavilov instantiated a “reasons first” [27] approach to review, and so first set out some comments about reasons under the Vavilov framework. Here, he noted that the administrative decision-maker’s reasons were “exemplary,” but that what is required of decision-makers in a given case will depend on the context [30]. Both outcome and reasons matter: a decision must be justifiable in outcome and justified by reasons [28]. He noted that, while Vavilov defined reasonableness as generally mandating two things, (1) an internally coherent set of reasons (2) justified by legal and factual constraints, this analysis is not necessarily germane to every case [34] (see Vavilov, at para 101, 106).

Rowe J first concluded that the decision was internally consistent [35], before turning to the Appeal Officer’s interpretation of s.125(1)(z.12). Rowe J first outlined that, in reviewing a delegate’s legal decision, “a reviewing court should not conduct a de novo interpretation…” by adopting a “yardstick” and measuring a decision up against that yardstick [40]. A “reasons first” approach “requires the reviewing court to start with how the decision maker arrived at their interpretation, and determine whether it was defensible in light of the interpretative constraints imposed by law” [41]. This still requires a decision-maker to be alive to the essential elements of statutory interpretation: text, context, and purpose (Vavilov, at para 120).

Here, the Court first looked to the text of the section. The Appeals Officer concluded that the definition of “workplace” in the CLC, must be interpreted “broadly to account for all areas in which an employee may be engaged in work” [46]. Section 125(1) applies in respect of a workplace [45]. It provides that:

125 (1) Without restricting the generality of section 124, every employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity,

The core interpretive difficulty was whether this paragraph should be read disjunctively or conjunctively; meaning, do the obligations apply to situations where employers control the workplace, do they apply where they don’t, or do they apply to both situations? The Union made the latter argument, but the Appeals Officer concluded that certain of the listed obligations “apply only where the employer has control over the work place…” [49], whereas others applied when the employer controlled the activity but not the workplace [50]. The statutory context ultimately supported this view [50-53].

Turning to purpose, Rowe J focused on the specific purpose animating Part II of the CLC, under which the core interpretive difficulty arose: that purpose was designed to “prevent accidents and injury to health arising out of, linked with or occurring in the course of employment to which this Part applies…” [54]. The Appeals Officer concluded that a condition precedent to the fulfillment of this purpose, and the specific obligation in the relevant section, was control over the workplace, so that hazards could actually be identify [55]. Practically, it would be difficult for Canada Post to ameliorate hazards in areas it did not control. This practical reasoning was endorsed in Vavilov as an indicium of reasonableness (see Vavilov, at para 93).

Finally, the Court concluded that the evidence and arguments were taken seriously by the Appeal Officer [63].

In dissent, Abella and Martin JJ would have held that the relevant section applies to both activities where control is not present and areas controlled by Canada Post. This reading was supported by the text of the provision and a more general legislative purpose contained in s.124: “Every employer shall ensure the health and safety at work of every person employed by the employer is protected.” The dissent claimed that the Appeal Officer’s reasoning was “deeply flawed” [100, citing Dunsmuir at para 72), because it “read out the words and purposes of the safety inspection duty…” [101].

Analysis

In my view, the majority had the better of the argument here, mostly because the majority’s analysis is consistent with what the Supreme Court has recently said about statutory interpretation and because it is consistent with the principled deferential posture set out in Vavilov. The dissent makes a fundamental statutory interpretation mistake while arguably unreasonably parsing the Appeal Officer’s decision.

First, I would be remiss if I did not mention the determination of the standard of review. That analysis was undertaken by the majority in one paragraph. This is astounding for Canadian administrative law. Finally, it appears that we have accomplished Binnie J’s admonition in Dunsmuir that we move to merits quickly rather than focusing on determining the standard of review. In Canada Post, the emphasis is rightly where it should be: dealing with the statutory interpretation and the merits, particularly the reasons offered for the decision.

And on that score, there is much to analyze. Most importantly, and first, is the Court’s approach to the reasons of the Appeals Officer. The Court does what it says in this decision: it focuses on the reasons for decision, without parsing them, without creating its own yardstick, and without engaging in disguised correctness review. By focusing first on the coherence of the Appeals Officer’s reasoning, and then moving to legal constraints, the Vavilov framework guides and structures the application of the standard of review—and it did so here, in Canada Post.

Canada Post also demonstrates how Vavilov strikes the correct balance in ensuring that courts do not engage in disguised correctness review. Prior to Vavilov, the Court often engaged in disguised correctness review, sometimes not even mentioning the standard of review at all. But the reasons first methodology focuses the inquiry on what the decision-maker actually said, protecting against disguised correctness review. Instead of the court crafting its own interpretation, and disregarding the administrative reasons, it is for the decision-maker to demonstrate how she engaged with the “interpretive constraints” imposed by law; text, context, and purpose. Those constraints are real and binding as a matter of structuring administrative discretion, but the onus is properly on the delegated decision-maker to abide by them. Reasons are properly the gateway to deference, and its scope.

Here, the Appeal Officer’s reasons engaged with the text, context, and purpose. As the Court noted, the text could be conjunctively or disjunctively read: but the Appeal Officer’s reasoning, when taken in light of the purpose, was consistent with this reading. This meant that the Appeals Officer had some room to maneuver under the standard of review. Given the possible interpretive options, the Appeals Officer was owed deference.

But the dissent seemed to take a more activist approach that is profoundly inconsistent with Vavilov. The dissent instead came to its own interpretation of the relevant statute, and imposed that yardstick on the decision-maker. It did not take a reasons first approach; rather, it first determined the statutory meaning and then analyzed the Appeals Officer’s reasoning in light of that meaning. Instead, to be consistent with Vavilov, the dissent should have structured its analysis by first analyzing the reasons of the decision-maker, and then determining whether they engaged with the text, context, and purpose, which sets the range of interpretive options open to the decision-maker. This is not an approach that should find majority support.

On the merits, another issue cropped up in terms of statutory interpretation: how courts deal with purpose. This has been a common theme at the Supreme Court this year: see Telus v Wellman and Rafilovich. In particular, what divided the majority and dissent in Canada Post was the selection of the purpose that drove the analysis. For the majority, the obligations contained in s.125(1) fulfilled the broader purpose in Part II of the CLC, but the focus was on s.125 and what was required to fulfill those obligations: namely, control. For the dissent, it would have focused on s.124 as a general organizing purpose, and set s.125 as a particular instantiation of that purpose (see para 77).

The majority’s approach is more consistent with the Supreme Court’s recent statutory interpretation precedents, particularly Rafilovich. Rafilovich deals with what I call the horizontal frequency problem in statutory interpretation: where multiple purposes are stated across the statutory context at the same level of abstraction. Rafilovich basically held that courts should choose the purpose most local to the dispute at hand, not other purposes that may have more bearing on other sections of the statute. In essence, this may come to an assessment of weight; which purpose is more relevant?

This approach—choosing the most local purpose—is consistent with the task on judicial review to discover legislative intent and meaning in language. As I noted in reference to Rafilovich:

Applying this sort of thinking to Rafilovich, Justice Martin is clearly in the right. 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).

In my view, Vavilov does not change any of this, and is arguably actually consistent with Rafilovich by focusing on the ordinary principles of interpretation. In reference to Canada Post, then, the most local purpose to the interpretive difficulty is s.125(1), and its particular obligations. Section 124, taken too far by the dissent, could be read to impose an obligation on employers no matter whether they control the workplace or not. But section 125(1), properly interpreted in its context, would only apply some of the obligations to situations of control. This best effectuates the general purpose of Part II of the CLC and s.125 because of the practical reasoning employed by the Appeals Officer. If s.124 was taken to its literal extent, it would mean Canada Post has an obligation to conduct inspections on all sorts of routes and mail delivery locations. This would undermine the general safety purpose—as the Court noted “[a]n interpretation which imposed on the employer a duty it could not fulfil would do nothing to further the aim of protecting accidents and injury” [59]. This is simply an application of absurdity avoidance; but taking s,124 at its word could conceivably lead to this absurdity.

Conclusion

All in all, Vavilov’s first day in the sun was a good one. While there will be more battles to come, and potentially more ambiguities, for now we must celebrate. Those in the administrative law community do not often get to do so.

Vavilov: A Step Forward

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

Today, the Supreme Court of Canada released its decisions in Vavilov and Bell/NFL. I have previously summarized the facts of these cases and analyzed them here (Vavilov) and here (Bell/NFL).

Overall, today’s decisions (a 7-2 decision, Abella and Karakatsanis JJ concurring in result) are a net positive for the law of judicial review in Canada. The Court has done a service to the many individuals who face administrative power on a daily basis—the real winners of a clear, predictable, and conceptually sound approach. To be honest, I count myself surprised and pleased, which are odd emotions to carry when it comes to the Supreme Court’s administrative law jurisprudence. But on at least three issues, today’s decision is conceptually sound when it comes to selecting the standard of review: statutory rights of appeal, jurisdictional questions and legislative interpretation generally, and expertise. I first describe the new approach before moving to analyze these areas.

The basic takeaway from Vavilov and Bell/NFL is that the standard of review will presumptively be reasonableness across the board [16-17], but the situations in which the presumption will be rebutted take on greater importance than the pre-Vavilov Bell/NFL cases. Start with the presumption of reasonableness. It remains; this is not much of a change from existing jurisprudence, given the entrenchment of that particular rule in pre-Vavilov and Bell/NFL cases: see Edmonton East and CHRC. What is somewhat new are the circumstances in which the presumption will be rebutted. First, because the standard of review analysis is based in the common law, the legislature is free to explicitly legislate the standard of review [17]. But also—and significantly, as I will point out—now statutory rights of appeal will rebut the presumption of reasonableness and attract correctness review on questions of law (under the typical appellate standards of review) [17, 36 et seq]. Finally, where the rule of law requires correctness review—as in constitutional questions, general questions of law of central importance, and boundaries between two or more administrative bodies—the standard will be correctness [17]. Gone is the search for “context” [17], and importantly, gone is that much maligned category of jurisdictional questions [67].

Now, turning to the significant parts of this decision. The first area is statutory rights of appeal. Statutory rights of appeal have previously been considered a big nothingburger from the Supreme Court: see Dr. Q, Saguenay. As I wrote here, this state of affairs was completely unjustified. This is because rights of appeal are implied signals that a legislature intended the judicial review court to interfere with the administrative decision as it would in a normal appeal. This is contrasted with an application for judicial review, where common law standards apply. All of this is a function of the relationship between statutory and common law—statutes override the common law, and so statutory rights of appeal should override the common law standard of presumptive deference. The Court has now recognized this fact, offering the additional reason that the word “appeal” when used in legislation must be interpreted across different statutory contexts consistently [44]. This is a step in the right direction: it corrects the relationship between statute and common law that went awry in the Dr. Q line of cases.

Second, take the issue of jurisdictional questions. In the Dunsmuir era, jurisdictional questions were questions “where the tribunal must explicitly determine whether its statutory grant of power gives it authority to decide a particular matter” (Dunsmuir, at para 59). These questions were to attract correctness review (Dunsmuir, at para 50). No more. The Court has wisely done away this category of correctness review [67]. The Court noted the following:

The arguments that support maintaining this category — in particular the concern that a delegated decision maker should not be free to determine the scope of its own authority — can be addressed adequately by applying the framework for conducting reasonableness review that we describe below. Reasonableness review is both robust and responsive to context. A proper application of the reasonableness standard will enable courts to fulfill their constitutional duty to ensure that administrative bodies have acted within the scope of their lawful authority without having to conduct a preliminary assessment regarding whether a particular interpretation raises a “truly” or “narrowly” jurisdictional issue and without having to apply the correctness standard [67].

This is the approach adopted in the US: City of Arlington. And it is the approach I articulated in my paper, Two Myths of Administrative Law. It is a sound approach. All administrative actors are empowered and created by statute. In turn, the relationship between courts and administrative actors is also regulated by the degree of deference that the legislature prescribes. This is true on all questions that might come before a court—including cases that raise so-called “jurisdictional issues.” In other words, even assuming one can identify a jurisdictional question—a feat the Supreme Court has rarely been able to accomplish—there is no warrant to impose a less deferential standard if the legislature has signalled that it prefers a more deferential one on these questions. As Stratas JA pointed out in Access Copyright, a jurisdictional question “is really a question of legislative interpretation” (Access Copyright, at para 57). Here, again, the Court takes seriously the statutory basis of all administrative law, choosing to do away with a category of question that might undermine that basis.

In relation to questions of legislative interpretation, the Court does an admirable job. In applying the standard of reasonableness, the Court recognizes, first, that all administrative actors are creatures of statute [108]. This means that there is no constitutional aspect to the administrative state–decision-makers can only exercise powers delegated to them. The Court goes on to recognize that the degree of deference owed is primarily–but not totally–a function of statutory interpretation [110]. The Court notes that:

Whether an interpretation is justified will depend on the context, including the language chosen by the legislature in describing the limits and contours of the decision maker’s authority. If a legislature wishes to precisely circumscribe an administrative decision maker’s power in some respect, it can do so by using precise and narrow language and delineating the power in detail, thereby tightly constraining the decision maker’s ability to interpret the provision. Conversely, where the legislature chooses to use broad, open-ended or highly qualitative language — for example, “in the public interest” — it clearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language. Other language will fall in the middle of this spectrum. All of this is to say that certain questions relating to the scope of a decision maker’s authority may support more than one interpretation, while other questions may support only one, depending upon the text by which the statutory grant of authority is made.

This is a justified approach, given that all administrative actors are creatures of statute. Determining the scope of deference owed need not depend on metaphysical categories like “jurisdictional questions.” It is simply a function of determining the scope of power afforded to a decision-maker using the ordinary principles of interpretation [117]. This is a wise move that is conceptually sound and will bring greater clarity to the law.

Finally, I want to say something about the idea of expertise, which divided the majority and the concurrence in Vavilov. As I have written before, expertise is an inherently difficult idea in administrative law. The Court has taken an extreme position on expertise, holding in Edmonton East that expertise inheres in a tribunal as an “institution” (Edmonton East, para 33). But expertise is not necessarily a legal reason for deference—for example, a legislature could delegate to an inexpert tribunal just as easily as it can delegate to an expert one. The presumption of deference—based as it is on expertise—is therefore overbroad and unjustified.

The Court tacitly recognizes this in Vavilov. It notes that expertise is no longer a free-standing reason to justify deference in determining the standard of review [31]. This is partially because “if administrative decision makers are understood to possess specialized expertise on all questions that come before them, the concept of expertise ceases to assist a reviewing court in attempting to distinguish questions for which applying the reasonableness standard is appropriate from those for which it is not” [28]. And this is basically right. We cannot simply assume expertise.

The concurrence takes significant issue with this, and more generally the majority’s reasons. To the concurrence, the majority “ignores the specialized expertise of administrative decision-makers” [230]; “affords no weight to the institutional advantage of specialization and expertise that administrative decision-makers possess in resolving questions of law” [236]; and empowers reviewing courts to “freely revisit legal questions on matters squarely within the expertise of administrative decision-makers…” [251].

The death cries for expertise are unconvincing. As the majority noted, there may be situations in which decision-makers are inexpert. But courts cannot conduct a case-by-case analysis of expertise in each case. So, the best way to deal with expertise is to simply do away with it as a legal reason for deference, as far as selecting the standard of review. As the majority notes, expertise could play a role in the application of the reasonableness standard, especially in the process of reasons giving [93].

I want to briefly deal with one issue raised by the concurrence: the issue of the Rule of Law. The dissent says that “[t]he majority’s approach to the rule of law, however, flows from a court-centric conception of the rule of law rooted in Dicey’s 19th century philosophy” [240]. But this attack misses the mark. Judicial review, the cornerstone of these appeals, is fundamentally about courts reviewing administrative decision-making under the Rule of Law; it is about policing the boundaries of delegated power to ensure its legality (Wall, at para 13). This necessarily implies a hierarchical relationship between courts and decision-makers. It is the preserve of courts to ensure that administrative decision-makers follow statutory rules. The Court recognizes this in its analysis of jurisdictional questions, endorsing Scalia J in Arlington [68]. This is especially so when dealing with the Constitution, as the judiciary is the guardian of the Constitution. Correctness review in those circumstances protects the court’s role in ensuring that individuals are protected against administrative power. The Court has now recognized this, at least implicitly, as an organizing principle of administrative law.

Overall, as I mentioned above, this is a good decision all around. And more could be said about it, especially on the application of the reasonableness standard and the role of reasons. But I think that, for now, administrative law watchers in Canada can breathe a sigh of relief.

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.