Tag: deference

Administrative Law’s Virtues and Vices

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

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

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

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

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

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

This framework includes

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

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

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

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

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

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

The following Rule of Law principle Professor Raz describes is that

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

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

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

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

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

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

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

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

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

No Shortcuts to Legality

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

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

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

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

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

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

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

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

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

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

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

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

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

Is Deference Possible Here?

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

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

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

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

* * *

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

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

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

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

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

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

* * *

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

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

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

It’s a Dog!

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

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

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

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

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

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

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

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

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

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

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

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

 

Jiggery-Pokery

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

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

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

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

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

For his part, David Mullan noted that

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Despotism, Revisited

Thoughts upon belatedly reading an (anti-)administrative law classic

I have, rather belatedly, read an (anti-)administrative law classic, The New Despotism by Lord Hewart’s  ― an attack on the power of what would come to be called the administrative state published in 1929 by the then-Lord Chief Justice of England. The book made quite an impression when it was published, prompting the government to set up an inquiry, and even has its own Wikipedia page. However, I don’t think The New Despotism is often discussed in Canada these days. (A quick HeinOnline search shows no more than occasional citations in the past decade; and, what little that’s worth, I hadn’t heard about it until I sat in on my colleague Vernon Rive’s administrative law lectures.) So perhaps some comments here may be of interest, if only to my fellow dabblers, despite the book’s antiquity.

In a nutshell, Lord Hewart was alarmed by the expansion of unreviewable legislative and adjudicative powers delegated by Parliament to officials within the executive branch. While he is almost certainly skeptical of the administrative state generally, Lord Hewart mostly suspends this skepticism and focuses his attacks not on the exercise of power by administrative decision-makers as such, but on the fact that, all too often, administrative power is exercised more or less secretly, without the persons affected by it being able to make submissions to decision-makers, or without decision-makers having to take these submissions into account, or to explain how they reached the conclusions they did. He criticizes legislation empowering administrators to override statutes, or to interpret and apply them without any judicial oversight. Such legislation, he insists, creates a system that is not, properly speaking, one of “administrative law”, such as it exists in Europe (Lord Hewart doesn’t share A.V. Dicey’s notorious disdain for continental administrative law), but one of “administrative lawlessness”.

The remarkable thing is that, while it is fashionable to describe The New Despotism (insofar as it is referred to at all) as a “tirade” delivered by an apologist for the nightwatchman-state dark ages, his critique has been largely accepted ― including by the latter-day defenders of the administrative state ― and incorporated into modern administrative law. Whatever our views on the Canadian (and American) practice of deference to administrative interpretations of statutes, even those who defend this practice accept that some judicial oversight over administrative decision-makers is constitutionally essential. And they, like their critics, would share Lord Hewart’s indignation at decision-making processes in which anonymous officials may act without receiving evidence or submissions from affected parties, whom they need not appraise of their concerns, and are not required to give reasons. He might not be kindly remembered, but in a very real sense, Lord Hewart won the battle of ideas. Pro- or anti-administrativists, we largely agree with him, and indeed among ourselves. The outstanding disagreements are of course significant, but not nearly as significant as the general assent to the subjection of administrative decision-making to judicial review in matters both procedural and substantive.

Interestingly, however, this consensus was not implemented in the manner Lord Hewart envisioned. It is largely reflected in the development of the common law, and not so much in changes to legislative practice which he urged. Some legislative changes have occurred. In particular, there are better, though I suspect still deficient, mechanisms for Parliamentary review of regulations, which Lord Hewart called for. But legislatures have not ceased purporting to delegate vast and unreviewable powers to the executive. What has changed is that the courts came to take a much more skeptical approach to such legislation, and seldom give it its full effect. This, I think, is not surprising. Lord Hewart thought that, to eradicate administrative lawlessness, “what is necessary is simply
a particular state of public opinion”, for which to “be brought into existence what is necessary is simply a knowledge of the facts”. (148) This seems almost touchingly naïve ― almost, because, as a former politician himself, Lord Hewart ought to have known better. It is implausible that public opinion can be drawn to, let alone firmly focused on, issues that are bound to strike non-lawyers as purely technical matters. This is something worth pondering as we reflect on the relative legitimacy of judicially-articulated and legislated rules, whether generally or specifically in the context of administrative law.

Let me now go back to the disagreement between those who favour judicial deference to administrative decision-makers and those who resist it. That Lord Hewart would surely have been in the latter camp will not persuade anyone who is not, given his reputation as an arch-anti-administrativist. But there is another jurist, whose name carries more authority in Canada than Lord Hewart’s, whom I am happy to claim for non-deferential camp (to which I belong): none other than Lord Sankey, of the “living tree” fame. In an extra-judicial speech, delivered just months before the opinion in Edwards v Canada (Attorney General), [1930] AC 124, a.k.a. the Persons Case, and quoted by Lord Hewart, Lord Sankey emphasized the importance of the Rule of Law, and of the courts as its enforcers:

Amid the cross-currents and shifting sands of public life the Law is like a great rock upon which a man may set his feet and be safe, while the inevitable inequalities of private life are not so dangerous in a country where every citizen knows that in the Law Courts, at any rate, he can get justice. (151)

And then, describing the threats to the courts’ role in upholding the Rule of Law, Lord Sankey pointed to

what has been described as a growing tendency to transfer decisions on points of law or fact from the Law Courts to the Minister of some Government department. (151)

And as for Lord Hewart himself, he did have an answer to at least one objection to judicial oversight of the administrative state that the defenders of deference still trot out from time to time: that allowing unobstructed judicial review of administrative decisions will lead to too much costly litigation. (For instance, in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, Justice Karakatsanis’ majority opinion claimed that “[a] presumption of deference on judicial review … provides parties with a speedier and less expensive form of decision making”. [22]) Lord Hewart responded to this concern by pointing out that

what is desired is not that there should be endless litigation but rather that litigation should be rendered as a rule unnecessary by the diffused and conscious knowledge that, in case of need, recourse might be had to an impartial public tribunal, governed by precedent, and itself liable to review. (155)

The point is one that goes to the very nature of the Rule of Law:

Nobody outside Bedlam supposes that the reason why Courts of law exist in a civilized community is that the founders of the State have believed happiness to consist in the greatest possible amount of litigation among the greatest possible number of citizens. The real triumph of Courts of law is when the universal knowledge of their existence, and universal faith in their justice, reduce to a minimum the number of those who are willing so to behave as to expose themselves to their jurisdiction. (155)

Just last year, the UK Supreme Court adopted essentially this reasoning in R (Unison) v Lord Chancellor [2017] UKSC 51, in the course of explaining the importance of access to adjudication ― perhaps ironically, in that case, adjudication in administrative tribunals, albeit ones functioning quite differently from those decried by Lord Hewart. Arch-anti-administrativist he may have been, but Lord Hewart was a more intelligent, and is a more relevant, jurist than those who dismiss him might realize. If you are interested in administrative law and haven’t read The New Despotism, you probably should read it.

Dunsmuir 10 Years Later

The context, aims, and aftermath of Dunsmuir

The Hon. Michel Bastarache CC QC

At the outset, I should express my gratitude to Professors Daly and Sirota for the invitation to contribute to this remarkable project, including such a superb array of leading lawyers, scholars, and judges. I have encountered the challenges of administrative law for most of my professional life in various capacities, but the sheer diversity of diagnoses and prescriptions, from such a wide range of contributors with such disparate views and organizing premises, has been eye-opening. By my count, there have been calls to revive the patent unreasonableness standard and to eliminate standards of review entirely; calls to greatly expand and tightly limit deference; calls to jettison presumptive categories and calls for more categorization; calls for greater attention to theory and more steely-eyed pragmatism; calls to hew more closely to Dunsmuir and to cast it aside more or less entirely; and much else besides that.

Depending on how you look at it, Dunsmuir is a decision so poor that all can agree went wrong in every conceivable direction, even if they agree on nothing else; or it may be that by synthesizing previous decisions and providing useful guideposts, it managed to secure some modest measure of progress. That ultimate reckoning is a task I will leave to others. I can only say that the contributors have been imaginative, original, astute and perceptive, and reading them all together provides invaluable insight into the subject, for which I am personally grateful and from which I think others can benefit greatly.

Obviously, I have my own views on Dunsmuir and the cases that followed it, and will share a few of them. But my focus in this response is not to defend Dunsmuir from its many critics, but to hopefully provide some insight into what we were trying to achieve, the thinking that went into it, how the unique role of a Supreme Court judge manifested itself in the decision. I intend this not as an apologia, although it may seem that way sometimes; rather, I hope that a better idea of our processes and thinking might help inform and provide some context around the many insights contained in the contributions, and be of some value to students of administrative law, of which I remain myself. I offer these observations in that spirit.

Institutional Constraints

I will begin with the paradox within which Supreme Court judges operate: that we are at once enormously powerful and tightly constrained. Acting at the apex of a system of laws, and guarded by judicial independence, there are few options categorically off the table, at least in terms of developing the common law, of which administrative law is one part. At the same time, we are subject to a broad range of effective constraints, including those imposed by precedent, the autonomy of colleagues, the cases that come before us, and the arguments as framed and argued by the parties. The degree to which a judge feels constrained by any of these factors will vary depending on the judge and the case; I can only speak of my own views, and the extent to which these considerations informed my contribution to Dunsmuir.

From my perspective, it is rarely possible for judges, even Supreme Court judges, to rewrite the law from scratch, however much we may like to do so. We are neither scholars at liberty to develop innovative solutions entirely anew, nor a law reform commission. And while we have the luxury of time that many judges in trial courts do not, we still need to decide a good many cases each year. We do not have the opportunity to focus exclusively on a particular problem or agonize over a judgment for too long, nor can we address an area of law in every conceivable respect in a single judgment. As our individual records might indicate, we are only too human.

Moreover, to the extent we can provide solutions to particular problems, we must not only attempt to find solutions that are conceptually sound, but also practically workable. We realize that it is not helpful to create overly abstract standards, however theoretically pleasing, that judges cannot apply and litigants cannot understand. Especially in an endeavour as diverse as administrative law, which touches on so many aspects of the modern state, the importance of ensuring our judgments are practical and accessible is not to be underestimated.

Perhaps most importantly, Supreme Court judges do not operate alone. We operate within a framework defined by our predecessors, by the need to obtain consensus with our contemporary colleagues, and by the knowledge that there will be subsequent judges who will soon take the reins.

Therefore, in a case like Dunsmuir, we must not only attempt to provide guidance to lower courts, but also create a workable framework that is consistent with and synthesizes the wisdom of generations of judges who came before us. To borrow from Ronald Dworkin’s terminology, we must attempt to both “justify” the system of judicial review by placing it in its best light, and make sure our solution “fits” reasonably well with our past and current practices. We can move the law, but incrementally ― we cannot knock everything down and start from scratch, however much that may be our personal preference.

And when we attempt to move the law, we must do so in a way that satisfies at least four of our colleagues. I recall experiencing this difficulty early in my Supreme Court career, when I first tried to obtain support for a less daring change in Pushpanathan. Of course, it is always possible for a Supreme Court judge to set out his or her own personal vision of the perfect solution, but that is not always the way you make real progress. (I should not be taken to be diminishing the value of a strong and principled, if lonely, judgment; my Dunsmuir co-author’s concurring reasons in CUPE, of course, identified many of the concerns that led to Dunsmuir itself.)

The difficulty, of course, is seeking to reconcile considerations that may pull in different directions in the context of a particular case that needs to be decided. An innate sense of justice and view of a theoretically sound approach to a particular issue pulls one way; the equally firmly held views of colleagues may pull in another; the gravitational force of precedent may pull in a third; and the concern with ensuring not only conceptual coherence but practical workability may pull another way still. In this reality, compromise is unavoidable.

I will confess I often found managing this task challenging, as I think most Supreme Court judges do. And it was especially challenging in a case like Dunsmuir, involving an attempt not only to craft reasons that will have some lasting impact, but which touched on such an enormous range of circumstances. As difficult and controversial as many issues that reach the Supreme Court can be, they often only affect a small subset of the population or a narrow area of the law; changes to judicial review of the scale contemplated in Dunsmuir affect a good part of the Supreme Court’s docket, hundreds if not thousands of lower court decisions every year, and at least at the margins, the day-to-day interactions between members of the public and government.

In this institutional setting, you realize your limitations pretty quickly, and do your best to work within them. I turn now to our attempt to manage this reality in Dunsmuir, and the problems we were trying to solve.

Our Objective in Dunsmuir

When Justice Lebel and I wrote the decision in Dunsmuir, we were not naïve enough to think it would be the last word on judicial review. We were not trying to resolve all of the insuperable theoretical disagreements or irreconcilable precedents in this vast legal universe, which often go to the heart of public law theory and modern governance. We were ambitious, but not that ambitious.

Instead, we were trying to bring as large a reform as we could to deal with what we saw as immediate and, we hoped, manageable problems. Those problems have been described many times, but I will say a word on some of the considerations that motivated us to think that we should try to do more than simply resolve the case before us.

First, from a practical perspective, we recognized that judges would routinely spend as much or more time addressing which of the three standards of review properly applied as they did on the legality of decisions under review. As Justice Binnie observed in his concurring reasons in Dunsmuir, the courts had become “unduly burdened with law office metaphysics” (at para 122). While there were paradigmatic cases where the standard of review would be clear, such as labour arbitrators interpreting a collective agreement, the proliferation of administrative actors and bodies and the variety of issues that may come before them often made it difficult to determine what standard should be applied. We hoped to make that process easier, at least some of the time.

Second, the distinction between reviewing for ‘reasonableness’ and ‘patent reasonableness’, in our view, had no principled foundation. As mentioned in Dunsmuir, we considered that “it would be unpalatable to require parties to accept an irrational decision simply because, on a deferential standard, the irrationality of the decision is not clear enough”, and that it was “inconsistent with the rule of law to retain an irrational decision” (at para 42).

The primary difficulty, of course, was to determine when deference should be applied. One of our goals was to try to eliminate the need to undertake a full pragmatic and functional approach in every case. To that end, we attempted to provide principled and workable “guideposts”, while recognizing that we cannot provide more certainty than that.

We did not think that we could eliminate the pragmatic and functional factors entirely, however, simply because we realized the sheer breadth and diversity of the administrative state, and the ability of governments to come up with new and inventive ways of enforcing laws, delivering services, and carrying out social policies. Thus, if the standard of review had not been clearly identified in the past in relation to the particular body and type of decision, the court would still be able to consult the newly renamed standard of review factors.

It is true that the factors were not new, and did not lead to a clear or undisputable result in every case, but we saw no reason to abandon them. We believed, like many of our colleagues before us, that the standard of review factors – the presence of a privative clause, the purpose of the tribunal or other decision maker, the nature of the question at issue and the expertise of the tribunal – were the type of considerations that properly informed the question of how our courts should determine the appropriate degree of deference. Given the nature of the case itself, our analysis was prepared with adjudicative tribunals in mind; more attention would be paid to other actors in the administrative state in another context. But our hope at the time was that new decisions could fill that void, and that the retention of the standard of review factors gave the courts the tools to do so.

Having eliminated the patent unreasonableness standard, we were left with an obvious problem: what does “reasonableness” mean? One struggles to think of a concept as integral to so many areas of the law, and as stubbornly resistant to definition, as the idea of “reasonableness”. We recognized that we were unable to resolve that quandary in a way that could apply with precision to all of the varied circumstances that the courts would face, and therefore made no attempt to do so. What we did try to do was, again, to provide some guidelines or touchstones that fit with our understanding of the term as it had been applied in this context.

With our focus being on adjudicative tribunals, we were particularly concerned with their reasoning and decision making processes, to ensure that they demonstrate justification, transparency and intelligibility. But in our view, that did not exhaust the court’s supervisory task; we believed that one also must consider the outcome, and ensure that it was defensible in respect of the facts and the law. In this way, we attempted to reconcile and provide at least some structure to the types of decisions that the courts had, throughout modern history, determined were ‘unreasonable’. Our hope was that with the two flexible foundations for reasonableness review in hand, that subsequent cases would have the tools they needed to reach justice in individual cases, and develop the law accordingly.

Our objective in Dunsmuir was to create a framework for greater clarity moving forward, which both justified the use of judicial review, fit it into the framework of the cases that came before, and provided at least some workable guidance moving forward to be filled in and supplemented by future decisions. This provides a convenient segue into my next and final topic: the post-Dunsmuir cases.

Post-Dunsmuir

As just mentioned, our hope in Dunsmuir was to make some progress in both simplifying the standard of review analysis, and providing some workable guideposts and grounding for judicial review moving forward. It was an attempt to take stock of all the disparate and idiosyncratic decisions over the previous decades, and to synthesize it into a workable model. The success of such a project depends not only on the (always limited) abilities and foresight of authors, but also on the existence of other judges who agree with the project, both in terms of the foundational principles set out in Dunsmuir, and their application in particular cases.

Needless to say, such a consensus has been hard to achieve. I mentioned earlier that there have been cases decided since Dunsmuir that I would have decided differently, sometimes quite drastically. I will give a few examples.

In my view, in order for the Dunsmuir understanding of reasonableness to apply, there must be reasons and a rationale behind a decision. Unfortunately, this was set aside in Newfoundland and Labrador Nurses, and in Bernard v Canada (Attorney General) (2014) SCC 13. I also believe that legislative intent is still relevant, with the privative clause providing a strong suggestion that deference applies (see Dunsmuir, at para 52), and a right of appeal indicating otherwise. That is why, in my view, it is not acceptable to collapse appeal and judicial review, contrary to what was held in Mouvement laïque québécois v Saguenay (City), 2015 SCC 16. Professor Daly mentions that the leave requirement for an appeal and the differentiation between questions of law and questions of fact reveal an intention to have the question addressed by the courts. I agree.

In the Sageunay case, the court found that the presumption of deference had been rebutted; but I do not think there is or should be a legal presumption. The presumption of deference came from Alberta Teachers. As I understand Dunsmuir ― a necessary qualification, because I know my co-author signed on to the reasons in Alberta Teachers! ― we insisted on a contextual approach with general guideposts, which is inconsistent with a presumption of deference across the board. We simply said that, generally, reasonableness would apply in some circumstances (at para 54). We certainly did not say that correctness would no longer apply except in the case of four categories of decisions; the so-called correctness categories were examples of cases where correctness was obviously required. Beyond those categories, context would determine when correctness would be applied, and expertise would play a key role in those determinations. I might add that we did not say that expertise would be presumed, as some subsequent cases have held; in my opinion, deference had to be earned and justified in the context (at para 49). Deference is imperative for “processes and determinations that draw on particular expertise and experiences”, but not for all questions of law, merely because the question is raised by a decision-maker’s home statute. As Justice Slatter of the Alberta Court of Appeal put it, “these signposts were never intended to be hard and fast categories, and the standard of review analysis remains sensitive to the statutory and factual context.” Edmonton East (Capilano) Shopping Centres Limited v. Edmonton (City) 2015 ABCA 85 at para 23.

It also seems to me that some of the decisions that followed Dunsmuir were not based on a consistent principled approach, whether it be that in Dunsmuir or another; it seems clear to me that, in at least some cases, the Court wanted to expedite affairs that had dragged on for too long, and in the process, lost sight of the need for consistency (see Bernard, Canadian Human Rights Commission).

Indeed, I think there have been too many decisions that have cut against what we were trying to achieve in Dunsmuir, or at least have proceeded on an understanding of administrative law to which I do not personally subscribe. I did not expect the court to give leave soon after Dunsmuir to so many applicants; I thought it would give lower courts time to experiment so that future necessary changes could be better identified. I personally regret that the court tried to adjust the Dunsmuir approach so soon, and that it made decisions that were, in my view, inconsistent with Dunsmuir, while purporting to apply it. In my view, this created unnecessary confusion.

Suffice to say that there have been many decisions made since Dunsmuir that I would not have personally made. Differences of opinion are to be expected. I respect that. To a certain extent, this reflects the complexity of the subject, the wide variety of cases that may come before the Court, and the difficulty of creating a comprehensive solution that will suit every judge and work for every case in a field such as this. Whether the more significant departures reflect the limits and errors of the authors of Dunsmuir, a misapplication of it by subsequent judges, or a deeper disagreement with the project itself, I cannot say. The reality is that I cannot force others to follow the understanding of Dunsmuir that I would want them to follow, much less to resolve its unanswered questions and unavoidable ambiguities as I would want them resolved. And while that can be frustrating at times, it might ultimately be for the best.

That is because our common law system of judging depends on forging a consensus that persists over time, and proceeds on the assumption that the wisdom of judges collectively, acting incrementally, are better than a single judge dictating law for all time. While each individual judge is fallible and each judgment is flawed in the eyes of some, we must have faith in the collective abilities of the judiciary to work through and get us ever closer to where we should be. Like democracy as a system of government, I believe this widely dispersed, common law system is the worst possible process for judicial law making, except for all the others.

It is for this reason that while some might regret that our decision in Dunsmuir was incomplete or left important questions unanswered, I do not. I understand those who express this regret but can only say that it is not possible to produce such comprehensive and definitive answers to such monumental questions. All that we could do, in our short time on the Court, is to attempt to provide a theoretically sound and practical framework for the application of judicial review, and then to try to apply those principles in subsequent cases, to the best of our ability. I will leave it to others to judge our success in that project – the reviews appear to be mixed – and to the courts to do all that they can to improve upon that project moving forward. I have faith that they will do so to the best of their ability, as we attempted to do with ours.

Looking past Dunsmuir: Beginning Afresh

Imagining stable and generally acceptable administrative law doctrine

The Hon. Justice David W. Stratas,
Federal Court of Appeal

The views expressed in this post are the author’s own and are offered for education and discussion purposes only.

Introduction

In my first article for the Dunsmuir Decade series, “A Decade of Dunsmuir: Please No More,” I suggested that Dunsmuir should no longer be followed. But what should take its place?

To some extent, I have already explored this: D. Stratas, “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency,” (2016), 42 Queen’s L.J. 27 (available online here).

To create a reliable, stable law of substantive review, we need to: (i) identify settled doctrine and well-accepted principles; (ii) deduce the operational rules from them, and (iii) take into account relevant, widely accepted judicial policies. 

Identification of settled doctrine and well-accepted principles

This step builds the solid and stable foundation upon which one can deduce operational rules to regulate this area of law.

As explained in my first article, operational rules developed in this way have every prospect of widespread acceptance, permanence and consistency of application. On the other hand, operational rules constructed out of judges’ personal views and say-so are not likely to survive the next set of judges on the court.

For too long in this area of law, judges have set out operational rules based on their own personal views of the proper relationship between the judiciary and administrative decision-makers and their own freestanding opinions—not well-settled doctrine and well-accepted principles of a longstanding and durable nature.

As we shall see, the settled doctrine and well-accepted principles that underlay this area of law aren’t just longstanding and durable. They are fundamental constitutional principles as well.  This adds force to the operational rules logically deduced from them. 

Some doctrine and well-accepted principles

Fortunately, settled doctrine and well-accepted principles are not hard to find. Dunsmuir did some of the work for us (at paras. 27-31).

Dunsmuir told us that two principles lie at the heart of judicial review and animate it: legislative supremacy and the rule of law.

The U.K. Supreme Court recently affirmed this same idea: Michalak v General Medical Council, [2017] UKSC 71; and see commentary here.

Legislative supremacy suggests that laws passed by legislators must be obeyed. The rule of law suggests that administrators must comply with certain time-honoured standards concerning decision-making processes and substantive outcomes.

The principles of legislative supremacy and the rule of law sometimes can pull reviewing courts in different directions: in some cases, the former tells us that legislatively created bodies with legislatively bestowed jurisdiction must be left alone to the extent the legislation provides (e.g., where the legislation contains a privative clause), but the latter tells us that courts can interfere if certain decision-making standards are not met. Sometimes these principles work in harmony (e.g., where the legislation allows for a full right of appeal).

There is a corollary of these two principles. The corollary also has constitutional force. Our law has a fundamental ordering, one so well-accepted that if any judges do not accept it, they ought to quit and run for public office instead. The principle? Unless valid constitutional concerns are present, laws passed by the legislators bind all, including judges: Imperial Tobacco. Judge-made law must work within the parameters supplied by legislation and cannot oust legislation: see the general discussion in D. Stratas, “The Canadian Law of Judicial Review: Some Doctrine and Cases” (October 21, 2017 version) at pp. 9-14 and 77.

Another principle also springs from the principle of legislative supremacy. But for clarity it is best identified as a separate principle. Where the legislator has vested decision-making power in an administrator and judicial review lies to a reviewing court, administrators and reviewing courts have two different, exclusive roles. Administrators are the merits-deciders and reviewing courts are the reviewers: see discussion in cases such as Access Copyright  at paras. 17-20; Bernard at paras. 17-19; Gusto TV at para. 11; Robbins at para. 17; Tsleil-Waututh at paras. 85 and 87. Each, bound by law, must stick to its role.

A fourth principle is the nature of the separation of powers. Like legislative supremacy and the rule of law, this too is a constitutional principle: Judges’ Reference; Babcock at para. 54.

How does separation of powers play out? In our system of government, government decisions can be placed on a spectrum.  At one end are legislators and their decisions to make laws. Then there are decisions by others, sometimes legislative in nature, on truly political matters or tough political questions about who gets what privilege or grant; in consideration here are political determinations and the government’s view, sometimes ideological, of what is best for all. A little further over are decisions, sometimes legislative in nature, on broad policy matters. Even a little further over are decisions on broad policy matters where some of the policies are informed by laws on the books. Further over are decisions based on a mix of policy matters, legal considerations such as the interpretation of legislation and the adjudication of rights and legal entitlements. Even further over are matters even more in the realm of fact-finding and legal adjudication, devoid of policy content. And then there are decisions pretty much indistinguishable from the matters courts typically handle, matters firmly in the realm of fact-finding, ascertainment of the law and application of the law to the facts, with a view to settling rights and legal entitlements without regard to policy considerations. And then, finally, at the other end of the spectrum there are courts adjudicating rights and entitlements.

Logically, at the legislative end of the spectrum, one would expect that courts would be reluctant to interfere. And absent constitutional concerns, they can’t on the grounds of justiciability. But go a little further in and we find administrators whose decisions are justiciable but who decide matters in a way that is quite alien to what courts do. Way at the other end, just before we reach the courts, one would expect that administrators such as these could be policed quite closely by courts; they are deciding matters and deciding in a way that is pretty much indistinguishable from what courts do.

Put bluntly, at one end, the matters being decided are not in the ken of the court or in its wheelhouse. And at the other, they most certainly are. This has obvious relevance to the intensity to which courts should review various administrative decisions. 

Deducing operational rules from the doctrine and principles: an introduction

Before deducing operational rules from the doctrine and principles, we must consider what sort of operational rules we ought to have in this area of law.

The consideration of this, below, draws upon a more complicated and vigorous debate in the United States concerning the desirability of rules, standards and principles to regulate subject-matters: those interested in pursuing this further can begin, e.g., here and here, and this is just the tip of a large iceberg.

For our purposes here and to keep things simple, I will posit that operational rules can come in two types: rigid and tangible rules and looser, more conceptual, flexible rules.

An example of the former is the test for an interlocutory stay or injunction: RJR-Macdonald. There, one must satisfy three rigid, tangible requirements.

An example of the latter is the test in negligence for determining whether a defendant has fallen below the standard of care expected of persons in the defendant’s position. To the extent that definition of the concept is required, the definition develops as cases are decided over time and it is discovered through good common law method. This is not an area where judges are shackled by a multi-branch test with rigid, tangible requirements that must be met. In the end, judges know the concept and they are trusted to apply it to the cases before them.

In the area of standard of review—determining the extent to which reviewing courts should interfere with an administrators’ decision—what’s best?

A scheme where there are a set number of categories—say, just two—with tangible rules about when each applies? And no flexibility within the categories to adjust the intensity of review? Just two intensities of review, and no others?

Or a more flexible, conceptual, non-categorical approach, one where we recognize that there is a spectrum of intensities of review that vary according to the context?

In the area of appellate review under Housen, the binary categories of review (correctness or palpable and overriding error) depending on whether the appellate court is dealing with questions of law, mixed fact and law, or pure fact makes sense because the context is relatively static. But the substantive review of administrators’ decisions must be different. A more flexible, conceptual, non-categorical approach makes sense because, as explained in the discussion of the separation of powers, above, the administrative context varies so sharply.

The contributions to the Dunsmuir Decade series suggest that most of our leaders in administrative law support a greater reliance on context for determining the extent to which reviewing courts should interfere with administrators’ decisions. I have found no wholesale endorsements of the presumptions set out in Dunsmuir. In academic papers, three of our most well-regarded and knowledgeable administrative law scholars agree that a more contextual approach is apt: P. Daly, “Struggling Towards Coherence in Canadian Administrative Law? Recent Cases on Standard of Review and Reasonableness”; L. Sossin, “The Complexity of Coherence: Justice LeBel’s Administrative Law” and G. Heckman, “Substantive Review in Appellate Courts Since Dunsmuir” (2010), 47 Osgoode Hall L.J. 751 at 778-79.

Judicial policies

In designing operational rules to govern this area of law, universally-accepted judicial policies about how legal proceedings should unfold—not the just the say-so’s and on-the-spot opinions of a particular constellation of judges at a particular moment about social and political values—should play a role. Where the doctrine and principles suggest a number of possible operational rules, the one that best advances these policies should be chosen.

The sorts of judicial policies I am thinking about are access to justice, judicial economy and minimization of litigation expense, as explained in leading decisions such as Hryniak, Danyluk and Housen.

And related to this are insights gleaned from a greater appreciation of the nature of administrative law and the values that animate it, values that judges in this area of law need to draw upon in exercising their discretions: see P. Daly, “Administrative Law: A Values-Based Approach” in J. Bell et al (eds.), Public Law Adjudication in Common Law Systems: Process and Substance (Oxford, Hart Publishing, 2015); and see how administrative law values were deployed to shape operational rules in Tsleil-Waututh, Wilson (F.C.A.) at para. 30, and Bernard.

In considering judicial policies, care must be taken not to elevate any one consideration too far and create operational rules that no longer reflect settled doctrine and well-accepted principles.

For example, minimization of litigation expense might cause some impulsively to advocate for operational rules that are hard-and-fast and simple to apply; some contributors to the Dunsmuir Decade series seem all too ready to go there, for the sake of simplicity.

But simple, one-size-fits-all approaches are at odds with the broad and varied nature of administrators, their decisions and their mandates. Nor are they rooted in settled doctrine and well-accepted principles and, thus, they lack persuasive force and permanency.

The result? Injustice is seen, judges start to chafe, they construct ad hoc exceptions upon exceptions to address the injustice, the longed-for simplicity is lost and, ultimately the operational rules, lacking persuasive force and permanency, join the graveyard of failed approaches over the last few decades.

We’ve seen this all-too-many times. The approach Dunsmuir replaced was called “pragmatic and functional.” It was replaced because it turned out to be neither pragmatic nor functional. The desire in Dunsmuir was about greater simplicity. So how did that work out?

Rigid, inflexible rules aimed at simplicity can be a siren song leading to disaster. And do not underestimate for a moment the simplicity that can emerge from clearly stated operational rules of a conceptual nature founded on definite, well-understood, longstanding doctrine and principles. 

Some possible deductions

What can be deduced from all of the foregoing?

1. Let’s begin with the idea that legislatively created bodies with legislatively bestowed jurisdiction must be left alone to the extent the legislation provides. Let’s combine this with the idea that laws passed by legislators bind all, even courts.

This suggests that reviewing courts must take note of what legislators have said in their legislation. In short, legislative interpretation must be a key part of the exercise of judicial review. In terms of when a reviewing court may intervene, what did the legislature intend?  (By the way, Dunsmuir said this at paras. 30-31, but Dunsmuir’s presumptions and contextual factors and cases post-Dunsmuir have largely ignored this.)

We interpret legislation—discover its authentic meaning—by examining its text, context and purpose: Rizzo and Rizzo; Bell ExpressVu; Canada Trustco. The focus is on what the legislators—the people with the exclusive right to make laws under ss. 91 and 92 of the Constitution Act, 1867—enacted, not what we would like to see enacted. We must do this neutrally and dispassionately without injecting into the analysis our own preconceptions about the extent to which courts should interfere with administrators’ decisions, our opinions about what is best for Canadians or our own musings about what we personally think is sensible and practical: Williams at paras. 41-52; Cheema at paras. 76-80.

This is something courts are very experienced in doing.

Implications can follow. While legislative text may permit a full appeal, this does not mean that a reviewing court may interfere whenever it wants. The legislation, properly interpreted, may suggest that restraint by the reviewing court is in fact warranted.

Where a securities commission makes a decision relying upon a complicated, relatively non-legal, policy-based understanding of the securities industry, did the legislature really intend that courts can interfere with the decision whenever they want to? When the legislation says that an administrator operating in a field that is outside of the ken of the courts can grant a licence when “it is of the opinion that it is in the public interest,” isn’t the legislator really saying that it is for the administrator to decide what is in the public interest with a minimum of interference?

2. Next, the rule of law.

Legislative text can bar an appeal or a review, for example by way of a clause called a “privative clause”. But that does not mean that a reviewing court can never interfere. As explained above, as a matter of legislative interpretation, the legislation, properly interpreted, may suggest that interference by the court in limited circumstances is warranted.

And even if the legislation truly bars appeals in all circumstances, the rule of law allows courts to interfere nonetheless: Crevier; Dunsmuir at para. 31.

But rule of law concerns vary in size and shape. Cases show that the courts’ sensitivity to rule of law concerns is accentuated by decisions that have significant impact on the individual. The more drastic the measure upon an individual, the more likely the court will be vigilant and ensure that the administrator has complied with basic and fundamental substantive and procedural standards of decision-making.

All are subject to law. No one can be a law unto themselves. All must be accountable to the public they serve. Accountability is a particularly important concern for administrators who are emanations of executive government, i.e., part of government as a whole.

Thus, administrators cannot be immunized from meaningful review by reviewing courts nor can they conduct themselves in a way that shields their decisions from review: Crevier, above; and see discussion in Tsleil-Waututh. This has implications for the giving of reasons: administrators must explain themselves sufficiently in order to be accountable to the public and they must say enough to make review possible.

3. In developing and identifying operational rules, courts should respect the third principle—that of the separate roles of the administrator as merits-decider and the reviewing court as reviewer. Operational rules cannot place the reviewing court in the position of merits-decider. This must shape some of our operational rules—e.g., rules concerning the admissibility of evidence in reviewing courts and the role that reviewing courts should play in coming up with reasons that the administrator should have given.

4. Let’s recap some of the above. Legislative interpretation is case specific. As mentioned above, the rule of law assumes greater or lesser prominence depending on the nature of the case. Different types of administrators have different types of decisions. And administrators occupy different positions in the spectrum of administrative decision-makers, at one end completely different from courts and what they do and at the other end virtually the same.

This suggests that the extent to which a court can interfere with an administrative decision must be a qualitative, conceptual assessment that results in a sliding scale.

It follows from the foregoing that the determination of the extent to which reviewing courts should interfere with an administrators’ decision—the intensity of review—is like a dimmer switch, not an on-off switch. Slotting cases into rigid single-standard categories like correctness and reasonableness is inapt.

A few words about a longstanding, uniquely Canadian predilection

For decades now, Canada has dealt with the intensity of review by constructing artificial categories of review and forcing judges to ram their cases into them. We also seem to venerate a superstructure of arcane rules decreeing what goes into what category. Chaos and constant revision is the result.

So we’ve suffered through categorizations into jurisdictional error and non-jurisdictional error, legislative, administrative, quasi-judicial and judicial decisions, categories of correctness, reasonableness and patent unreasonableness and, now, categories of correctness and reasonableness.

Consider for a moment what’s more likely to be true: as a result of Dunsmuir, Canada has found the magic elixir, the idea of two inflexible, single-standard categories of review, and everyone else in the world is silly not to do the same, or Canada is an outlier that stubbornly clings to an idea that everyone else has rejected for good reason?

And what’s the point of all the gymnastics and the spilling of so much ink on whether the standard of review is correctness or reasonableness—and then just doing correctness anyway?

And, with apologies to the majority in Edmonton East, what is wrong with contextual approaches anyway? What I advocate (see below) is not unlike the contextual approach of Baker for determining the level of procedural fairness owed. And Baker has brought relative calm to the law of procedural fairness. A contextual approach can do so here as well. The test for negligence is a contextual approach and no one is calling that law a never-ending construction site; it is reasonably settled in 99.9% of the cases it regulates. Over time, case-by-case, the common law gives a good measure of certainty and predictability.

Some suggested operational rules

From the foregoing, I suggest the following operational rules for this area of law. They are supported by settled doctrine, well-accepted principle and judicial policy. Because of that, if they are adopted, have every chance of widespread acceptance and permanence.

1. The intensity of review must be on a sliding scale that varies according to the terms of the legislation, the breadth of the discretion granted, the prominence of rule of law considerations (including the drastic nature of the decision upon the individual), the nature of the decision-maker and the nature of the decision. Administrators have varying margins of appreciation or ranges of what is acceptable depending on these circumstances.

Avoid rigid tests on this. Let reviewing courts stir all these factors into a pot and decide on the intensity, allowing them to express it in general but still helpful terms. Examples: Farwaha; Boogaard; Mills; Re:Sound; Delios; Abraham; Almon Equipment; Erasmo; Walchuk; Emerson Milling; and see P. Daly, “Struggling Towards Coherence in Canadian Administrative Law? Recent Cases on Standard of Review and Reasonableness” and D. Stratas, “The Canadian Law of Judicial Review: Some Doctrine and Cases” (October 21, 2017 version) at pp. 57-73. Of these, perhaps Boogaard contains the most comprehensive analysis and weighing of factors that can affect the intensity of review.

Indeed, some of these bear a remarkable resemblance to cases in other Westminster jurisdictions whose law is not as chaotic as ours: see, e.g., Wolf v Minister of Immigration, [2004] NZAR 414 (N.Z.H.C.); AI (Somalia) (“the lawfulness of the exercise of powers by a body that is unusually constituted must be judged against its nature and functions, powers and duties and environment in relation to those of other bodies”); Rotherham Metropolitan Borough Council v Secretary of State for Business Innovation and Skills, [2015] UKSC 6; R. v. Secretary of State for the Home Department, [2014] UKSC 60. This suggests that the Canadian cases, above, are on to something useful.

And let’s be honest: cases decided under the reasonableness standard do exhibit variable intensities of review. We see fussy review, not-so-fussy review, and correctness review.  This operational rule reflects what judges, cognizant of the relevant factors, are inclined to do anyway.

Under the approach I suggest, the strong, judge-made presumption of reasonableness adopted by the majority in Edmonton East would disappear, with legislative interpretation playing a greater role in the analysis amongst other factors.

Overall, this would result in more correctness review. Legislative regimes where there is no privative clause (often with a full right of appeal) and other legislative indicators of correctness review will often lead to correctness review; on the other hand, the assignment of power to administrators in specialized areas to grant to withhold licences or approvals based on public interest criteria will often lead to a more deferential review. A good discussion of this is here. The dissenters in Edmonton East are far closer to the approach I suggest.

A return to the old, discarded approach of correctness review for “jurisdictional questions,” recently advocated by a minority of the Supreme Court in Guérin, should be rejected for all the good reasons offered both long ago (see N.B. Liquor at p. 233) and recently (Halifax); and see the compelling majority reasons of the U.S. Supreme Court in Arlington.

“Correctness review for jurisdictional questions” is an example of the siren song of simplicity I spoke of above, one that leads to unprincipled word games and arbitrariness. Under my suggested approach, matters that the Guérin minority considers to be “jurisdictional” and that the administrator “must get right” are going to be matters of legislative interpretation that admit of few interpretive options, i.e., matters on which there the administrator will have little or no margin of appreciation. The Guérin minority could easily live with the operational rule I propose here; and it would be better and offer more permanence because it is based on settled doctrine and well-accepted principles.

2. Make more tangible and rigorous the assessment whether a decision passes muster under deferential standards of review. Identify specific circumstances that can take a decision outside the range of acceptability and defensibility. The cases cited under point 1, above, all do this. Examples include: disobedience with constraining legislation such as legislative recipes that must be followed (Almon Equipment and Emerson Milling); disobedience with mandatory principles such as procedural fairness, constitutional standards, other fundamental standards such as the need for reconciliation with Indigenous peoples and First Nations (Canadian Human Rights Commission); disobedience with court cases that are directly on point and cannot be distinguished on the facts or policy (Abraham; Emerson Milling). For a good approach to deferential review of administrators’ legislative interpretations, see Allen. For more, see D. Stratas, “The Canadian Law of Judicial Review: Some Doctrine and Cases” (October 21, 2017 version) at pp. 57-63.

Certain indicia or badges of reasonableness and unreasonableness can be identified from the case law. These can provide reviewing courts with useful illustrations: Delios at para. 27; Farwaha at para. 100; Re:Sound at paras. 59-61; Boogaard at para. 81; Forest Ethics at para. 69; and for a more complete list of badges, see D. Stratas, “The Canadian Law of Judicial Review: Some Doctrine and Cases” (October 21, 2017 version) at pp. 63-66.  This promotes certainty which facilitates access to justice by fostering predictability of result.

3. End de novo appeals to appellate courts. Judicial economy, access to justice and minimization of expense require this. Absent legal error, first instance reviewing courts deserve deference to their heavily fact-based assessments of the intensity of review. In other words, repeal Agraira and import Housen to govern appellate review.

4. Reviewing courts must stick to their role and not delve in the merits. Their job is to ensure that administrators required by legislators to grapple with a problem have in fact grappled with it. They are not to do the administrator’s job. Therefore, it is no part of the reviewing court’s function to redraft, correct or supplement administrators’ reasons for decision. Neither is it their role to detect error on the administrator’s part and then cooper up the outcome reached by the administrator—an outcome that an administrator might not have reached had it known of its error.

5. A corollary of the relative roles of reviewing courts and administrators is that administrators’ reasons must be sufficient to permit review and to fulfil their obligations of public accountability. A standard similar to that proposed in earlier, lower-court cases on adequacy of administrators’ reasons is designed to meet those objectives and, thus, is more doctrinally sound. Note that these cases sit comfortably with this recent U.K. Supreme Court decision on point.

6. The evidentiary and procedural law of judicial review must reflect the contrasting roles of reviewing courts as reviewers and administrators as merits-deciders. To a large extent, this is happening in the Federal Court of Appeal: see Access Copyright at paras. 17-20, Bernard at paras. 17-19, Gusto TV at para. 11, Robbins at para. 17, Tsleil-Waututh at paras. 85 and 87; and see cases from other jurisdictions referred to in these cases.

7. Judicial economy and efficiency require reviewing courts to take more seriously their remedial discretion. Although a decision is liable to be set aside and sent back for redetermination, that needn’t happen: MiningWatch Canada; Mobil Oil. Circumstances may suggest otherwise. Would any purpose be served in sending the matter back? Realistically speaking, is there only one correct or acceptable result and so there is no point in sending it back? Does chronic or severe maladministration by the administrator mean that the matter should not be sent back but rather should be determined, exceptionally, by the reviewing court? Are there important practical reasons why it should not be sent back? If it is sent back, can the reviewing court, while respectful of the administrator as the merits-decider, still offer guidance by giving fulsome reasons or imposing terms. See generally D. Stratas, “The Canadian Law of Judicial Review: Some Doctrine and Cases” (October 21, 2017 version) at pp. 102-109.

Deduced logically from settled doctrine and well-accepted principle and leavened by contemporary judicial policy, these operational rules will have real staying-power. They give us the best chance of finally ending the tumult and chaos that has afflicted this area of law for decades.

Personal comments

I am one of the last contributors to the Dunsmuir Decade series. On behalf of all of the contributors and on behalf of the administrative law community I would like to offer my personal congratulations and thanks to Professor Daly and Professor Sirota.

I congratulate them both for organizing and carrying out this Dunsmuir Decade series. Collectively, the articles are most illuminating. They have assisted the Bar, academia and the judiciary in understanding the latest issues in the law of substantive review of administrators’ decisions. We are all better for this.

Their blogs, Administrative Law Matters and Double Aspect, are such a service to the legal community. They keep us acquainted with important and interesting developments in administrative law and more generally in public law. To get such prompt insights on the latest legal developments from two cutting-edge experts is a real privilege. Even when we disagree with them, they cause us to reflect, question our preconceived notions, and think about what is correct. Because of the generous work of Professor Daly and Professor Sirota, often many of us end up in a better place in our own work.

Congratulations and thanks!

The Paradox of Simplicity

Dunsmuir failed to simplify administrative law; the framework that replaces it must account for the administrative state’s complexity

In Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, the Supreme Court sought to bring clarity and (relative) simplicity to the law of judicial review of administrative decisions, which as it acknowledged with some understatement “ha[d] not been without practical and theoretical difficulties, [or] free of criticism”. [39] But subsequent decisions, digesting, developing, and departing from Dunsmuir, revealed the futility of its promise of simplifying the law of judicial review in Canada. Practical and theoretical difficulties, and criticism, still abound ― at least when it comes to review of administrative decisions on questions of law. The law on this issue, as other contributions to this symposium note, is in a parlous state. The Supreme Court’s decisions fail to provide guidance to litigants and to lower courts. They are difficult to understand, unrealistic, and appear to do something very different from what they say they do. A fundamental re-assessment, of a magnitude at least equal to that of Dunsmuir, seems to be inevitable.

In my view, one reason why Dunsmuir failed to simplify and clarify the law of judicial review once and for all is the weakness and incoherence of the justifications it provided for judicial deference to administrative decisions. In this post, I review these justifications and argue that none of them can account for the broad scope of deference that Dunsmuir and subsequent cases mandate. Any attempt to reformulate the law of judicial review in the future must acknowledge the weakness of the available explanations for deference, and can only require courts to defer to administrative decision-makers in narrow circumstances where such deference would be well and truly justified.

* * *

Dunsmuir proclaimed that “determining the applicable standard of review is accomplished by establishing legislative intent”. [30] If courts were sometimes, or often, to defer to administrative decision-makers’ interpretations of law, that was because legislatures wanted them to do so. “The existence of a privative or preclusive clause”, [52] providing that an administrative decision was not to be interfered with by the judiciary, was the indication par excellence of the enacting legislature’s desire to commit the determination of issues arising out of the operation of a statutory scheme to a tribunal rather than a court.

But Dunsmuir itself and subsequent cases undermined what the simplicity of a hypothetical regime where privative clauses trigger deference ― and their absence, logically, leads to non-deferential review. For one thing, as Dunsmuir acknowledged, to the extent that they purport to oust judicial review completely, privative clauses cannot be given their full effect, because under the constitution “neither Parliament nor any legislature can completely remove the courts’ power to review the actions and decisions of administrative bodies”. [52] But even putting this constitutional limitation to one side, under the Dunsmuir framework a privative clause is not the only signal of deference. Indeed, according to Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, even a provision creating a right of appeal on a question of law, which seems like an explicit indication that a legislature does not want courts to defer to administrative decisions, is not enough to oust a “presumption of deference”, which thus takes on a life of its own, unmoored from legislative intention.

Another reason for judicial deference to administrative decisions, according to Dunsmuir, is that “certain questions that come before administrative tribunals” ― including questions of law ― “do not lend themselves to one specific, particular result”. [47] The multiplicity of possible answers to the questions facing administrative decision-makers combined with the need to “respect … the legislative choices to leave some matters” [49] to their arbitrament to justify deference.

The problem here is that there is little reason to think that the sets of questions of law that “do not lend themselves to one specific particular results” and of questions on which deference is required under the Dunsmuir framework (or the Dunsmuir framework as modified by subsequent Supreme Court decisions) are identical. Dunsmuir called for deference “where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” [54] or related common law rules. Yet the great variety of statutes setting up administrative tribunals, and indeed of particular provisions within any one of these statutes, makes it unlikely that all of the interpretive questions to which they give rise lack definitive answers. Perhaps the suggestion is that the very legislative choice of setting up administrative tribunals to address these questions means that legislatures think that these questions lack definitive answers, but that too seems implausible. A legislature may wish to set up an administrative tribunal for any number of reasons that have nothing to do with the existence or not of clear answers to interpretive questions: cost-effectiveness, accessibility, the need to execute a law (and not just adjudicate disputes), even patronage.

Finally, Dunsmuir insisted that courts need to defer to administrative decision-makers out of “respect … for the processes and determinations that draw on particular expertise and experiences”. [49] Since then, as the dissenting opinion in Edmonton East noted, “the notion of ‘expertise’ has become a catch-all trigger for deferential review”, [82] even though “this presumption of expertise has rarely been given much explanation or content in our jurisprudence”. [83] Meanwhile, the majority opinion suggested that expertise was independent of the qualifications or functions of administrative decision-makers. The very existence of a specialized tribunal made it an expert.

Perhaps the popularity of the presumption of expertise is due to the Supreme Court’s realization that the other justifications for deference are unpersuasive. Perhaps it is a convenient means to disclaim responsibility for decisions taken elsewhere (similarly, for instance, to the Supreme Court’s insistence, starting in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101, on deference to first-instance judges’ findings of legislative fact). Other contributors to this symposium challenge the notion of administrative expertise as a foundation for deference in greater detail. Suffice it for me to say that, just like legislative intent and the impossibility of a definitive answer, expertise is often a judicial fiction and thus an unconvincing justification for deference.

All this is not to say that there are no cases in which deferential review on a reasonableness standard would not have been intended by a legislature setting up an administrative tribunal, or in which there is indeed a multiplicity or a range of plausible answers to legal questions, or in which the administrative tribunal is (more) expert (than the reviewing court). My point, rather, is that, at a minimum, these justifications do not support deference across the board when administrative decision-makers are interpreting their “home statutes”, which Dunsmuir, and especially cases like Edmonton East require. Indeed, these justifications can operate at cross-purposes, as when the legislature authorizes appeals on questions of law from the decisions of expert tribunals, or when administrative decisions are insulated by privative clauses from review of their answers to questions which do in fact “lend themselves to a specific result”. The Supreme Court’s jurisprudence suggests that all these conflicts must be resolved in favour of deference, but it does not provide any explanation for why this is the case.

* * *

The Supreme Court, presumably, can see these difficulties as plainly as its critics. They might account for at least some of the frequency with which ostensibly deferential review exhibits no sign of deference at all ― another issue that other contributions to this symposium highlight. The only way forward, in my view, is for the Court to allow its explanations to match its decisions, and abandon the pursuit, or the pretense, of across-the-board deference. If deference is ever appropriate, it can only be justified with reference to the circumstances of particular cases. This is not the place for a full exploration of the circumstances in which courts ought to defer to administrative decision-makers on questions of law, if indeed there be any. I will, however, venture a few observations.

First, it should not be presumed that deference is due to all the decisions of a particular administrative tribunal or type of tribunal, or to tribunals interpreting a type of statute. As the dissent in Edmonton East pointed out, a single tribunal may be called upon to decide different types of issues, some of which implicate its expertise or involve policy considerations, while others do not. In particular, even if deference is appropriate to tribunal decisions fleshing out the meaning of vague terms such as “just”, or “reasonable”, or “in the public interest”, it does not follow that it would be called for when the same tribunals answer questions about, say, the relationship between provisions of a statute (even their “home” statute) or two related statutes. The former type of question calls upon the tribunals’ specialized knowledge of the standards of justice or reasonableness, or the requirements of the public interest in the field they regulate. The latter is concerned with more general legal skills which courts possess no less, and often more, than tribunals.

Further, even when dealing with a type of question answers to which would normally attract deference, administrative decision-makers are sometimes so constrained by judicial precedent that their decision-making is not meaningfully different from that of a trial court striving to apply appellate authority. The decision that led to in Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v Caron, 2018 SCC 3 is a good example, as the relevant analysis concerned the scope of the jurisprudence of the Québec Court of Appeal. In similar circumstances, a trial court’s conclusions would not be entitled to any deference on appeal. Why should the administrative decision-maker’s? Assertions to the effect that judicial review and appellate review are not identical are not convincing in those cases where the nature of the decision under review is such that they practically are.

Finally, and more substantively, it is important to recall what is at stake in judicial review of administrative decisions. Proponents of deference often think of it as a means of protecting the decisions of an administrative state devoted to economic regulation in the name of social justice, or at least of enlightened technocracy. But there is much more to the administrative state economic than labour boards or arbitrators, whose decisions supply a disproportionate share of material for the Supreme Court’s administrative law decisions. The law of judicial review of administrative action applies also to the review of correctional authorities, professional licensing bodies, immigration officers, human rights tribunals, even universities and municipalities, and much else besides. People’s ability to enjoy their property or to practice their profession, their right to enter into or to remain in Canada, even their liberty (or at least the conditions of their detention, which the Supreme Court recognizes as a liberty interest) can depend on the way in which an official or a body exercising powers (purportedly) delegated by a legislature interpret the law. Is it enough to tell them, as Dunsmuir effectively does, that it is sufficient that the interpretation that causes them to lose these rights or benefits be justified, transparent, and intelligible?

* * *

Dunsmuir sought to simplify Canadian administrative law by setting out a unified analytical framework based on “the structure and characteristics of the system of judicial review as a whole”. [33] As part of this process, it set out a number of justifications that were supposed to support a wide-ranging policy of judicial deference to administrative interpretations of law. Well-intentioned as it was, the attempt did not succeed. The justifications advanced in Dunsmuir cannot justify deference in many cases where the Supreme Court said it is due. The weakness of, and occasional conflicts among, the justifications for deference advanced in Dunsmuir have fostered renewed confusion in the law of judicial review.

It is important that this confusion be eliminated. Canadian administrative law is reaching a point where it can scarcely be called law at all, such is its inability to provide guidance to those who must apply it or predict how it will be applied. Yet ― perhaps paradoxically ― the way to clarity passes not through the application of a single all-encompassing principle, but through greater attention to the circumstances of individual cases. As these circumstances vary, so must the applicable rules. It is Dunsmuir’s attempt to deny or at least avoid this complexity that is responsible for its failure.

The Dark Art of Deference

Dubious assumptions of expertise on home statute interpretation

Mark Mancini, Clerk at the Federal Court of Canada

The views expressed in this post are the author’s own and do not reflect, in any way, the views of the Federal Court of Canada.

The 10th anniversary of Dunsmuir presents an opportunity to revisit perhaps its most controversial aspect: the seeds it planted for a presumption of deference on home statute interpretation. As Professor Daly notes, the presumption is a “black hole” which engulfs questions of statutory interpretation in administrative law: Paul Daly, “Unreasonable Interpretations of Law” in Judicial Deference to Administrative Tribunals in Canada at 235-36. To the Supreme Court, the presumption exists because  “expertise …inheres in a tribunal itself as an institution” (Edmonton East, at para 33).

In this contribution, I will engage with what I call the “dark art of deference” that Dunsmuir entrenched: the seamless transfer that courts make from expertise in policy to expertise in other matters, including statutory interpretation (Edmonton East, at para 83). The mere fact of membership in a shadowy guild of expertise does not a legal expert make.

Here, I aim to: (1) demonstrate that expertise writ large does not provide a sound justification for deference on questions of law, unless incorporated into the decision-maker’s enabling statute and (2) relatedly, argue that deference is not prescribed by extralegal justifications such as expertise, but only by statutory language, which determines the leeway a court should afford to a decision-maker. The presumption of deference, which could run against statutory language, should be abandoned.

My comments start from three propositions which are rooted in constitutional theory: (1) absent constitutional objection, legislation binds; (2) administrative decision-makers enabled by statute can only go so far as their home statute allows (3) it is a court’s job, on any standard of review, to enforce those boundaries; in American terminology, to “say what the law is” (Marbury v Madison; Edmonton East, at para 21).

***

As early as the seminal case of CUPE v NB Liquor, “expertise” has been used to justify deference on questions of home statute interpretation. Yet beyond this general proposition, Canadian administrative law history “reveals…that little work has been done to pinpoint exactly what the concept of expertise means…”: Laverne Jacobs and Thomas Kuttner: “The Expert Tribunal.” Perhaps as a result, the problems associated with expertise as a basis for deference have not been extensively explored.

Most basically, expertise may be a valid practical justification for deference, but it is hardly doctrinally valid. To treat a decision-maker’s decision as binding on the basis of expertise abdicates the role of courts in enforcing statutory boundaries. While the court still nominally retains this power under the presumption of reasonableness, the presumption is virtually irrebuttable.  As Justice Scalia once wrote:

If I had been sitting on the Supreme Court when Learned Hand was still alive, it would similarly have been, as a practical matter, desirable for me to accept his views in all of cases under review, on the basis that he is a lot wiser than I, and more likely to get it right. But that would hardly have been theoretically valid. Even if Hand would have been de facto superior, I would have been ex officio so. So also with judicial acceptance of the agencies’ views…

This criticism, compelling as it is, has not been so for Canadian courts, with Edmonton East as proof positive. Courts on judicial review do view expertise as a valid doctrinal reason for deference, and are willing to put aside their own interpretation of a statute in favour of a decision-maker’s. This could be defensible, at least practically, if courts deferred on the basis of expertise which existed empirically. But in the post-Dunsmuir world, courts do not investigate expertise empirically before determining whether the presumption of deference applies. The presumption, though justified by expertise, can exist despite it. Yet as Professor (now Premier) MacLachlan says, if expertise is to support a presumption of deference, interrogation of a decision-maker’s expertise cannot be avoided indefinitely.

In the “pragmatic and functional era” which predated Dunsmuir, the courts did not avoid the question of expertise in determining the standard of review. Even though privative clauses were given less emphasis as clear statutory signals (see Pezim and the discussion in Khosa, at para 87), there was still a focus on determining relative expertise. For example, in Pasiechnyk, the Court was faced with a question of home statute interpretation. The Court considered the composition, tenure, and powers of the Saskatchewan Workers’ Compensation Board before holding that the decision-maker was expert on the matter before it. In Pushpanathan, at para 33, the Court noted that “expertise must be understood as a relative, not an absolute concept” and reasoned that courts must conduct an analysis in each case to compare its expertise to the decision-maker’s on the matter before it.

Contrast Edmonton East, where there was an assumption of the decision-maker’s expertise, but no actual analysis. Professor Sirota calls this “post-truth jurisprudence” and justifiably so—the dissent noted that the decision-maker did not have expertise in matters of statutory interpretation, and noted that expertise acted as an unjustified “catch-all” for deference (Edmonton East, at paras 82-83).

The Edmonton East dissent points out the problem with an automatic presumption of deference.  The role of courts on judicial review, to have the last word on the statutory boundaries of administrative decision-makers, is limited to reviewing whether the presumption is rebutted. Unfortunately, Dunsmuir, let alone Edmonton East, gave little guidance on when the fortified presumption of home statute interpretation could be rebutted: see Justice Cromwell’s reasons in Alberta Teachers. If legislative intent is the “polar star” of judicial review (CUPE v Ontario (Minister of Labour), at para 149), the search for that intent is attenuated by a game of categorical whack-a-mole with the correctness categories set out in Dunsmuir.

A presumption could be a useful legal device if it were true that most administrative decision-makers were expert in matters of statutory interpretation. Perhaps, it could be argued, decision-makers develop “field sensitivity” in legal decision-making even if they are not expert at the outset.  As Professor Green notes, a presumption along these lines could save judicial review courts the transaction costs associated with conducting an exhaustive review of the expertise of decision-makers in every case.

But such a presumption is only useful if (1) the facts supporting its existence are generally, empirically true; (2) courts themselves actually conduct the analysis to determine whether the presumption is rooted in fact, as in the Pushpanathan analysis (assuming that something like “field sensitivity” could be measured empirically) and (3) there is clear guidance on how to rebut the presumption. None of these exist with the current presumption of reasonableness.

***

What is the alternative if expertise writ large is simply a bad proxy for deference in the post Dunsmuir world? The answer is that expertise could be a justification for deference, but it must be based in a statute which recognizes it with respect to the precise legal issue before the court. Professor Martin Olszynski argues that the court should adopt a presumption of correctness for home statute interpretation, based on the principle of legislative supremacy. I agree that legislative supremacy is a better justification for deference than an unsupported concept of expertise, but the simple fact that a decision-maker has been delegated statutory power is not enough to justify deference, and it is not enough to demonstrate that a decision-maker is expert. What matters is what the legislature says about the merits of the matter before the court, including whether the enabling statute codifies any indication of expertise on that matter.

The Supreme Court does not accept this position. In Khosa, at para 25 the Court noted that the mere fact of  delegation to a decision-maker justifies deference on the basis of generalized expertise. But this is imprecise. Simply because the legislature delegates power to a decision-maker says nothing about how intensely a court should review that exercise of power and it says nothing about the expertise of the delegated decision-maker. Any logical leap from the mere fact of delegation to deference is a legal fiction. As Professor Vermeule notes in his splendid book Law’s Abnegation: “The delegation fiction is modern administrative law’s equivalent of the fiction that the Queen-in-Parliament still rules England—although she is bound always to act on the advice of her ‘ministers’ ” (30).

While the legal fact of delegation is irrelevant to deference, the terms of the delegation itself are relevant. This is because a legislature may speak in capacious terms, setting out requirements for expertise in a decision-maker and justifying a wide scope of options for a decision-maker. It may also speak in narrow terms, implying the opposite. In other words, the legislature can mandate deference through language, and the court on judicial review can recognize this deference, and apply that range to the decision taken by the decision-maker. This is nothing more or less than statutory interpretation by the judicial review court; and there is no need for a complex standard of review analysis to determine the intensity of review. The Supreme Court in McLean recognized as much: sometimes, statutory language will only permit one reasonable outcome. But in other situations, where the court finds that there are multiple permissible outcomes available, a decision within the range will be legal.

This approach is consistent with the role of courts on judicial review to have a final say on the law. It is also consistent with the notion of deference “itself a principle of modern statutory interpretation” (McLean, at para 40), because a court will not interfere with an administrative decision unless the principles of statutory interpretation honestly say so. This is demonstrated on the facts of McLean. The Court upheld the interpretation of the British Columbia Securities Commission’s home statute because it fell within the range of alternatives which the statutory language could bear. On the interpretation undertaken by the Court of the text, context, and purpose of the statute, a number of reasonable options were available to the Commission, and it chose one. This meant its decision was reasonable.

The McLean approach moves us away from imputed expertise in the post-Dunsmuir world to a real analysis of the intent of the legislature. Under this analysis, there is no need for an abstracted notion of expertise justifying a lawerly presumption of deference; nor is there a need for the labels of “reasonableness” or “correctness.” There is only a need for a court to defer where there is some indication in language to do so, including a statutory indication of expertise.

This is similar to the approach to judicial review of agency determinations of law in the United States under Chevron. Under Chevron, unlike Canada’s current standard of review framework, there is no specific analysis to determine the standard of review. For all its warts, Chevron at least avoids the protracted standard of review analysis, with its attendant standards, presumptions, categories, and factors which are confusing for the most learned of administrative lawyers. Its focus is properly on the enabling statute.

In fact, Dunsmuir and its progeny complicate the fact that judicial review on questions of law is fundamentally about statutory interpretation, nothing more or less. While there may be some trepidation associated with using the principles of statutory interpretation to discern whether deference is due, this is unavoidable. If administrative decision-makers are set up by statute, we cannot avoid an analysis of the decision-maker’s statutory powers, and the principles of statutory interpretation are the best we have. The key point is that the principles should not be used to determine if the statute is ambiguous or not, à la Chevron—they should be used to determine whether the statute’s language is sufficiently “open textured” to justify deference.

To come full circle, how does this approach square with the problem of expertise? In Edmonton East, the Court listed a number of justifications for a presumption of deference, including “access to justice” and expertise. These justifications exist outside of the statutory context, in the abstract. They are not necessarily tethered to the scope of the delegation afforded to the decision-maker. However, if statutory language is the focus, expertise can be a supporting justification for deference if represented in statutory language. The problem with the current presumption of deference is that it is based on expertise which may or may not be represented in statute.

Dunsmuir, 10 years on, has instantiated the dark arts of deference into the fabric of the Canadian law of judicial review in a manner untethered to statute. This is not a welcome development. Expertise should not be a “free standing” justification for deference (Khosa, at para 84). Perhaps it is time to pull back the curtain on the dark arts and drill down to the root of the law of judicial review: statutory interpretation.