Much Ado About Context: A Note in Anticipation of Vavilov et al

A short post today about the role of “context” in administrative law. Many speak about “context” in the law of judicial review as if it is some inherent element of the law. In Khosa, Justice Binnie, for example, noted that in applying the reasonableness standard of review, the standard “takes its colour from the context” (Khosa, at para 59). But nowhere did Justice Binnie describe what context matters, or how it matters. In Dunsmuir itself, Bastarache and LeBel JJ said that “[t]he analysis must be contextual in applying the standard of review (Dunsmuir, at para 46). They said this in the context of discussing the “pragmatic and functional” factors that still, nominally, exist under the Dunsmuir framework. Whatever these quotes actually mean, the role of context in the law of judicial review is a distinct school of thought worthy of its own blog post (see Dean R Knight’s Vigilance and Restraint in the Common Law of Judicial Review for more discussion of contextual approaches to the law of judicial review).

Nonetheless, I am always puzzled by generic calls to “context.” Floating on a sea of “context” does nothing to guide litigants or judges in applying the law. What is required are simple, clear rules that are attuned to the fact that decision-makers arise in different statutory contexts, that can guide the parties and judges involved in applications for judicial review (for a contrary view about the search for simplicity in the law of judicial review, see Justice Cromwell’s “What I Think I Have Learned About Administrative Law” in the CJALP).

How can one have simple rules that adequately capture the vast array of decision-makers? This is, I think, the core dilemma facing the Supreme Court in the Vavilov case and perhaps in the law of judicial review more generally. For me, the key in enshrining the role of context is to look to the varied statutory contexts in which administrative decisions are made. Clearly, when speaking about context, we cannot mean that the standard of review analysis must encapsulate how decision-makers empirically act on a day-to-day basis. That is, courts cannot afford more or less deference based on how administrators actually act in the context of their day-to-day jobs. This would be an information-intensive exercise that judicial review courts are, obviously, ill-equipped to handle. So we need some proxy for context that takes into account the varying ways in which administrative decision-makers exercise their powers.

Of course, administrative decision-makers live in a world where their powers are “themselves confined” by statutes (Dunsmuir, at para 29). This means that administrative powers are delegated in the context of broader statutory schemes that set out when, how, and under what circumstances delegated powers are to be exercised. For example, are administrative decisions covered by a strong privative clause, impliedly signalling that Parliament wanted to limit judicial oversight? This is a sign, perhaps, that deference should be afforded. Has Parliament set out a list of factors that a decision-maker must consider (see Farwaha, at para 91)? This means that the decision-maker must consider these factors, not ones extraneous to the legislation—all things equal, this is a sign that the court must only consider whether the decision-maker considered these factors. Every statute is different, and each statute will affect the way in which courts review particular exercises of delegated power.

Practically, this means that what we require are meta-rules for courts to apply in analyzing statutes in service of deciding and applying on a standard of review—in other words, we need rules for deciding what statutory context matters. Luckily, we have those meta-rules: the rules of statutory interpretation. The Supreme Court has recognized that the principles of statutory interpretation are key in discerning the scope–and therefore the intensity of review–of delegated power (Bibeault, at para 120; also recognizing the difficulty of the task). And this is the key: if statutory context is the best evidence we have of what the legislature meant when it delegated power to a decision-maker, then the rules of statutory interpretation are all we need to discern how much deference is owed a particular decision-maker.

What is to be avoided, on this line of thought, is the Supreme Court’s generic approach that institutes a rule that clearly ignores statutory context. The presumption of deference on home statute interpretation increasingly applies without viewing any statutory context (see my post on CHRC, for example). And as I wrote earlier, the Court rarely pays attention to implicit signals from the legislature, through statutory rights of appeal and other legislative mechanisms (though the Court did so admirably in Tervita and Rogers). This seems contrary to the whole search for legislative “intent” that characterizes this area of the law.

If context is truly to mean context, then the Supreme Court should pay attention to the varied statutory contexts in which administrative decision-making occurs, by giving effect to the legislature’s meaning.