A Perspective from the North

A review of Jeffrey Pojanowski’s “neoclassical” approach to administrative law

Jeffrey Pojanowski, whose contribution of “A View from South of the Border” to the Dunsmuir Decade symposium readers may recall, has posted a very interesting paper on “Neoclassical Administrative Law” on SSRN. (The article is to be published in the Harvard Law Review later this year.) Although written in an American context, Professor Pojanowski’s article should be read north of the border too, because it is framed around the tension that is central to Canadian, as well as if not more than, American administrative law: that between the Rule of Law and (what we in the Commonwealth call) Parliamentary sovereignty. Professor Pojanowski’s solution to this tension ought to be appealing in Canada ― though accepting it would require giving up some of the assumptions that are built into our administrative law.


Professor Pojanowski starts by describing three ways of addressing the conflict between the courts’ role of saying what the law is and the legislatures’ prerogative of committing certain governance issues to the resolution of administrative decision-makers. What he terms “administrative supremacy”

sees the role of courts and lawyers as limited to checking patently unreasonable exercises of power by the administrative actors who are the core of modern governance. To the extent that durable, legal norms are relevant, the primary responsibility for implementing them in administrative governance falls to the discretion of executive officials, who balance those norms’ worth against other policy goals. (7)

“Administrative skepticism”, by contrast,

rejects deference to agency interpretations of law, even if the agency is charged with administering the statute. Deference shirks the judicial duty to say what the law is and introduces a pro-government bias of dubious constitutional provenance. (14)

As for those cases where the lawyers’ traditional interpretive tools are of no avail, because the administrative decision-maker has been given a policy-making role, “the [American] administrative skeptic is more likely to recommend an approach that is both more radical and more modest: invalidating the provision on non-delegation grounds”. (16-17)

Finally, the approach Professor Pojanowski terms “pragmatist” “seeks to reconcile the reality of administrative power, expertise, and political authority with broader constitutional and rule-of law values”. (18) It is relatively deferential to administrative interpretations of law, but makes “certain exceptions, such as withholding deference on major questions or jurisdiction”, (18) and “may … demand evidence that the agency engaged in reasoned decisionmaking” (18) even on those issues where it is normally prepared to defer, both interpretive and policy ones.

In jurisprudential terms, administrative supremacy comports with “a form of legal realism that dissolves the line between legal interpretation and policymaking”, deeming “most interesting questions of legal interpretation … inextricable from legislative policy choices”. (13) The skeptical position embraces A.V. Dicey’s vision of ordinary courts interpreting law as the keystone of the Rule of Law. The pragmatist view reinterprets the Rule of Law as involving “requirements of fair participation and reasoned justification”, and asks the courts to enforce these requirements, rather than to impose their view of what the law actually is.

Professor Pojanowski articulates and begins the defence of another approach to administrative law, which differs from those just outlined, though it has some affinities with each of them, perhaps especially the skeptical one. This “neoclassical administrative law … is skeptical of judicial deference on questions of law but takes a much lighter touch on review of [administrative] agencies’ procedural and policymaking choices”. (23) It seeks to preserve, indeed it emphasizes, the distinction between law and policy, and makes the courts masters of the former while asking them to stay out of the latter.

In part, this is motivated by a “formalist” rejection of the “legal realist premise that all interpretive uncertainty involves policy choices calling for political accountability and non-legal expertise”. (27; footnote omitted) To be sure statutes sometimes employ language that is only amenable to policy-laden elaboration (such as “in the public interest”); such elaboration should be the preserve of administrative decision-makers, subject only to a thin rationality review. However, this is precisely because in such “cases … there is no surface upon which traditional lawyers’ tools can have purchase”, (31) and the obverse of accepting this is a denial of “the more generalized presumption of implicit [legislative] delegation of interpretive authority”, which is no more than “a legal fiction delicately veiling a functionalism that dare not show its face”. (26) Legal questions, even difficult ones that have “more than one reasonable answer”, (33) can and ought to be answered by the courts, although “reviewing judges are likely to confer at least some mild epistemic authority on expert agencies”. (25n) In addition, the “neoclassical” position rests on a belief in the importance of the legislation governing judicial review of administrative decisions, especially (in the United States) the Administrative Procedure Act.

But while the “neoclassical” approach is similar to the skeptical one in its confidence in the law’s autonomy from politics and policy, it does not go as far in its rejection of the administrative state. It does not seek to reinvigorate the constitutional non-delegation doctrine (which holds that only the legislature, and not its creatures in the executive branch, can make law). Instead, “[t]he neoclassical approach turns down the constitutional temperature”, (36) accepting that the administrative state’s rule-making and discretionary powers are here to stay. It, in other words, “classical Diceyan public law theory adapted and persisting in a new regulatory environment”. (38)

Professor Pojanowski ends by addressing some potential criticisms of “neoclassical administrative law”. Of greatest relevance to Canadians will be his admission that

much here turns on interpretive method. The extent to which appeal to craft determinacy is plausible goes a long way toward deciding whether neoclassicism is promising or misguided. Furthermore, if interpretive formalism is inferior to strong purposivism or dynamic statutory interpretation, the case for deference is far stronger. Those methods explicitly, and to a greater degree, call for interpreters to consider policy consequences and evolving public values alongside, and sometimes above, formalist tools. The more those values infuse legal interpretation, the stronger the bite of arguments for deference based on political accountability and technical expertise. (40; footnote omitted)

Professor Pojanowski points out, however, that the pragmatist view, at least, is also tenable only if there are legal answers to at least some interpretive questions, which its adherents exclude from the scope of judicial deference.


I find Professor Pojanowski’s summary of the various existing approaches to administrative law illuminating, and his own “neoclassical” approach, mostly compelling. As a matter of first principle, I might be attracted by anti-administrativist skepticism but, especially in Canada, it is not a plausible position. Whatever might be the persuasiveness of the originalist arguments in favour of the non-delegation doctrine, and of strict separation of powers more broadly, in the United States, I doubt one can take them far in Canada. Subject to (somewhat vague) constraints on legislative abdication, the delegation of discretionary and rule-making authority is within the powers of Parliament and the provincial legislatures under the Constitution Act, 1867. The question, then, is not whether we can burn the administrative state to the ground, but whether we can ensure that it remains subject to law. The “neoclassical” understanding of administrative law is a better way of doing that then the available alternatives.

At present, Canadian administrative law is torn between “administrative supremacy” and “pragmatism”. Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, the soon-to-be-former leading case, is representative of the pragmatic approach, with its insistence that

[i]n judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [47]

By contrast, cases such as Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, which allow unjustified, unreasoned administrative decisions to stand in the name of an (almost?) irrebuttable “presumption of expertise”, epitomize administrative supremacy. That said, even the pragmatist strand of Canadian administrative law is infected with a metastasizing belief in the absence of legal answers to interpretive questions which in Dunsmuir and elsewhere has been said to warrant thoroughgoing deference to administrative interpretations of law.

In the circumstances, even reasserting the belief in the law is in fact autonomous from policy and politics, and that interpretive questions must be resolved by relying on legal rather than on administrative expertise, is a tall order. Professor Pojanowski points out that this belief goes hand in hand with a commitment to interpretation based “on the text’s original meaning, statutory context and structure, linguistic canons, and perhaps historical intent … rather than normative canons or legislative purpose at a high level of generality”. (34) Contrast this with the broad pro-regulatory purposivism of cases like West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 SCR 635, and you will see just how far we have to go. Yet West Fraser, with its purported acknowledgement of an “unrestricted delegation of power” [11] to an administrative tribunal, illustrates the dangers of the prevailing Canadian approach.

That said, I have a couple of interrelated concerns about Professor Pojanowski’s approach. The broader one has to do with judicial review of policy decisions, including “interpretation” (or rather construction) of such terms as “reasonable” or “in the public interest”. I am inclined to think that the approach to (constitutional) construction set out by Randy Barnett and Evan Bernick in “The Letter and the Spirit: A Unified Theory of Originalism” is apposite here. A reviewing court should ensure, not that just that the administrative decision is rational, but also that it is a good faith attempt to further the original purpose of the statutory provision on which it is based and of the statute as a whole. While legal craft may not be able to tell us how best to serve the public interest in a particular regulatory context, it can help shed some light on statutory purpose. Indeed, I think it is necessary that courts, rather than administrative decision-makers naturally incentivized to overvalue to importance of their perceived mission and to underrate the countervailing considerations that may well have led a legislature to limit their ability to advance their agenda, be the final arbiters of statutory purpose. As Justice Rand famously said in Roncarelli v Duplessis, [1959] SCR 121

In public regulation … there is no such thing as absolute and untrammelled “discretion” … there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption. (140)

A related but more parochial concern has to do with constitutional law. Whatever deference might be warranted to administrative decision-makers engaged in the policy-laden elaboration of vague statutory terms, none should be accorded on constitutional issues. As a matter of the positive law of the Canadian constitution, the courts are the supreme arbiters of its meaning, against the executive branch as well as against the legislative. This question, if I understand correctly, does not even arise in the United States, but so long as Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 remains on the books, it must be flagged in the Canadian context.

Another somewhat parochial question that the “neoclassical” approach to administrative law would force us to confront is that of what to do about a large number of statutory provisions that Canadian courts have so far more or less deliberately ignored or distorted beyond recognition. These are, on the one hand, “privative clauses” that purport to preclude review of administrative decisions; and on the other provisions such as section 18.1(4) of the Federal Courts Act, sections 58 and 59 of the Administrative Tribunals Act of British Columbia, and other provisions that seek to guide judicial review of administrative decisions. Privative clauses would be unconstitutional if taken literally; but instead of holding them unconstitutional and simply ignoring them as nullities, Canadian courts (used to) affect to take them seriously rather than literally, as indications that the decisions of tribunals protected by such clauses should be given greater deference. As the “presumption of deference” spread, even this position has become increasingly meaningless. Meanwhile, as co-blogger Mark Mancini has pointed out, in Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339, the Supreme Court subverted the guidance that section 18.1(4) provides, insisting on imposing its own views on the standard of review applicable to decisions of federal boards and tribunals. The Supreme Court has similarly ignored provisions creating statutory rights of appeal, treating appeals from administrative decisions like judicial reviews.

Professor Pojanowski calls for such legislation to be taken as binding law rather than guidelines to be subsumed into or overridden by the Suprme Court’s own views about judicial review. This should be the obvious thing to do: statute trumps the common law. However, there is a catch; two even. First, the principle of legality holds that common law rights, including the right to access courts, including, I think it is fair to say, for the purposes of judicial review, cannot be abolished by implication. I’m not sure whether this has repercussions for interpretation of legislation that guides judicial review, but it might in some cases. Often, however, the legislation is quite clear. Notably, section 58 of the above-mentioned BC statute requires review for patent unreasonableness, including on questions of law in the case of certain tribunals. I think the courts would need to squarely face, in an appropriate case, the question of whether legislatures are constitutionally permitted to set the bar so high. And the courts should stop pretending to attach any significance to unconstitutional privative clauses.


Professor Pojanowski has articulated an approach to administrative law that is at once principled and (relatively) realistic. It responds to concerns that animate not only American, but also Canadian law, and should therefore be of considerable interest to us, not just as a comparativist curiosity, but as a source of compelling ideas. For this approach to take hold in Canada, long-held assumptions will require revision, and difficult questions will need answering. Yet it is quite clearly superior to available alternatives. Count me a cautious neoclassicist.

Australia 1:0 Canada

Canadians have much to learn from the Australian High Court’s take on election spending limits for “third parties”

The High Court of Australia has just delivered Unions NSW v New South Wales [2019] HCA 1, a decision that should be of interest to readers who are concerned with freedom of expression in the electoral context ― a topical issue in Canada, given the recent imposition of further restrictions in this area by the recently enacted Bill C-76. The decision resulted from a challenge by a number of labour unions to New South Wales legislation that reduced the maximum amount a “third party” ― that is anyone not a candidate at an election or a political party ― is allowed to spend on campaigning in a nearly-six-month period preceding an election, from 1,050,000AUD (jut under a million Canadian) to 500,000AUD. The High Court unanimously held that the legislation was contrary to the implied freedom of political communication, which it had previously read into the Australian constitution‘s provisions requiring “representative” government.

The plurality judgment, by Chief Justice Kiefel and Justices Bell and Keane, finds that the third party spending limits are unconstitutional. That they restrict the ability to communicate is not in dispute. And while the plurality is prepared to assume that these limits are imposed for the legitimate purposes of levelling the campaigning playing field and preventing the wealthy from “drowning out” the voices of the less fortunate, they are not justified. Experts consulted prior to the enactment of the legislation provided no particular justification for recommending that the then-existing spending limits be reduced. A Parliamentary committee, however, recommend that the legislature look into the actual spending needs of third parties, and this was not done either. As a result, there is no reason for saying that the reduced limits are “reasonably necessary”.

Justice Gageler agrees with the plurality’s disposition of the case. He is persuaded of the legitimacy of the state’s pursuit “of substantive fairness in a manner compatible with maintenance of the constitutionally prescribed system of representative and responsible government”. [91] This might, in principle, justify much lower spending limits for third parties, which campaign on single issues, than for parties that must address a broad range of issues in their quest to form a government. However, “[i]t is not self-evident, and it has not been shown, that the cap set in the amount of $500,000 leaves a third-party campaigner with a reasonable opportunity to present its case”. [101] Absent such a showing, the restriction on the freedom of communication is not justified.

Justice Nettle’s conclusion is similar. He accepts the legitimacy of the objective of creating a level electoral playing field ― one on which political parties will be primary players ― and agrees that a legislatures may from time to time review the measures it takes to ensure fairness, including by lowering spending caps previously enacted. However, there must be a justification for whatever measures it takes from time to time. Such a justification is missing in this case. Although it was recommended that more evidence on the needs of third parties be collected, “for reasons which do not appear, that recommendation went unheeded. It is as if Parliament simply went ahead … without pausing to consider whether a cut of as much as 50 per cent was required”. [117]

Justice Gordon, like the plurality, assumes that restrictions on third party spending pursue a legitimate purpose, which she characterizes as the privileging of political parties and candidates. However, in the absence of evidence about the actual need for restrictions set at their current level, “the Court … cannot be satisfied that the level of the expenditure cap is reasonably appropriate and adapted to achieve the asserted constitutionally permissible end”. [150] It was for the State to show that the restriction it seeks to impose was justified, and it has not done so.

For his part, Justice Edelman considers that the reduction in the spending limits imposed on third parties, even as the limits imposed on political parties rose, cannot be explained by the purposes of maintaining a fair and corruption-free electoral system. Rather, it must have had an “additional purpose”, which “was to ensure that the voice of third-party campaigners was quieter than that of political parties and candidates”. [159] In other words, the reduction’s aim was “to burden the freedom of political communication of third-party campaigners”. [160] Justice Edelman considers that, although laws that rely on the relative silencing of some views in order to ensure that all can be heard are legitimate, to aim only at silencing some voices “is incompatible with the maintenance of the constitutionally prescribed system of representative and responsible government”, and legislation so motivated is “invalid”. [160]


Needless to say, I am not qualified to comment on whether the High Court is correct as a matter of Australian law. What I can do is compare its decision with that of the Supreme Court of Canada in Harper v Canada (Attorney-General), 2004 SCC 33, [2004] 1 SCR 827, which addressed much the same issues. (Readers will recall that I am not a fan of Harper, to put it mildly, and included it in my list of the Supreme Court’s five worst decisions of the last half-century in this blog’s recent Twelve Days of Christmas symposium.)

This is most obviously so on the issue of deference to the legislature on the issue of the appropriateness of a limitation of the freedom of (political) expression, and the evidence required for the government to make this case. The Harper majority insisted that courts should approach legislative choices with deference. In its view, “[t]he legislature is not required to provide scientific proof based on concrete evidence of the problem it seeks to address in every case”, and that “a reasoned apprehension of … harm” [Harper, 77] is sufficient to restrict fundamental freedoms protected by the Canadian constitution.

This approach is explicitly rejected in Unions NSW. While the Australian judges avoid directly criticizing the Harper majority, both the plurality opinion and Justice Nettle explicitly side with the “strong dissent” of Chief Justice McLachlin and Justice Major (joined by Justice Binnie). The plurality takes a dim view of the submission “that Parliament does not need to provide evidence for the legislation it enacts [and] is entitled to make the choice as to what level of restriction is necessary to meet future problems”. [44] When legislative choice are made in a way that burden the freedom of political communication, they must be justified. Similarly, Justice Gageler speaks of the need for a “compelling justification”, and insists that “[i]f a court cannot be satisfied of a fact the existence of which is necessary in law to provide a constitutional basis for impugned legislation, … the court has no option but to pronounce the legislation invalid.” [95] Justice Gordon insists that “the Court must … be astute not to accept at face value the assertion that freedom of communication will, unless curtailed by a reduction in the cap to $500,000, bring about corruption and distortion of the political process”. [148]

Another point of contrast between Harper and Unions NSW is the treatment of the so-called “egalitarian model of elections” designed in part to favour the interests of political parties and candidates over those of the civil society groups, disparagingly consigned to the status of “third parties”. According to Harper, election campaigns must focus attention on parties and candidates, including by ensuring that any other participants in the public debate, except the media, will behave unobtrusively. By contrast, the plurality opinion in Unions NSW explicitly rejects the submission that candidates and parties deserve preferential treatment, advanced in part on the basis that elections are “not a choice between ideas, policies, views or beliefs except insofar as such choice may be reflected in the electoral choice between candidates”. [39] Rather, the plurality says, “ss 7 and 24 of the Constitution guarantee the political sovereignty of the people of the Commonwealth by ensuring that their choice of elected representatives is a real choice, that is, a choice that is free and well-informed” [40] ― including by third parties. Justice Gageler, of course, takes the contrary view on this point. Justice Edelman’s position is more complex. He explicitly endorses “a Rawlsian, egalitarian model” [178] in which spending limits prevent some speakers from “drowning out” others. However, he also considers that it is not legitimate to target particular speakers for silencing apart from such an anti-drowning out purpose.

A last difference between Harper and Unions NSW worth highlighting is recognition by Justice Gageler of “the propensity of an elected majority to undervalue, and, at worst, to seek to protect itself against adverse electoral consequences resulting from, political communication by a dissenting minority”. [66] Justice Gageler refers to prior cases where the risk of a government legislating to limit political competition the better to maintain itself in office was explicitly adverted to. Such legislation, he notes, is incompatible with presuppositions of the Australian constitutional order. Although he finds that, in this case, “[t]here is no suggestion of abuse of incumbency” [85] by one party against others, this clear-eyed position is in contrast to that of the Harper majorityr, which ignored the possibility that incumbent governments favour legislation that excludes “third parties” from electoral campaigns in order to avoid unpleasant criticism and so reduce the odds of losing power.


There are more interesting things in the Unions NSW decision than I have room to discuss in this post. For example, Justice Gageler’s comments about the role courts in finding facts that are relevant to deciding whether a statute is constitutional are in contrast to the position of the Supreme Court of Canada in cases such as Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101, and should be very nutritious food for thought for those who are skeptical of the Bedford requirement of deference to trial judges. Justice Eledman’s comments on identifying statutory purpose (and in particular the role of general statements of purpose in the legislation) are also very interesting.

Overall, based on this one decision, I think that Canadians have a great deal to learn from Australians. Admittedly, the length of the High Court’s decisions is a deterrent ― Unions NSW is about 85 pages long, and I take it that it’s pretty short by Australian standards. That’s the cost of so many judges delivering full individual reasons. But the upside is that interesting ideas don’t get swept under the carpet in the process of getting to a set of reasons many judges can sign onto. I’m not saying the Supreme Court of Canada should go back to having each judge deliver his or her own reasons (though I wonder sometimes) but, at any rate, reading the Australian decisions may well be worth our while. In particular, the willingness of the Australian judges to keep a legislature accountable for imposing limits on the freedom of political expression without justification is a welcome reminder that their Canadian counterparts can do much more to protect individual rights in the electoral realm, and elsewhere.

Administrative Law’s Virtues and Vices

What Joseph Raz’s classic Rule of Law article tells us about administrative law

Joseph Raz’s article on “The Rule of Law and Its Virtue” (eventually incorporated in the collection of essays The Authority of Law: Essays on Law and Morality) is well known, mostly for the argument that the Rule of Law should not be confused with good law, and that a legal system can be thoroughly iniquitous while still complying with its requirements. The Rule of Law (I follow Jeremy Waldron’s practice in capitalizing the phrase), Professor Raz famously says, is like the sharpness of a knife: a knife needs to be sharp to be useful, and a legal system should comply with the requirements of the Rule of Law to be effective, but that tells us nothing at all about whether the knife is being used to cut bread or to kill people, and whether law is used to protect or to repress them. Professor Raz describes his “conception of the rule of law”  as “formal”, (214) although a number of its tenets have to do with the operation of the courts, and are best described (following Professor Waldron again) as procedural.

I think, however, that Professor Raz’s understanding of the Rule of Law amounts to a substantive one in one particular area, in which his insights are not, so far as I know, particularly appreciated: administrative law. Administrative decision-making and its review by the courts are at the heart of the Razian Rule of Law. The third Rule of Law “principle” Professor Raz lists, after the ones calling for “prospective, open, and clear” (214) laws and “stable” ones, (214) is that “the making of particular laws (particular legal orders) should be guided by open, stable, clear, and general rules”. (215) This is a warning about the dangers of administrative (and executive more generally) discretion:

A police constable regulating traffic, a licensing authority granting a licence under certain conditions, all these and their like are among the more ephemeral parts of the law. As such they run counter to the basic idea of the rule of law. They make it difficult for people to plan ahead on the basis of their knowledge of the law. (216)

This is not to say that no executive power can be exercised consistently with the Rule of Law. Professor Raz suggests that the problem with its “ephemeral” nature

is overcome to a large extent if particular laws of an ephemeral status are enacted only within a framework set by general laws which are more durable and which impose limits on the unpredictability introduced by the particular orders. (216)

This framework includes

[t]wo kinds of general rules … : those which confer the necessary powers for making valid orders and those which impose duties instructing the power-holders how to exercise their powers. (216)

The former are the substantive statutory (or prerogative) basis for the exercise of executive power. The latter, which I think would include both procedural rules strictly speaking and those guiding the administrative decision-makers’ thought process (such as the prohibition on taking irrelevant considerations into account or acting for an improper purpose), form an important part of administrative law.

Professor Raz’s next Rule of Law “principle” is that of judicial independence. But the way he explains is also directly relevant to administrative law. Professor Raz points out that

it is futile to guide one’s action on the basis of the law if when the matter comes to adjudication the courts will not apply the law and will act for some other reasons. The point can be put even more strongly. Since the court’s judgment establishes conclusively what is the law in the case before it, the litigants can be guided by law only if the judges apply the law correctly. … The rules concerning the independence of the judiciary … are designed to guarantee that they will be free from extraneous pressures and independent of all authority save that of the law. (217; paragraph break removed)

Although Professor Raz does not explore the implications of this for administrative law (why would he have, in the post-Anisminic United Kingdom?), they seem obvious enough. Only independent courts applying the law, and not acting on extra-legal considerations can assure that the law is able to guide those subject to it. Administrative decision-makers, however, typically lack anything like the safeguards that exist for the independence of the judiciary. In Canada, in Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 SCR 781,  the Supreme Court has held that there is no constitutional requirement of administrative tribunal independence. In Saskatchewan Federation of Labour v Government of Saskatchewan, 2013 SKCA 61, the Saskatchewan Court of Appeal upheld legislation that allowed an incoming government to summarily dismiss all the members of an administrative tribunal in order to replace them with those deemed more ideologically  acceptable. Indeed, for many administrative tribunals, their sensitivity to considerations of policy ― and ideology ― is part of their raison d’être. This makes it essential that independent courts be committed to policing these (and other) tribunals’ compliance with the law ― with the entire framework of stable general rules that guide administrative decision-making, both the limits on substantive grants of power and the procedure- and process-related administrative law rules. Judicial deference to non-independent, policy-driven administrative decision-makers is incompatible with legally bound adjudication that is necessary for the law to provide guidance, and is thus anathema to the Rule of Law as Professor Raz describes it.

Professor Raz’s next Rule of Law requirement is that “[t]he principles of natural justice must be observed”. This is a point that obviously applies to administrative law, as everyone now agrees ― in a (perhaps insufficiently acknowledged) victory for administrative law’s erstwhile critics. But here too it is worth noting Professor Raz’s explanation: respect for natural justice is “obviously essential for the correct application of the law and thus … to its ability to guide action”. (217) (Of course, respect for natural justice is important for other (dignitarian) reasons too, but they are not, on Professor Raz’s view, embedded in the concept of the Rule of Law.)

The following Rule of Law principle Professor Raz describes is that

[t]he courts should have review powers over the implementation of the other principles. This includes review of … subordinate … legislation and of administrative action, but in itself it is a very limited review—merely to ensure conformity to the rule of law. (217)

Although review for conformity to the Rule of Law is “limited” in the sense that it need not entail review for conformity with any particular set of substantive fundamental rights, it is nevertheless very significant. It means that the courts are empowered to ensure the consistency of administrative decisions with grants of power that purportedly authorize them, as well as with the rules that govern the procedures and processes by which they are made. And while Professor Raz does not explicitly address the question of how stringently the courts should enforce these rules, it seems clear that only non-deferential correctness review will satisfy the requirements of the Rule of Law as he presents them.

Finally, Professor Raz writes that “[t]he discretion of the crime-preventing agencies should not be allowed to pervert the law”. (218) He addresses the behaviour of police and prosecutors, and specifically their ability to exercise discretion so as to effectively nullify certain criminal offenses. Yet, presumably, similar concerns apply to administrative tribunals ― most obviously, those that are charged with the prosecution of regulatory offences, but arguably others too. Professor Raz’s argument seems to be only a special case of Lon Fuller’s insistence (in The Morality of Law) on “congruence” between the law on the books and its implementation by the authorities, at least insofar as it applies to the executive. (Fuller also wrote about the what congruence meant in the context of statutory interpretation ― something I touched on here.)

Why is this important? I don’t suppose that an appeal to the authority of Professor Raz will persuade the proponents of judicial deference to administrative decision-makers, and in particular to their interpretations of the law. Those who defend deference argue that administrative interpretations are the law, so that there is nothing else, no statutory meaning meaning or independent standards, for the judges to ascertain and enforce. As the majority opinion in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 put it,

certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. [47]

In such cases, the Supreme Court held, the courts would only engage in deferential reasonableness review of the administrative decisions. Moreover, Dunsmuir suggested, and subsequent cases have confirmed, that all questions regarding the interpretation of administrative decision-makers’ grants of power (the first part of what Professor Raz describes as the framework of general rules governing the making of administrative orders) will be presumptively treated as having no “one specific, particular result”. I have already argued that this is an implausible suggestion, because

the great variety of statutes setting up administrative tribunals, and indeed of particular provisions within any one of these statutes, makes it unlikely that all of the interpretive questions to which they give rise lack definitive answers.

But Professor Raz’s arguments point to an even more fundamental problem with the pro-deference position. Those who defend this position are, of course, entitled to their own definition of the Rule of Law, which is a fiercely contested idea. If they think that the Rule of Law does not require the existence of clear, stable, and general rules, or that it can accommodate “particular laws” not guided by such general rules, well and good. (It is worth noting, however, that Dunsmuir itself embraced an understanding of the Rule of Law not too distant from that advanced by Professor Raz: “all exercises of public authority must find their source in law”. [28]) But I do not think that the proponents of deference have a response to the underlying difficulty Professor Raz identifies. In the absence of general rules that are stable enough not to depend on the views each administrator takes of policy considerations, or simply in the absence of an enforcement of such rules by independent courts, people will find it “difficult … to plan ahead on the basis of their knowledge of the law”, “to fix long-term goals and effectively direct one’s life towards them” (220). As Professor Raz notes, this compromises respect for human dignity, which “entails treating humans as persons capable of planning and plotting their future”. (221)

I do not mean to exaggerate. As Professor Raz and other Rule of Law theorists note, compliance with the Rule of Law is a matter of degree. Deferential judicial review of administrative action is a failure of the Rule of Law as Professor Raz understands it, but it is hardly the worst failure one can imagine, at least so long as some meaningful review is still involved. (Suggestions, such as that recently voiced by Chief Justice McLachlin in West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, that there can be “unrestricted” [11] delegations of regulatory power are disturbing in this regard, but perhaps they only need to be taken seriously, not literally.) Nevertheless, and whether or not the proponents of judicial deference to administrative tribunals recognize this, deference does undermine the ability of citizens to rely on the law and to plan their lives accordingly. To that extent, it does amount to mistreatment by the state, of which the courts are part. It needs, at the very least, to be viewed with serious suspicion, and probably outright hostility. An administrative law that takes the requirements of the Rule of Law seriously has important virtues; one that does not is mired in vices.

No Shortcuts to Legality

Justice Stratas on the limits of the judicial practice of making up reasons for administrative decisions

What are the courts to do when reviewing an administrative decision that doesn’t meaningfully (or indeed at all) address a key issue? This is one of the issues that faced the Federal Court of Appeal in Bonnybrook Industrial Park Development Co Ltd v Canada (National Revenue), 2018 FCA 136, decided last week. The case involved the review of a decision of a Minister that some provisions of the Income Tax Act had the effect of preventing her from granting a taxpayer a waiver of or an extension of time to comply with certain filing obligations ― both of which appeared to be contemplated by other provisions. The Minister’s explanation for reading the statute in the way she did was conclusory to the point of non-existence, leaving the Court to guess at her real reasons ― and indeed uncertain whether she had even turned her mind to the issue.

On the issue of the waiver, the Court is unanimous in sending the matter back to the Minister. Justice Woods, for the majority notes that “[t]here is no evidence that the Minister gave any consideration” [30] to the matter; Justice Stratas agrees. However, the majority, while acknowledging “concerns” with the inadequacy of the explanation given by the Minister, accepts to review her decision on the extension of time, taking the government lawyer’s arguments to “supplement[]” this explanation. [33] Justice Stratas dissents from this approach, and his reasons are worth paying attention to.

Justice Stratas insists that an administrative decision that is reviewed on a reasonableness standard ― as interpretations of administrative tribunals’ “home statutes” usually are ― must be explained. While a reviewing court can sometimes draw inferences from the record supporting an administrative decision about how and why certain issues were resolved, in the presence of only a conclusory “bottom-line position”, its “ability to conduct reasonableness review is fatally hobbled”. [88] Even deferential review does not require a court to take administrative interpretations of law on trust. Nor is appropriate to  take the lawyers’ submissions as the equivalent of the decision-maker’s reasons; in this case, to do so would amount to “a bootstrapping of the Minister’s decision after she became functus officio” [73] ― that is to say, after she no longer had the authority to decide the matter.

And, since the Income Tax Act requires the Minister to decide whether to grant an extension of time, it is quite inappropriate for the courts to interpret the relevant provisions for the first time on judicial review. That would be “doing the job of statutory interpretation and reasons-writing that the Minister should have done”. [74] As Justice Stratas pithily points out:

My job is judicial review of the Minister, not judicial impersonation of the Minister. I do not work for the Minister. I am not the Minister’s adviser, thinker, or ghostwriter. I am an independent reviewer of what the Minister has done.

In conducting review, I am entitled to interpret the reasons given by the Minister seen in light of the record before her. Through a legitimate process of interpretation, I can sometimes understand what the Minister meant when she was silent on certain things.

But faced with a silence whose meaning cannot be understood through legitimate interpretation, who am I to grab the Minister’s pen and “supplement” her reasons? Why should I, as a neutral judge, be conscripted into the service of the Minister and discharge her responsibility to write reasons? Even if I am forced to serve the Minister in that way, who am I to guess what the Minister’s reasoning was, fanaticize about what might have entered the Minister’s head or, worse, make my thoughts the Minister’s thoughts? And why should I be forced to cooper up the Minister’s position, one that, for all I know, might have been prompted by inadequate, faulty or non-existent information and analysis? [91-93]

Would that the Supreme Court were always so clear. And would that the majority in this case, which apparently shared these concerns, and indeed gave them effect in disposing of one of the issues, had been more consistent.

The Supreme Court, of couse, has grappled with the issue of judicial “supplementation” ― which, as in this case, often means making-up ― of deficient administrative reasons in the course of reasonableness review. This problem arises because in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 the Court had endorsed the suggestion, first made by David Dyzenhaus, that courts ought to defer not only to the “reasons offered” by administrative decision-makers, but also to those “which could be offered in support of a decision”. [48] This suggestion has always sat uneasily with the statement, made in the previous paragraph of Dunsmuir, that “[i]n judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process”. [47] Justice Stratas refers to the latter passage in explaining why reasonableness review is impossible when administrative decisions are not explained. Perhaps the high point of deference to “reasons which could be”, but were not, “offered in support of a decision was th Supreme Court’s decision came in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, where the majority spent 20 paragraphs making up missing administrative reasons in order to purportedly defer to them. In a blog post (which Justice Stratas cites, for which I am very grateful!) I described this process “playing chess with [one]self, and contriving to have one side deliberately lose to the other”.

Justice Stratas notes, however, that the Supreme Court has, at least on occasion, been more sympathetic to the idea that there must be limits to judicial “supplementation” of non-existent administrative reasons. In particular, Justice Stratas cites Delta Air Lines Inc v Lukács, 2018 SCC 2, for the proposition that while “reviewing courts … are supposed to supplement the reasons of administrative decision-makers in some circumstances, in effect participating in the reasons-giving process”, [76] they are not “require[d] … to figure out … the merits of the matter, decide the merits for the administrator, and then draft the administrator’s reasons”. [77] Filling in gaps in an adminsitrative decision-maker’s reasons is one thing; writing these reasons on a blank slate is quite another.

This is a plausible, but arguably an optimistic view of Delta, which after all did say that “[s]upplementing reasons may be appropriate in cases where the reasons are either non-existent or insufficient”, [23] and sought to distinguish precedents where the Supreme Court had done just that ― albeit not Edmonton East which, as Justice Stratas points out, it did not mention. Moreover, more recently, in  Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, the Supreme Court again upheld largely unexplained administrative decisions (including one taken in unreflecting obedience to a referendum of a law society’s membership), instead of remitting them to the decision-maker.

That said, there is enough confusion and uncertainty in the Supreme Court’s jurisprudence in this area that it is difficult to fault lower courts that interpret this jurisprudence, Dworkin-fashion, to make it the best it can be, whether or not the Supreme Court itself would have treated with equal consideration. And that’s precisely what Justice Stratas does in Bonnybrook, by going back to the principles underpinning administrative law, and following their implications to a rule that can, and ought to, be consistently applied. As Justice Stratas points out, the law is not a tool for the ratification of the diktats of power, and the courts are not mere rubber-stampers of ukases. For administrative decision-makers, there are no shortcuts to legality, and for the courts, no quick fixes for administrative failures.

Is Deference Possible Here?

The Supreme Court’s latest administrative law decision shows why disguised correctness is the default standard of review

In Groia v Law Society of Upper Canada, 2018 SCC 27, decided last week, the Supreme Court of Canada once again fractured over the approach to take to the judicial review of an administrative decision ― and, once again, the majority chose correctness review disguised as reasonableness as its methodology. The substantive issue in Groia was whether the Law Society was entitled to discipline a lawyer for advocacy that took “the form of personal attacks, sarcastic outbursts and allegations of professional impropriety, grinding the trial to a near standstill”. [12] I have no articulate views on this, except a general sense that the fewer powers law societies have, and the more circumscribed these powers are, the better. But I do want to comment on the administrative law aspects of the decision.

* * *

As Justice Moldaver, writing for the majority, describes its decision, the Law Society’s

Appeal Panel grappled with the issue of when in-court incivility amounts to professional misconduct under the Law Society’s codes of conduct in force at the relevant time. It reasoned that incivility “capture[s] a range of unprofessional communications” and ultimately settled on a multifactorial, context-specific approach for assessing a lawyer’s behaviour. [36; references omitted]

The Panel then applied this test to Mr. Groia’s case. The issue for the Supreme Court is twofold: first, it must review the approach devised by the Panel; second, the Panel’s application of this approach. However, although all distinguish the two questions they must answer, the majority, Justice Côté, who concurs, and Justices Karakatsanis, Gascon, and Rowe, who jointly dissent, all consider that the Panel’s decision on both must be reviewed on the same standard. The majority and the dissent opt for reasonableness, though they apply it differently. Justice Côté goes for correctness.

As Justice Moldaver notes, the Supreme Court’s earlier decisions “establish that law society misconduct findings and sanctions are reviewed for reasonableness”. [43] This is because both the elaboration of the applicable analytical framework and its application “involve the interpretation of the Law Society’s home statute” ― or, as in this case, rules enacted under this statute ― “and the exercise of discretion”. [45] While the question of “the permissible scope of [lawyers’] in-court behaviour is arguably of central importance to the legal system as a whole”, [51] it is not “outside the Law Society’s expertise”. [51] Indeed, “Law Society disciplinary panels are composed, in part, of other lawyers”. [52] Justice Moldaver also rejects the claim, advanced by a dissenting judge at the Court of Appeal for Ontario and accepted by Justice Côté, that sanctions for lawyers’ behaviour in the courtroom are different in that imposing them risks trenching on judicial independence. In Justice Moldaver’s view, this is simply not so: “a trial judge is free to control the conduct in his or her courtroom irrespective of the degree of deference accorded to a law society’s disciplinary decision by a different court”. [55]

Having established reasonableness as the standard of review, Justice Moldaver considers the arguments advanced against the framework developed by the Panel in detail. I will not describe his reasons, partly because I have little to say on their substance, and partly because this part of them alone runs for almost 60 paragraphs. What matters for my present purposes is this: on each point and sub-point, after reviewing the Panel’s decision in at most a single paragraph, Justice Moldaver gives extensive explanations of what the Panel’s decision means, and why it is appropriate. Though these explanations are occasionally couched in the language of reasonableness, there is no doubt that Justice Moldaver provides his own views on the approach to judging alleged incivility by lawyers, instead of merely ratifying the Panel’s.

As for the application of the framework to Mr. Groia’s conduct, Justice Moldaver concludes that the Panel’s  decision was unreasonable. In Justice Moldaver’s view ― explained over the course of over 30 paragraphs ―, the Panel failed to apply the test it had itself articulated, and to take into account the factors that, on its own stated approach, ought to have mattered. For Justice Moldaver, “there is only one reasonable outcome in this matter: a finding that Mr. Groia did not engage in professional misconduct on account of incivility”. [125] (Now, here’s a question: would it be good if someone could reverse the Supreme Court’s decisions when they don’t follow the Court’s stated approach?)

As already noted, Justice Côté is of the view that the applicable standard of review is correctness, because lawyers’ in-court behaviour must be subject to the ultimate control of the judiciary. She insists that

An inquiry by a law society into a lawyer’s in-court conduct risks intruding on the judge’s function of managing the trial process and his authority to sanction improper behaviour. It does so by casting a shadow over court proceedings — in effect, chilling potential speech and advocacy through the threat of ex post punishment, even where the trial judge offered the lawyer no indication that his or her conduct crossed the line. And it permits an administrative body to second-guess the boundaries of permissible advocacy in a courtroom that is ultimately supervised by an independent and impartial judge. [168]

Justice Côté agrees with Justice Moldaver on the application of the test for misconduct, and thus concurs in the result.

The dissenters, by contrast, agree with Justice Moldaver that the standard of review is reasonableness, and also that the Panel’s approach was reasonable. However, they disagree with the way Justice Moldaver applied this standard, accusing him of

fundamentally misstat[ing] the Appeal Panel’s approach to professional misconduct, and reweigh[ing] the evidence to reach a different result. This is inconsistent with reasonableness review as it substitutes this Court’s judgment for that of the legislature’s chosen decision maker. [177]

The dissent faults Justice Moldaver with being insufficiently deferential to the Panel. “[D]eference”, they write, “recognizes that delegated authorities will have greater expertise in matters under their scope of authority”, [178] and when the applicable standard of review is reasonableness, it “is not optional”. [179] In particular, “deference bars a reviewing court from conducting an exacting criticism of a decision in order to reach the result that the decision was unreasonable”, or from “supplement[ing] the decision maker’s reasoning for the purpose of undermining it”. [180]

The dissenters “consider that Justice Moldaver reformulates” [188] the framework articulated by the Panel. As a result, they disagree with Justice Moldaver’s application of this framework too: “[i]t is not a respectful reading of the … Panel’s reasons to articulate a novel test … then fault the Panel for failing to apply it”. [199] The Panel’s decision is intelligible and defensible, and this is not a case where only one outcome could be reasonable. Indeed, such cases will be anomalies, because

[t]he existence of reasonableness review is, rather, premised on the fact that “certain questions that come before administrative tribunals do not lend themselves to one specific, particular result”. [215, quoting Dunsmuir v New-Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at [47]]

The dissent then describes ― at some length, and with limited reference to the Panel’s decision ― what it expects to be the pernicious consequences of the majority’s decision. The majority, the dissent fears, “sends the wrong message to those who look to this Court for guidance”. [227]

* * *

Therein, it seems to me, lies the rub. People look to the Supreme Court for guidance ― not for mere affirmation that an administrative decision-maker’s reasons were good enough and that in any event there is no right answer to the question they addressed. The whole point of having what the Constitution Act, 1867 foreshadows as a “general court of appeal for Canada” is that such an institution can explain what the law is. If such a court does not say what the law is, but only indicates that an administrative decision is within the bounds of what the law will tolerate ― without explaining where these bounds actually are ― then it is not doing its job.

It is no surprise, then, that Justice Moldaver’s reasons show little sign of deference to the Panel. What lawyers across Canada are interested in is what the Supreme Court itself thinks about their standards of conduct ― not in whether it thinks that the opinion of a single provincial disciplinary body on this subject was “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”. [Dunsmuir, [47]]  Indeed, the dissenters, for all the bitterness with which they chide Justice Moldaver for his failure to defer, and despite their own ostentatious display of deference, cannot help but enter the debate with their own comments about the appropriate standards of civility. If the question the Court is deciding is indeed one of central importance to the legal system, as Justice Moldaver concludes (and the dissent specifically agrees with this part of his reasons), this is entirely comprehensible.

Hence the question that, with apologies to Ronald Dworkin, I ask in this post’s title. Earlier this year, I wondered whether “the Court is growing disenchanted with deference to administrative decision-makers’ decisions on questions of law”, and perhaps even trying to kill off reasonableness review without telling anyone. The cases decided since then only provide more evidence for the proposition that the default standard of review in Canadian administrative law is disguised correctness, not reasonableness as the Supreme Court would have us believe. But perhaps the Supreme Court has a defence of  necessity to the charge of attempted murder. No court in its position could do otherwise.

Yet even if this be so, the Rule of Law issues I raised earlier do not go away. Law should be clear, and the fact of its change, transparent. The law of judicial review applied by the Supreme Court is opaque and hidden. And there is a further issue to think about: is it permissible for an apex court to apply a different law than the one it instructs other courts to apply, just because of its position within the legal system? It is, to say the least, not obvious that this is so ― which presumably is precisely why the Supreme Court engages in so much obfuscation. Once again, I conclude that it would be better ― more transparent, more conducive to the coherence of our legal system ― for the Supreme Court to (openly and publicly) abandon reasonableness review on questions of law in most or in all cases.

* * *

Groia illustrates a couple of additional problems with reasonableness review, as theorized and practised by the Supreme Court. On a theoretical level, it exposes the deficiencies in the Court’s justifications for deference, which I have already discussed at some length. Justice Moldaver explains that, while of central importance, the issue of lawyers’ behaviour is within the expertise of law society adjudicators. Indeed these adjudicators are themselves lawyers! But what, one would like to ask Justice Moldaver, are judges? Aren’t they lawyers too, and aren’t they, in principle (though, granted, not necessarily in practice) more eminent lawyers than those who sit on law society tribunals? As the dissenting opinion in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, co-written by Justice Brown ― who joined Justice Moldaver’s majority opinion in Groia ―, and joined by Justice Moldaver himself, pointed out, “expertise is a relative concept. It is not absolute.” [84] Sometimes administrative decision-makers are more expert than courts, which might be at least a practical reason for deference ― though not a legal one, as Mark Mancini’s contribution to the Dunsmuir Decade symposium pointed out. But this justification is implausible here.

For their part, the dissenters appeal to a different justification for deference: “reasonableness review is premised” on the existence a multiplicity of possible answers to questions to which it applies. Yet, as I noted in the posted linked to in the previous paragraph, deference is the presumptive standard of review for any question concerning the interpretation of administrative decision-maker’s “home statute”, and

the great variety of statutes setting up administrative tribunals, and indeed of particular provisions within any one of these statutes, makes it unlikely that all of the interpretive questions to which they give rise lack definitive answers. Perhaps the suggestion is that the very legislative choice of setting up administrative tribunals to address these questions means that legislatures think that these questions lack definitive answers, but that too seems implausible.

Indeed, the dissent’s reasoning is circular: reasonableness “is premised” on there being multiple possible answers, and since reasonableness applies, it follows that the question under review must have multiple answers.

The practical concern with reasonableness review that Groia illustrates has to do with the supplementation of an administrative decision-maker’s reasons by a reviewing court. The dissent says that Justice Moldaver is wrong to do this to “undermine” the Panel’s review. Yet one of its author’s, Justice Karakatsanis wrote, and another, Justice Gascon, joined, the majority judgment in Edmonton East, which did not so much supplement as outright made up the administrative decision in order to uphold it. Both of these positions ― no supplementation to undermine, any amount of supplementation to uphold ― seem consistent with the Supreme Court’s jurisprudence. But they are quite inconsistent with one another.

A clarification: what I’ve said above primarily concerns the first issue in Groia, that of the applicable framework. On the second one, the application of that framework, without entering into the substance of the debate between majority and dissent, and subject to my comments regarding the supplementation of reasons, I think that reasonableness is the appropriate standard of review. To me, Justice Côté’s concerns about judicial independence seem misplaced, for the reasons given by Justice Moldaver. Besides, while this case did not turn on a credibility issue, other, similar ones may well do so. How are courts supposed to engage in correctness review on that? It seems to me that the two issues in Groia should have been addressed on different standards of review. But no opinion takes that approach.

* * *

Groia provides further confirmation, if any were yet needed, that the Canadian law (if it may be called law at all) of judicial review of administrative action is in a dire state. Its theoretical foundations, which have long been weak, are being eroded decision by decision; its practical construction is falling apart. Perhaps these concerns are soon bound to be a thing of the past, as the Supreme Court’s coming review of the Dunsmuir framework simplifies what is abstruse, clarifies what is opaque, and cuts through what is impenetrable. Perhaps. But considering the confusion and the acrimony that seem to be the most remarkable features of the Court’s latest administrative law pronouncements, I suggest that you should not hold your breath.

NOTE: As some readers have pointed out, I had initially mixed up Justices Karakatsanis and Côté at one point. Correction made, and apologies!

FURTHER NOTE: It wasn’t just at one point. More corrections made.

It’s a Dog!

The majority’s pro-regulatory beliefs help make West Fraser a dog of a decision

In previous posts, I have summarized the Supreme Court’s decision in West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, upholding the validity of a regulation of the British Columbia Workers’ Compensation Board imposing safety-related obligations on owners of forestry workplaces, and the legality of a penalty imposed on such an owner under a statutory provision authorizing penalties against employers who do not comply with regulations, and discussed some of the administrative law issues to which this decision gives rise. As previously noted, however, West Fraser is interesting not just for what it can tell us about the finer points of judicial review, but also for what it implicitly says about the Supreme Court’s relationship to the administrative state.

In its overall orientation as well as in some details, the majority opinion, written by Chief Justice McLachlin with the agreement of five colleagues, is reminiscent of R v Comeau, 2018 SCC 15 (further confirmation, perhaps, of the Chief Justice’s likely authorship of that ostensibly per curiam decision). It’s not just that the deferential approach to judicial review is, in practice, in Canada, almost necessarily a pro-regulatory position, though that’s part of the story. It’s also that, on the Chief Justice’s view of statutory interpretation, a statute’s pro-regulatory purpose is to be amplified, while whatever constraints on its pro-regulatory orientation the statute might contain are to be played down. And, most fundamentally, the Chief Justice tells us that regulation is good, and the more of it there is, the better.

As discussed in more detail in my previous posts, the Chief Justice’s approach to both issues in West Fraser is deferential ― or so the Chief Justice says. In reality, I have argued, she engages in disguised correctness review and agrees with the administrative decision-maker. But, in principle at least, it’s the deferential approach that’s binding on future courts. Conceptually, deference might be neutral as between pro- and anti-regulatory outlooks. In the United States, famously, Chevron USA v Natural Resources Defense Council, 467 US 837 (1984), which required a deferential approach to administrative interpretations of legislation, arose out of efforts at deregulation by the Reagan administration. Even so, it seems likely that administrative decisions that reduce the scope or onerousness of regulation are less likely to be challenged, so that in practice a deferential court will be a pro-regulatory court even if it has no particular desire to be one. And, of course, the prospects of serious regulatory roll-back in Canada seem rather remote.

But there is more. Whatever abstract theory might suggest, Canadian deference theorists are unabashedly in the pro-regulatory camp. David Dyzenhaus’s famous chapter on “The Politics of Deference: Judicial Review and Democracy”, from which the Supreme Court in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, plucked the phrase “deference as respect”, [48] urged the courts to defer to administrative decision ― because its author thought that administrative regulation was normatively desirable, notably in that it advances the cause of equality. (Professor Dyzenhaus went so far as to argue that non-deferential review of the decisions of human rights tribunals by independent courts was a “setback[] to the constitutional commitment to equality between Canadians”, (297) as if the courts were not ultimately responsible for upholding this constitutional commitment.) But for Professor Dyzenhaus, deference was a one-way ratchet: if, peradventure, “judges find themselves confronted with administrative determinations of law that flow from” deregulatory impulses, “they should not be embarrassed to ask how those determinations advance the cause of equality” (306) ― and  so to intervene if they do not. Much more recently, in her contribution to the “Dunsmuir Decade” symposium, Kate Glover proposed a novel theory according to which judicial deference to administrative decision-makers is now a constitutional requirement. Professor Glover did so in an attempt to prepare the administrative state’s defences against a (purely hypothetical, as she rightly notes) siege by deregulating anti-administrativists. This should, I think, be a warning to anyone who hopes that deferential courts would in fact be neutral as between more regulation or less.

Statutory interpretation, no less than (rhetorical) deference, is marshalled in support of regulatory expansion by the Chief Justice. She stresses that the Workers Compensation Act, the statute at issue, “is meant to promote workplace safety in the broadest sense”, [18] and discounts the more specific purpose statements that seem to suggest that this purpose is not to be pursued by whatever means necessary. Focusing on them is “formalistic” and “inconsistent with a purposive interpretation of the scheme”. [18] (To be honest, I don’t know what “formalistic” is supposed to mean here. But it’s bad, bad, bad.) When it comes to the issue of whether the statute authorized the imposition of penalties seemingly reserved for “employers” on firms that were, in the context of the events in relation to which the penalty was being imposed, “owners” but not “employers”, the Chief Justice once again favours an interpretation “more supportive of the goal of promoting safety and the overall operation of the scheme”. [38] This interpretation, as I argued in my last post, is strained to the point of rendering the statutory language meaningless. However, what mattered to the Chief Justice is that reading the statute to mean what it said “would undermine [its] goals”, while the strained interpretation “would further the goals of the statute and the scheme built upon it”. [40] In short the statutory purpose, understood in the most pro-regulatory way possible, must be given effect ― other purposes and text itself be damned.

Now, in fairness, to the Chief Justice, she arguably is dealing with a real interpretive difficulty. Probably all, certainly most statutes involve compromises between a number of values or purposes. The Workers Compensation Act promotes workplace safety, of course, but it also accommodates a measure of free enterprise. It could, after all, have imposed  even more invasive regulation that might have done even more for workplace safety ― but the legislature chose to only go so far towards that purpose, because going further might have undermined other purposes that it also valued. Or, to take another example, human rights legislation doubtless aims at achieving equality in society ― but the limits on its scope, for example the fact that it is typically not applicable to personal, non-economic relationships, suggests that it respects a measure of personal liberty ― implicitly anyway. The problem, though, is that if the legislature enacts a provision that specifies the purpose of a statute, it is likely to present  some, perhaps just one, of the values that the statute actually accommodates, as the purpose it seeks to realize, and omit the others. This might be done for political reasons ― it might not look good to tell workers, or voters, “we’re protecting you, but only some, since protecting you more would actually put a bunch of you out of work”. Perhaps more forgivably, this might also be because, relatively to the previous state of the law, the statute does move things in the direction of more protection, so characterizing that as its main purpose is not unfair. But, either way, the legislature is misleading those who read and try to understand the statute ― above all the courts ― by giving them a distorted view of its objectives.

What are the courts to do when the legislature does this? I think they should do what Justice Côté did in West Fraser ― read the whole statute and give effect to its terms, not letting the (one-sided) purpose section override the substantive provisions. By choosing to focus on the purpose indication (and to read it selectively to emphasize its pro-regulatory aspects), the Chief Justice once again implicitly privileges regulation. For the same political reasons I refer to above, it seems likely that the legislatures will systematically overstate the significance of their regulatory purposes, and understate whatever countervailing values might also be animating them. So, a judge who overvalues statutory statements of purpose at the expense  of the text will tend to produce pro-regulatory outcomes even  without setting out to do so. But I doubt that the Chief Justice is such a judge.

In fact, her reasons in West Fraser suggest that the Chief Justice’s basic disposition is in favour of regulation ― the more of it the better. She is comfortable with a legislative mandate to an administrative agency “to enact whatever regulations it deemed necessary to accomplish its goals of workplace health and safety”, [10] going so far as to characterize this as an “unrestricted delegation of power”. [11] Though admittedly it is unlikely that the Chief Justice means this adjective literally, it is remarkable that she appears untroubled by the idea of an unrestricted regulatory mission. Later, when discussing the issue of the penalty, the Chief Justice writes that “[t]he general scheme of the [Workers Compensation Act] is to hold both owners and employers responsible in an overlapping and cooperative way for ensuring worksite safety” [43] by way of justifying holding the ones responsible for violations of obligations the statute only seems to impose on the others. As in the area of what used to be known as division of powers, “cooperation” comes to mean the accumulation of regulatory mandates ― and is seen as a good thing. The Chief Justice’s shows her attitude towards such mandates most clearly when she makes a point of observing that the regulation challenged in West Fraser was adopted

in response to a concern in the province about the growing rate of workplace fatalities in the forestry sector … provid[ing] a clear illustration of why a legislature chooses to delegate regulation-making authority to expert bodies — so that gaps can be addressed efficiently. [20]

It is important that something be done about social problems, and whatever is done about them by regulators ― presumed,  conclusively, to be experts ― must therefore be good. There is only a step, if that, from here to what Sir Humphrey Appleby described as “the politician’s logic”, and what later became known as “the politician’s syllogism“. Something must be done; this is something; therefore this must be done. The Chief Justice has, on the occasion of her already-happened-but-still-impending retirement, and indeed before, been much praised for her statecraft. In West Fraser, she reminds one of The Right Honourable Jim Hacker, MP.

Of course, by criticizing the Chief Justice’s pro-regulatory views ― and those of the other judges in the West Fraser majority ― I do not mean that judges ought to become the flag-carriers of deregulation. They should be neutral and, within constitutional bounds, give effect to the legislation that Mr. Hacker’s colleagues, in their wisdom, enact. Much of this legislation will delegate considerable regulatory powers to administrative agencies. That’s too bad, so far as I am concerned, but this a policy view, not a constitutional argument. However, judges should not, in the name of doing something, be trying to give the regulators freer rein than legislators intended. In Yes, Prime Minister, just before Sir Humphrey formulates the politician’s syllogism, his mentor, the wily Sir Arnold Robinson, exposes its logic by proposing a different one with the same logical structure: “all cats have four legs; my dog has four legs…” “Therefore,” concludes Sir Humphrey, “my dog is a cat.” Well no. And so West Fraser is a dog of a decision.

 

Jiggery-Pokery

The standard of review issues in the Supreme Court’s West Fraser decision

In my previous post, I summarized the Supreme Court’s decision in West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, which upheld the validity of a regulation of the British Columbia Workers’ Compensation Board imposing safety-related obligations on owners of forestry workplaces, and the legality of a fine levied on such an owner under a statutory provision authorizing penalties against employers who do not comply with regulations. The Court was divided on both the approach to and the merits of the first issue, and at least on the merits of the second.

As I noted in that post, there is quite a lot to say about the decision. Others have already commented on it. Shaun Fluker, over at ABlawg, focuses on how West Fraser fits, or doesn’t fit, with the Supreme Court’s precedent on analysing the validity of regulations, while Paul Daly’s Administrative Law Matters post which looks ahead to the Supreme Court’s upcoming reconsideration of Dunsmuir. In this post, I add some observations of my own on the various opinions in West Fraser. In a subsequent one, I will explore what these opinions tell us about the Supreme Court’s relationship with the administrative state.

The first point I would note here is that Chief Justice McLachlin’s opinion for the majority, which purports to apply deferential reasonableness review on the first issue, and even more deferential patent unreasonableness review on the second, is actually an excellent example of disguised correctness review. As the former Justice Joseph Robertson described it here, in one of his contributions to the “Dunsmuir Decade” symposium,

Disguised correctness review means that the reviewing court conducts a de novo analysis of the interpretative issue. Little or no meaningful reference is made to the reasoning of the administrative decision-maker; just the interpretative result.

For his part, David Mullan noted that

In its purest form, reasonableness review of determinations of law should start with the tribunal’s reasons for decision. … Too frequently, however, the starting point is not the tribunal’s reasons but the arguments on the merits of the question of law or statutory interpretation advanced by the parties with the reasons either ignored or mentioned only in passing. Consequently, the professed commitment to deference gets submerged in a thorough-going re-examination of the relevant question of law.

That is exactly what happens in the majority reasons in West Fraser, and not only on the first issue, on which there are no reasons for decision to review ― which, as Justice Côté points out, makes the notion of deferential review problematic in this context ―, but also on the second one. You’d think that, applying a patent unreasonableness standard of review, the majority would pay attention to the decision on whose reasonableness it must pronounce, but no ― the decision itself is summarized in a single paragraph and never quoted. For the rest of her reasons, the Chief Justice refers to it only obliquely.

So perhaps the apparent disagreement about standards of review (on the first issue) is really beside the point. This is all the more so since, in the reasons of two of the three dissenting judges, correctness review does not look very exacting at all. Justice Brown, after waxing eloquent about the importance of the courts ensuring that administrative decision-makers act within the limits of their authority, is content to note that the limits in this case are broad. Justice Rowe, for his part, endorses the Chief Justice’s comments about the breadth of the administrative power as sufficient to dispose of the jurisdictional question, presumably on the correctness standard. Yet surely saying that the powers of administrative decision-maker are broad is not enough to show that its regulation was within these powers. The Chief Justice speaks of “unlimited” powers, as if such a thing were possible under the Rule of Law, and as if Justice Rand’s comments in Roncarelli v Duplessis, [1959] SCR 121, were not among the best known in all Canadian law. Here they are, in case anyone needs reminding of them:

In public regulation of this sort there is no such thing as absolute and untrammelled “discretion” … there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption. (140)

Of the four judges who wrote in West Fraser, only Justice Côté took seriously the “perspective within which the statute is intended to operate” and the notion that the administrative tribunal does not have unlimited powers to act within the general area under its supervision. Justice Côté’s colleagues, even those who ostensibly stress the courts’ supervisory role, are content to let administrative power run wild ― a point to which I return below.

All that said, while I think that Justice Coté is right on the merits of the first issue, both she and her colleagues make important points on the general approach. (The trouble with Justice Brown and Justice Rowe is that they do not really practice what they preach, and fail to ask the hard questions that they rightly suggest the courts ought to be asking of administrative decision-makers.) Justices Côté and Brown are right that the point of judicial review is to ensure that administrative decision-makers exercise those powers delegated to them by statute, and no others. Justice Côté is right to point out that in policing the boundaries of administrative decision-makers’ jurisdiction the courts are upholding the primacy of the legislation enacted by elected legislatures against the self-aggrandizement of the administrative decision-makers. Justices Côté and Rowe are right to call out the vacuousness of the Chief Justice’s appeal to administrative expertise as a justification for deferential review of the validity of regulations. Expertise may be relevant to thinking about the policy merits of a regulation ― and I think that Justice Brown is right that these should be of no concern to the courts, even on a deferential standard (though note that Justice Rowe seems to disagree) ― but contrary to what the Chief Justice suggests the wisdom of the regulation is not at issue in West Fraser.

I think, however, that the comments of Justices Côté and Brown raise even bigger questions about judicial review and judicial deference. Justice Côté insists that there is

an important distinction between actions taken by a regulator in an adjudicative capacity and actions taken by a regulator in a legislative capacity — a distinction that is central to the policy concerns that animate judicial review and the traditional standard of review analysis. [57]

Justice Brown agrees that this distinction is important as the law now stands, stressing that, since “[p]ublic power must always be authorized by law … no statutory delegate, in enacting subordinate legislation (that is, in making law), may ever exceed its authority”. [116; emphasis Justice Brown’s] But, in an obiter dictum, he also worries that

in many cases, the distinction between matters of statutory interpretation which implicate truly jurisdictional questions and those going solely to a statutory delegate’s application of its enabling statute will be, at best, elusive. [124]

The Chief Justice’s reasons in effect say that the distinction is elusive, and perhaps non-existent, or at any rate not worth bothering about, in all cases, including this one. In her view, it follows that pretty much all judicial review should be deferential.

But we can share the Chief Justice’s or, more plausibly, Justice Brown’s concern about the elusiveness of the distinction ― we might think that the distinction is often, though probably not always, difficult to draw ― draw from this the opposite conclusion. That is to say, we might think, not that there is basically no such thing as a jurisdictional question, but rather that most questions of law are in a sense jurisdictional and therefore call for correctness review ― because public power must always be authorized by law, and the Rule of Law, therefore, demands no less. This position would, I think, be similar to the approach taken by English (and New Zealand) administrative law after Anisminic v Foreign Compensation Commission, [1969] 2 AC 147 (which Professor Daly recently revisited on Administrative Law Matters). Indeed, Justice Brown’s own reasons suggest that the contrary approach, favoured by the Chief Justice (and perhaps, to a lesser degree, by Justice Brown’s own concluding obiter), leads to a paradox (call it the paradox of deference). If administrative interpretations of law are approached with deference on the basis that they draw upon policy expertise and “field sensitivity”, and if more than one interpretation of a statute is allowed to stand on the basis that they all fall into a range of reasonable outcomes, then isn’t the administrative decision-maker interpreting a statute “making law” just as as surely as if it were “enacting subordinate legislation”? And is it not, then, just as important to ensure that the interpreter “may ever exceed its authority”, because “[t]he rule of law can tolerate no departure from this principle”? [116] Justice Rowe’s view that administrative decision-makers are generally not experts in statutory interpretation ― including but not limited to the category of jurisdictional questions narrowly defined, is the more logical one.

Finally, while others who have written about West Fraser have not discussed the second issue it addressed ― that of the penalty ― I think it is worth addressing at least briefly. The Chief Justice’s analysis on this issue is disturbing. As Justice Côté explains, the legislature carefully wrote the statute to distinguish “employers” and “owners”. The Chief Justice insists that this doesn’t matter because all “owners” are employers too so long as they have employees of their own visiting the worksites that they own, as they are required. As Justice Côté rightly says, this amounts to the re-writing of the legislation. In fact, while Justice Côté is too polite to say so, I think that the Chief Justice’s reasoning on this issue can best be described by borrowing Justice Scalia’s words in King v Burwell, 576 US __ (2015) ― it is “interpretive jiggery-pokery”, as a result of which “[w]ords no longer have meaning”.

Why does a majority of the Supreme Court engage in such unseemly activities? If, unlike me, you believe that the Chief Justice’s opinion is genuinely deferential to the administrative decision, then you should see the fact that this jiggery-pokery takes place in the course of (über-)deferential review ― which is supposed to be all about giving effect to the legislature’s intention ― as an illustration of the paradox of deference described above. Deferring to the administrative decision-maker means allowing it to become a law unto itself, free from the constraints imposed by statute ― and having to scramble to make it look like the administrative decision really does make some kind of sense.

If, however, you agree with me that the Chief Justice is actually engaged in disguised correctness review, things are, if anything, even worse. The Chief Justice is not merely forced, by her preference for deference, to allow the administrative decision-maker to rewrite the statute, but actively complicit in its doing so. As I will explain in the next post, this is what I think is going on. Indeed, in my view the Chief Justice engages in results-oriented, pro-regulatory reasoning throughout her West Fraser opinion. She thinks, no doubt, that she acts wisely and well. “Pure applesauce!”