The Supreme Court’s Unreasonable Reasons Doctrine in Admin Law

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

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

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

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

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

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

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

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

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

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

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

 

Vavilov: Doing the Administrative State’s Dirty Work

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

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

Facts

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

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

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

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

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

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

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

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

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

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

The Government’s Submissions

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

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

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

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

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

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

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

Vavilov’s Submissions

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

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

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

Analysis

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

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

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

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

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

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

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

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

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

 

 

Anglin: Administrative Lawmaking

How administrators could make law in the dark of night.

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Sunstein and Vermeule on Fuller: A View from Canada

What would Lon Fuller think about Canada’s standard of review framework?

In a fascinating article, Cass Sunstein and Adrian Vermeule explore the concept of a Fullerian administrative law. Their main argument:

Our largest suggestion is that a Fullerian approach, emphasizing the morality of administrative law, helps to unify a disparate array of judge-made doctrines and perhaps even the field as a whole. We also contend that a Fullerian approach puts contemporary criticisms of the administrative state in their best light and allows the sharpest critics to be their best selves[…]We suggest that most sympathetically understood, the critics are tracking Fuller’s fundamental principles. As we understand these critics, they are seeking to prevent a miscarriage of the legal system by ensuring that the administrative state respects the internal morality of law, at least as an aspirational matter.

The authors posit that doctrines of administrative law—the non-delegation doctrine, the presumption against retroactivity, and the rule that agency rules and decisions should be consistent with each other—can all be understood as expression of Fuller’s principles of morality of law, even if they lack connection to traditional legal sources.

This all seems very intuitive. Some of Fuller’s explanation of what counts as law—for example, a basic convergence between the law as applied and the law on the books—can be clearly applied to administrative agencies that render its own decisions in conflict with its enabling statute. Fuller’s assertion that anything counting as law must be general, promulgated in advance, and understandable evidences a clear preference for strong ex ante rules over ex post standards—and a system of predictable rules is certainly part of most conceptions of the Rule of Law. His admonition that laws should remain constant through time also implicitly disparages administrative adjudication without any external or internal guiding law or policy.

Overall, Fuller’s definition of law as a system of rules to guide action offer important insights about Canadian administrative law. There are parts of Canadian administrative law that can be seen as inconsistent with this fundamental precept. Take the entire standard of review debacle. No matter what one thinks the particular solution is to the Gordian knot, the current state of affairs fails on two of Fuller’s grounds. Most importantly, it provides no guidance to litigants or players in the system. Counsel have to predict by rumour and speculation what standard of review will be selected in a given case—and more importantly, how it will be selected.

Just as serious is the Supreme Court’s tendency to shift the parameters of the debate from case to case. Dunsmuir was decided in 2008. Since then, the following doctrinal changes were introduced by the Court: (1) a presumption of reasonableness review on questions of law was created with a tenuous connection to the original framework set out in Dunsmuir (Alberta Teachers); (2) legislative signals designed to rebut that presumption were accepted (Tervita) and then rejected (Edmonton East, CHRC) as a methodological matter; (3) the Court accepted that an agency can make implied determinations of law (Agraira), taking another case (Alberta Teachers) out of context and adopting a doctrine that stands in tension with Dunsmuir’s admonition that decisions must be “justified, transparent, and intelligible; (4) The Court accepted that “reasonableness takes the colour of the context” (Khosa), but then rejected the idea that reasonableness has many variations, holding that it consists of one standard of review (Wilson), but it is unclear whether that comment overrules Khosa and other cases (for example, Catalyst); (5) It adopted a framework for constitutional review of agency discretion (Doré), then silently rejected it in subsequent cases (Ktunaxa), and lower courts fail to adopt it with consistency; (6) the Court reasoned that courts can supplement the reasons for decisions using the “reasons that could be offered” in cases of deficient agency reasoning (Newfoundland Nurses), then backed off that assertion (Alberta Teachers), only qualifying that reasons cannot be replaced by a decision-maker on judicial review (Delta Airlines). I could go on, but need not.

Incremental development in common law doctrine is necessary and desirable. But what the Supreme Court has done with administrative law is far from incremental. The result is the lack of clear rules as to when particular standards of review are triggered. This creates distortions in the system, with courts intervening when they should not and deferring when they otherwise should not. If this weren’t enough, the Court has failed in a number of cases to adequately explain the shifts in methodology and doctrine. An example of this is the Doré question, where the Court failed to explain its shift in approach in subsequent cases, but another less common example is the tension on the reasons doctrine between Newfoundland Nurses and Alberta Teachers, released a day apart. What the Court has established is a largely ruleless wasteland that Fuller would likely regard with suspicion.

But perhaps the most objectionable part of the Supreme Court’s administrative law doctrine is the Court’s tendency to say one thing and do another. Specifically, take the Court’s tendency to engage in disguised correctness review. Fuller would have abhorred this state of affairs, representing a divergence between the law as applied and the law on the books. The tendency to engage in disguised correctness review leaves open questions as to what the Court is actually doing. Is the Court selecting the standard of review it is forced to by law, but actually applying the standard it thinks should apply? On what basis is it making this selection? One hopes the decision is not made according to freestanding policy views or the Court’s own implicit opinions about particular decision-makers. The point is that we cannot be sure.

As the authors note, Fuller’s principles are not ironclad. Fuller himself recognized that his idea of law can be recognized as a sliding scale, with one end being the minimum morality necessary to constitute law, and on the other hand, an aspirational legal system. How we achieve the balance is fundamentally a matter of tradeoffs. As the authors argue, there is an optimal point in the design between ex ante rules and ex post standards—a point where agencies are sufficiently restricted by ex ante rules with the necessary flexibility and discretion to operate ex post. Fuller’s preference for binding rules imposes a whole host of costs at the outset. For example, for the Supreme Court to construct a standard of review rule entails great cost at the outset, because it will have to design a rule that is properly tailored to the circumstances. Costs may also incur because the rule will either be overbroad or underbroad (take my discussion of the presumption of reasonableness here). A more flexible standard entails costs of its own—but at some point along the line, Fuller’s preference for rules can be sacrificed for other goods, in order to avoid the relevant costs.

But, as I said above, there must be some baseline of rules in a legal system. Administrative prerogative and uncontrolled judicial discretion should be controlled in some way, even in light of the costs of doing so. This really just glosses the surface, but Sunstein and Vermeule are (in my humble view) onto something. From a perspective of strategy, those who are uncomfortable with the administrative state are unlikely to convince true believers that it is unconstitutional writ large, or even that deference is problematic. But individuals from different perspectives can agree that Fuller’s morality principles provide a minimum baseline for the construction of doctrine. We should ask the Court to construct clear rules that can be easily applied; or at least develop more flexible standards that are triggered in clear circumstances.

Trinity Western, Dissected

The video of a discussion of the Supreme Court’s decision, held at the Centre for Constitutional Studies

Last week, I had the privilege of taking part in a discussion of the Supreme Court’s recent Trinity Western decisions organized by the Centre for Constitutional Studies. My presentation dealt with the Court’s majority’s embrace of the use of the Canadian Charter of Rights and Freedoms, anti-discrimination legislation, and purported “Charter values” to impose on a private institution obligations to which no law subjects it. I argued that, although the majority judgment in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, refers to “shared values”, in a pluralistic society it is only laws that we share ― until we amend them through the appropriate process ― even as we strongly disagree about values.

For their part, my co-panellists, Howard Kislowicz and Jennifer Rason, spoke respectively about the conformity, or lack thereof, of Trinity Western to Supreme Court precedent in the realm of freedom of religion, and about the decision-making processes followed by the law societies, and their implication for judicial review of their decisions. While they were not as harshly critical of the Supreme Court as I was, I think it is fair to say that, in their own ways, they too were underwhelmed by the decisions.

Here is a recording of the event. My remarks start at about 9:40, but I strongly recommend those of Professors Kislowicz and Raso, as well as the Q&A.

Thanks to the Centre’s Patricia Paradis and her staff for putting this event together! I very much enjoyed it, and hope to be back sometime.

10 Things I Dislike About Administrative Law

A perspective from a skeptic

Inspired by Leonid’s post on the Constitution, I’ve decided to list the 10 things I dislike about administrative law in Canada in advance of the planned revisit of Dunsmuir.

One’s personal list of problems with administrative law will inevitably reflect one’s views of what administrative law is and should be, and indeed, what law is and should be. Reasonable people will disagree on this, but perhaps we could agree on two fundamental starting points (even if we disagree on their interaction). First is the idea that absent constitutional objection, legislative delegation to administrative decision-makers should be respected, and courts should give effect to legislative language using the ordinary tools of statutory interpretation (set out in cases like Rizzo, Canada Trustco). Second is the Rule of Law; courts must survey the statutory boundaries of inferior tribunals to determine (1) the level of deference owed and (2) whether the decision is legal. On this account, administrative law can be understood as a form of control over the diffused form of decision-making the administrative state has wrought.

As I hope to show (quite tentatively, I might add), the Supreme Court has moved away from these first principles, often at the expense of the Rule of Law. The main point of the Supreme Court’s administrative law doctrine is an acceptance of deference to the “unrestricted” power of administrative decision-makers (see West Fraser, at para 11). By limiting the circumstances in which courts can review the propriety of the administrative state, the Court has “read in” a doctrine of deference that may not be prescribed by the enabling statute or the role of courts to enforce constitutional precepts as “guardians of the Constitution” (Hunter v Southam). The Court has constructed its own administrative law rules to operationalize its vision of deference.

  1. Selecting the standard of review

The standard of review is the obsession of Canadian administrative lawyers. The Supreme Court has fed this obsession by creating an overly complex standard of review analysis that is tenuously connected to the overall principles of the Rule of Law and legislative supremacy. The sine qua non of the analysis is a presumption of reasonableness on issues of home statute interpretation that is virtually irrebuttable (see Edmonton East, at para 22). This presumption is the imposition of judicial preference on a statute that may not agree with that preference, contrary to the hierarchy of laws. It is profoundly inconsistent with the idea that courts must enforce the law as they find it (see Justice Brown’s comments in CHRC on this front). At the same time, the Court has failed to explain or justify the relationship between the presumption, the categories inviting correctness review, and other legislative factors. Lower courts understandably struggle with this superstructure that might work in Supreme Court chambers but do not work in the context of judicial review.

I prefer a doctrine that puts the onus to defer on legislatures. Otherwise, the default position (especially on questions of law) should be de novo review by courts–consistent with their constitutionally defined supervisory jurisdiction (see point 7). If legislatures want to constrain decision-makers, they will prescribe—for example—a “statutory recipe” that the decision-maker must follow (Farwaha, at para 91; Boogaard, at paras 43-44). If not, on certain matters, the legislature may use open-textured language, directing the decision-maker to act “in the public interest” for example. The former will force a more searching standard of review, the latter a lesser one. The point is that we no longer need the labels of “reasonableness” or “correctness.” After all, administrative law is very simply a specialized branch of statutory interpretation (Bibeault, at para 120), recognizing the fundamental fact that the administrative state is statutory in nature.

  1. Applying the standard of review of “reasonableness” on questions of law

To the parties, whether a decision is reasonable (or, I prefer to say, simply “legal” ) is the central question on judicial review. But the Supreme Court has not explained what constitutes a “reasonable” decision, particularly when it comes to determinations on questions of law. It simply says that reasonableness takes the colour of the context (Khosa, at para 59) with the range of outcomes expanding or contracting based on the “context”. All of this is metaphorical and unhelpful to litigants and lower courts.

At one level, we can question whether the decision-maker’s interpretive process for determining the content of the law is “reasonable”—does the decision-maker engage with the text, context, and purpose of the statute? This may impose a “lawyerly” methodology on decision-makers, inconsistent with a commitment to legal pluralism that nominally defines the Supreme Court’s deference doctrine.

That being so, I think we should expect decision-makers to articulate their decisions in ways cognizable to the rest of the legal system, if we value uniformity in the way these decision-makers deal with disputes. But I think this is a pipe dream. We can’t expect, for example, all “line decision-makers” to understand the finer points of statutory interpretation. All we might expect is that a decision is actually made by a decision-maker with cogent reasons so that courts can evaluate it. When faced with an administrative decision, say, interpreting an enabling statute, a court simply has to decide whether the decision fits within the statute. Courts apply the ordinary tools of statutory interpretation to do this. I say more about this process here, but suffice it to say that whether a decision “fits” with an enabling statute can be answered by asking whether the decision renders a result at odds with the purpose of the statute (properly construed); whether the decision is precluded by other parts of the statute; and whether the text of the statute precludes the interpretation undertaken by the decision-maker. This is not far from what the Newfoundland Court of Appeal did in Allen, a commendable decision.

  1. Expertise

Courts assume that expertise is, at the very least, a practical reason for deference—legislatures delegate to decision-makers because of their expertise. In fact, expertise is a key reason undergirding the Supreme Court’s presumption of reasonableness on questions of home statute interpretation. But there is never an investigation into whether this expertise exists in reality, nor is there ever an explanation of the sort of expertise that would be relevant to trigger deference. The Court assumes that “…expertise is something that inheres in a tribunal [which tribunal?] itself as an institution” (Edmonton East, at para 33).

Putting aside this mysterious statement, if expertise is a good practical reason for deference, the Court should move away from the general assumptions and explain in each case (1) the relevant sort of expertise required to trigger deference and (2) whether there is any statutory evidence that such expertise exists in practice. As I have written before, this was the general approach used by the Supreme Court in the pragmatic and functional era (Pushpanathan is a good example). Why this approach is no longer appropriate is a puzzle.

  1. Lack of academic and judicial focus on agency procedures and policies

In law schools, administrative law almost exclusively is taught as the law of judicial review. Little attention is paid to the bowels of administrative law—the different sorts of decision-makers in the “administrative state,” their policies and procedures, the effect of “guidelines” (binding or non-binding) on individual litigants, and the profound democratic challenge posed by the adoption of policy guidelines imposed without the consent or consultation of the people subject to the guidelines. While Lorne Sossin has done some important work in this regard, academics would do well to examine and further define the taxonomy of potential internal policies that could impact individual litigants, and the extent to which they could deviate from the statutory grant given to the decision-maker.

  1. Jurisdictional Questions

The perennial unicorn of administrative law, the concept of the jurisdictional question continues to haunt the law of judicial review. These are (largely hypothetical) questions on which a decision-maker is afforded no deference, because they go to the authority of the decision-maker to respond to the case in front of it at all.

In CHRC, the majority of the Court rightly noted that the concept of the jurisdictional question is quite indistinguishable from other questions of law a decision-maker is asked to address. Dissenters on the Supreme Court (particularly in CHRC and its predecessor, Guerin) think that the concept of jurisdictional questions is important to the role of courts on judicial review to enforce the Rule of Law. Essentially, to the dissenters, the Rule of Law requires correctness review because deferring to administrative decision-makers on their own jurisdictional limits allows the “fox in the henhouse”—virtually unreviewable administrative authority over legal limits.

But as Justice Stratas noted in a recent Access Copyright case (and before him, as Justice Scalia of the Supreme Court of the US noted in City of Arlington,), a judicial review court interpreting an enabling statute on any legal question inevitably deals with the issue of its limits to enter the inquiry in the first place. These issues are all matters of legislative interpretation. As Justice Scalia noted in City of Arlington “The fox-in-the-henhouse syndrome is to be avoided not by establishing an arbitrary and undefinable category of agency decision-making that is accorded no deference, but by taking seriously, and applying rigorously, in all cases, statutory limits on agencies’ authority.”

The jurisdictional questions doctrine only makes sense if the Rule of Law mandates more searching review for questions of jurisdiction opposed to all other legal questions—assuming that a clear division can be drawn between these questions. But when it comes to administrative law, there is no meaningful distinction between legal questions and questions of jurisdiction—authority to make a decision in either category rests wholly on the statutory grant given to the decision-maker. As Justice Scalia noted in City of Arlington, a better descriptor for the concept is simply “statutory authority.” On this account, jurisdiction is not a concept that adds anything of substance.

  1. Charter Values

The religion of deference has even extended to constitutional issues. Truth be told, more ink has been spilled on the idea of Charter values than I think is necessary. Others have written about the doctrinal problems with Charter values as originally understood in Doré. These problems were exhaustively explored in Rowe J’s judgment in the Trinity Western case, and I need not revisit them here.

I will simply say that the benefits of Charter values that were promised by the Court’s judgment in Doré have yet to come to fruition. As I wrote here, the Supreme Court (and lower courts) cite Doré without applying its key holdings, basically applying the same tests associated with legislative challenges and particular Charter provisions than the “Charter values” (whatever they are) themselves. Even defenders of Charter values acknowledge that they have been applied inconsistently.

One wonders if there is any promise to the use of Charter values, or whether these values are unknowable, useless, and unhelpful in judicial review. To my mind, it is for the defenders of Charter values to move beyond the abstractions and lay out how—exactly—Charter values are fundamentally different from Charter rights, warranting a different analysis and relaxed standard of review.

  1. There are unexplored constitutional issues with aspects of administrative law

Section 96 of the Constitution Act, 1867 has been interpreted as the foundation of the power attributed by the Constitution to courts of inherent jurisdiction. The test described in Residential Tenancies (NS) determines whether or not a particular judicial power can be transferred by Parliament and legislatures to statutory tribunals. But there is separately a “core” of s.96 powers that cannot be transferred (MacMillan Bloedel, at para 15) to statutory tribunals.

To my mind, the supervisory jurisdiction of superior courts over inferior tribunals—on questions of law, specifically— is included in this core of superior court jurisdiction (MacMillan Bloedel, at paras 34-35).The concept of a core is a useful connection to the original purpose of s.96 courts to provide uniform interpretation of law.

Professor Daly has written on this issue, particularly on the issue of transferring judicial review functions to intermediate statutory tribunals. But I think more work should be done to square the constitutionality of the administrative state with the supervisory jurisdiction of superior courts. For example, full privative clauses could be unconstitutional if they block the supervisory jurisdiction of superior courts–on all questions of law, not just “jurisdictional” issues as noted in Crevier. I also would not concede that deference doctrines on questions of law—which dilute the supervisory function—are consistent with the role of superior courts. The list goes on, and it’s a list that could be explored with reference to the original meaning of s.96.

  1. The Supreme Court’s reasons doctrine

The Supreme Court tells us that we should pay attention to the “reasons that could be offered” by an administrative decision-maker before concluding that reasons are insufficient, warranting review (Dunsmuir, at para 48). This doctrinal innovation was based on a line taken from an academic article that did not speak to the mechanics of judicial review.

While the Supreme Court walked back this development in Delta Air Lines, it still remains the case that courts can supplement the reasons of decision-makers. This is problematic on a number of fronts. First, it was the legislature that delegated the decision-maker the power to make “justifiable, transparent, and intelligible” decisions. That power was not vested in the courts. Second, it is profoundly inconsistent with a notion of deliberative deference for a court to gin up reasons for a decision that the decision-maker may not have provided. Third, by abiding a culture of unjustified decision-making in the administrative state, the Court incentivizes decision-makers to limit the provision of reasons in their decisions, basically immunizing their decisions from meaningful review (see the discussion in Tsleil-Waututh Nation). But because the Court has stated that insufficiency of reasons is not a standalone basis for allowing a judicial review (Newfoundland Nurses, at para 14), a judicial review court is left in the unenviable position of having to defer to a potentially unjustified decision.

If a decision is unreasonable because of a lack of justification, it should be remitted. It is the remedial stage of the judicial review in which the court determines whether the decision can be maintained, looking to the record, for example (see Lemus, at para 33). Otherwise, courts may inadvertently allow unjustified decision-making.

  1. Deference to implied interpretations of law

The same comments I made in (8) apply here. Agraira holds, for example, that courts can defer to determinations of law that are “necessarily implied” within an ultimate decision (at para 48). Relying again on the magic line from the academic article, the Court concluded that it could consider the reasons that could be offered in support of a decision. But in Agraira itself, the Court noted that it could not “determine with finality the actual reasoning of the Minister.” I fail to see how a judicial review court, in those circumstances, can determine whether the reasoning and outcome fit within a range of reasonable outcomes.

  1. The standard of appellate review

This is a technical but important point. On an appeal of a judicial review court’s determinations, the Supreme Court insists that appellate courts should apply the judicial review standards of review–reasonableness and correctness–rather than the typical standards of appellate review set out in Housen. The appellate court is to “step into the shoes” of the lower court to determine whether that court selected and applied the proper standard of review (Agraira, at para 46). The effect of this is the same review, twice, of an administrative decision.

There are a number of problems with this. The first rests in the distinction between a first instance judicial review court and an appellate review court. If, as I posit above, judicial review is fundamentally a task of statutory interpretation (on both standard of review and the merits), then the appellate court is looking at particular legal issues raised in that interpretation by an appellant. This is fundamentally no different than the typical fare of appellate courts in most instances; determining whether a lower court interpretation of law is correct according to Housen.

Also, it makes little sense for an appellate court to redo a first instance court’s interpretation of a statute for reasons of judicial economy. Further, judicial review is supposed to be a summary procedure. Even at the appellate level, this should hold true.

Girouard v CJC: An Administrative State Coup?

The administrative state is not a constitutional mandate

A few weeks ago in this space, I mooted the arguments that could stand against the constitutionality of the administrative state. I alluded to an argument—percolating in Canada—that the administrative state could be mandated by the Constitution. I wrote this piece in a fully hypothetical mindset. But I forgot about a case in the Federal Court, Girouard v Canadian Judicial Council, in which the Canadian Judicial Council [the CJC] essentially attempted to constitutionalize its status as a statutory administrative tribunal by making it beyond judicial review. The Federal Court thankfully rebuffed the argument.

First, the brief facts. The CJC is a statutory body that has authority to review the conduct of federally appointed superior court judges. The CJC is made up of 39 members—chief justices, associate chief justices, and other senior judges—and is chaired by Chief Justice Wagner.

When a complaint is made against a member of the judiciary, the CJC has authority to investigate. It could do so through an Inquiry Committee [IC]. According to the Judges Act, which governs the CJC, the CJC may appoint an IC consisting of its membership or members of the bar of a province having at least ten years standing (s. 63(3)). After the inquiry has been completed, the CJC will report the conclusions and make recommendations to the responsible Minister (s.65).

Two inquiries were completed in the case of Justice Girouard, a judge of the Quebec Superior Court. In 2012, Justice Girouard was caught on a video that allegedly showed him involved in a drug deal. The CJC was asked to review Justice Girouard’s conduct. The first inquiry rejected the allegations against Justice Girouard, but raised concerns about the credibility and reliability of the facts reported by Justice Girouard. The CJC accepted the conclusion of the IC. In 2016, the Minister and Minister of Justice of Quebec filed a joint CJC complaint regarding Justice Girouard’s lack of credibility during the first IC. A second IC was convened, which found that Justice Girouard was not forthcoming during the first inquiry process. The CJC accepted that conclusion in its recommendation report to the Minister. In the main judicial review, Justice Girouard challenged the IC report to the CJC and the CJC report to the Minister, among other decisions.

The case here was a motion to strike brought by the CJC, which essentially argued that the CJC was a superior court, and not a federal board, commission or tribunal subject to judicial review under the Federal Courts Act. To the CJC, the Judges Act expressly notes that the CJC is “deemed” to be a superior court. Apart from the Judges Act, the CJC also argued that judicial independence as a constitutional principle compels the conclusion that the Federal Court has no authority to review the CJC, composed as it is of s.96 judges. The Federal Court rejected these arguments, concluding that the CJC is a statutory federal body subject to judicial review under the Federal Courts Act. Relatedly, the Federal Court concluded that the CJC does not possess the traditional indicators of a superior court, despite the fact that its membership is drawn from the ranks of s.96 judges.

The legal arguments presented by the CJC, to my mind, are problematic on three fronts: the implication of the CJC’s argument runs into problems at the level of fundamental principle; second, on specific legal points; and third, on the context in which this decision was made.

The first issue: if we accept the CJC’s argument, we can conclude that at least some of the administrative state is constitutionalized, simply because a s.96 judge (acting non-judicially) is on the committee. This is because the CJC argues that it is superior court, unreviewable without a right of appeal, despite being a body created by Parliament. Specifically, the CJC argues that the Federal Court cannot review the CJC because it does not fall into the definition of a federal board, commission, or tribunal in the Federal Courts Act. According to the CJC, this seems to be for two reasons: (1) because, properly interpreted, the definition does not encompass s.96 courts and (2) a principle of judicial independence precludes the Federal Court from exercising review over s.96 judges.

Both arguments run into what I call the fundamental principle of all administrative law: its statutory character, open to amendment or rescission at any time by the legislature. Tomorrow, for example, Parliament could remove the Immigration and Refugee Board, because the Constitution does not require the maintenance of a body to process refugee applications. We would revert to a pre-administrative law world, in which the executive (the responsible Minister) would process humanitarian and compassionate applications, for example. Put differently, and except in defined circumstances (such as those in Vriend, where Parliament has already spoken on a matter), the Constitution does not ordinarily require a legislature to positively act, much less to establish a robust administrative state. If the CJC is not open to judicial review under the ordinary channels, its actions are insulated from review, taking on a constitutional character. In the ordinary course, we would reject this argument—both on principle and because the Supreme Court has said that Parliament cannot establish s.96 courts (Crevier).

Why does this matter? While the CJC did not expressly argue this, its argument implites that the CJC can be put beyond review. An administrative actor created by statute should never be put beyond review, new-fangled theories of “constitutional structure” and administrative law constitutionalism notwithstanding. In constitutional democracies, government power must be subject to law. This means a neutral arbiter must determine if government properly exercised power according to law–the Rule of Law, at the very least, encompasses this principle of legality. If an administrative decision-maker, no matter the rank of its members or their august titles, is put beyond review, we approach a government by executive fiat and prerogative, not a government of laws adopted lawfully.

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

The only wrinkle in the Girouard case is the membership of the CJC—in part, s.96 judges. A principle of judicial independence does require some separation between the judicial branch and the other branches of government. Resting on this, the CJC argued that s.96 judges—whenever acting in any capacity—exercise powers as a member of a court of inherent jurisdiction. But the CJC is established not as a loose confederacy of s.96 judges acting in a judicial, adjudicative role, deciding individual cases and applying the law. This is the hallmark of the judicial function (see Residential Tenancies at 743). Rather, it is established as a statutory investigatory institution, vested with powers only so far as the statute allows. The CJC has no other inherent power—no constitutional power to vindicate a right with a remedy—and has no supervisory jurisdiction, other powers typical of a superior court. It is acting only as a sort of self-governing professional body for judges, according to the terms of the statute. In absence of any exercise of a judicial function, and given the statutory basis of the CJC, there’s no reason to believe that the CJC should be constitutionalized as a s.96 court simply because, in another capacity, members of the CJC exercise judicial functions–notwithstanding the specific facts of the Supreme Court’s comments in Ranville (distinguished by the Federal Court).

In fact, the implication of the converse is absurd. The CJC stands and falls as a whole–as an institution. As I note above, the CJC ICs, for which the CJC sought immunity from review, is in part made up of s.96 judges. But the ICs can also include members of the bar of 10 years standing. The CJC’s argument implies that this does not matter so long as there are s.96 judges on the IC, the IC and the CJC together exercise s.96 functions, acting as members of a court of inherent jurisdiction. This sets up an interesting set of incentives. In order to make statutory bodies immune from review, Parliament could set administrative decision-makers composed in part by s.96 judges—perhaps composed of just one s.96 judge among other lawyers. On the CJC argument, this body would be beyond review without a right of appeal. Parliament could use the Constitution to game the fundamental principle of administrative law.

The real question is whether judicial review by the Federal Court infringes the judicial independence of a s.96 judge. Judicial independence has some textual mooring (ss. 96-100 of the Constitution Act, 1867 and s.11(d) of the Charter), but it is an “unwritten constitutional principle,” which guarantees “administrative independence, financial security, and security of tenure” (Provincial Judges Reference, at para 118). The CJC says that security of tenure is at stake, as removal of a judge requires an impartial process. The Court in the Provincial Judges Reference said something similar regarding financial security, but I am not sure the same result is compelled in these circumstances. It is not as of the Federal Court is some government administrative body that could allow the executive to interfere in the workings of the CJC—thus breaking the wall that should be set up between judiciary and executive. The Federal Court is itself independent. In the ordinary course, again, constitutional principles do not compel a particular legislative process or system. It simply requires a reality; that judges and executive/legislatures be separate.

Finer legal points also work against the CJC (though I note the CJC’s very sophisticated statutory analysis-see the factum below). The CJC argued that it is not subject to review in the Federal Court because the Federal Courts Act expressly excludes s.96 judges—and the power of the CJC is rooted not in a federal law (the Judges Act) but in a constitutional principle. The CJC says that if the Judges Act were removed tomorrow, the authority of the judiciary to investigate other judiciary members would remain. Again, on this I recoil instinctively. The CJC makes decisions as an institution—this the CJC recognizes. That institution, separate from its individual members, is created by statute. The Judges Act is one statutory manifestation that implements the principle of judicial independence, but is not the only one and perhaps not even the best one.

The CJC also points to s.63 of the Judges Act, which says that the CJC is deemed to be a “superior court.” In written argument, the CJC spends a lot of time discussing this deeming provision. I’m alive to the idea in statutory interpretation that a deeming provision creates a virtually irrebuttable legal fiction, but an unconstitutional statutory provision (deeming or no) cannot stand. An attempt by Parliament, through a deeming provision, to establish a s.96 court runs into constitutional problems on federalism grounds and on the Crevier grounds noted above. Even if this was not so, the particular deeming provision in this case is similar to ones that exist in other statutes. For example, the Canadian Transportation Agency similarly has “…all the powers, rights and privileges that are vested in a superior court” (Canadian Transportation Act, s.25). Yet no one argues that this provision alone grants the Canadian Transportation Agency the power to act as a superior court beyond powers pertaining to the procedures of the Court.

Finally, the context of the decision indicates that the CJC is aware of its statutory character. As noted by Paul Warchuk, the CJC tried once—the right way—to amend the Judges Act to make itself immune from review. A few years ago, the Minister of Justice sought recommendations on how to amend the Judges Act. The CJC recommended at that time that it be put beyond the ordinary judicial review procedure, subject only to an appeal to a statutory appeal body.

The CJC failed in these efforts, which basically mirror its submissions in Girouard. But implicit in this attempt is a recognition by the CJC that it is a statutory body subject to review by the Federal Courts system like any other federal body. After all, Federal Court judges are superior court judges (see s.4 of the Federal Courts Act, which establishes the Federal Court as a “superior court of record”). I’m not sure what changed between this recognition of its status and the Girouard case.

Overall, while counsel for the CJC argued the best case it could and ably so (whatever my opinion is worth), I’m less inclined to support the argument because of its implication: a further extension of the administrative state into unknown terrain. The coup failed this time, but as I’ve written elsewhere, the administrative state is a fickle bedfellow.

NB: To be fair, I’ve attached the CJC’s submissions below. Thanks to Alyssa Tomkins, counsel for the CJC, for sending them over.

Mémoire CCM

The Bowels of Administrative Law

Administrative guidelines that make it difficult to challenge the administrative state.

In the United States, the Administrative Procedure Act governs federal administrative decision-making. Among other things, the APA prescribes a number of minimum standards for what I call the “bowels” of administrative law—the ugly business of rules, regulations, and guidelines adopted under statutory authority that touch the everyday person.  For example, when an agency promulgates rules made pursuant to congressionally delegated authority, the agency must provide the public with adequate “notice and comment” procedures, calibrated to the importance of the rule. On the other hand, rules that are merely policy or interpretive guidelines are generally not subject to notice and comment procedure. When an agency, however, exercises its delegated powers, it must provide adequate notice and comment.

In my view, the APA provides some acknowledgement that internal agency guidelines, even procedural ones, could impact substantive rights. It presents a supralegislative standard that certain procedural guidelines must meet if there is a chance that the rights and interests of citizens could be impacted. This, to my mind, is the primary function of the notice and comment procedure. It gives citizens the right to have a say on the sorts of rules that may adversely impact their ability to challenge administrative action. It is an attempt to reconcile the deep constitutional challenge of the administrative state with the rights and freedoms of individuals.

In Canada, on the other hand, little academic work focuses on the sort of internal agency guideline I’m concerned with—putatively procedural guidelines, adopted under statutory authority, that could have a significant impact on the ability of claimants to challenge administrative action. This could leave administrative decisions insulated from challenge. Putting aside the historical work of John Willis, a notable recent exception is the work of Lorne Sossin, who in a series of articles fleshes out a framework for classifying the wide gamut of agency guidelines and directives that could structure the broad statutory discretion of an administrative decision-maker. Professor Sossin has done a service in this regard, and I can do no better than a piece by Professor Sossin and France Houle. But I merely wish to underline a point made by Professor Sossin and Houle. In Canada, we have not grappled with the role that procedural guidelines could play in impacting the ability of citizens to challenge the state.  Relatedly, we have not addressed what role citizens should and do play in the formulation and adoption of these guidelines.

From one perspective, agencies empowered by legislatures can be seen as operating in a deeply democratic space to which courts should defer. By that, I mean that agencies particularize democratic mandates adopted by the legislature in a way that the legislature simply cannot.  Agency guidelines can develop the legal order or fill gaps in it. Much like a principal-agent relationship, the agency stands at the “hard end” of administrative law, achieving the legislature’s goals while efficiently and expertly managing disputes. As Metzger and Stack argue, we must view this business of administrative law as “administrative government” in an “administrative world”—these tribunals are fundamental parts of the law-making state in the modern world. It follows that overbearing “legal” norms should not be used to disincentivize the development of agency and policy guidelines.

But we know in Canada that, even when acting pursuant to statutory authority, administrative decision-makers do not have free rein. According to Roncarelli, there is no such thing as untrammelled discretion that can operate without regard to some intelligible statutory delegative principle. At the same time, beyond this general proposition, there is no general doctrinal guide for when courts should be skeptical of internal, procedural guidelines that could impact on the ability of litigants to challenge administrative action–with or without adherence to a statutory delegation.

A statute, for example, that delegates an agency the full power to develop rules of evidence leaves a great deal of discretion to the agency to decide on the sort of disclosure it must grant a claimant. Short of a constitutional challenge based on the case to meet principle and principles of fundamental justice, an agency could limit the disclosure of evidence to a claimant. This might seem benign. But it could make more difficult challenges to administrative action because a claimant may not have the best evidence to challenge the administrative decision. The effect? Less investigation of administrative action.

Standing rules are a better example. The legislature could delegate broad power to an agency to determine who has standing to challenge decisions. Any procedural rule adopted under this broad authority could be legal, but that same rule could pose problems for other rights and interests.   On one hand, if the agency adopts a liberal standing rule, more claimants will be let through the door and have the ability to hold agency decisions to account. Such a rule would exact a cost in the coin of agency resources, and that alone may impact the ability of the agency to efficiently respond to other complaints. On the other hand, a restrictive standing rule exacts a cost in a very different currency: the rule of law. If, under broad statutory authority, an agency adopts a standing rule that permits the denial of standing to many claimants, an administrative decision could be practically immunized from review. The concern is that the administrative state could  use the statutory authority it has been given to entrench its own power or the power of stakeholders. In such a situation, an agency could insulate itself from meaningful review while still acting within the four corners of a statute.

This is not a hypothetical situation. In Delta Air Lines v Lukacs, the Supreme Court recently dealt with the Canadian Transportation Agency’s interpretation of its own rules for standing, governed by a broad statutory authority. In that case, it did not appear that the Agency adopted a written rule for the situations in which it would grant standing. But it did adopt a particular version of the common law test for standing that made it more difficult for claimants to challenge the Agency’s action. While the Supreme Court held that this version of the common law test was inconsistent with the Agency’s enabling statute, what about a case where there is a restrictive standing guideline that is consistent with the enabling statute? In such a case, many claimants could be excluded. And the worry is that an agency could be insulated from review based on an arbitrary guideline.

The difficulty of addressing this problem should not be understated. In fact, this may not even be a “problem” that can be addressed through the courts. As noted above, the use of so-called “soft law” can be placed on a spectrum. As KC Davis noted in his important work, Discretionary Justice, we could have mere policy directives moving along into quasi-legislative rules. On the former end of the spectrum, such guidelines may not have the force of law. Even quasi-legislative rules that as Sossin and Houle note could develop or interpret the legal order may not themselves be justiciable. If these guidelines are adopted within the bounds of statutory authority, what warrant does a court have to intervene?

I’m not opposed to this line of thinking, because legislative intent defines the scope of agency authority. At the same time, there is something unsatisfying about the conclusion that agencies can themselves lower the probability of their decisions being scrutinized by litigants and ultimately courts. For that reason, as the Americans determined, the legislature is probably the best place to reckon with the difficult balance required between the delegation of power to administrative decision-makers and the ability of claimants to challenge agency action. A legislature could prescribe standards that allow claimants to have a say in the sorts of guidelines adopted by an agency. I do not expect such legislative guidance to come any time soon. But one could hope for the regulation of administrative law’s bowels.

 

Taming the Administrative State

Two books in the administrative law literature

In the spirit of the upcoming review of Dunsmuir by the Supreme Court, I’ve read two important books about administrative state skepticism in the United States: Phillip Hamburger’s The Administrative Threat; and Joseph Postell’s Bureaucracy in America: The Administrative State’s Challenge to Constitutional GovernmentBoth books address the constitutionality and necessity of the “administrative state,” and I see some of these conclusions transferring to the Canadian context. What follows is my tortured look at the problems of constitutionality and necessity with a Canadian twist.

Hamburger’s short, pithy text is a condensed version of his other important work, Is Administrative Law Unlawful? The Administrative Threat starts from an historical perspective and builds a sustained response to the administrative state. Hamburger analogizes modern administrative power to the English prerogative power. This prerogative power was famously abused, it was absolute, and it operated outside of the law—it was, according to Hamburger, “extralegal.” To Hamburger, the Star Chamber is the quintessential example of such power.

Hamburger argues that the US Constitution from the beginning barred such prerogative power, repackaged in “administrative” terms. Articles I (legislative power exclusively in the Congress) and III of the US Constitution (judicial power exclusively in the courts), block “irregular” or “extralegal” power, according to Hamburger. When decision-makers create binding rules, they operate outside of the constitutional structure. The worry is more pronounced when decision-makers combine rule-making (legislative), adjudicative (judicial), and investigatory (executive) functions. From a separation of powers perspective, we should be  concerned about such power concentrated in the hands of bureaucrats.

On the other hand, Postell’s book attempts to place the administrative state and its challenges in the context of American constitutional history. Postell argues that “administrative state skepticism,” far from being a new, radical movement, is entrenched in the idea of American constitutionalism. Similarly, to Postell, modern administrative law insufficiently addresses the threat of the administrative threat and its combined executive, judicial, and legislative power. Postell’s review of history demonstrates how Americans have dealt with the threat of administrative power, if imperfectly.

What do these books have to say to Canadians? The books basically assault (1) the constitutionality of the administrative state and deference to it and (2) the necessity of the administrative state. These arguments can transfer, if uneasily, to Canadian law. It’s worth mooting them out to see where they go, if we view a generalized notion of the separation of powers as a worthy organizing principle of the legal system.

Canada’s separation of powers is in part rooted in the judicature provisions of the Constitution Act, 1867. Section 96 protects the role of superior courts of inherent jurisdiction. Parliament cannot divest these courts of their core powers, while non-core powers can be divested if they were not exercised exclusively by superior courts in 1867, or if they were but the broad policy context of the decision-maker transforms the decision-maker’s function (Reference Re NS Tenancies Act).

It could be tempting in the Canadian context to say, as Hamburger does in the American, that the vesting of power in administrative tribunals somehow deprives the constitutionally protected courts of their powers of adjudication and interpretation of law. At first blush, there is no case for this in Canada, because the “core” of s.96 powers is drawn narrowly, and clearly law adjudication and application is not part of that core. For example, the Federal Court is a statutory court created under s.101 of the Constitution Act, 1867.  The Supreme Court itself is a mere “s.101 court.” Yet both courts clearly have the power to interpret and apply law, and that power does not derogate in any meaningful way from the power of s.96 courts to do the same. If the logic follows, therefore, there is no constitutional problem with similarly constituting administrative tribunals.

But this is an unsatisfying conclusion, because there is a meaningful distinction between s.101 courts, for example, and administrative decision-makers. Most importantly, the former can stand in review of the latter (ie) the Federal Court to the Refugee Appeal Division. And there are certain principles that thelcourts must uphold–judicial independence, the Rule of Law, the list goes on. In upholding those principles in cases, the courts must interpret and apply law against the delegated decision-maker. One has a supervisory function over the other, a constitutional role recognized as a part of the Rule of Law. On this question, the distinction is not between s. 96 courts and all other decision-makers, but rather between supervisory courts and other statutory creations.

So, even if interpretation and application of law is not a core function of courts, it is a function on judicial review conducted by courts. This function of law  interpretation and application is something quintessentially judicial. The transfer of these powers to statutory institutions, created by the government that adopts the laws under interpretation, seems to remove something from the uniformity required by the Rule of Law and implicit in ss. 96 and 101. Law that is interpreted by a thousand statutory creations cannot be a uniform law interpreted and enforced across the legal system by courts with a constitutional connection. If this is a constitutional problem, it would require a recognition that s.101 courts (and perhaps other supervisory courts) have some higher constitutional purpose alongside s.96 courts. Such an argument is not new,  and in my view, it is implicit in the Rule of Law, the requirements of judicial review, and legal uniformity. Delegation (read: divestment) of the powers of s.96 and 101 courts would, on this account, raise constitutional concerns.

This is a rough-and-ready attack on delegation, but it is admittedly not where the debate currently is in Canada.  Instead,  Professor Glover recently asserted that the administrative state could be constitutionally mandated.  But the same concerns I’ve noted above are relevant here. Apart from whether the administrative state is constitutional in the first place, the effect of constitutionally entrenching the administrative state (whatever that term means) would be the establishment of at least some adjudicative bodies alongside s.96 courts. Yet the Supreme Court has said that legislatures and Parliament cannot, in effect, constitute s.96 courts (see McEvoy, at 719). More importantly, it would be an odd constitutional mandate that requires the legislature to maintain an aspect of the Constitution through ordinary legislation, putting it in the realm of majority control. This is the opposite of what a Constitution is about–putting certain matters beyond the reach of the majority.

If we accept that there may be constitutional concerns with delegation, deference to that delegation should similarly raise problems. As Hamburger notes, deference has a little explained practical effect. When courts defer to administrative decision-makers in Canada, they effectively impose an onus on claimants to rebut a presumption of legality. Government lawyers have the upper hand—the decisions of their own statutory creations are what they defend. This raises a question of doctrinal independence, though emphatically not independence in the traditional, judicial sense. On questions of law, as Dunsmuir notes, a core function of s.96 courts (which extends to all judicial review courts) is the enforcement of that law against administrative decision-makers.  But deference to the administrative state dilutes that enforcement function, sacrificing it at the altar of expertise, while giving the government an upperhand. The concern here is that the decision under review is viewed as presumptively legal when there is no reason to presume it so.

This raises the necessity question, and whether administrative law and its doctrines can save us from the constitutional worries associated with the administrative state. Or perhaps there is another option. The books raise the prospect that we may not need the administrative state if we embrace certain constitutional principles.

To Postell, the administrate state is broken, and we do not need it in its current form. More importantly, administrative law can’t save us. As I have written before, and as Postell demonstrates, the tools of delegation and deference are used as quintessentially political tools. From the New Deal to the conservative counter-revolution, deference evolved as a way for governments to impress on courts their political will—their desire to limit the supervisory function of courts. These tools have operated at the same time as the administrative state has grown, an insatiable beast eating up more basically adjudicative and legislative functions.

Yet, the answer is not necessarily a strict politics-administration dichotomy. Instead, Postell puts forward the idea of a “constitutional administration,” where representation and republican protections are the organizing principles of the administrative state, rather than rule by experts.  Postell points out that contrary to scholarly “consensus,” antebellum America was not a place of robber-barons and laissez-faire, but instead a place where this constitutional administration flourished. There was an administrative state, and much of it operated at the state and local governments, subject to strict judicial review. At the national level, a stricter separation of powers governed, based on principles of non-delegation of legislative powers and strong-form judicial review. These forms of regulation, though based on simple principles rather than variable forms of expertise, accomplished the policy goals of the era.

In contrast, modern administrative state sympathizers argue that complex problems require complex solutions and that an expert administrative state is required to efficiently manage public policy. First, one has to seriously query whether the administrative state any longer accomplishes this goal, if it ever did. Expertise is not empirically demonstrated by administrative state defenders. And not all administrative tribunals are “flexible” (whatever that means), quick, and cost-effective, like the Court seemed to think in Edmonton East .As an example, the wait time for a refugee hearing before the Immigration and Refugee Board is currently 20 months.

More fundamentally, and as Richard Epstein points out, a complex society does not necessarily require complex rules in a complex bureaucracy. Simple legal rules based around the common law can transform and adapt to exigencies of modern society while similarly protecting individual liberty. Further, much of the administrative state is executive action that could be completed by the executive itself, as Hamburger notes. If the legislature stays in its lane by adopting clear rules, and the executive completes its executive functions, the combination of powers in the administrative state is avoided.

None of this should be construed as a full acceptance of either Hamburger or Postell’s thesis in the Canadian context. A simpler system of administrative law based on republican principles is not doable in Canada. But both authors give us something to think about. It might be worthwhile thinking about taming the administrative state.

CHRC: The Presumption of Reasonableness and the Rule of Law

Worries about the upcoming review of Dunsmuir

The Supreme Court of Canada released a number of decisions in the last few months on standard of review. Many of these decisions are probably noise rather than signal, in the language of Professor Daly. One, however, sheds some light on an important issue before the SCC’s revisit of Dunsmuir: CHRC v Canada (Attorney General), 2018 SCC 31 [CHRC]. What is the role of legislative context in rebutting the presumption of reasonableness?

CHRC says there is no role. This is inconsistent with the Court’s own cases, and doctrinally, it subverts the role of courts in seeking legislative intent to determine the standard of review. This is another milestone in the Court’s tortured administrative law jurisprudence, and it brings no hope for the upcoming review of Dunsmuir.

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CHRC involved two human rights complaints before the Canadian Human Rights Tribunal [CHRT]. These complaints centred around the Department of Indian and Northern Affairs’ previous practice of “enfranchisement.” Under this practice, the government stripped individuals of their Indian Act status and denied the children of these people from registering as status Indians—for example, a child born to a status Indian mother who married a non-status man. In response to this discriminatory policy, Parliament enacted remedial provisions which enabled persons affected by the policy to re-register under the Indian Act.  Further reforms granted registration eligibility to children affected by the enfranchisement policy.

The two complaints were centred around the amended registration provisions in the Indian Act, which need not be exhaustively described—in essence, the claimants argued that the remedial provisions were insufficient because they permitted continued discrimination on the basis of enumerated grounds [1].  The claimants framed their challenge under s.5 of the Canadian Human Rights Act [CHRA], and alleged that the Department of Indian and Northern Affairs Canada engaged in a discriminatory practice in the provision of services.

Both complaints were dismissed on the basis that the claimants’ challenges were legislative challenges to the status registration requirements under the Indian Act. The CHRA confers remedial authority to the CHRT to render conflicting legislation inoperable, but a remedy could only be granted in circumstances where a discriminatory practice has first been established [56]. But the CHRT concluded that “legislation per se” was not a discriminatory practice in the provision of services, and for that reason, the complainants’ cases could not constitute a discriminatory practice.

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The Supreme Court majority decision was written by Justice Gascon. To the majority, the CHRT was “called upon to characterize the complaints before it and ascertain whether a discriminatory practice had been made out under the CHRA” [30]. As a result, the Court reasoned that this was an issue of home statute interpretation inviting the presumptive standard of reasonableness.

The majority next considered whether the presumption was rebutted, concluding that the case did not fall into any of the categories for correctness review established in Dunsmuir. It then turned to the so-called “contextual approach” to determine whether it rebutted the presumption of reasonableness review. That “approach” was essentially a carry-over from the pragmatic and functional era, consisting of four factors which could indicate a different standard of review than the one indicated by the presumption: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue; (4) the expertise of the tribunal.

The majority noted that a presumption of reasonableness is designed to “prevent litigants from undertaking a full standard of review analysis in every case” [45]. Context, then, should play a “subordinate role”, and should be “applied sparingly” [46]. Putting context in its place, to the majority, would forego the uncertainty and debate over the standard of review.

The majority emphatically disagreed with the opinion written in CHRC by Cote and Rowe JJ, which noted that correctness would apply wherever the “contextual factors listed in Dunsmuir point towards correctness as the appropriate standard” [73]. Instead, the majority noted that where the presumption of reasonableness applies, an adoption of a contextual approach would “undermine the certainty this Court has sought to establish in the past decade” [47]. The majority concluded that “…dissatisfaction with the current state of the law is no reason to ignore our precedents following Dunsmuir” [47]. On the facts, the majority nonetheless applied the contextual analysis and concluded that the presumption of reasonableness was not rebutted.

In a concurring opinion, Rowe and Cote JJ disagreed with the majority’s obiter comments on the contextual approach. They reasoned that the approach to standard of review set out in Dunsmuir is “manifestly contextual in nature” [78]. To Rowe and Cote JJ, a contextual analysis must be undertaken where the categories inviting correctness review do not apply.  On the facts of the case, Rowe and Cote JJ would have found the presumption of reasonableness rebutted because of an absence of a privative clause and the potential for conflicting lines of authority because the CHRT does not interpret the CHRA in a discrete administrative regime [90]. Brown J concurred on similar grounds.

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In my view, the two concurrences clearly had the better of the argument here. First, the majority’s approach continues a hard-line approach to the presumption of reasonableness that is inconsistent with Dunsmuir and post-Dunsmuir cases. Second, a presumption of reasonableness that is never rebutted is contrary to the concept of judicial review.

It is unusual—in the strongest sense of the term—that the majority rooted its endorsement of the presumption of reasonableness in terms of precedent. It noted, for example, that resort to the contextual approach would “undermine the certainty this Court has sought to establish in the past decade.” This is an unexpected remark. The Court has done much in the last decade on administrative law, but establishing certainty is not on the list. Putting aside all of the other issues—which are many—the problem of context provides a good example of the Court’s odd inability to apply its own precedents.

Legislative context is integral to determining the standard of review because legislatures, not courts, can set the standard of review. Dunsmuir recognized this when it held that “[T]he analysis must be contextual” [64].  This is about as clear as it gets for the Supreme Court in administrative law.  As Justice Bastarache, one of the authors of Dunsmuir said in the recent Dunsmuir Decade series, none of the categories inviting a particular standard of review—including the presumption of reasonableness—were meant to be set in stone. Dunsmuir only said that deference would “usually result” when a decision-maker interprets its home statute [54].

And this is how the Court applied the presumption of reasonableness in subsequent cases. There are a number of cases in which the Court looked to context to determine whether the presumption was rebutted; by my count, at least the following: Entertainment Software Association v SOCAN, 2012 SCC 34; Rogers v SOCAN, 2012 SCC 35; Marine Services International v Ryan Estate, 2013 SCC 44; McLean v British Columbia (Securities Commission), 2013 SCC 67; Tervita Corp v Canada (Commissioner of Competition), 2015 SCC 3; Mouvement Iaique Quebecois v Saguenay, 2015 SCC 16; CBC v SODRAC, 2015 SCC 57; Edmonton (City) v Edmonton East (Capilano) Shopping Centres, 2016 SCC 47 (though noting Justice Karakatsanis’ skeptical remarks regarding the contextual approach); Barreau de Quebec v Quebec (Attorney General), 2017 SCC 56; Williams Lake Indian Band v Canada (AANDC), 2018 SCC 4; Groia v Law Society of Upper Canada, 2018 SCC 27.

I repeat these cases for dramatic effect. It is an example of the Supreme Court saying one thing and doing another—something some judges of the court recognized was a risk in administrative law in Kanthasamy [112]. In CHRC, there is no explanation for why context should be abandoned, especially in light of all of these precedents and Dunsmuir’s clear, unequivocal statement.  Shouldn’t certainty be one of the underlying goals of doctrinal reform, particularly in this troubled area? Changing approaches year-to-year does not provide any guidance to courts and litigants.

Quite aside from the lack of consistency in the Court’s standard of review framework, a presumption-only approach also frustrates the search for legislative intent. “Legislative context” as Justice Brown noted in CHRC is really just a proxy for determining legislative intent. When one speaks of “legislative context,” one means statutory indicators that set the standard of review implicitly: statutory rights of appeal, signs of concurrent jurisdiction, privative clauses, statutory indications of purpose, and the like. Or, perhaps there is explicit legislative guidance on the standard of review. It was always understood that these signs of legislative intent should bind courts; this is just an implication of the hierarchy of laws, under which courts must respect law absent constitutional objection.

The presumption-only approach in CHRC raises profound challenges to the task of courts on judicial review to determine legislative intent. The challenge can be framed in the classic “rules vs standards” debate in law and economics terms. The “rules versus standards” debate probably impacts every area of law, because laws and doctrine can be framed as either hard-and-fast “rules” or flexible “standards.” Rules have certain benefits—cost savings are achieved because the rule applies to the mass of legal situations, and there is no need to conduct a case-by-case investigation. But rules can be overbroad—if they are not appropriately tailored, they can apply in situations where the underlying justifications for the rule do not exist.

The presumption of home statute interpretation can be viewed as an overbroad rule, because on the happening of a certain event (home statute interpretation), the content of the law is defined (deference). It is rooted in the justifications of expertise and legislative intent.  But because the CHRC approach tells lower courts not to look to context, we simply never know if the legislature intended a standard of review other than the one indicated by the presumption. The presumption could apply in cases where the legislature did not intend reasonableness, even though the Dunsmuir factors (which could be understood as standards) implicitly set a different standard of review.

Not to put the point too strongly, but if this is the case, what is the point of a standard of review analysis? Couldn’t we create some sort of computer program in which cases are filed and the standard of review is selected by the computer? The point of the Dunsmuir factors is individual tailoring—they are designed to be applied by courts in cases where a statutory indication of legislative intent is evident. This requires some human appreciation of what an enabling statute implicitly sets the standard of review to be. But if judges simply say “reasonableness” all the time, the role of courts on judicial review is reduced to rote copying of a paragraph saying that deference applies, even where it should not.

This goes to the point of judicial review. The role of the courts on judicial review, as noted in Bibeault, is so important that it is given constitutional protection [126]. That role, rooted in the Rule of Law, is to authentically determine what the legislature intended the standard of review to be. When the Court binds itself to its own presumption–simply an evidentiary device–it subordinates its constitutional role to the police the boundaries of the administrative state.

The systemic costs of the CHRC approach are  exacted in the Rule of Law and against the constitutional role of the Court. As Leonid once wrote, judicial review can be understood as a cost-benefit analysis. While the costs saved through the presumption may be high, the potential costs of imposing the wrong standard of review could lead to more administrative decisions being upheld than what the legislature intended. The effect is case-by-case, an administrative state turned loose, increasingly unmoored by law. CHRC sanctions this unleashing of the administrative state.

This is not to say that the reasonableness review urged by CHRC is inconsistent with the Rule of Law (though I think there is a case to be made on that front). But expanding the class of cases in which reasonableness should and does apply, when that expansion is not mandated by law, presents a serious challenge to the Rule of Law and the role of courts in enforcing it.

CHRC worries me on this front. It demonstrates that the Court is not looking to the underlying constitutional precepts of judicial review. It does not seem to have seriously considered the costs to its approach. Nor is it even attempting to distinguish its own precedents in creating its new approach. Observers should worry about where the Court’s mind is going in advance of its planned review of Dunsmuir.