deference – Double Aspect

Simplicity in the Law of Judicial Review of Regulations: Auer and TransAlta

This post is derived from this week’s edition of my newsletter, the Sunday Evening Administrative Review.

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Auer v Auer, 2022 ABCA 375 (November 22, 2022); TransAlta Generation Partnership v Alberta (Minister of Municipal Affairs), 2022 ABCA 381 (November 23, 2022)

Context and Holding: In these decisions, the ABCA deals with the question of how courts review regulations for compliance with primary law. The cases hold that the framework set out in Katz Group Canada Inc v Ontario (Health and Long-Term Care), 2013 SCC 64 applies, rather than the revised judicial review framework in Vavilov. In so doing, the ABCA sets itself up directly opposite from the Federal Court of Appeal, which has endorsed Vavilov as the starting point for the review of regulations: Portnov v Canada (Attorney General), 2021 FCA 171 (Issue #7). It is also set up opposite the BCSC/ BCCA: see e.g. Pacific Wild Alliance v British Columbia (Forests, Lands, Natural Resource Operations and Rural Development), 2022 BCSC 904 at paras 68-75; Whistler (Resort Municipality), 2020 BCCA 101.

Analysis: As readers of this newsletter will know, I strongly disagree with the ABCA’s conclusion, and the reasons underlying it. Reading Auer and TransAlta together, the ABCA advances several reasons for preferring the “hyper-deferential” Katz framework for the review of regulations over Vavilov:

Vavilovian reasonableness impermissibly invades the exercise of legislative powers, violating a core tenet of the separation of powers. Katz “maintains the integrity of the separation of powers and the role of the legislative branch of government. It ensures that courts do not enter the legislative field by weighing in on matters that properly fall within the sphere of the legislature and the executive” (Auer, at para 58; see also para 83). Or as put in TransAlta, at para 50: “[t]o decide whether a valid regulation is, in outcome ‘reasonable’ is to judge the merits of the path chosen by the delegated lawmaker to achieve the objectives of the enabling statute.”
Vavilov cannot be taken to implicitly overturn Katz: it makes only one passing reference to Katz (see Auer, at para 42; TransAlta, at para 47).
There are practical problems with applying Vavilovian reasonableness review to regulations. As Auer notes, “…[m]any of the contextual factors highlighted in Vavilov simply have no application to a vires review” (Auer, at para 77).

I will respond to these three concerns, but I first want to highlight a core feature of my response. There have long been debates in the law of judicial review over the need to “limit and simplify” versus the need to “tailor deference to variety” (US v Mead Corp, 533 U.S. 218 at 236). Of course, this is rarely a binary, and because of the subject matter, some consideration of variety will be necessary (as Vavilov‘s acceptance of context demonstrates). This is inevitable. Nevertheless, I am on the side of limitation and simplification to the extent possible. The fact that administrative decision-makers come in all shapes and sizes does not mean we require legal rules that track every individual type of decision-maker or decision, absent any fundamental reason. To my mind, all that is required is: (1) the recognition of fundamental principles that guide the doctrine (in Vavilov’s case, legislative intent and the rule of law); (2) the creation of general, all-purpose doctrinal rules plausibly connected to these principles; (3) guidance on how to apply the doctrine.

Vavilov and its progeny accomplish this. While Vavilov is, admittedly, contextual, it simplifies judicial review because it provides (1) a set of standard of review categories that plausibly map to legislative intent and the rule of law (though imperfectly); (2) on the reasonableness standard, it provides guidance about the contextual constraints that are relevant in a given case–this guidance limits these constraints so courts and litigants know when they will be relevant. Most importantly, when I speak of simplicity, I think of the fact that Vavilov provides an agreed-upon starting point, connected to fundamental principles, for all review of action of all kinds taken under delegated power. In this sense, Vavilov is a hard-won template. As we will see, the recent case of Law Society of Saskatchewan v Abrametz, 2022 SCC 29 (see Issue #48), inexplicably unmentioned by the ABCA, endorses the “start with Vavilov” idea on a question outside Vavilov’s contemplation: procedural fairness. This shows Vavilov’s utility as a general framework.

Starting with the same well of conceptual resources for all sorts of decisions simplifies the law of judicial review, and is no small thing. Simplification isn’t just aesthetic. Lawyers—to their detriment—sometimes overcomplicate matters beyond what is necessary, perhaps out of academic self-satisfaction. But the reality is this: the law of judicial review must be workable. It must connect to fundamental principles but at the same time be applicable by judges and understood by parties who bear the brunt of state action. This is the gargantuan challenge of administrative law. In this sense, Vavilov has done an extraordinary thing by largely accomplishing this goal. Parties now tend to argue about the merits of their cases rather than the standard of review. The ABCA’s discursus on Katz, unfortunately, is a step back to the old days of distinctions between legislative/quasi-legislative/adjudicative functions, where there are islands of government power uninhibited by the regular law of judicial review. If there was a compelling reason in principle for this, that is one thing. In this case, the Court’s decision endorses Katz because of its own erroneous perception of what the separation of powers, Vavilov, and general principles of administrative law require.

On to some specific points of contention:

The ABCA’s separation of powers argument does not get off the ground because of (1) a fundamental (though understandable) confusion about the word “merits” in Vavilov; and (2) a confusion about the role of secondary legislation. As Paul Daly argues, (1) leads the ABCA astray. Auer says that “[a] true Vavilov approach can only be accomplished by the reviewing court descending into a consideration of the merits of the policy decisions underlying the regulations and formulating its own reasons why the regulation was a reasonable policy choice” (Auer, at para 75). As Daly says, it is true that Vavilov speaks of its framework applying to the “merits” of administrative decisions (e.g. Vavilov at paras 2, 10, 16). But this does not mean that Vavilov endorses a judicial questioning of the policy wisdom of an administrative decision. This simply cannot be the case as a matter of fundamental principle. Vavilov’s reference to merits, instead, refers to the substance of administrative decisions as opposed to procedural concerns. As is well-known, judicial review polices the boundaries of the administrative state according to the concepts of legality, reasonableness, and fairness. This is different than questioning the policy merits of an administrative decision in the abstract. Judicial review—and Vavilov reasonableness—does not mean that courts arrogate to themselves the right to make certain policy choices. A few specific examples are relevant to show how this works throughout the law of judicial review:

In Alberta Teachers’ Association, 2011 SCC 61, the Supreme Court addressed the situations in which it would be appropriate for litigants to make new arguments on judicial review. Generally, the presumptive rule is that new arguments cannot be made on judicial review, because “the legislature has entrusted the determination of the issue to the administrative tribunal” (Alberta Teachers, at para 24). This is a recognition that judicial review cannot proceed as a trial de novo, a recognition of the space left to the decision-maker to flesh out the law in its field so long as the decision fits within the purview of the statute.

As the Federal Court of Appeal has stated with reference to new evidence on judicial review, the same rule applies because the legislature delegated the power to the administrator to “determine certain matters on the merits”; permitting new evidence routinely would undermine the demarcation between legislative and judicial roles, and so “[t]his Court can only review the overall legality of what the Board has done, not delve into or re-decide the merits of what the Board has done” (Association of Colleges, 2012 FCA 22 at paras 17-18).

Deference under Vavilov takes on a similar hue. Courts do not reweigh the evidence on judicial review (Vavilov, at para 125); deference necessarily involves a restriction on the court in intervening with an administrative decision-maker because that decision-maker has been delegated the power to make decisions (Vavilov, at para 13). These decisions may have policy consequences, but courts do not second-guess those consequences; they only ensure that a particular decision fits within the purview of the statute, and meets the basic requirements of rationality. This is even so where regulations are made after submissions in a legally-defined process: in such a case, the submissions form part of the record that courts use to assess whether the secondary legislation is justified by the law and the facts to which it applies. None of this involves, properly applied, an impermissible intrusion into the realm of lawmaking because the court is not formulating policy alternatives nor weighing in on which alternatives are best. It is only asking whether the action fits the bounds of the law and the evidence, like it does for all executive action. Indeed, this is the same rule we apply to all acts taken by the executive under statutory authority, including municipalities and other bylaw-creating bodies. As I will point out, the sweep of Auer/TransAlta is unknown, and presumably it should capture these bodies as well.

This is related to the second problem. The ABCA skirts over what I consider to be the real issue: the subordinate nature of what we call “executive legislation.” The ABCA’s entire point apparently seems to rest on the assertion that regulations are part of the primary legislative process—that, legally, the exercise of legislative powers by the Governor in Council is subject to the same rules that apply when Parliament enacts laws as an exercise of primary legislative authority (Auer, at para 53, citing Mikisew Cree First Nation v Canada, 2018 SCC 40 at para 32). Primary legislative authority is the authority to “enact, amend, and repeal statutes” (Pan-Canadian Securities Reference, 2018 SCC 48 at para 76). These statutes cannot be reviewed except for constitutionality, and this was the context of Mikisew Cree (notably not executive legislation). But this ignores a fundamental distinction between primary and secondary legislation. Inexplicably, the ABCA recognizes that regulation-making is “an act incidental to the legislative process” (Auer, at para 56), but does not take this to the logical conclusion. Secondary legislation (regulations) is subordinate legislation, which must fit the terms of the primary legislation. But regulations can be reviewed in order to determine whether they fit the scope of their enabling statute. Read literally, Auer seems to prove too much: if one simply transposes, as Auer does, the primacy of primary legislative authority to secondary legislation, one is endorsing a “hands-off” approach in judicial review altogether when it comes to executive legislation. But as we know, even if we follow Katz, secondary legislation can be reviewed to determine its fit with the governing statute, and so the analogy Auer draws to the primary legislative process is inapposite.

The point here is that secondary legislation is still executive action, amenable to review like all executive action–with the caveat that because of the legislative form of the action, it will be reviewed under Vavilov in a certain way (see point #3 below).

The “Vavilov does not mention Katz” argument has been made before: see e.g. Ecology Action Centre v Canada (Environment and Climate Change), 2021 FC 1367, and this post from Martin Olszynski and I. We were not impressed with this argument at the time, and I remain unimpressed, for two reasons. First, the “Vavilov does not mention x” argument has lost a lot of steam after Abrametz. Again, Abrametz held that questions of procedural fairness that arise under a statutory right of appeal are reviewed under the appellate standards. These questions were not mentioned in Vavilov. Following Abrametz leaves the ABCA on shaky territory. Second, as Prof. Olszynski and I wrote, the question is not whether this or that case was mentioned. Vavilov tells us where (as with Katz) there is a question as to the appropriate standard of review, a court “should look to these reasons first in order to determine how this general framework applies to that case” (Vavilov, at para 143). The ABCA in Auer and TransAlta do not even attempt to do this. This is despite the fact that Vavilov is a “holistic” framework (Vavilov, at para 143), one that is “sweeping and comprehensive” (Portnov, at para 25). Auer and TransAlta suggest that courts use a magnifying glass to see if particular examples of executive action are mentioned within Vavilov. This is unnecessary. They simply need to follow Vavilov’s general principles, as outlined in Vavilov, at paras 143-144.

The practical problems of applying Vavilov to regulations, with respect, do not exist. When Auer maintains that some of the legal and factual constraints listed in Vavilov do not apply in cases of regulation, the Court appears to misunderstand how Vavilov works. Not all of the constraints have to apply in a given case for Vavilov to be relevant. In some visa decisions, for example, statutory interpretation will not be the forefront consideration—these cases generally turn on evidence and findings of fact. With regulations, the dominant constraints will be the legal ones mentioned in Vavilov, and in many cases, deference will be expansive. This is not a surprise, though perhaps it is to the ABCA, which erroneously sees Vavilov as a more intrusive standard, always and everywhere (Auer, at para 61).

But the Court is also is too quick to discard the other constraints because it focuses on only one type of regulation-making: secondary legislation of general application. But as Portnov shows, this is not all there is. Portnov concerned the Governor in Council’s ability to “issue an order or regulation restricting or prohibiting any dealings with certain property held by designated individuals,” eighteen in total (Portnov, at paras 3,5). In such a case, the mere fact that the Governor in Council proceeded by secondary legislation does not immunize it from review on Vavilov grounds. In such a case, the statutory prequisites to the exercise of the power will be central. But because the court must also discern how the Governor in Council understood the authority granted to it under the primary statute (ie) to apply a regulation in these limited circumstances, the record must disclose the Governor in Council’s basis for its legal conclusion as applied to these individuals. In other regulatory cases, determining whether the regulation is justified by the primary law will depend on what explanations find their way into the record. This is the nature of Vavilov review, which is not always and everywhere more aggressive than Katz. Indeed, when we apply this review in cases of other “legislative” bodies including law societies and municipalities, the review looks fairly deferential, respecting the legislative posture of these bodies. While the Court calls this state of affairs “confusing,” (TransAlta, at para 49), I beg to differ: the same contextual constraints from Vavilov apply, with different force depending on the decision at issue. Regulations, if they are not primary legislation, are similarly nothing special as executive action.

I could say more—I hope to in longer form soon. But I end where I began. The ABCA’s approach will complicate the law of judicial review, not just because of its endorsement of a carveout for Governor in Council regulations. We do not know how far this could go. Are regulations made by agencies with a responsible Minister also captured by this rule? The logic should follow—and yet it would be a stretch to say that agency law-making is the same as primary law-making, especially given the deficiencies in the scrutiny of regulations process. What about rules of binding “legislative” effect created by agencies? These are unanswered questions left open by these decisions. The bottom line: when in doubt, start with Vavilov.

Paul Daly
John Mark Keyes

If It’s Broke, You’re Not the One to Fix It

The Québec Court of Appeal takes it upon itself to update obsolete election legislation. That’s not its job.

This post is co-written with Mark Mancini

One of us (Sirota) has written any number of times about Québec’s Election Act, which is remarkable by the staggering restrictions it imposes on election campaigns and by its drafting that has, on many points, not been updated this century. This combination of severity and obsolescence leads to all manner of controversy and problems in the Act’s application. A recent decision of the Québec Court of Appeal, Therrien c Directeur général des élections du Québec, 2022 QCCA 1070, illustrates this.

At issue in Therrien was s 429 of the Act, which provides that, in the week after the writ for an election

is issued, no person, except the Chief Electoral Officer [CEO], may broadcast or cause to be broadcast by a radio or television station or by a cable distribution enterprise, publish or cause to be published in a newspaper or other periodical, or post or cause to be posted in a space leased for that purpose, publicity relating to the election.

As the Court (Justice Cournoyer writing with the agreement of Justice Dutil; Justice Fournier, who had also been on the panel, passed away before the decision was issued) recognizes, “when s 429 … was amended in 1995, social media did not exist. … The ordinary meaning of the words ‘post’ and ‘space leased’ could not envision virtual reality, be it virtual posters or virtual spaces”. [62]-[63] (We translate here and throughout.) The question was whether s 429 nonetheless applied to prohibit advertising on Facebook, such as an ad that the CAQ, for which the appellant was the social media manager, took out in the first week of the 2014 election campaign.

2014, you might think, is a long time ago. We’ll return to this below. You might also think that s 429 is unconstitutional. We are inclined to think so too. In Thomson Newspapers Co v Canada (Attorney General), [1998] 1 SCR 877, the Supreme Court struck down a publication ban on polls for part of an election campaign, and a part both more sensitive and shorter than the one at issue here, namely the last three days. It is hard to argue that a ban on some advertising in the campaign’s first week is more justified, although perhaps a court would accept that it is necessary to maintain fair electoral competition. But the issue does not seem to have been raised in Therrien, which is a pure case of statutory interpretation. The Court observes that the issue of the applicability of a provision to circumstances that were not and could not have been anticipated at the time of its enactment is “a classic in statutory interpretation, but its solution, as this case shows, is not always obvious”. [9] With this much we agree. The Court’s solution in this case is that s 429 does apply to social media advertising. This we believe is wrong, in light of the―to repeat, obsolete―drafting of the Act.

The Court begins by interpreting s 429 on its own terms. Its effect is to ban some―though not all―political advertising in the first week of an election campaign. Its purpose, inferred from what it prohibits, is “to foster fairness and equality among all political parties at the outset of an election campaign”, [54] by preventing the incumbent from getting a jump-start on its competitors. As the Court notes, fixed election dates weren’t in place when s 429 was enacted.

Inferring this purpose from the mischief sought to be remedied is an unremarkable tool of interpretation, but in this case, we fear the Court’s analysis is backwards. It may be true that the purpose of the provision is to foster fairness and equality at the outset of the campaign. But this purposive analysis must build on convincing evidence in the text and the choices reflected in that text. In this sense, the Court’s analysis is flipped. At a number of points, it puts no weight on the ordinary, accepted meaning of the text, seemingly allowing the Court’s own view of the statutory purpose to drive the analysis.

This leads the Court down the incorrect path. Drawing on Perka v R, [1984] 2 SCR 232 and R v 974649 Ontario Inc, 2001 SCC 81, [2001] 3 SCR 575, it states that while a statute’s terms are to be given the meaning they had at the time of their enactment, they “must not necessarily be confined to their original meaning” [65] at that time. What this means is that statutory language, provided it is sufficiently general, can be applied to facts and phenomena that weren’t or couldn’t be contemplated when it was enacted. But the focus of the analysis must be on the language used in the statute, and whether it could conceivably cover the phenomenon at issue. The issue, then, is “whether the text of s 429 prevents its extent to virtual posting in a virtual space”. [67]

The Court is right to cite these authorities at the outset, for they confirm the basic rule: the original meaning of statutory terms governs. This point was expressed most recently in R v Kirkpatrick, 2022 SCC 33, in the concurring opinion of Coté, Brown, and Rowe JJ. The concurrence articulated the accepted rule, unchallenged by the majority: “[i]t is a fundamental error to apply the ‘living tree’ methodology to the interpretation of statutes” [55]. But the Court of Appeal disregards the basic principle it cites. Rather than asking whether the words can bear the “adaptation by the courts of general concepts to these new realities” [68], it expressly concludes that the meaning of the words “post” and “space leased” “could not contemplate virtual reality” [63]. It then moves to conclude that the terms “post” and “space” “do not prevent their application to the virtual dimension specific to social networks” [67].

Here both the method and the conclusion are faulty. As we note, the accepted method asks whether the provision, in its purposive context, can accommodate the new technological developments. The Court, instead, reasons backwards: instead of asking “does this provision apply?”, it asks “why wouldn’t this provision apply?”. This is inappropriate on several grounds. Most basically, it is always for the party alleging that a provision applies―here, the CEO―to prove that this is so, and for good reason. Legislators who vote for legislative proposals do not and cannot time travel. The reach of statutes is fundamentally limited by their wording. By failing to positively affirm that a provision applies in a given circumstance, the Court distorts the reach of the law to cover phenomena that the text simply may not support. This, as we shall see, is an unacceptable form of spurious interpretation.

There are other normative reasons to reject the Court’s interpretation. Since the provision at issue is a penal one and restricts political speech, both the rule of lenity and the principle of legality counsel against applying it to doubtful or borderline cases. And substantively, the idea of a “virtual space” isn’t just a novel application of the existing concept of a space in the way that, say, same-sex marriage is a new application of the old concept of marriage. It is a metaphor and cannot do the work the Court wants it to.

The Court’s so-called purposive approach is also left wanting on its own terms, as it fails to have proper regard to the legislative context and to show why the purpose of the provision compelled its chosen interpretation. Consider the Court’s analysis of the history of s 429. In Frank v Canada, 2019 SCC 1, [2019] SCR 3, the dissenting opinion (unchallenged on this point), noted that “[t]he state of the law as it existed prior to an impugned provision coming into force can…give insight into why the provision was enacted” [131]. This, of course, is one way to discern the meaning of text; changes in wording can indicate changes in legislative purposes (as opposed to inferences based on what a legislature did not do). In this case, the appellant sought to draw the Court’s attention to the fact that s 429’s predecessor provisions were phrased in general terms and did not specify particular forms of advertising prohibited in the early campaign, arguing that the legislature’s choice to now ban some forms of ads and not others had to be respected. The Court simply isn’t interested: “the history of the amendments to s 429 does not matter as much as the parties think in interpreting its text”. [55] In our view, this is a mistake. As noted in the Frank dissent, the history of a provision can often illuminate the textual means by which a legislature was attempting to solve a particular mischief. If the appellant is right (and the Court does not even bother setting out the previous version of s 429, so we cannot tell), his argument deserved to be taken seriously.

The Court goes on to add that its interpretation of s 429 is in agreement with that of the CEO, which can be taken into account without being binding. It is a bit difficult to say how much this argument influenced the Court―it is probably not a major factor in the decision. But any reliance on it is, nonetheless, disturbing. A court would not take special notice of the police’s interpretation of the Criminal Code. There is no reason to treat an administrative enforcement agency with any more indulgence. (It is telling, too, that the case on which the Court relies here, Cayouette c Boulianne, 2014 QCCA 863, is at root a dispute among neighbours, which turns on the meaning of a municipal by-law. Giving some weight to the municipality’s views in that context is not nearly as problematic as doing that when the administrator is the prosecutor.)

All in all, the Court’s analysis on this point is backwards as a matter of method, but the result is also problematic. Some may ask why the original meaning rule should be followed in a case like this, where new technological problems are so evident. The answer relates to the point of statutory interpretation. The job of courts is to interpret the text through which legislatures seek particular objectives (MediaQMI v Kamel, 2021 SCC 23, [39]). The text discloses how a legislature wanted to achieve its ends. By updating the statute for the legislature, the Court assumes that the legislature (a) wants its law extended; and (b) wants the law extended in this particular manner. It deprives the legislature—the exclusive law-maker—of the opportunity of creating a new regime that balances on- and offline expression. Citizens can rightly begin to question where the law is made.

The Court also accepts an alternative argument based on the effect of Québec’s Act to establish a legal framework for information technology (IT Framework Act) on s 429. In a nutshell, this law is meant to ensure that digital documents are treated the same as their analogue counterparts for various purposes. Documents are defined as follows, in s 3 of the IT Framework Act:

Information inscribed on a medium constitutes a document. The information is delimited and structured, according to the medium used, by tangible or logical features and is intelligible in the form of words, sounds or images. The information may be rendered using any type of writing, including a system of symbols that may be transcribed into words, sounds or images or another system of symbols.

Moreover, pursuant to s 71

The concept of document, as used in this Act, is applicable to all documents referred to in legislative texts whether by the term “document” or by terms such as act, deed, record, annals, schedule, directory, order, order in council, ticket, directory, licence, bulletin, notebook, map, catalogue, certificate, charter, cheque, statement of offence, decree, leaflet, drawing, diagram, writing, electrocardiogram, audio, video or electronic recording, bill, sheet, film, form, graph, guide, illustration, printed matter, newspaper, book, booklet, computer program, manuscript, model, microfiche, microfilm, note, notice, pamphlet, parchment, papers, photograph, minute, program, prospectus, report, offence report, manual and debt security or title of indebtedness.

The Court holds that

the concept of document necessarily includes virtual posts, because the posts consist of information inscribed on a medium which has the same legal significance if it includes the same information, regardless of the medium … In this respect, “to post” or “cause to be post” includes the use of a medium on which information is inscribed, i.e. a document within the meaning of s 3. Meanwhile … the absence of words “poster”, “post”, or “cause to post” from the list in s 71 is of no consequence. The use of the phrase “such as” to introduce the list of many types of document is clearly aimed at excluding any restrictive interpretation of the term document, as defined in s 3. [86]-[87] (Paragraph break removed)

Here too we are not persuaded. For one thing, open-ended though it may be, we do not think that the IT Framework Act’s definition of a document extends to virtual posts, or any other media of a broadcast nature. The IT Framework Act’s purpose provision, s 1, refers to “documentary communications between persons, associations, partnerships and the State”. Elsewhere, the IT Framework Act speaks of documents producing “legal effect” or having “legal value” (e.g. ss 5 and 9). A poster―or a radio or TV ad―aren’t “documents” within the IT Framework Act’s meaning any more than in ordinary language.

Section 71 supports this view, although of course the Court is right that its enumeration is not strictly speaking closed. It is, however, remarkably exhaustive (which is why we thought it worthwhile to reproduce it above). And, tellingly, while it does include audio and video “recordings”, it does not include broadcasts. Considering the exhaustiveness, the fastidiousness even, of the enumeration, we do not think the omission is accidental or that it can be gotten around by relying on the “such as” language. This might not be the proverbial elephant, but we do not think the National Assembly hid a beaver in s 71’s mousehole. At minimum, the Court had to explain in what sense a virtual post is “such as” the objects enumerated in s 71, and it does not do this.

So much for Therrien itself. But we think it is important to point out that it is not an isolated case, but rather part of a pattern of very questionable decision-making by both the Québec Court of Appeal and successive CEOs with respect to the Act, which is in dire need of reform. In effect, those in charge of administering the Act are trying to maintain or even extend its reach while avoiding, on a case-by-case basis, consequences they find intolerable.

So far as the Court of Appeal is concerned, we have in mind the decision in Métallurgistes unis d’Amérique (FTQ), section locale 7649 c Québec (Directeur général des élections), 2011 QCCA 1043, which upheld the Act’s draconian restrictions on “third party” political spending. In that case, a union was fined for criticizing a political party in communications addressed to its own members. More generally, individuals who are not candidates and unincorporated groups are limited to spending 300$ on election advertising. Corporations, including not-for-profit ones, are prohibited from spending a penny. This is difficult to reconcile with the Supreme Court’s decisions in Libman v Quebec (Attorney General), [1997] 3 SCR 569 and Harper v Canada (Attorney General), [2004] 1 SCR 827, which recognized the right of “third parties” to engage in electoral advertising even as they also accepted the principle that such advertising can be strictly limited.

As for the CEOs, they attempted to censor “third party” interventions in each of the last two election campaigns ― that of a group opposed to the then-proposed “Charter of Values” in 2014 and that of environmentalist NGO Équiterre in 2018 ― provoking a public outcry. In 2014, the then-CEO flip-flopped and ended up withdrawing his objections. The 2018 story has only concluded recently (egregious delay is also, it seems, a pattern with the CEO), as Laura Lévesque and Thomas Laberge report in Le Soleil. The CEO has “blamed” and warned Équiterre but apparently not fined it. Yet as Sirota wrote at the time, the CEO was right to find fault with the campaigners on both occasions.

As further discussed in this post on the 2014 climb-down, the then-CEO reinterpreted the relevant provisions in a way that may have been sensible in light of the social and technological change since their enactment, as well as protective of the freedom of expression, but was not tenable in light of their text. The choice of merely “blaming” Équiterre is also, at first glance, understandable on the merits but not something provided for by the Act, except presumably as an exercise of an implicit prosecutorial discretion. In effect, the CEO is deciding what the Act means and when―and his decision to go easy on fairly clear violations by NGOs while prosecuting a debatable one by a political party is worth highlighting.

All this suggests, unequivocally to our mind, that the Act needs to be reformed so as to accommodate the social and technological realities of the 21^st century. As it happens, the Canadian Press’s Jocelyne Richer reports that the CEO wants the Act to be “updated”―but mainly so as to introduce even more restrictions, specifically on advertising during the “pre-campaign” period. (In fairness, he was already asking for such an “update” in 2016. So far, the National Assembly has not obliged.) Parliament has added such restrictions to the Canada Elections Act some years ago, and Ontario has used the Charter’s “notwithstanding clause” to extend its censorship regime, which now covers more than one year in every four.

These rules are bad and possibly unconstitutional, as Sirota argued here and here. But, quite apart from their other problems, they would hit especially hard in Québec unless the Electoral Act’s existing strictures are relaxed to some degree, and also unless it is re-drafted so as to be technologically neutral to the extent possible. In the meantime, however, it is not the role of either the CEO himself or the courts to fiddle with the Act to make it work better. The law is broke, but they are not the ones who have the tools to fix it.

Right Is Wrong

What an ordinary case can tell us about the problems of Canadian administrative law

Last month, I wrote here about a decision the Federal Court of Appeal (Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157) which, although a good and faithful application of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, actually highlighted its conceptual defects. This is another post in the same vein, focusing on the choice of the standard of review in Morningstar v WSIAT, 2021 ONSC 5576 to point out (yet again) that the Vavilov approach to jurisdiction makes no sense. I then also point to a different issue that Morningstar usefully highlights with arguments for the administrative state based on access to justice. If you are tired of my fire-breathing neo-Diceyanism, you can skip to the latter discussion.

As co-blogger Mark Mancini explains in his invaluable Sunday Evening Administrative Review newsletter (subscribe!), the applicant in Morningstar tried to argue that correctness review should apply to a decision of the Workplace Safety and Insurance Appeals Tribunal to the effect that she was not entitled to bring a civil lawsuit against a former employer and should have pursued administrative remedies instead. The idea was that the jurisdictional boundary between a tribunal and the ordinary courts should be policed in much the same way as, Vavilov said, “the jurisdictional boundaries between two or more administrative bodies”, [63] ― that is, by have the court ensure the boundary is drawn correctly. But courts are not “administrative bodies” in the sense the Vavilov majority meant this phrase, and the Divisional Court makes short work of this argument. As Mark suggests, while the reasons it gives are very questionable, the conclusion is clearly correct.

But it shouldn’t be! Ms. Morningstar’s argument was, in Mark’s words, “doomed to failure” under Vavilov, but as a matter of principle it is actually exactly right. The Vavilov majority explains, sensibly, that

the rule of law cannot tolerate conflicting orders and proceedings where they result in a true operational conflict between two administrative bodies, pulling a party in two different and incompatible directions … Members of the public must know where to turn in order to resolve a dispute. … [T]he application of the correctness standard in these cases safeguards predictability, finality and certainty in the law of administrative decision making. [64]

That’s right so far as it goes. But what exactly changes if we replace the phrase “two administrative bodies” in the first sentence with “two adjudicative bodies”, so as to encompass the courts? Are the Rule of Law’s demands for predictability, finality, and certainty suddenly less stringent because a court is involved? Need members of the public not know where to turn in order to resolve a dispute? The Rule of Law applies in exactly the same way to jurisdictional conflicts between courts and tribunals as between tribunals, and should require correctness review in both situations.

It might be objected that this argument ignores the privative clause in the statute at issue in Morningstar. Section 31 of the Workplace Safety and Insurance Act, 1997 provides that the Tribunal “has exclusive jurisdiction to determine”, among other things, “whether, because of this Act, the right to commence an action is taken away”, and further that “[a] decision of the … Tribunal under this section is final and is not open to question or review in a court”. The true and tart response is: who cares? In Morningstar, the Divisional Court not only questioned and reviewed, but actually quashed the Tribunal’s decision on the question of whether, because of the Act, the applicant’s right to commence an action is taken away.

This isn’t a mistake, of course. Courts already ignore privative clauses, and rightly so. Vavilov explains why. As I pointed out here, it

embraces the Rule of Law principle … clearly and, crucially, as a constraint on the legislative power. According to the Vavilov majority,

Where a court reviews the merits of an administrative decision … the standard of review it applies must reflect the legislature’s intent with respect to the role of the reviewing court, except where giving effect to that intent is precluded by the rule of law. [23; emphasis added]

The majority goes on to specify that “[t]he starting point for the analysis is a presumption that the legislature intended the standard of review to be reasonableness”, [23] but “respect for the rule of law requires courts to apply the standard of correctness for certain types of legal questions”, [53] legislative intent notwithstanding.

If a statute attempted to make anything less than correctness the standard of review for jurisdictional boundaries between two administrative tribunals, Vavilov says that it should be ignored, because the Rule of Law, with its demands of predictability, finality, and certainty, requires it. A privative clause that attempts to exclude altogether review of decisions on the jurisdictional boundary between a tribunal and the ordinary courts should similarly be ignored.

But the Vavilov majority could not bring itself to take that approach, because it would be fatal to the entire conceit of deferential review on questions of law which the Supreme Court embraced in CUPE, Local 963 v New Brunswick Liquor Corporation, [1979] 2 SCR 227, and on various forms of which it has doubled down ever since. As Justice Brown wrote in West Fraser Mills Ltd v British Columbia(Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 SCR 635, “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] When an administrative decision-maker is resolving questions of law, notably when it is interpreting the legislation granting it its powers, it is always engaged in the drawing of the boundary between its jurisdiction and that of the courts. To admit ― as one ought to ― that the Rule of Law requires these questions to be resolved by courts would cause the entire structure of Canadian administrative law to come crashing down. And so, to preserve it, Vavilov asks the courts to pretend that things that are actually entirely alike from a Rule of Law perspective are somehow mysteriously different. It is, as I said in the post linked to at the start, an instance of post-truth jurisprudence.

Now to my other point. In a couple of ways, Morningstar reminds me of the Supreme Court’s decision in Canada (Attorney General) v TeleZone Inc, 2010 SCC 62, [2010] 3 SCR 585. The issue there was whether a litigant who sought private law damages as compensation for an allegedly unlawful act of the federal Crown had, before bringing a civil claim in a provincial superior court, to pursue an application for judicial review in the Federal Court to establish the unlawfulness. It was, in other words, a conflict between remedial regimes potentially open to alleged victims of government wrongdoing. The Federal Court of Appeal had held that such victims had to seek judicial review first; the Ontario Court of Appeal ruled that they did not. The Supreme Court agreed with the latter. It noted that following the Federal Court of Appeal’s approach “would relegate the provincial superior courts in such matters to a subordinate and contingent jurisdiction”. [4] It added too that the case was “fundamentally about access to justice. People who claim to be injured by government action should have whatever redress the legal system permits through procedures that minimize unnecessary cost and complexity.” [18]

Morningstar, like TeleZone involves a conflict between two possible venues for redress, albeit of a private wrong rather than one resulting from government action. Employees who think they have been wronged in the course or during the breakdown of their employment relationship might seek compensation from the administrative regime supervised by the Tribunal or sue the employer in the civil courts. The substantive question in Morningstar was which of these regimes was the appropriate one on the facts. The courts should be able to resolve this conflict without deferring to the views of the venue administering one of these regimes, just as the Supreme Court did not defer to the Federal Court of Appeal in TeleZone. And, to be sure, there is a difference: the Superior Court that would be one of these conflicting jurisdictions would also be the court resolving the jurisdictional conflict. (The Divisional Court is a division of the Superior Court.) But that’s how our system is set up, and it’s not a reason for deferring to the other jurisdiction involved.

But the deeper and perhaps more important similarity between TeleZone ― and, specifically, the approach the Supreme Court rejected in TeleZone ― and Morningstar has to do with the functioning of the Workplace Safety and Insurance Act. Its section 31 directs employees and employers to apply to the Tribunal for a ruling on whether they are can go to court, before they can actually litigate their claims ― much like the Federal Court of Appeal in TeleZone said those who consider suing the Crown for damages must first go to the Federal Court and seek judicial review. Former employees might then find themselves in the Divisional Court (and perhaps further in the Court of Appeal) for a judicial review, before they can start litigating the merits of their dispute, if it is one that can be litigated in the Superior Court.

To repeat, in TeleZone, the Supreme Court held that the conflict between competing remedial regimes should be resolved in such a way as to maximize access to justice and minimize cost and complexity. Specifically, this meant that litigants should be able to avoid a pointless journey through the Federal Courts before launching their claims in the Superior Courts. The Workplace Safety and Insurance Act might as well have been designed to do the exact opposite ― maximize cost and complexity and undermine access to justice. Of course, that’s not what the legislature was trying to do. It wanted to preserve the jurisdiction of the Tribunal. The legislature might even say, “hey, it’s not our fault that the Tribunal’s decisions can be judicially reviewed ― we said they can’t”. But the legislature acts against a background of constitutional principles, which have long included the availability of judicial review. It knew that its privative clause is constitutionally meaningless. And still it went ahead and created this nonsensical arrangement, instead of simply allowing the jurisdiction of the Tribunal to be raised, perhaps by way of a motion for summary judgment, in any litigation in the Superior Court.

The creation of administrative mechanisms such as the Tribunal ― and their partial insulation from judicial review by the application of deferential standards of review ― is often said to promote access to justice. Perhaps it might do so in the abstract. If a dispute stays within the confines of an administrative tribunal, it will usually be handled more cheaply than in the courts. But, at the very least, such arguments for the expansion of the administrative state must take into account the reality that multiplying jurisdictions means multiplying conflicts both among them and, even more often, between them and the courts. And the resolution of these conflicts is neither cost-free nor something that can be simply wished away. It’s a reminder that, in public law as elsewhere in heaven and earth, there ain’t no such thing as a free lunch.

Morningstar is, in a sense, a rather uninteresting case, at least in the part that I have addressed here. A first-instance judicial review court applies a clear instruction from the Supreme Court and, despite some loose language in its reasons gets it right. But it is still revealing. In Canadian administrative law, courts that do things right, or roughly right, so far as their duty to apply precedent is concerned, are still doing things wrong if we judge them by first principles. This is not a good place for the law to be.

Post-Truth, Redux

A faithful application of Vavilov reasonableness review exposes the rot at the core of Canada’s administrative law

Co-blogger Mark Mancini has already posted on the Federal Court of Appeal’s recent decision in Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157. He argues that it is a good illustration of how courts should review administrative decisions on the reasonableness standard, following the Supreme Court’s instructions in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. I agree with Mark’s analysis, so far as it goes: as a rigorous application of Vavilov that rightly emphasizes legal constraints on administrative decision-making, Justice Stratas’ reasons for the Court in Alexion are excellent. (In fact, let me highlight an additional passage that Mark does not mention: Justice Stratas notes, rightly, that administrators must interpret statutes “in a genuine, non-tendentious, non-expedient way … Result-oriented analysis is no part of the exercise”. [37] Amen!)

But, in my view they are also an excellent illustration of the considerable flaws of the Vavilov framework, with its insistence on the centrality of administrative reasons on all issues subject to the reasonableness standard of review, including issues of statutory interpretation. Indeed, Alexion illustrates the fundamental soundness of the approach taken in the case that is the great bogeyman of Canadian administrative law: the House of Lords’ Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. The concurring judges in Vavilov accused the majority of following Anisminic. If only!

As Mark explains in more detail, Alexion reviewed a decision by the Patented Medicine Prices Review Board that the company was selling a product “at a price that, in the Board’s opinion, is excessive” (s 83 of the Patent Act). The Court of Appeal invalidated the Board’s decision, holding that it did not explain its reasoning on key issues, including the interpretation of s 85 of the Patent Act, which sets out the criteria the Board must apply in deciding whether the price of a patented medicine is “excessive”. As Justice Stratas notes,

[a]t best, on this point the Board obfuscated, making it impossible for a reviewing court to know whether the Board has helped itself to a power it does not lawfully have. By obfuscating, the Board has effectively put itself beyond review on this point, asking the Court to sign a blank cheque in its favour. …

[T]he Board may have helped itself to powers the statute has not given it. The absence of a reasoned explanation on certain points means that we cannot be more definitive than that. [44]-[45]

Justice Stratas notes that the Board appears to have found the pricing of Alexion’s product unreasonable, and expresses his “fundamental concern … that the Board has misunderstood the mandate Parliament has given to it under s 85. At a minimum, a reasoned explanation on this is missing“. [48; emphasis mine] And further:

Section 85 speaks of “excessive” pricing, not “reasonable” pricing. The two seem much different. If in fact they are not different, in the circumstances of this case the Board had to explain why. Nowhere does the Board do so. [52; emphasis mine]

If I may paraphrase Justice Stratas, he is saying: it looks like the Board is doing something it’s not supposed to be doing under the statute, but hey! maybe it’s not do these things, or maybe it can do these things after all ― and we, the Federal Court of Appeal, can’t know for sure. The suggestion here ― that, absent good quality reasons given by the administrator, a reviewing court cannot say whether the administrator, in Justice Stratas’ eloquent words, “helped itself to a power it does not lawfully have” ― is entirely consistent with Vavilov. There the majority insisted that

the focus of reasonableness review must be on the decision actually made by the decision maker … The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker … conduct a de novo analysis or seek to determine the “correct” solution to the problem. [83]

On this approach, Justice Stratas and his colleagues are not supposed to come to their own view of the meaning of s 85 and verify the Board’s compliance with it. They are confined to assessing the Board’s explanations as to whether it has complied. Absent an explanation, the exercise fails. Vavilov is an improvement over the earlier cases in that, when such failures occur, it allows the reviewing court to stop there and send the matter back to the administrator for a do-over, instead of making up an explanation and deferring to it. (See Mark’s post for more on this).

But to say that Vavilov improves over what I once described as a post-truth jurisprudence requiring judges to play chess with themselves and contrive to lose is not to say much. In fact, Vavilov does not even leave post-truth jurisprudence behind. For how else should we think of a requirement that judges ― of an appellate court, no less ― insist that they “cannot be definitive” about the interpretation of a statutory provision and about whether an administrator “helped itself to a power it does not lawfully have” ― which is to say, exceeded its jurisdiction (there, I said it) in applying that provision?

The truth is that judges can be definitive on such things. The truth is that Justice Stratas has much to say about the meaning of s 85 and the way in which it has to be applied, as well as the more general principles of statutory interpretation (see, in particular, his important caution that “[t]he authentic meaning of the legislation … is the law, not what some politicians may have said about it at some place, at some time, for whatever reason”). [53] (I recently addressed this point here.) The truth is that, as Justice Stratas notes, “[o]ver and over again, authorities have stressed that the excessive pricing provisions in the Patent Act are directed at controlling patent abuse, not reasonable pricing, price-regulation or consumer protection at large”. [50] A jurisprudence that requires a court to assert that, notwithstanding all of this, an administrative tribunal might somehow explain all that away, and show that when it said “reasonable” it meant “excessive”, and that when it “disregarded most of the … authorities”, [51] it still complied with the law, is the jurisprudence of la-la-land.

In reality, the Board’s decision has all the appearances of a textbook example of what Lord Reid in Anisminic described as an administrative tribunal having “misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it”. When a tribunal does so, even though in a narrow sense “the tribunal had jurisdiction to enter on the inquiry”, it loses jurisdiction in a broad sense, and the resulting decision is a nullity. Canadian courts should be able to say so ― which means that they should be free, contra Vavilov, to “decide the issue themselves”, without waiting, or even affecting to wait, to be instructed by administrators who lack the legitimacy, the independence, and the competence to speak on questions of law with any real authority.

Why is it that we can’t have nice things? An important part of the problem is the fusion, in Canadian administrative law, of what in the United Kingdom (and New Zealand) are known as legality review and reasonableness review into a (supposedly) unified category of merits review. To make things worse, the Supreme Court remains committed to an oversimplified approach to merits review, such that it almost always has to be conducted on the same reasonableness standard. The reasons-first approach may be suitable for review of fact- or policy-based administrative decisions, but applied to issues of statutory interpretation it leads to Alexion-style absurdity.

What makes Alexion even more galling, though, is the nature of the administrative body it concerns. And that’s not only, and perhaps even so much, that, pursuant to s 91 of the Patent Act the Board’s members can legally be the first five strangers the Minister of Health meets on the street one day ― or hacks. (As I wrote this, I thought I’d look up the Board’s actual membership, in the hope of being able to add a disclaimer to the effect they are all, in fact, wise and experienced experts. Only, there doesn’t seem to be any information about them on the Board’s website. Of course that doesn’t prove that they actually are hacks, let alone people the Minister met on the street, but one might have thought some transparency was in order. UPDATE: Mea culpa. The information is there, however counter-intuitive its presentation may seem to me. The members’ bios are here.)

Worse is the fact that the Board acts as both prosecutor and judge in the cases it handles, the separation of powers be damned. This par for the course in the administrative state, to be sure ― but no less pernicious for all that. I note, for the sake of completeness, that it is “Board Staff” that “filed a Statement of Allegations” against Alexion, rather than Board members ― but staff (pursuant to s 93(2)(b) of the Patent Act) are managed by the Board’s Chairperson, i.e. one of its members. The Board’s internal “separation of powers” is more sham than ersatz.

Why exactly should the views of this judge-and-prosecutor, this two-headed abomination against due process of law, about the meaning of the statute it is charged with applying be entitled to any regard by actual judges? In Vavilov, the Supreme Court insists that this is to respect Parliament’s intent. But, as I have been saying since my first comment on Vavilov here, the Court ignores Parliament’s direction, in s 18.1(4)(c) of the Federal Courts Act that the federal courts grant relief when administrative decision-makers err in law, which clearly requires these courts to come to their own view about what statutes mean and whether the administrator in a give case has complied with the law. In this way too, Vavilov perpetuates Canadian administrative law’s disregard for truth.

In case this needs to be clarified, none of the foregoing is a critique of Justice Stratas and the decision in Alexion. As I said above, I think that the decision is about as good as it could have been while being a faithful application of the Vavilov framework. If the Board takes what Justice Stratas seriously, it will make a much better, and most importantly, a lawful decision next time. It is the framework itself that is rotten.

But the rot set in four decades ago, and no judge of the Federal Court of Appeal can solve them ― even one who has made Herculean efforts to, like Justice Stratas. Perhaps even the Supreme Court cannot fully undo the damage it has inflicted on our law when it turned away from the Anisminic path and waded into the dark forest of deference to the administrative state. But if Alexion illustrates the possibilities ― and the limits ― of what the Supreme Court accomplished in Vavilov, and I think it does, then one has to conclude that the Supreme Court hasn’t tried very hard at all.

Unholy Trinity

Introducing a new article that makes the case against judicial deference to administrative applications of constitutional law

Readers may recall my unhappiness when the Supreme Court decided the companion cases in which the Trinity Western University challenged the denials of accreditation to its proposed law school by the law societies in British Columbia and Ontario, Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293 and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, [2018] 2 SCR 453. I argued that “[t]he Supreme Court’s decision and reasoning subvert the Rule of Law and nullify the constitutional protection for religious freedom“.

One salient feature of these cases was the Supreme Court’s (re-)embrace of its earlier decisions in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 and Loyola High School v Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613, which urged judicial deference to administrative decision-makers who applied (or indeed simply ought to have borne in mind) the Canadian Charter of Rights and Freedoms. The Trinity Western cases emphasize this deference, as well as various other aspects of the Canadian judiciary’s surrender of its interpretive authority over the law, which has now been partially walked back in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.

At the kind invitation of Matthew Harrington in his capacity as editor of the Journal of Commonwealth Law, I have put my thoughts on this aspect of the Trinity Western cases and generally on the misbegotten idea of judicial deference to administrative applications of constitutional law into article form. The piece, “Unholy Trinity: The Failure of Administrative Constitutionalism in Canada”, is now available from the Journal’s website and my SSRN. Here is the abstract:

The jurisprudence of the Supreme Court of Canada that follows Doré v Barreau du Québec involves administrative decision-makers as key actors in the implementation of the Canadian Charter of Rights and Freedoms. The Supreme Court emphasizes their expertise in implementing constitutional rights and “Charter values” in the context of the regulatory regimes they are charged with enforcing, and holds that this expertise entitles administrative tribunals to deference when they make decisions that affect the rights the Charter protects or the values that underpin these rights. This article argues that the Supreme Court is wrong to endorse this deferential approach, sometimes described as “administrative constitutionalism”.

It does so by examining the Supreme Court’s decisions in the companion cases that upheld the denial of accreditation by the law societies of British Columbia and Ontario to a proposed fundamentalist Christian law school (the Trinity Western Cases). After reviewing both academic defences of “administrative constitutionalism” and Supreme Court’s previous engagement with it, the article shows that the Trinity Western Cases illustrate the failure of “administrative constitutionalism” to live up to the main arguments made by its supporters. This failure is not accidental, but consistent with significant trends in Canadian administrative law. The article then goes on to consider the implications of the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov for the future of “administrative constitutionalism” in Canada, arguing that Vavilov undermines the theoretical foundations of “administrative constitutionalism” or, at a minimum, will change the way it is implemented. The article concludes with an argument that, in addition to not delivering on the promises made on its behalf, “administrative constitutionalism” is also contrary to the Rule of Law. “Administrative constitutionalism” is second-rate constitutionalism in practice, and wrong in principle. The sooner it is recognized for the misguided idea that it is and abandoned, the stronger our actual constitution and the rights it protects will be.

The issue of whether, or at least to what extent and on what conditions, courts should continue to defer to administrative applications of the Charter is very much a live one in the aftermath of Vavilov. Lower courts have ask themselves how to apply Doré in light of Vavilov’s guidance on reasonableness review, and my article makes some suggestions which might be useful in this regard. And the Supreme Court itself, having punted on deference in Charter cases for now, will have to revisit the issue, presumably once Doré‘s author and staunch defender, Justice Abella, retires next year. I would like to think that my paper ― and the somewhat less uncompromising one by co-blogger Mark Mancini, which is set to appear in the Dalhousie Law Journal ― can contribute to the arguments that those challenging Doré will make on that occasion. I’ll be happy to speak to anyone making such arguments. Doré must go, and the delusion of “administrative constitutionalism” and the injustice of the Trinity Western cases must go with it.

Against Administrative Supremacy

A response to the “Guest Posts from the West Coast” Series

This post is co-written with Mark Mancini

Over at Administrative Law Matters, Cristie Ford, Mary Liston, and Alexandra Flynn have published a series of posts critiquing the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 for what they regard as its departure from the principles of deference to the administrative state that long characterized Canadian administrative law. As we are going to show, this critique reflects a commitment to what Jeffrey Pojanowski describes as “administrative supremacy”, “an unapologetic embrace of the administrative state”. (861)

Yet in our view this critique rests on a distorted representation of the relevant constitutional principles, such as democracy, separation of powers, and the Rule of Law, and of the stakes involved in judicial review. More robust judicial review of administrative decisions ― if indeed that is what Vavilov will lead to, which is not yet clear ― would not cause a dismantling of the administrative state. It should, however, result in an application of the laws enacted by Parliament and the legislatures more in accordance with their terms, which is what the relevant principles, properly understood, require.

Professors Ford, Liston, and Flynn all see Vavilov as a break with a decades-long history of judicial recognition of and deference to the administrative state. Professor Ford writes that “[o]nce upon a time, in the days before the modern administrative state, there was one standard of review for errors of law: correctness”. These pre-historic days ended, however, with a “[g]rudging acknowledgment of administrative tribunals’ jurisdiction, at least in hard cases” in CUPE v NB Liquor Corporation, [1979] 2 SCR 227. Since then, and until Vavilov, the courts would defer to administrative interpretations of law, unless they were unreasonable, perhaps even patently so.

The embrace of deference reflected a certain view of the law, of the institutions of government, and of their relationship with one another. It rested, in Professor Ford’s words, on a “recognition that the rule of law could be a multifaceted, legitimately contestable thing”, part of “a captivating legal pluralist world”. Courts acted with “humility” in the face of “multiple kinds of expertise” embodied by administrative tribunals, accepting “that expertise could even mean knowing what it was like to be the recipient of social benefits”. They also recognized that “administrative tribunals were more diverse and more representative of the population at large than the judiciary was”. For her part, Professor Liston adds that the turn to deference aimed at

realizing the intertwined principles of democracy, parliamentary sovereignty and the rule of law; affirming the administrative state as a legitimate fourth branch of government; [and] respecting the separation of powers by minimizing judicial review when the legislature indicates that the decisionmaker has primary jurisdiction to fulfill its mandate and interpret the law in relation to that mandate.

Professors Ford and Liston also both argue that the deferential approach was meant to foster access to justice, but acknowledge that it has ultimately failed to do so. There was too much play in the joints, too many opportunities for argument about the appropriate degree of deference. Judicial review lost its “focus remained on [the] merits” of the cases and became bogged down in “law office metaphysics”, as Professor Liston puts it (citing Justice Binnie).

Vavilov and its companion case Bell Canada v Canada (Attorney General), 2019 SCC 66, however, usher in a radical change. Professor Ford writes that “[t]he velvet glove is off. Vavilov signals a retrenchment by a more assertive, and conservative, Court” (a label that Professor Liston endorses), and that “[w]e are done with letting 1,000 rule of law flowers bloom”. Focusing on Bell (which she describes as “the tell in the shell game that is administrative law”), Professor Liston laments its disregard of administrative expertise, of “the broad grant of discretion” to the CRTC “to make decisions in the public interest that touch on fundamental policy objectives” (reference omitted) and “the democratic and fair process that led to the ultimate decision”, involving protracted consultations and responsive “to the views of ordinary Canadians” who complained to the CRTC about not being able to watch American Super Bowl ads. Instead, Professor Liston sees Bell as having “imported” “political currents from the south”, such as “the libertarian attack on the administrative state”.

As noted above, this view of the administrative state and its relationship with the courts is consistent with Professor Pojanowski’s description of “administrative supremacy”, which

sees the administrative state as a natural, salutary outgrowth of modern governance. In its strongest form, it 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 executive officials, who balance those norms’ worth against other policy goals. (861)

In our view, the administrative supremacist critique of Vavilov and Bell suffers from two fundamental flaws. On the one hand, the principles on which administrative law rests, and which it purports to apply, do not mean what administrative supremacists think or say they do. On the other, a rejection of administrative supremacy does not necessarily lead to the dismantling of the administrative state, supremacists scare-mongering to the contrary notwithstanding.

Start with the principles. The administrative supremacist view is that democracy is at least equally, if not better, embodied in the decisions of administrative tribunals as in legislation enacted by Parliament or legislatures. For one thing, tribunals are acting pursuant to a mandate from the legislatures. For another, the administrative process itself can be characterized as democratic, as the CRTC’s is in Professor Liston’s post.

Yet it simply isn’t the case that a decision actually made by an appointed official, or even a group of officials, is democratic in the same way as a statute debated and enacted by an elected assembly ― even if the assembly itself gave away its decision-making power to the officials in question. To give an extreme example, if Parliament contented itself with simply delegating its full law-making powers to the Prime Minister, we would not, I hope, regard this as a democratic arrangement, even if it may be legal. Somewhat less extreme but more real and just as undemocratic, the recent briefly-mooted plan to delegate plenary taxing power to the federal government was undemocratic too, and would have been undemocratic even if rubber-stamped by a Parliament content to abdicate its responsibility.

And the possibility of public input into an administrative decision offers no more than a partial correction to the problem. This input need not be in any sense representative of “the views of ordinary Canadians”; it is much more likely to be driven by a small group of motivated activists or rent-seeking economic actors, as the “capture” era of American administrative law demonstrates. Besides, even if the CRTC’s decision-making follows a process that could be described, however precariously, as “democratic”, not all administrative decision-makers operate this way. Consider “line decision-makers”, many of whom follow minimal process before reaching their decisions. Vavilov’s reasoning requirements will likely change what these officials do going forward, but the rank administrative discretion they exercise is not in any sense “democratic” on its own; it can only said to be so by virtue of the delegated power that the decision-makers exercise—nothing more or less.

Administrative supremacy similarly distorts the meaning of separation of powers. While Professor Ford, to her credit, associates this principle with the view that “[t]he courts’ role is to police the executive’s exercise of authority”, Professor Liston writes of “the administrative state as a legitimate fourth branch of government” and considers that separation of powers requires “minimizing judicial review when the legislature indicates that the decisionmaker has primary jurisdiction to fulfill its mandate and interpret the law in relation to that mandate”.

Separation of powers is, to be sure, a slippery and complicated idea, but there is, at its core, the Madisonian view that “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny”, and further “that each department should have a will of its own”. The administrative “fourth branch” exists precisely to subvert the distinctions between the other three, accumulating in its hands the ability to make policy, execute its decisions, and decide disputes about them. This subversion is compounded by arguments to the effect that the courts can have their core function of saying what the law is taken away from them by legislatures, and that they must defer to legal interpretations propounded by the “fourth branch”, so as to have no will of their own. While Canadian law probably permits the delegation of significant powers to the administrative state, there is a major risk in concentrating these powers. This is why the courts must ensure that administrative decision-makers only exercise those powers actually delegated to them, for the purposes for which they have been granted.

Moreover, the mere fact of delegation does not speak to the intensity of review a court should apply. While the Vavilov Court adopts a presumption of reasonableness based solely on the fact of delegation, this must be considered an organizing default rule that is a product of compromise ― it cannot be defended on the grounds that there is a principled link between delegation and deference. Indeed, the political science literature holds that legislatures may delegate for any number of reasons, none of which have to do with what a court should do on review. Better for a court, in our view, to review the legality of an exercise of administrative power de novo, at least absent some signal from a legislature that it intends deferential review (Vavilov, at [110], outlines some of these signals well).

Last but not least, administrative supremacy embraces a highly misleading view of the Rule of Law. Its proponents suggest that the Rule of Law is possible in ― indeed, that the better understanding of the Rule of Law requires ― a legal environment when legislation has no settled meanings dispassionately elucidated and consistently applied by independent courts. Recycling (and magnifying tenfold) a Maoist metaphor, they would have “1,000 rule of law flowers bloom”, as Professor Ford puts it.

Yet on any serious account of the Rule of Law stable, clear rules, consistently applied so as to create a predictable legal environment, are the heart of this concept. So is the idea that government power is limited by these rules. Judicial control over the meaning of legal rules and over government’s compliance with them is not an ideological caprice, but a necessary corollary of the principle. Only the courts ― not administrative decision-makers subject to control by the executive and invested with an explicit policy-making mission ― are sufficiently independent and can be committed to keeping the government within legal boundaries, as Dicey notes in his Law and Public Opinion. Abstract legal pluralism is, to us, no substitute for the legal certainty which the Rule of Law requires and to the maintenance of which the courts are essential.

And, as far as that point goes, there is another problem with the administrative supremacist argument as it pertains to the Rule of Law. In Professors Liston and Ford’s posts in particular, we see the classic supremacist argument from pluralism and expertise. Encompassed in this ideal is the idea of a “culture of justification” in which expertise could be brought to bear by administrative decision-makers in the reasons justifying administrative action. But there are limits to these principles that Professor Liston does not acknowledge. For one, expertise is not a legal reason for deference. It may be, as Professor Daly notes, an epistemic reason for deference, but what is the legal rationale for a court to abdicate its reviewing function under the Rule of Law in the name of alleged expertise?

Even as an epistemic reason for expertise, the presumption of expertise for all administrative decision-makers, which Professor Liston seems to tacitly endorse, was never justified as a matter of first principle. Indeed, as the Vavilov Court notes, it was impossible to distinguish matters over which administrators were expert from those where they were not. As we know in the prison context, in immigration law, and beyond, decision-makers’ claims to expertise, especially in legal or constitutional interpretation, can be exaggerated or outright unfounded. To give up on the role of the courts in enforcing legal boundaries in the name of unproven assertions of expertise is, in our view, contrary to the Rule of Law.

Our second objection to the administrative supremacist argument can be dealt with more briefly. An administrative law that rejects administrative supremacy and gives effect to the principle of the Rule of Law, properly understood, does not entail the demolition of the administrative state. (For one of us, this is a matter of considerable regret, but it is true all the same.) The administrative state exists in the United Kingdom and in New Zealand, where courts insist on their role of policing the boundaries of its authority, largely without deferring to its legal interpretations. The approach there is summarized in Lord Diplock’s words in the GCHQ case, Council of Civil Service Unions v Minister for the Civil Service, [1985] AC 374:

the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.

This approach would not prevent the delegation by Parliament or the legislatures of discretionary or adjudicative authority to administrative agencies and tribunals. It would mean, however, that these agencies and tribunals must give effect to the laws that give them their powers and to the general law of the land, rather than to their preferred policies and predilections.

To take up Professor Liston’s example, the CRTC’s view that it would be a good idea to impose some requirement on those subject to its licensing authority does not exhaust the question of its authority to impose this requirement. The question is whether the CRTC actually has this authority, because Parliament has granted it. The administrative state can exist if Parliament or a legislature has willed it into existence. But democracy and separation of powers, no less than the Rule of Law, should lead to the conclusion that the administrative state, and its powers, exist only to the extent that they have been willed into existence, and that their bootstrapping claims deserve scrutiny by the judiciary.

In part, disagreement about deference comes down to how one ought to conceptualize the administrative state. For Professors Liston and Ford in particular, the administrative supremacist view leads to the conclusion that administrative power is to be encouraged; that administrators all have something valuable to say about the law; that a Dyzenhausian view of “deference as respect” best encapsulates the role of courts vis-à-vis administrative actors. We view this as a decidedly Panglossian view of the administrative state. A basic deceit at the core of Canadian administrative law is the tendency for observers to concentrate on the tribunals that best demonstrate, to these observers anyway, the virtue of the administrative state: labour boards and the CRTC, for example. The harder question is what to think of administrative actors that do not fit this mould.

In this respect, Professor Liston and Ford put forward an old view of administrative law that dates back at least to the 1930s and the New Deal ― which is not a good time from which to borrow ideas. A 21^st century version of administrative law must contend with the growth of the administrative state into the licensing state, the exclusionary state, and the carceral state; incarnations of the state that, due to a lack of expertise or otherwise, may not be owed respect under the benevolent standards of review Professor Liston wants. Adopting general language of “pluralism” and “expertise” masks the real work: how to legitimize administrative power that is not characterized by the functional reasons for deference, as in Vavilov itself.

Again, this is not an ideological quirk. With respect, we find puzzling the claims that Vavilov is the work of a “conservative” court influenced by “libertarian” “political currents”. Six of the seven members of the Vavilov majority signed the “by the Court” judgment in R v Comeau, 2018 SCC 15, [2018] 1 SCR 342; three were also in the five-judge majority in Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293. However one might describe these judgments, conservative, let alone libertarian, they were not. People of all persuasions should be concerned about the scope of administrative power, no less than that of legislatures or, say, police forces. And if sometimes this rebounds to the benefit of those actuated by the profit motive, we do not think this is as sinister a possibility as Professor Liston seems to find it.

All in all, we differ from the defenders of administrative supremacy in one fundamental respect. The principles at play—democracy, separation of powers, and the Rule of Law—are not licenses to justify administrative power. Instead, they are properly viewed as constraints on that power. Vavilov was right to reject justifications other than legislative delegation for administrative power, and to insist on meaningful scrutiny of the compliance of the exercise of this power with its legislative warrant. For better or for worse, this will not undermine the administrative state, but the reminder that administrative power is something to be constrained using ordinary legal tools, not unleashed in service of the bureaucratically determined common good, is a salutary one.

New Paper on Doré and Vavilov

Frequent readers of this blog will know that I have written here on the subject of the propriety of Doré post-Vavilov. As many of you know, I do not believe that Doré can stand in light of Vavilov. I have now outlined more extensively why that is is, in a paper that will appear in the Dalhousie Law Journal later this year. Here is the abstract:

This paper argues that, without substantial doctrinal amendment, there is a fundamental conceptual gap between the cases of Doré and Vavilov. This is because both cases are motivated by different conceptions of administrative law. In Vavilov, the paper suggests that the Court melded together two theories of judicial review: first, a Diceyan theory based on a harmonious understanding of the principles of legislative sovereignty and the Rule of Law; and second, the imposition of a “culture of justification” for administrative decision-makers, in which decision-makers are asked to justify their decisions to receive deference. On the other hand, Doré is motivated by a pure functionalist understanding of administrative law, in which the expertise of the decision-maker in deciding constitutional matters is emphasized. While not total opposites, the theories are also not entirely complementary, such that they lead to different doctrinal prescriptions. The paper explores the doctrinal gap, and suggests two ways in which it might be bridged. First, Doré might be recalibrated to bifurcate the standard of review analysis, so that decisions implicating the scope of Charter rights is reviewed on a correctness standard, while the proportionality/application stage is reviewed on a reasonableness standard. Second, Vavilov’s justificatory standards might be imported into the Doré context to bridge the gap.

The paper can be accessed here.

Chevron on 2

The illogic of the Supreme Court of Canada’s approach to deference to administrative interpretations of law

Readers with some salsa experience will probably know that, while most of the world dances it “on 1”, in New York it is danced “on 2”. The steps and moves are more or less the same, but the sequence is different. Another dance that can be varied in this way, as we learn from the Supreme Court’s recent decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, is the notorious Chevron two-step. As with salsa, one can prefer one style or the other. But, for what it’s worth, I find Vavilov’s “on 2” version of Chevron to be rather offbeat.

In Chevron USA Inc v Natural Resources Defense Council, Inc, 467 US 837 (1984), the US Supeme Court explained how courts were to review administrative decision-makers’ interpretations of what in Canada are sometimes called their “home statutes”:

When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. (842-43; footnotes omitted)

The first step, in other words, is to determine whether the statute is so vague or ambiguous as to require an exercise of interpretive discretion by the administrative decision-maker. The second step, taken if―and only if―the statute does call for such an exercise of discretion, is to review the administrative interpretation for reasonableness, and defer to it if it is not unreasonable.

There are some exceptions to this two-step analysis. For one thing, under United States v Mead Corp, 533 US 218 (2001), courts ask whether the administrative agency was meant to conclusively determine questions of law in the first place. This is sometimes known as “Chevron step zero”. For another, following FDA v Brown & Williamson Tobacco Corp, 529 US 120 (2000), certain questions are seen as too important for their determination to have been delegated to administrative agencies implicitly; nothing short of explicit Congressional command will trigger deference. But, at least where the administrative decision-maker is seen as authorized to make legal determinations, Chevron dictates ― for now anyway ― the normal approach.

Or, if you prefer seeing and hearing instead of reading, here’s how NYU students explained it a few years ago:

Now, compare this to the Vavilov framework. It begins with a fairly close equivalent to “Chevron step zero”. In cases where the legislature wanted the courts, and not administrative tribunals, to decide legal questions, whether by explicitly providing for correctness review or by creating an appeal from from the tribunal to a court, the courts must not defer. Nor will there be deference on (some) constitutional questions and “general questions of law that are ‘of central importance to the legal system as a whole'” [58, quoting Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [62]]. This is somewhat analogous to the “important questions” exception in the United States, although Canadian “questions of central importance” may well be different from the American “important questions”. (I don’t think, for instance, that under Vavilov it is enough for a question to be “of deep economic and political significance [and] central to [a] statutory scheme”: King v Burwell (2015) (internal quotation omitted).)

But then, Chevron‘s two main steps are reversed. Subject to the legislative assignment and central questions exceptions applying, Vavilov says courts are to defer to administrative interpretations of law:

Where a legislature has created an administrative decision maker for the specific purpose of administering a statutory scheme, it must be presumed that the legislature also intended that decision maker to be able to fulfill its mandate and interpret the law as applicable to all issues that come before it. Where a legislature has not explicitly prescribed that a court is to have a role in reviewing the decisions of that decision maker, it can safely be assumed that the legislature intended the administrative decision maker to function with a minimum of judicial interference. [24]

This is, more or less, Chevron‘s step two. At this stage, no factor other than the existence of the administrative decision-maker, the absence of a legislative indication that courts must nevertheless be involved, and the non-centrality of the question at issue are relevant.

But then, Vavilov seems to suggest that, once it embarks on reasonableness review, the court needs to examine the statute at issue more closely ― to engage what co-blogger Mark Mancini has described as a “legal ‘hard look’ review”, including to determine whether there is actually the sort of ambiguity that, under Chevron, justifies deference to the administrative interpretation. Vavilov stresses that “while an administrative body may have considerable discretion in making a particular decision, that decision must ultimately comply ‘with the rationale and purview of the statutory scheme under which it is adopted'” [108, quoting Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2, [2012] 1 SCR 5, [15]] and, further, “with any more specific constraints imposed by the governing legislative scheme”. [108] Crucially, Vavilov insists that

If a legislature wishes to precisely circumscribe an administrative decision maker’s power in some respect, it can do so by using precise and narrow language and delineating the power in detail, thereby tightly constraining the decision maker’s ability to interpret the provision. Conversely, where the legislature chooses to use broad, open-ended or highly qualitative language … it clearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language. … [C]ertain questions relating to the scope of a decision maker’s authority may support more than one interpretation, while other questions may support only one, depending upon the text by which the statutory grant of authority is made. [110]

This, by my lights, is Chevron‘s step one. In some cases, the Supreme Court says, the legislature leaves the administrative decision-maker with the latitude to choose among competing possible interpretations. But not always. To quote Chevron again, “[i]f the intent of [the legislature] is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of [the legislature]”.

I should note that this might not be the only way to read Vavilov. Paul Daly, for example, is quite skeptical of “intrusive reasonableness review” that would occur if courts take too seriously the admonition about there being, sometimes, only one interpretation of administrative decision-maker’s grant of authority. But, as Mark shows, this is certainly a plausible, and at least arguably the better reading of Vavilov. I may return to the debate between these readings in a future post. For now, I will assume that the one outlined above is at least a real possibility.

As already mentioned, this reversal of the “Chevron two-step” makes no sense to me. I find it odd to say that reviewing courts must start from the position that “respect for [the] institutional design choices made by the legislature” in setting up administrative tribunals “requires a reviewing court to adopt a posture of restraint on review”, [24] but then insist that respect for legislative choices also requires the courts to be vigilant in case these choices leave only one permissible interpretation. The view, endorsed in Dunsmuir, that deferential judicial review reflects the inherent vagueness of legal language, was empirically wrong (and indeed implausible, as I argued here), but coherent. The recognition in Vavilov that statutory language is sometimes precise and can have a definitive meaning is welcome, but it is logically incompatible with an insistence on deference and judicial restraint.

If the Vavilov court had wanted to limit deference to cases of genuine interpretive uncertainty, it ought to have followed Chevron in clearly asking courts, first, to identify such cases, and then, and only then, to defer. That, of course, runs the risk of deference being relatively rare ― a risk highlighted by Justice Scalia in a lecture on “Judicial Deference to Administrative Interpretations of Law“:

One who finds more often (as I do) that the meaning of a statute is apparent from its text and from its relationship with other laws, thereby finds less often that the triggering requirement for Chevron deference exists. It is thus relatively rare that Chevron will require me to accept an interpretation which, though reasonable, I would not personally adopt. (521; emphasis in the original)

Conversely, if the Vavilov court was serious about deference-across-the-board being required as a matter of respect for legislative choice, it should have doubled down on the earlier view that statutory language inherently fails to determine legal disputes. This, in my view, would have been madness, but there would have been method in’t.

The trouble is that, as I said in my original comment on Vavilov, the majority opinion is a fudge. Collectively, the seven judges who signed it probably could not agree on what it was that they wanted, other than a compromise, and so did not want anything in particular. And so we get a judgment that, in a space of three short sentences, requires judicial review to embody “the principle of judicial restraint” while being “robust”, [13] and insists on deference while stressing that there may well be only one reasonable opinion to defer to.

Different people, and different legal cultures, will find their own ways to dance to the same tune of judicial resignation before the administrative state. Perhaps we should regard their different solutions as mere curiosities, objects of wonder but not judgment. But I don’t find this new Canadian hit, Chevron on 2, especially elegant or exciting. Not that I am a devotee of the on 1 original; but its steps at least come in a logical sequence. The on 2 version demands, as it were, that judges step forward and backward at the same time, and, with all due respect to the Canadian judiciary, I am not sure that it ― or, anyone else, for that matter ― is quite capable of such intricate footwork. Toes will be crushed, and partners disappointed if not injured, before someone realizes that the music needs, at long last, to stop.

Day 12: Mark Mancini

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

Law Society of British Columbia v Trinity Western University, 2018 SCC 32

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

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

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

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

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

Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4

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

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

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

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

Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47

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

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

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

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

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

Not Good Enough

The Supreme Court re-writes the law of judicial review in Canada, but not nearly well enough.

In a return to its sometime tradition of releasing high-profile decisions in the run-up to Christmas, the Supreme Court yesterday rendered its long-awaited judgment in the Great Administrative Law Do-Over, Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. Co-blogger Mark Mancini has already written about it, but while his post is very good, I disagree with him, and with the Court’s majority, on a number of fundamental issues. Hence the need for this post. In my view, while well-intentioned and an improvement on the status quo, the majority opinion (jointly authored, ostensibly, by the Chief Justice and Justices Moldaver, Gascon, Brown, Côté, Rowe, and Martin) rests on weak theoretical foundations, and is open to future manipulation by courts that do not share its spirit or find it inconvenient in a given case.

The majority holds that when the courts review decisions made by decision-makers in the executive branch of government and other bodies acting pursuant to authority delegated by statute (for example municipal institutions, professional regulators, etc), there is “a presumption that reasonableness is the applicable standard in all cases. Reviewing courts should derogate from this presumption only where required by a clear indication of legislative intent or by the rule of law.” [10] (The presumption also doesn’t apply for issues having to do with the fairness of the procedure followed by the decision-maker.) The majority explains that “[r]easonableness review … finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers”, [13] but nevertheless goes on to point to a number of “constraints” on administrative decision-makers that such review must enforce, thus ensuring, in the majority’s view, that they do not exceed the bounds of the authority delegated to them.

The presumption of reasonableness applies to most questions of law that administrative decision-makers must resolve. According to the majority, this is because

[w]here a legislature has created an administrative decision maker for the specific purpose of administering a statutory scheme, it must be presumed that the legislature also intended that decision maker to be able to fulfill its mandate and interpret the law as applicable to all issues that come before it. Where a legislature has not explicitly prescribed that a court is to have a role in reviewing the decisions of that decision maker, it can safely be assumed that the legislature intended the administrative decision maker to function with a minimum of judicial interference. [24]

Conversely, however, a legislature might in fact have “prescribed that a court is to have a role in reviewing” administrative decisions, either by legislating a specific standard of review or by providing a statutory right of appeal from these decisions (rather than relying on the background constitutional requirement that judicial review of administrative decisions be available). In such cases, its prescription is to be obeyed. The standard of review on appeal from an administrative decision is to be the same as on appeal from the decision of a court, which means that, on questions of law, decisions are reviewed for correctness, rather than reasonableness.

The other cases where the correctness standard will be applied are those where it is required by the principle of the Rule of Law, which according to the majority are questions of constitutional validity, “general questions of law of central importance to the legal system as a whole”, and questions of jurisdictional conflict between two administrative decision-makers. The first category remains as it was prior to Vavilov. In particular, the majority pointedly refuses to comment on the implications of its decision for the line of cases originating in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395, which have urged deference to administrative decisions applying the Canadian Charter of Rights and Freedoms to particular disputes (as opposed to the validity of legislative provisions). By contrast, the second category expands, because it was previously supposed to limited to cases outside the administrative decision-maker’s expertise. Here and elsewhere, the majority rejects the role of expertise in determining the standard of review. (More on this below.) The majority also holds, however, that the Rule of Law does not require jurisdictional questions to be reviewed on a correctness standard.

With reasonableness thus asserted as the presumptive and dominant standard of review, the majority goes on to explain what it means. In cases where reasons are given by the administrative decision-maker, these become the focus of the analysis, which must be concerned not only with the outcome the decision-maker reached, but also with the reasoning process that led to it. The reasons must be read in context, however (notably “in light of the record” [96]). At this stage, contextual elements excised from the initial standard of review analysis, such as expertise, re-appear. While the majority insists that “reasonableness remains a single standard”, [89] of review, it also seeks to

account[] for the diversity of administrative decision making by recognizing that what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review. These contextual constraints dictate the limits and contours of the space in which the decision maker may act and the types of solutions it may adopt. [90]

In any case, however, the majority emphasizes the importance of the justification for the administrative decision being apparent from the reasons (and perhaps record) that support it. The justification cannot simply be added later, on judicial review.

The majority suggests that there are two main ways in which an administrative decision can be so flawed as to deserve to be qualified as unreasonable: “a failure of rationality internal to the reasoning process”, or “a decision … in some respect untenable in light of the relevant factual and legal constraints that bear on it”. [101] The first category points to requirements of logic and coherence. The second, to the principle that “[e]lements of the legal and factual contexts of a decision operate as constraints on the decision maker in the exercise of its delegated powers”. [105] These include, but are not limited to,

the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies. [106]

Without fully summarizing the majority’s explanations of these points, I will note that it insists that administrative interpretations of law must not be permitted to “disregard or rewrite the law as enacted by Parliament and the provincial legislatures”. [108] The discretion permitted by these laws might be narrow in some cases and broad in others, but never unlimited: “[r]easonableness review does not allow administrative decision makers to arrogate powers to themselves that they were never intended to have, and an administrative body cannot exercise authority which was not delegated to it”. [109] Moreover, administrative decision-makers, no less than courts, are required to follow the “modern principle of statutory interpretation”, because

[t]hose who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that has regard to the text, context and purpose, regardless of whether the entity tasked with interpreting the law is a court or an administrative decision maker. [118]

At the same time, the majority insists that reasonableness review on questions of law remains deferential; indeed it is no different from review “reviewing questions of fact, discretion or policy”, [115] and one should not expect “administrative decision makers … to apply equitable and common law principles in the same manner as courts in order for their decisions to be reasonable”. [113] Even “questions relating to the scope of a decision maker’s authority may support more than one interpretation”, [110] although this will not always be so.

To repeat, I do not share the widespread view that the majority opinion represents a great achievement for Canadian administrative law. To me, it is a dubious compromise that can and likely will be applied in contradictory ways. Justice Stratas has compared Canadian administrative law to “a never-ending construction site where one crew builds structures and then a later crew tears them down to build anew, seemingly without an overall plan”. (1) The latest structure is built on theoretical sand, and I would not bet on its long-term stability.

Most fundamentally, the majority’s justification for doubling down on the “presumption of reasonableness” that emerged over that last decade is weak. As I explained here, in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, the Court had articulated three rationales for deference: legislative intent, the expertise of administrative decision-makers, and the absence of determinable answers to legal questions. The Vavilov majority explicitly repudiates expertise as a justification for judicial deference, and renounces the (always implausible) claim that legal questions always lack determinate answers that courts can discover. It is left with, and doubles down on, legislative intent.

But its understanding of legislative intent is essentially made up. There is no actual evidence that legislatures intend the courts to defer to administrative decision-makers, at least in the absence of privative clauses which often purport to oust judicial review completely, and to which Canadian courts have long refused to give full effect, treating them instead as signals for deference. The majority doesn’t even discuss privative clauses, or any other indications (short of enacting standards of review by statute) that a legislature actually intended the courts to defer, including on questions of law. It just assumes it knows what the legislatures want. Yet legislatures might delegate powers to administrative tribunals for any number of reasons, ranging from a confidence in their technical expertise, to a desire to politicize a particular area of the law, to rank protectionism. It’s far from obvious to me that all of these entail a presumption of deference. Besides, although it commendably chooses to give way to legislative intent in holding that statutory appeals must be treated as, well, appeals, the majority doesn’t quite give up on imposing its own view of statutory language, insisting that section 18.1 of the Federal Courts Act is nothing more than a procedural provision that tells the courts nothing about the standard of review. This perpetuates the misbegotten holding of Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339, which Mark quite understandably listed as one of the worst decisions of the last half-century.

It would be much better to start with non-deferential correctness review as a default, and put the onus on the legislatures to indicate otherwise, ideally by legislation specifically addressing the standard of review or, perhaps, by privative clauses. That’s assuming that such indications are even constitutional, of course. I am yet to be persuaded that this assumption is warranted. I’m not persuaded of the contrary either, but I have my doubts. As I have explained here, Joseph Raz’s analysis of the Rule of Law seems to imply that administrative decision-making must be founded on correct application of stable legal rules by officials and, in order to ensure such correct application, review of their decisions by independent courts. In Vavilov, the majority (rightly, I think) implies that the principle of the Rule of Law can override legislative intent. That’s why constitutional and other centrally important questions trigger correctness review, whatever a legislature’s wishes. But the majority does not give nearly enough consideration to what the Rule of Law requires in the context of judicial review of administrative decisions.

In particular, while pretty much everyone from Justices Abella and Karakatsanis in the concurrence to Mark in his post cheers the abolition of the category of jurisdictional questions, I find it puzzling. Jurisdictional questions are supposed to be hard to identify and therefore a source of unnecessary confusion. Yet the truth is, everyone knows that such questions exist. The Vavilov majority itself mentions “questions relating to the scope of a decision maker’s authority”, [110] which is a plain-language definition of jurisdiction. In the companion case, Bell Canada v Canada (Attorney General), 2019 SCC 66, there was a statutory appeal right “on a question of law or a question of jurisdiction”. The concern really seems to be not so much that questions of jurisdiction are elusive and mysterious, but that, properly understood, this category is much broader than most people are comfortable with. It arguably includes most question of law. But that’s not a reason for pretending such questions don’t exist. If anything, it’s another reason for making correctness the default, if not the sole, standard of review on questions of law. The Rule of Law cannot permit the administrative state to expand its power just because courts shy away from the task of policing its boundaries.

The majority thinks it can address the concerns about the expansion of administrative power to which its embrace of reasonableness review gives rise by providing guidance on what such review requires. And there are genuinely commendable statements there, as Mark has observed. It is good that the majority recognizes, as some recent cases such as West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 SCR 635 did not, that the powers or discretion of administrative decision-makers cannot be unlimited. It is good that it recognizes, contrary to Dunsmuir, that questions of law can, at least in many cases, be given definitive answers. And it is good that the majority instructs courts to be skeptical of the gaps in administrative decision-makers’ reasons, instead of filling them with “reasons that could be given” in support of their decisions.

I must admit, though, that I am puzzled by the attempt to square this recognition with the insistence on reasonableness review. Back in Dunsmuir, the Supreme Court said

[t]hat Reasonableness is a deferential standard animated by the principle that … 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]

And of course in Vavilov itself the majority speaks of reasonableness being grounded in judicial restraint, which points to the same understanding of this concept. To me, talk of reasonableness review with only one reasonable outcome is blank prose. But perhaps that’s just an idiosyncratic understanding that I have.

More seriously, in addition to their conceptual problems, I think the reasons of the Vavilov majority contain a number of contradictions that undermine their attempt, if that’s what it is, to confine the excesses of the administrative state. For example, for all its insistence on a “robust” reasonableness review, the majority starts from the position that it is grounded in judicial restraint. Quite apart from my doubts about the usefulness of the term “judicial restraint”, I struggle to see how a standard of review can be robust and restrained at the same time. Or consider the majority’s warning that “[a]dministrative decision makers cannot always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge” and that “‘[a]dministrative justice’ will not always look like ‘judicial justice'”. [92] This seems to contradict the majority’s acknowledgment, elsewhere in its reasons, that the Rule of Law is undermined when the outcome of a legal dispute depends on the identity of the person resolving it.

Perhaps most fundamentally, the insistence that administrative decision-makers cannot “arrogate powers to themselves that they were never intended to have” [109] is not easily reconciled with the refusal to impose correctness review on jurisdictional questions. The majority holds that, subject to a requirement of justification, “a decision maker’s interpretation of its statutory grant of authority is generally entitled to deference”. [109] To my mind, this means that the administrative state is still the arbiter of its own authority, whenever a legislature fails to use sufficiently precise language ― or where a court thinks that a legislature has so failed.

Much will depend, then, on which strand of the somewhat schizophrenic majority opinion future judges decide to implement when they follow Vavilov. This is, I suppose, the price to pay for cobbling together a seven-judge majority (and getting all seven to not only agree but also sign on to this majority’s reasons), but I’m not sure that the result was worth it.

No doubt, Vavilov is an improvement over the status quo ante. Some of the wildest excesses of judicial deference to the administrative state, for example the refusal to give effect to statutory appeal provisions and the practice of making up reasons not actually given by administrative decision-makers the better to defer to them have been condemned. Some of the theoretical problems of the previous jurisprudence, notably its reliance on a fictional account of administrative expertise, have been overcome.

At the same time, the future is still difficult to predict. For one thing, Vavilov leaves some questions unanswered. For example, its guidance on questions of central importance, a seemingly expanded category of correctness review, doesn’t amount to much more than “you know it when you see it”. Perhaps more importantly, there is contradictory language in the majority opinion that can be pressed in the service of more or less deferential review, and it remains to be seen what future courts will do with it.

And, fundamentally, Vavilov is still unsatisfactory because, like the pre-existing administrative law jurisprudence, it is built on foundations that mix a fictional account of legislative intent with a tendency to favour, if not as much as before, the power of the administrative state at the expense of the judiciary. The responsibility of the courts, which are independent and whose sole commitment is supposed to be to law, not policy-making, to say what the law is is an essential safeguard for freedom and the Rule of Law. By perpetuating judicial abdication, covered up as “restraint” and deference”, in the face of the administrative state, Vavilov fails to live up to the judiciary’s constitutional role.