Transcending Jurisdictions

Teaching Dunsmuir in Australia

Narelle Bedford, Bond University

Australia. Canada. Kangaroo. Moose. The kangaroo and the moose are both uniquely adapted and suited to their environments. Despite these vastly different environments, the universal questions of life (movement, food and care of infants) are the same. It is in the answers to those universal questions that variations occur.

As it is with kangaroos and moose, so it is with administrative law in Canada and Australia.

I teach a full semester course in Canadian Administrative Law to Canadian students. In Australia.[i] The fact this course is offered there may be a surprise to some readers, but its existence is evidence of the impact of internationalization in legal education. The benefits of internationalization were outlined in a 2012 report on Internationalising the Australian Law Curriculum for Enhanced Global Legal Practice:[ii]

All law students’ thinking and learning is enriched by a curriculum which requires them to consider diverse approaches to common problems; to learn from differences but be alert for universals; to strive for best practice; to avoid parochialism, ignorance, and narrow‑mindedness; to cultivate the spirit and habit of open-mindedness and tolerance; and ultimately to make a contribution to advancing the common good.

Although administrative law may not be routinely thought of as a course with an international aspect, there are universal issues dealt with by administrative law in all jurisdictions – such as the regulation of executive power – that render it perfect to transcend jurisdictions. The same applies to the Dunsmuir decision.

Dunsmuir – the Australian context

The Canadian National Committee on Accreditation includes the Dunsmuir case as a prominent part of the substantive review component in the administrative law syllabus.[iii] The hurdle to teaching Canadian Administrative Law in Australia is finding ways to make it “authentic” to Canadian students who are already studying in Australia but would be seeking to return, write exams to gain Canadian accreditation and commence the journey to practice as lawyers in Canada.

Furthermore, in the book What the best law teachers do the authors identified a range of common traits amongst best law teachers that all were present regardless of jurisdiction.[iv] Amongst these was the ability to “actively engage” their students.[v] This concept has parallels to the “deep learning” (as opposed to surface learning) articulated by Professor Michael Head, who specialises in teaching Administrative Law in Australia and spent a semester at Osgoode Hall.[vi] With the key aims of authenticity and active engagement, I therefore offer two observations on teaching Dunsmuir in Australia.

Observation One – Identify the universals

By identifying the universals, even if the universals are questions ― such as how do the rule of law and legislative supremacy interrelate ― students can actively engage with topics and see their relevance regardless of the jurisdiction in which they may ultimately practice.[vii] Dunsmuir is relevant to all law students as it provides a structured consideration of key universal questions, for example deference, even though the answers may differ as between jurisdictions. Within deference, Dunsmuir grapples with questions of why, how, and when should courts defer to administrative decision‑makers.[viii] Through this discussion, broader and more fundamental questions inevitably arise, for instance what may be the parameters of judicial review itself. Moving beyond these questions, the case also raises aspects of procedural fairness including the ongoing discussion surrounding the importance of reasons and what courts should do in the absence of reasons or where only scant reasons are provided.

A further universal is the impact of privative clauses, especially given that both the Canadian and Australian parliaments/legislatures continue to insert them into legislation. Dunsmuir included privative clauses as one of the factors to be considered in a standard of review analysis, yet they are not in themselves determinative. The Australian position is similar but the means to get to that end is vastly different; in Australia the concept of jurisdictional error has a critical role.

Framing these topics as universal questions for all legal systems contributes to actively engaging students. Sometimes the detail of administrative law can be overwhelming for students who are encountering it for the first time. In an effort to help students embrace the subject, the universals provide a touchstone for them to return to as they develop their understanding of the subject. Understanding universal questions arise and that there are different ways of arriving at solutions and the solutions may ultimately be the same or may differ, helps students to appreciate the importance and complexity of administrative law in any society.

Observation Two – Embrace technology

Canadian Administrative Law is taught on campus in person via a two hour weekly participative lecture and a weekly one-hour small group tutorial of typically 10 to 12 students featuring lively discussion of problem‑based questions. To increase authenticity, I coordinated the production of a video featuring one of the Supreme Court Justices who wrote the majority judgment in Dunsmuir, Justice Bastarache. In the video he explains the key issues in Dunsmuir, the resolution reached in the case and its subsequent application. The video is played in four parts over four lectures on substantive review and also available at any time via the subject website.

The benefit of this particular technology assisted learning has been evaluated. I have collated and analyzed feedback from students spanning many semesters, and their reflections are typified by the following comments:

The Justice Bastarache videos provided a unique inside perspective on the reasoning process of the Supreme Court of Canada. The videos were helpful in illustrating that the highest court recognised the practical problem with the existing state of the law and had a clear purpose in mind when approaching Dunsmuir. It sought to clarify and better define the law surrounding judicial review. I appreciated the effort that went into obtaining these comments from the author of the judicial decision himself. The videos provided an invaluable supplementary perspective.

The videos reflected, through Justice Bastarache’s comments, the way that the Supreme Court balances its role with the will of the legislature reflected in statute. I found the videos showed a more humanised and personal look at the work of the court, illustrating that its decisions and that their effects are carefully considered beforehand.

Thus, the video capsule brings the case “alive” for students using technology and crystallises Dunsmuir’s practical relevance.

Conclusion

The universal issues raised in Dunsmuir endure and thus the case has the potential for enduring influence. As noted in respect of the 50th anniversary of the Roncarelli case, “normative understanding of the decision develops through reflection”.[ix] I hope this will also be true of Dunsmuir, so that judges, practitioners, and scholars are still analysing the case on the occasion of its 50th anniversary as we have for its 10th. The concept of a blogging symposium is consistent with my observations on teaching Dunsmuir in Australia ― identify the universals and embrace technology. Change is a constant, but I do note the Roncarelli analysis also included a perspective from an Australian scholar.[x] Long may the kangaroos and moose discuss and analyse the universals together and long may we teach each other’s significant cases to our students.



[i]
Bond Law has been teaching a Canadian program for over 20 years. In 2015, Bond Law welcomed its 1,000th Canadian student.

[ii] Australia, Office of Teaching and Learning, Final Report on Internationalising the Australian Law Curriculum for Enhanced Global Legal Practice (2012).

[iii] The National Committee on Accreditation (NCA) is a standing committee of the Federation of Law Societies of Canada. The mandate of the NCA is to help Canada’s law societies protect the public interest by assessing the legal education and professional experience of individuals who obtained their credentials outside of Canada or in a Canadian civil law program, and who intend to practice in a Canadian common law jurisdiction.

[iv] Michael Hunter Schwartz, Gerald Hess & Sophie Sparrow, What the Best Law Teachers Do, (Harvard University Press, 2013).

[v] There is a substantial body of academic scholarship emphasising the importance of student engagement. For example, in legal education specifically see: Lillian Corbin; Kylie Burns, and April Chrzanowski, “If You Teach It, Will They Come? Law Students, Class Attendance and Student Engagement” (2010) 20(1) Legal Educ. Rev. 13 & Bonita London, Vanessa Anderson and Geraldine Downey, “Studying Institutional Engagement: Utilizing Social Psychology Research Methodologies to Study Law Student Engagement” (2007) 30 Harv. J.L. & Gender 389.

[vi] Michael Head, “Deep Learning and ‘Topical Issues’ in Teaching Administrative Law” (2007) 17 Legal Educ. Rev. 159 at 163. This built on research by the scholars who initially proposed the distinction between deep and surface approaches, see Ference Marton and Roger Säljö, (1976), “On Qualitative Differences in Learning: I—Outcome and Process” (1976) 46(4) Brit. J. Educational Psychology 11.

[vii] Graeme Orr argues both context and coherence are necessary in the teaching of public law in “Teaching Public Law: Content, Context and Coherence” (2015) 25 Legal Educ. Rev. 299.

[viii] As identified in Paul Daly, A Theory of Deference in Administrative Law: Basis, Application and Scope, (Cambridge University Press, 2012).

[ix] Genevieve Cartier, “The Legacy of Roncarelli v Duplessis 1959 -2009” (2010) 55 McGill L.J. 375 at 392.

[x] Mark Aronson, “Some Australian reflection on Roncarelli v Duplessis” (2010) 55 McGill L.J. 375 at 615.

Did Dunsmuir Simplify the Standard of Review?

An empirical assessment

Robert Danay, Justice Canada and UBC

(The author’s views do not necessarily reflect those of the Department of Canada or the Government of Canada)

While the Supreme Court issued three sets of reasons in Dunsmuir v New Brunswick,[i] all members of the Court agreed that the system governing the standard of review in administrative law had become too complex and was in need of simplification. Mr. Justice Binnie offered perhaps the most compelling reason to support this reform: access to justice.

The existing system, Binnie J argued, inflated the time and legal resources required to adjudicate what is supposed to be a quick and inexpensive way of challenging governmental decisions. As he persuasively put it (at para. 133) “[e]very hour of a lawyer’s preparation and court time devoted to unproductive ‘lawyer’s talk’ poses a significant cost to the applicant.…A small business denied a licence or a professional person who wants to challenge disciplinary action should be able to seek judicial review without betting the store or the house on the outcome.” As a decade has now passed since these words were penned, it behooves us to ask: did the Court in Dunsmuir succeed in reducing the legal resources devoted by litigants to debating the standard of review? As readers of Paul Daly’s Administrative Law Matters blog may already know, my preferred approach to answering such questions is through empirical analysis.[ii] This case is no exception.

As described in greater detail below, after reviewing a sample of 120 factums filed by litigants before and after Dunsmuir was decided, it would appear that the Supreme Court may not have been successful in reducing the legal resources devoted by parties to mooting the standard of review. This suggests that – as Madam Justice Abella recently argued in Wilson v. Atomic Energy of Canada Ltd.[iii] – significant new doctrinal changes may be needed in order to fully realize the goal of simplifying the standard of review for litigants and lower courts.

Methodology

Using WestlawNext Canada’s database of factums extracted from court files,[iv] I collected factums from judicial review applications and statutory appeals in the Ontario Divisional Court and the Federal Courts. With each jurisdiction, I collected the 30 factums in the database that were filed in the period immediately preceding the release of Dunsmuir (going back as far as July of 2006) as well as the most recent 30 factums found in the database (these span the period from September of 2013 to December of 2016).

As a rough measure of the extent to which parties spent legal resources on mooting the standard of review, I tabulated the number of paragraphs in each factum devoted to that issue as well as the proportion of the total paragraphs in each factum on the standard of review. Comparing the average of both figures from before and after Dunsmuir affords a crude assessment of whether the goal of simplifying the standard of review for litigants was successful.

With regard to the Ontario Divisional Court, the 60 factums that I examined concerned judicial review applications or statutory appeals of a variety of different administrative decision-makers, the most common being the Director of the Financial Services Commission of Ontario, a municipality, the Human Rights Tribunal of Ontario or the Environmental Review Tribunal. The 60 factums in the dataset that were filed in the Federal Courts primarily concerned a variety of intellectual property-related decision-makers such as the Registrar of Trade-marks and the Commissioner of Patents as well as the Canadian Human Rights Tribunal and adjudicators dealing with federal labour relations matters.

Results: No Apparent Reduction in Legal Argument on Standard of Review

The results of this empirical analysis suggest that the Court in Dunsmuir may not have been successful in reducing the legal resources that parties were required to spend in order to address the standard of review

With regard to factums filed in the Ontario Divisional Court, the average number of paragraphs dealing with the standard of review increased from 8.5 paragraphs per factum before Dunsmuir to 10.4 paragraphs more recently, representing an increase of 22%. Similarly, the average share of factums devoted to debating the standard of review increased after Dunsmuir, from 14.2% in 2006-08 to 16.5% in 2013-15, which represents an increase of 16%.

Danay1

The data from the Federal Courts exhibit a similar trend. The average number of paragraphs dealing with the standard of review increased from 2.6 paragraphs per factum before Dunsmuir to 3.4 paragraphs more recently, an almost 31% increase. On the other hand, the overall percentage of factums devoted to the standard of review in the Federal Courts remained unchanged at 6%.

Danay2

While this limited study has some obvious methodological limitations,[v] it does seem to suggest that the changes made by the Supreme Court to the standard of review in Dunsmuir have not reduced the extent to which parties must devote resources to arguing the standard of review.

Conclusion: Vindication for Madam Justice Abella?

The data reviewed above provide some support for the provocative position taken by Abella J in Wilson. In that case Abella J decried as “insupportable” the fact that a substantial portion of the parties’ factums in that case and the decisions of the lower courts were occupied with what the applicable standard of review should be. This, she suggested (at para 20), required the Court to “think about whether this obstacle course is necessary or whether there is a principled way to simplify the path to reviewing the merits.”

Madam Justice Abella’s proposed solution was to adopt a single reasonableness standard of review.[vi] While none of her colleagues were willing to endorse this proposal, Abella J conceded (at para. 19) that “[t]here are undoubtedly many models that would help simplify the standard of review labyrinth we currently find ourselves in.” If simplification in the name of access to justice remains a priority, members of the Court will need to explore and adopt such a model in the coming years. If they do, then that new model will be ripe for further empirical assessment when it is ultimately applied by litigants and lower courts.



[i]
[2008] 1 SCR 190 [Dunsmuir].

[ii] See Robert Danay, “Quantifying Dunsmuir: An Empirical Analysis of the Supreme Court of Canada’s Jurisprudence on Standard of Review” (2016) 66 UTLJ 555 [Danay, Quantifying Dunsmuir].

[iii] [2016] 1 SCR 77 [Wilson].

[iv] WestlawNext indicates on its website that this database “includes facta extracted from the court files of significant court cases in every Canadian Common Law jurisdiction.” These documents are selected from cases that fall into 12 different subject areas including “Canadian Cases on Employment Law,” “Canadian Environmental Law Reports,” “Intellectual Property Cases” and “Municipal and Planning Law Reports.”

[v] Aside from the fact that the dataset of factums is not truly random, I have not sought to control for potentially confounding factors using a multiple regression analysis. For an explanation of why I tend to reject doing so see Danay, Quantifying Dunsmuir, supra note 2 at 576.

[vi] Ibid. at paras. 28-37.

Deference with a Difference

Dunsmuir and Aboriginal Rights

Janna Promislow, Thompson Rivers University

The recent Supreme Court decision in Ktunaxa Nation v BC (Forests, Lands and Natural Resources Operations), 2017 SCC 54 treats both Charter and s. 35 rights in a single judicial review, providing an interesting case study to identify and consider points of difference between the application of deference in Aboriginal rights versus Charter contexts. The case involved a regulatory approval allowing the development of the Jumbo Glacier Resort, a proposed ski resort near Invermere, BC, on land identified by the Ktunaxa Nation as “Qat’muk”, the home of the “Grizzly Bear Spirit”. The majority, written by McLachlin CJC and Rowe J, rejected the claim that the Minister’s approval had violated the Ktunaxa’s freedom of religion under s. 2(a) of the Charter. The Minister’s conclusion that the duty to consult and accommodate the Ktunaxa’s claimed rights had been satisfied was also upheld as reasonable. The majority’s approach might be described as “separate paths” for Aboriginal and Charter rights, with the distinct breaches involved leading to mutually exclusive grounds for judicial review. The concurring minority, written by Moldaver J, agreed with the majority on the s. 35 duty to consult, but found an infringement of s. 2(a) that was nevertheless proportionate to the statutory objectives under the Doré/Loyola framework. In contrast to the majority, Moldaver J’s approach integrated Indigenous and Charter interests, at least in regard to the Charter right, such that the Indigenous character of the religious claim was significant, and the accommodations negotiated through s. 35 consultations were critical to the determination that the Minister’s decision was ultimately reasonable (an integration that was incomplete: see Naiomi Metallic’s post for a discussion of the definition of the statutory objectives in the proportionality analysis).

In spite of these quite different approaches, both the majority and minority addressed the question of whether s. 2(a) had been infringed by the Minister’s decision as a threshold question of constitutional law that attracted de novo review on the correctness standard,[1] achieving uniformity in their methodology of review that was absent in Mouvement laïque québécois v Saguenay (City), 2015 SCC 16. The duty to consult in Ktunaxa Nation (like many other cases), however, was not about whether a known right had been infringed, but rather the interim protection of “potential, but yet unproven” rights (Haida Nation v BC, 2004 SCC 73 at para 27). The process of consultation and ultimate decision attracted reasonableness, in line with the existing law on the duty to consult and in step with deferential review of discretionary decisions more generally. But the Aboriginal right or rights at stake were not determined before deference was applied. As McLachlin CJC and Rowe J emphasized, judicial review of administrative decisions for breach of the duty to consult is not the forum for pronouncements on the validity of Aboriginal rights claims: “To permit this would invite uncertainty and discourage final settlement of alleged rights through the proper processes.” (at para 84). By contrast, the lack of analysis of the Charter right by the Minister was no obstacle to the Court considering the scope of Charter claim on judicial review (at para 60). What explains this “incongruent” difference?

McLachlin CJC and Rowe J point to the need for a full evidential record to determine an Aboriginal right, beyond what might be entered for the purpose of the duty to consult, which requires only a preliminary assessment of the strength of the claimed rights (at para 84). The task of proving the existence of historically grounded Aboriginal rights may well be different from the task of demonstrating that the scope of a known Charter right includes protection in a given case. But is the difference of approach grounded in practical concerns about the proof of the rights (difference 1)? Or is it grounded in the jurisprudence that dictates a case-by-case proof of rights under s. 35, versus a proof of violation of a right under the Charter (difference 2)? If the practical concerns are the obstacle, Nova Scotia v Martin, 2003 SCC 54 and Paul v BC, 2003 SCC 55 suggest that other considerations take precedence over practical concerns in relation to access to constitutional arguments before administrative decisions-makers, including s. 35 rights. If difference 2 is the obstacle, the question becomes whether government’s obligation to consider the constitution when interpreting statutes and discretionary authority is really all that different when it comes to Aboriginal rights, including the “potential, yet unproven” ones. The discussion of Charter values after Doré, and the subsequent treatment of challenges that go to the scope of the rights on a correctness standard (such as in Ktunaxa Nation, and the majority in MLQ v Sagnuenay), might demonstrate that when a remedy is sought for an alleged breach of a Charter right, the values at stake transform into a dispute about the right that requires adjudication and articulation, whether by courts or tribunals, whether addressed de novo or not. Are the values behind Aboriginal rights not “rights-like” enough to require or allow for parallel treatment?

The second difference points to a third: the premise that Aboriginal rights and/or their accommodation should be articulated through negotiation. As the Supreme Court has stated repeatedly, in one way or another, s. 35(1) “provides a solid constitutional base upon which subsequent negotiations can take place” (R v Sparrow, [1990] 1 SCR 1075 at 1105; see also Delgamuukw v BC, [1997] 3 SCR 1010 at para 186). The negotiation of rights recognition gives rise to the constitutional duty to consult and accommodate to prevent the unilateral exploitation of claimed resources “during the process of proving and resolving the Aboriginal claim to that resource,” a process that the Court recognizes “may take time, sometimes a very long time” (Haida Nation, at paras 26-27). In the interim, however, the Crown retains the right and authority to continue managing the resources subject to Aboriginal claims, and to make “decisions in the face of disagreement as to the adequacy of its response to Aboriginal concerns.” (Haida Nation, at para 45). As McLachlin CJC and Rowe J acknowledge in Ktunaxa Nation, the consultation and accommodation process conducted by the Minister will not satisfy the Ktunaxa, “[b]ut in the difficult period between claim assertion and claim resolution, consultation and accommodation, imperfect as they may be, are the best available legal tools in the reconciliation basket” (at para 86).

If Aboriginal rights are “TBD,” what are “the proper processes” for the determination of Aboriginal rights that the majority in Ktunaxa Nation alludes to? A recent policy announcement by the Trudeau government suggests that creating specialized mechanisms for recognizing Aboriginal rights is finally on the policy agenda. The status quo is that Indigenous peoples can litigate their claims or attempt to work through comprehensive claims processes in relation to title and other s. 35 rights. It is old news that these treaty processes are deeply troubled, and that both litigation and negotiation generally take “a very long time,” a euphemism that buries concerns about expense burdens and access to justice. In Ktunaxa Nation, the majority plainly want to support the “proper” resolution of rights claims, but they do not question the access to “proper processes” before they defer to the Minister’s assessment of the Qat’muk sacred site claim, as part of their review of the adequacy of the consultation process under the reasonableness standard (at para 100). The implication of deference here is that if government manages legal risk by consulting beyond what the legal duty might require in relation to “weak” rights claims (as this particular Ktunaxa claim was assessed, reasonably so according to the Court), it is unnecessary for the Minister or the courts to fully articulate and assess that claim. How does such deference serve to support “a solid constitutional base” for negotiations? This point of deference in Ktunaxa Nation, however, is less about difference and more about the common administrative law theme of inconsistency given that earlier cases establish that deference is not owed on the preliminary assessment of the strength of the right and related determinations of the scope of consultation obligations: Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53 at para 48; Haida Nation at para 63.

A fourth difference to consider is structural, relating deference to the obligation to implement and respect constitutional rights in administrative decision-making. Under s. 32, the Charter applies to administrative delegates such that they must interpret statutes and make decisions that accord with the Charter. Deference is thus owed to administrative decision-makers who properly take Charter rights and values into account in their decisions because their area expertise includes respecting the Charter. Section 35 did not come with an application clause. Instead, the obligation to make decisions that respect and implement rights stems from the honour of the Crown. Haida Nation established that aspects of the duty to consult may be delegated but the honour of the Crown itself cannot be delegated (at para 53). In Clyde River v Petroleum Geo-Services Inc., 2017 SCC 40, the Supreme Court further explained: “While the Crown may rely on steps undertaken by a regulatory agency to fulfill its duty to consult in whole or in part and, where appropriate, accommodate, the Crown always holds ultimate responsibility for ensuring consultation is adequate.” (at para 22). “Reliance” rather than delegation ensures that at least some issues of accommodation and disputes about claims will find their way back to the ‘real’ Crown (see Clyde River, paras 28-29). This approach might suggest respect for “nation-to-nation” treaty relations (and arguably fail), but it also might signal the ongoing political quality of Aboriginal rights, even when the rights at stake were recognized through a modern land claim agreement, as they were in Clyde River. Why, then, is the responsibility to respect for these rights treated differently from Charter rights?

The incompletely delegable quality of the honour of the Crown appears to indicate that administrative expertise is limited, suggesting a re-examination of the premises for judicial deference to non-Crown agencies in such contexts is required. Deference to decisions by Ministers, whose actions directly represent the Crown, might also be inappropriate, or based on a different theory altogether: instead of, or in addition to, the “politics of deference”, there is an ongoing politics of sovereignty at stake. Alternatively, having waited for a negotiated solution for long enough, the courts might take a different tact by reviewing Aboriginal rights as parallel to Charter rights, and thus recognizing these rights as also “ripe” for implementation. Deference under that approach would presumably be more rigorous than reasonableness as it applies to review of discretionary decisions more generally; see, for example, the treatment of reconciliation, the honour of the Crown, and reasonableness in Kainaiwa/Blood Tribe v Alberta, 2017 ABQB 107.

Although it is obvious to me at least that constitutional Aboriginal rights must be implemented as rights, and on par with Charter rights, this view does not imply that approaches to deference in relation to Charter rights should necessarily be applied in relation to Aboriginal rights. Rather, the preceding comparison and identification of points of differences in the application of deference to the review of decisions implicating Aboriginal rights is the start of a bigger discussion. Do the differences identified hold up? Are they principled? Should there be deference in the review of government decisions that affect Aboriginal rights, and if so, why? And how should it be carried out? These are questions for another day.


[1] There is of course much to be said on the freedom of religion aspects of the decision; see, for e.g., Howard Kislowicz and Senwung Luk

The Road to Dunsmuir

Re-reading administrative law’s bumpy kinky chain novel in the fading light of “a culture of justification”

Sheila Wildeman, Dalhousie University

I was asked to write something on “the background to Dunsmuir” and, more pointedly, “why it was necessary in 2008 to reformulate administrative law”.

This led me to think about the stories we tell about administrative law, against which background a judgment like Dunsmuir comes to stand out.  I mean stories in the dominant mode of administrative law scholarship: “constructive interpretation,” in Dworkin’s terms, bringing together doctrine and theory in ways that strain to make sense of this complex and variegated field and so to rationalize the distribution of power among the central institutions of government. We seek to knit up the raveled sleave of power with purpose and coherence.  We tell stories about administrative law (those of us who write and think in this tradition) in an effort not simply to tell it like it is, nor simply to predict, but to make it the best it can be.  But what moves us to tell the stories we do?  What informs our sense of (and disagreements about) what counts as a good story?

I was initially spurred to think about the stories we tell about administrative law on reading Adrian Vermeule’s Law’s Abnegation and discussing with my Jurisprudence students its thesis that American administrative law has, over time, carved out rationales not simply for judicial deference (in particular, to administrative interpretations of law) but law’s “abnegation”.  On this account, law reasons its way to its own irrelevance — or judges do. By coming to appreciate the relative advantages of administration in matters of policy, law draws back and creates a void, or rather a canvas (there is still law at the outer limits of the frame on Vermeule’s account) wherein technocratic practical reasoning may flourish free from effective judicial or legislative control.

Vermeule’s story is anchored in a strong reading of American case law, pre- and post-Chevron. It is additionally supported by a carefully crafted symbolic network which lends it a patina of mythic inevitability. Indeed, Law’s Abnegation has the special subversive force of the suppressed counterstory, presented, as it is, as an inverted version of Dworkin’s Law’s Empire.  As Vermeule points out, Dworkin’s adjudication-centred theory ignored the administrative state and its implications for the authority and responsibilities of judges. Vermeule’s counterstory seeks to correct this, taking as its central motif something like an anorexic Hercules — the judge as hunger artist, increasingly abstracted from social and constitutional significance and yet functioning thereby, in an ultimate gesture of self-sacrifice, to make room for a new order.  In Kafka’s “A Hunger Artist,” the new world trades its old fascination with the hunger artist’s self-denial for a fascination with raw animality: in Vermeule’s account, that which rules the new world is raw (or, again, thinly-delimited) administrative power.

So, it’s a good story. But what’s it got to do with DunsmuirDavid Dyzenhaus argues that Vermeule’s account of the gradual decentring of the judiciary in American public law comes close to disclosing the deep logic of deference that also informs Canadian administrative law. But Vermeule swerves from the mark, in part because of his unwillingness to surrender his story’s dramatic core: the stark distinction between formal law-at-the-limits and the value-laden discretionary judgments required of effective governance. For Vermeule, once the judiciary has embraced deference and so surrendered law-interpretation to administration, administrative “law” consists solely in formally demarcating administrative jurisdiction.  Everything of practical relevance to effective governance is “policy”. Or if the story is more complex than that (as the whole reason administration is welcomed into law-interpretation in the first place is the judiciary’s recognition of the inseparability of law and policy), it remains that judges end up with the thin part of law and administrators get the thick part.

Vermeule’s story arguably reflects an overly dramatic imagination combined with an understanding of “law” (at least, the part of law that in the end is left for judicial review) that is too thinly positivistic. In this it fails to speak to the ongoing challenges of life in “law’s empire,” wherein judges as well as administrative decision makers continue to engage in constructive or purposive interpretation across institutional divides, together with legal subjects who demand that administrative power be justified.

A more apt background story against which to read Dunsmuir is Matthew Lewans’ Administrative Law and Judicial Deference.  Lewans’s book invites comparison to Vermeule’s in its impressive scope and ambition. It is a contextualized intellectual history tracing the unfolding narrative of deference in administrative law across three jurisdictions and among the cross-pollinating disciplines of legal and political theory and legal adjudication over the course of the 20th and into the 21st century. The story that unfolds builds on Dyzenhaus’s “The Politics of Deference,” exposing in further depth and detail a pattern of common law judicial review that has for generations zigzagged wildly between the poles of judicial abdication and judicial supremacy. The underlying pathology driving this kinky common law chain novel is traced in Lewans’s work to the same dichotomy that Vermeule presents as his dramatic denouement: the unworkable divide between “law” and “policy,” and so “legality” and “the merits” — i.e., the effort of judges on review to patrol the limits of administrative power based on a thin and formal legality while (ostensibly) keeping out of the value-laden or normative dimensions of administrative justice.

Along the way we encounter plenty of good reasons for judges to defer, even on questions of law — including respect for the legislature which has conferred authority on administrative decision makers rather than courts, respect for administrative expertise regarding their statutory mandates and the institutional contexts in which those are carried out, and respect for the goals of efficiency and access to justice which urge courts to avoid unnecessary duplication of the work of administration. Just how each of these bases of respect is to be demonstrated, if not through the ultimately unworkable division of labour between law and policy or legality and the merits, is the million dollar question that comes around again in Dunsmuir.

The Background to Dunsmuir II  

With that let me turn, at last, to my assignment. In what sense was Dunsmuir “necessary”? What precipitated the Supreme Court’s third effort at a decisive shift in approach to the standards of review in so many decades? This opens the way to the question (which other posts in this series will address in more detail): how have the central moves in this doctrinal restatement weathered the decade that followed?

There was nothing in the factual or legal underpinnings of the dispute in Dunsmuir that necessarily demanded reconstruction of the governing approach to the standards of review. The case just came along, it seems, at a time when the law was straining for something like revolution.

Or that is one way of telling it. It is nonetheless of note that the judgment decided thirty years earlier and generally recognized as the seed-case for the modern approach to deference, C.U.P.E. v. N.B. Liquor Corporation, [1979] 2 S.C.R. 227 [CUPE], also arose out of a dispute around interpretation of New Brunswick’s Public Service Labour Relations Act.

CUPE was precipitated, as Michael Taggart notes in his 2005 essay, “Prolegomenon to an Intellectual History of Administrative Law in the Twentieth Century . . .” (at 265), by growing criticism from academics and the labour law community about excessive judicial interventionism in the name of individualist common law values. Dickson J in CUPE was likely cognizant of these critical voices as he fashioned an approach to review of questions of law that took account of rationales for deference grounded not simply in the formal command of the privative clause, but also, and more pragmatically, in the Public Service Labour Relations Board’s comparative familiarity with the unique context of public service collective bargaining and the complexities that context presented to maintaining equality of bargaining power. This, along with Justice Dickson’s articulation of the standard of “patent unreasonableness,” was widely recognized as a major breakthrough for deference in the law on substantive review (albeit a breakthrough hedged by continued commitment to formalistic doctrines of jurisdictional error).

Dunsmuir, on the other hand, was preceded not by an uprising against judicial interventionism (or for that matter judicial quietism), or related disproportionate burdening of a specific constituency, but rather exasperation around the inutility and incoherence of the then-prevailing “pragmatic and functional” approach to selecting the standard of review – a resolutely contextual inquiry that for all its lock-step rigidity had failed to produce clarity or certainty about how the analysis would play out in any given case or what the effect was likely to be on one’s chances. Thus where Bibeault in 1988, and then — in a more resolute break from the tendency to subordinate the pragmatic bases for deference to formalistic inquiry into the scope of a privative clause — Pushpanathan in 1998 had extended and elaborated CUPE’s express orientation to administrative capacities through crystallization of the four “pragmatic and functional” factors, and while Southam in 1997 introduced a third standard (reasonableness simpliciter) to allow increased sensitivity to conflicting signals of relative expertise, Dunsmuir arrived at the worn-out end of this pragmatic and functional trajectory.  It expressed a cooling of enthusiasm for “context” and a new resolve to lay a clearer and more efficient path through the thicket.

The majority in Dunsmuir did this, specifically, by collapsing the existing standards from three to two (conjoining the two pre-existing deferential standards), and then stipulating that either precedent or a set of categorical indicia based predominately in the nature of the question should generally decide which standard applies. (As commentators quickly pointed out, Dunsmuir’s standard of review analysis nonetheless ends in a cliffhanger, assigning the “pragmatic and functional factors” an uncertain residual role.)

The majority also sought to lend greater clarity to the significance of and distinction between the two remaining standards.  Confusion around the difference, if any, among the standards of review had been the central concern expressed in LeBel J.’s cri du coeur five years earlier in Toronto (City) v. C.U.P.E., Local 79. As LeBel J then pointed out, none of the conventional devices for distinguishing patent unreasonableness review from reasonableness simpliciter (for instance, by reference to the permitted ‘depth of probing’ or “magnitude of error”) were conceptually coherent or of any practical use to judges on review. Moreover, ever since the majority in National Corn Growers Assn v Canada (Import Tribunal) had accepted that review for patent unreasonableness may sometimes require detailed examination of the decision-maker’s reasoning and the surrounding statutory and factual context, it was no longer clear whether or how deferential review was distinguishable from review for correctness.  If deference did not simply mean “not looking” — or alternatively, ‘barely looking” — what did it mean?

The majority in Dunsmuir responded to these concerns with a few observations about its newly-unified reasonableness standard.  First, it justified deference on questions of law with the statement that “certain questions of law that come before administrative decision makers may give rise a number of possible, reasonable conclusions.” This claim represents an important acknowledgement of the continuity between law-interpretation and the creativity and choice informing discretion.  However, it remains deeply contested — not only by those who cling to a conception of law as determinate legislative intent, but also by those who adopt a Dworkinian model of constructive interpretation whereby each interpreter must strive to make the law (and persuade others that they have made the law) the best it can be. Indeed, Dyzenhaus in his “Politics of Deference” (at 304-305) argued that the “two or more reasonable answers” thesis was, at least at its inception (when it was contingent on a determination that the interpretative question fell within the scope of a privative clause) an ad hoc way of distinguishing and so preserving judicially-dominated (formal, determinate) law from the policy-driven choices associated with administration. Viewed in this way, the thesis reflects and promotes old judicial habits of carving up review into manipulable zones of supremacy and abdication.

The majority in Dunsmuir turned next to giving some more substantive guidance on how reasonableness should be assessed. It stated that reasonableness review is concerned “mostly with the existence of justification, transparency and intelligibility within the decision-making process,” while it is “also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” (Dunsmuir para 47)  Once again, just how to reconcile the expectation of justification with the acknowledgement of a “range” is not elaborated.

The majority adds to this a brief discussion of deference. It makes reference to Dyzenhaus’s now canonical statement that deference means “respect” and so “not submission but a respectful attention to the reasons offered or which could be offered in support of a decision.” (para 48) It canvases formal as well as pragmatic rationales for this respect, and on the pragmatic side relies in particular on the observation of David Mullan that “those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime.” (para 49) However, the majority adds, correctness review continues to be required “in respect of jurisdictional and some other questions of law.”  In such cases, a court need not show “deference to the decision-maker’s reasoning process,” but rather may “undertake its own analysis of the question” and substitute its decision where there is disagreement.

These statements, taken together with the Dunsmuir majority’s restatement of the standard of review analysis, arguably convey a heightened commitment to deference on questions of law in comparison with the preponderance of prior case law. Yet, as indicated by the dissonance between the court’s affirmation of tolerance for a range of reasonable interpretations and the theory of deference on which the court ostensibly relies — a point developed further in work by Mark Walters and, more recently, Jocelyn Stacey and Alice Wooley — Dunsmuir was nonetheless a missed opportunity to give fuller attention to the meaning and practice of deference.

The problem is most apparent on turning to the way the reasonableness standard was actually applied in Dunsmuir.  Here we might again contrast the judgment with that of Dickson J in CUPE.  There, Dickson J carefully considered the Board’s reasoning, quoting from its decision and then amplifying it through elaboration of its central purposive tenets (emphasizing that it must strike a “delicate balance” between maintaining public services and maintaining collective bargaining). Yet the judge also tested the Board’s reasoning against a considered view of the disputed statutory text in its wider statutory context and in light of purposive and consequential analysis.

In contrast, in Dunsmuir, the majority’s application of the newly unified reasonableness standard did little to reassure those who worried that dumping patent unreasonableness review would mean a diminishing of deference.  As David Mullan pointed out shortly after the decision was released, the majority made no discernable effort to read the decision of the arbitrator in a manner that sought or wrestled with its purposive justification. Rather, it rooted its determination of unreasonableness in a clear favouring of private law values (the common law of contract as incorporated into the Civil Service Act, one of the two statutes applicable to Dunsmuir’s case) over the public law values reflected in the other statute of relevance (the Public Service Labour Relations Act).  Arguably, the value that the arbitrator had implicitly favoured was the very one that had been at the centre of the Board’s reasoning in CUPE: maintaining equality of bargaining power in the context of public service employment (although Dunsmuir deals with the special circumstances of non-unionized public employees). It would have helped, however, if the arbitrator had been as forthcoming about his purposive reasoning as the Public Service Labour Relations Board had been thirty years before.

In short, for all that Dunsmuir did to promote reasonableness review as the likely standard on most matters including interpretation of law, and, moreover, to consolidate the governing ideas about deference including the critical point that judges should pay respectful attention to administrative reasoning while nonetheless evaluating that reasoning in light of an expectation of justification, these moves appeared to do little in practice, at least in the immediate term, to render application of the standard discernibly different from correctness review.

Fast Forward

Let us fast forward ten years to the present.  We must fly over various important developments including the unequivocal statement of a presumption of reasonableness review on questions of law arising under the home statute in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, [ATA]; the foray into “supplementing” reasons in the distinct sorts of circumstances presented in ATA and Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board); the subsequent rapid and wholesale erosion of the expectation that decision-makers give reasons on matters involving statutory interpretation, and concomitant rise in judicial willingness to supply missing reasons (in McLean, Agraira, and Tran); and the uncertain rise of common law proportionality review where administrative discretion engages Charter values (starting with Doré and trailing off into that precedent’s uncertain future).

The last development, for all its problems, arguably marks an important although partial incursion on the conventional law/merits divide and the accompanying tendency to restrict common law judicial review to a thin and formal conception of legality.  But more generally — and ironically, given what is now the near-ubiquity of the standard — the current state of the law on substantive review suggests a flight from reasonableness. This is signaled in part by a steady flow of powerful dissents calling for a resurgence of correctness review on questions of law (whether based in relative inexpertise, prospective inconsistency, formal signals like the wording of a statutory right of appeal, or some combination of these). But more worryingly, the flight from reasonableness is occurring within the standard of reasonableness itself.  It has manifested there (as indicated above) as a profound loss of interest in administrative reasoning or in the cross-institutional demands of public justification, particularly in relation to law-interpretation. This is accompanied by an equally worrying consensus around how to conduct reasonableness review on questions of law whether or not reasons are given: a schismatic approach recalling the old approaches to jurisdiction, divided between use of the “ordinary tools of statutory interpretation” to determine the range of reasonable outcomes and effective abstention from purposive oversight should that range be deemed greater than one. (See the reasons of Moldaver J in McLean at paras 37-41).

Is the flight from reasonableness Dunsmuir’s fault?  Not likely. The bigger problem is, I think, our inability to tell a different background story.

Toward a Counter-Hegemonic Culture of Justification 

My own favourite story about administrative law is guided by the regulative ideal of a culture of justification. This ideal, which gained traction in Canada around the time of Baker, has been most notably promulgated and elaborated by David Dyzenhaus. Dyzenhaus’s ouvre, from the time of “The Politics of Deference” to the present, aims to reframe judicial review from a model that divides up the administrative state into zones of exclusive judicial or administrative jurisdiction (so dotting law’s empire with pockets of ostensible abdication) to a model that places expectations on administrative decision-makers to justify their decisions in law and expectations upon judges to pay “respectful attention” to the justificatory efforts of administrators.  The effect (at least, in theory) is to render law-interpretation and application a deliberative democratic project exercised conjointly by the various institutions of government in a manner that is inclusive of legal subjects, in accordance with the core administrative law values of participation and justification.

In doctrinal terms, Dyzenhaus’s “deference as respect” requires ousting both the patent unreasonableness standard (the residue of judicial abdication) and the correctness standard (the residue of judicial supremacy) in favour of responsive engagement of judges on review.  To be clear, Dyzenhaus did not argue that there was or should be no hierarchy in this process.  The independent judiciary continues to have the last word on law’s interpretation and application. Yet the model urges a radical shift toward respectful attention.

The challenge put in play by Dyzenhaus, not fully answered in the case law or commentary, is how exactly judicial review may be conducted without reverting either to abdication or supremacy. That is, because the institutional hierarchy remains, the theory is open to the critique that it obscures the continued sway of judicial power over the vaunted autonomy or plural ecologies of administration. Dyzenhaus responds in typical (aspirational, paradoxical) fashion:

Recall that the paradox of the recognition of rationality arises because one process of reasoning and decision-making – the administrative process – is recognized by another – the judicial process – as both autonomous and subject to judicial supervision. The anger, then, is that judges, whether consciously or unconsciously, will impose their own standards of rationality on the administrative process. Deference as respect, however, seems to me to open up space for judicial sensitivity to particular tribunals’ own sense of how best they can respond to their mandates. (“The Politics of Deference” 306-7)

The question is whether this “space for judicial sensitivity” can be adequately theorized, or, more important still, operationalized in a manner that coheres with the ambitions of deference as respect.  That prospect might be pursued through further inquiry, for instance, on the sort of judicial method or behaviour (or is it an unmeasureable “attitude”?) that best signifies respectful attention to administrative reasoning — and so, for instance, how to distinguish permissible supplementation from impermissible substitution of judicial for administrative reasons. It might be pursued, too, by elaborating further guidance on the substantive bases for judicial intervention (perhaps along the lines of Paul Daly’s “indicia of unreasonableness”) and how considerations relating to relative institutional strengths or capacities (democratic accountability, non-judicial functions, etc) should inform the conduct or expectations of reasonableness review.  Are the latter sorts of considerations simply the vague backdrop for a singular methodology of review centring upon attentiveness to administrative reasoning? Or are they properly conceived in the Razian mode as “second order” reasons for refraining from acting/intervening on “first order” (substantive) reasons? Clarifying and lending structure to the relationship between the institutional reasons for deference (or non-deference) and the substantive bases for judging a decision to be reasonably justified is arguably the most significant challenge for judicial review in the decade to come.

But let’s get back to the bigger picture, or the background — arguably the best place to start in plotting a path forward.  As noted, I prefer stories that reconcile the tensions in judicial review through a commitment to a “culture of justification”. There is a fundamental optimism to such stories. They affirm the value of institutionalized processes of deliberation and argumentation across profound asymmetries of knowledge and power, placing expectations on state officials and judges alike to engage in reasoned deliberation in light of standards of fairness and justification and so in a manner that is responsive to the diverse interests and perspectives of affected legal subjects. They celebrate pluralism and difference, reimagining the sites of administration as so many participatory feedback loops informing law’s constructive interpretation, while nonetheless positioning independent adjudication as a mechanism capable of coordinating and filtering such feedback and so holding power to account.

Yet there is a postmodernist twist marking the sort of story, and so the sort of constructive interpretation on the way to a culture of justification, that to my mind best suits the purpose and the times. In this version, constructive interpretation is equal parts deconstructive. That is, it centres on an aspiration not simply to unify public law but to expose the violence done at its borders, and so to promote the airing of marginal voices.  In administrative law, as in law generally, we need a story that makes space for conflict and change by means other than a succession of violent revolutions.

How would such a story go?  We are so accustomed to falling into the familiar grooves: Dicey and Lord Hewart and The New Despotism; the functionalist critique of generalist/individualist judges and alignment of that critique with a rising tide of social welfarism and labour activism; the emergence of human rights-based social movements turning public attention to the black holes of discretion in prisons, at the sites of immigration detention and deportation, and at other sites of profound vulnerability to state power — and thereby producing a new wave of opposition to deference-as-abdication; then, efforts to reconcile the warring legitimacy claims of judicial review centrists and pluralists through appeal to a “culture of justification” and so a model of deference not as abdication or supremacy, but dialogue (or conversation). It is a complex and subtle story with plenty of sub-plots, and it takes all of one’s attention to tell it in a way that opens a path to critical understanding of the current state of the law.

There is by now an understandable fatigue with grand theories and narratives about the special complexity and nuance of administrative law – including, in particular, stylized models of reconciliation through dialogue. There is I think a generally felt urge to cut to the chase and let practical reasoning get to work on the matters directly at hand, i.e., to let judges exercise their best judgment on review on a case-by-case basis.  One would think that by now the judges have absorbed the last few decades of warnings not to overreach.

Yet the structure of the common law is such that one cannot avoid the work of constructive interpretation, and with this, efforts to achieve reflective equilibrium between principles and practice.  This is required, for instance, in order to get clear on how the institutional bases of deference should be integrated with substantive evaluation of reasonableness. It is required, moreover, in order to ensure that the institutional bases of deference do not impede robust activation of the values of participation and justification where those affected are most vulnerable to state power. Just getting down to the work of review without careful consideration of the why and how of deference risks failing to grasp or demonstrate the requisite respect, which at base means engagement of the capacity to depart one’s settled assumptions and to recognize and appreciate others’ reasons.

A related question is whether or how administrative law scholarship might do better in the way of fostering dialogue, or conversation. Specifically, what would it mean to make more space in the work of constructive interpretation for voices and approaches that now stand at the margins of the interpretive community?  One may recall Harry Arthurs’ efforts some decades back to recentre administrative law theory in sociological rather than “legalistic” approaches. What I am proposing is not that, but rather increased interaction of the social and legal, normative and critical strains of scholarship, in pursuit of what might be called counter-hegemonic constructive interpretation.

Let me elaborate. In recent years I have changed the way I present the rise of the administrative state in launching my Admin Law class. Some elements have shifted in importance while others have come to the fore. One thing I have done is to interrupt a conventional Canadian illustration, focused on the laying and regulation of the railway, with attention to James Daschuk’s Clearing the Plains: Disease, Politics of Starvation, and the Loss of Aboriginal Life. Daschuk’s book describes in detail policies and actions taken by the government of John A. Macdonald aimed at removing Indigenous communities from the planned rail corridor, by starvation if necessary.

Adopting a contrapuntal telling of the rise of the administrative state as both the evolution of forms of governance fit for a complex society and the dealing out of violence and death to those who resisted – in particular, Indigenous communities who by their very existence fundamentally disrupted the story of administrative state legitimacy — interrupts and deepens the usual tensions between centralism and pluralism at the origins of Canadian administrative law. The point is later revisited when we turn to Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, and the questions that judgment raises about whether or how Canada-centric administrative law norms and institutions may advance the ends of Indigenous self-government. The lean towards centrism that is a constant compulsion in Canadian administrative law comes under significant strain as we reexamine the contested sources of administrative law and legitimacy, and against this background, ask what it would mean to Indigenize administrative law or open the spaces of constructive interpretation to claims rooted in Indigenous sovereignty. I have relied in particular on the brilliant work of my colleague Naiomi Metallic (who has contributed to the latest edition of Administrative Law in Context) to bring these questions to the fore.

A further example of counter-hegemonic administrative law, challenging dominant strains of normative and justificatory liberal-democratic administrative law theory with a more critical and oppositional approach, is illustrated by Alyssa Clutterbuck’s “Rethinking Baker: A Critical Race Feminist Theory of Disability” (2015) 20 Appeal 51.  Clutterbuck’s reading of Baker is grounded in intersectionality theory and in a conception of administrative law and bureaucracy as state-backed violence. It refuses to engage along the old battle-lines of centrism versus pluralism and instead looks to ways in which both the centre and plurality have been constructed through exclusion. One might respond that the necessary normative obverse to such critical exposure of administrative law’s violence is a theory of administrative justice centring on inclusion. But the point of Clutterbuck’s contribution is to remain focused on how even the core administrative law ideals of participation and justification are wielded, both by administration and judges on review, to reproduce oppression. The question for those engaged in seeking out and enhancing what is best, or legitimate, in administrative law, ignore such work at their (or their normative project’s) peril.

A last example of socio-legal scholarship that both challenges and invites productive conversation with more normative and doctrinal approaches comes in recent work from Jennifer Raso.  Her “Unity in the Eye of the Beholder? Reasons for Decision in Theory and Practice,” presented at the Cambridge Public Law Conference in September 2016 and awarded the Richard Hart Prize, demonstrates that administrative regimes may function in ways that defy the normative frameworks and assumptions of judicial review. She illustrates the point with reference to the disjunction between assumptions about (unitary, justificatory) administrative reason-giving and the exigencies of bureaucratic practice, using examples from a qualitative study of social assistance casework at Ontario Works. If those of us who think about and work in administrative law are resting our evaluations of legality or legitimacy on false and outmoded (or simply lazy) understandings of the technologies of administrative power, surely that is a problem. Work like Raso’s challenges those engaged in constructive interpretation – whether academics, practitioners or judges — to reach beyond normative and doctrinal approaches and to pay closer attention to administrative systems and the practices of those within them.

Conclusion: Foregrounding the Background

At this time, even more urgently than when Dunsmuir was decided, the primary contending visions of the future of the standards of review have settled around what happens when review is focused on a contested question of law. On the one side are those pressing for greater centrism and so judicial determination of the right answer. On the other side are those who align themselves with an across-the-board recognition of administrative “expertise” and a corresponding (though, as I have noted, increasingly incoherent and schismatic) deference. A third way is dimly discernible. That way would re-imagine judicial review not as a choice between centrism and pluralism or between mutually exclusive zones of competing jurisdiction (whereby either the courts or administration rules), but rather as a dialogical practice culminating in a judgment about whether administrative power has been justified.

My hope for the next decade of administrative law is that it sets out upon this third way and so turns to the work of reconciling deference with expectations of reasoned justification. This means doubling down on the duty of administrative decision makers to engage in justificatory reasoning responsive to the arguments and broader legal interests and values of significance to those affected.  It also means doubling down on judges to ensure engagement with administrative reasons (in context), filling in gaps where there is a foundation of reasoning on point, yet refraining from gap-filling where the decision-maker was unresponsive.  Moreover, the work of reconciling deference and justification arguably requires abandoning the last formalist stronghold: the divide between law and policy, or review of legality and review of the merits.  The distinction cannot be conceptually or practically supported. It tends to mask judges’ smuggling in rather than defending their normative judgments. The consequences of this last move would include extension of proportionality-based review to all instances of discretion, not just those linked to “Charter values”.  All this underlines the importance of attending closely to the question of what (if not “not looking”) it means to show deference on review.

As we work out our positions on (and beyond) these questions about the future of judicial review post-post Dunsmuir, it is time we become more conscious of the background stories we tell. Whether or not we think about it much, we organize our constructive interpretations around distinct and sometimes clashing ideas of democracy, law and the rule of law. These, in the end, are what constitute the background to Dunsmuir, giving texture and urgency to our readings of what that judgment meant and to our fresher views about whether or why an imminent reboot of the law on the standards of review is necessary.

Also in the background — and, I have suggested, the response to this should be multiple invitations to move into the foreground – are a range of critical administrative subjects raising challenges to administrative law and the stories its high priests tell about administrative state legitimacy.  As we attempt to write a better story about administrative law, or to make the existing one the best it can be — or at least to lend that story some semblance of coherence and purpose — we should ask whether our constructive interpretations are sensitive not only to the values running through the law, but also, and more urgently, to these critical challenges and critical subjects talking back to law from the margins.

The Merits of Dunsmuir

Rightly or Wrongly Decided (Then and Today)?

The Honourable Joseph T Robertson QC, formerly of the Federal Court of Appeal and the New Brunswick Court of Appeal

This digital symposium marks the 10th Anniversary of Dunsmuir’s release. Undoubtedly, attention will focus on whether this “transformative” decision has achieved its stated objective of simplifying the law of administrative deference. Regrettably, the Supreme Court’s post-Dunsmuir jurisprudence has generated allegations of doctrinal “incoherence” and “inconsistency”. It is also alleged that the deferential standard of review has had little impact on case outcomes that hinge on the interpretation of enabling legislation. Too often the Court is caught applying the correctness standard under the banner of reasonableness (“disguised correctness review”). While that contention falls within my terms of engagement, the others do not.

The title of this post is obviously disingenuous. The “rightness” or “wrongness” of any Supreme Court decision is largely a matter of personal judgment. Importantly, I fail to qualify as a disinterested observer, having authored Dunsmuir on behalf of the New Brunswick Court of Appeal. That decision was upheld in the result, but for reasons that bear little upon what was argued and decided in the lower court. In the circumstances, I hope to sustain reader interest by advancing the following thesis: there is an arguable case that Dunsmuir would be decided differently today when it comes to the underlying merits. I also address the procedural fairness issue in a way that others have not.

While Dunsmuir has generated more than its fair share of commentaries, few have looked to the underlying issues that motivated Mr. Dunsmuir to seek leave of the Supreme Court. Most have forgotten the central issue. The adjudicator was asked to decide whether non-unionized employees of the government were to be treated like unionized employees when it came to termination of employment. Mr. Dunsmuir was a non-unionized employee who had been terminated with severance in lieu of notice. The government consciously chose not to allege cause, as is its prerogative under common law principles.

I pause here to draw attention to what every employment lawyer knows. The underlying issue and fact pattern in Dunsmuir parallel those found in a relatively recent decision: Wilson v Atomic Energy Canada Inc., 2016 SCC 29 (“Wilson”). Better still, the same holds true in regard to Knight v Indian Head School Division No. 19, [1990] 1 SCR 653 (“Knight”) which was central to Dunsmuir’s analysis of whether Mr. Dunsmuir was owed a duty of procedural fairness.

After exhausting the government’s internal grievance procedure, Mr. Dunsmuir filed a third-party grievance that was heard by an adjudicator appointed by the labour board. A preliminary issued was raised with respect to whether, on a discharge with notice/severance, the adjudicator was “authorized” under the enabling legislation to look into the reasons underlying the government’s decision to terminate Mr. Dunsmuir’s employment. The government argued that, under the enabling legislation, it retained the right to terminate with proper notice/severance and, therefore, it was irrelevant whether the government had sufficient grounds for dismissal. In effect, the government argued that only employees who had been discharged for cause could invoke the third-party grievance procedure (save in regard to the amount of notice/severance). In response, Mr. Dunsmuir insisted that the same legislation authorized the adjudicator to look into the true reasons for his dismissal.

The adjudicator ruled that “[a] grieving employee is entitled to an adjudication as to whether a discharge purportedly with notice or with pay in lieu of notice was in fact for cause, either disciplinary or non-disciplinary.” Inexplicably, however, the adjudicator made no finding as to whether the underlying facts supported a dismissal for cause. He simply left us with the understanding that the decision to terminate Mr. Dunsmuir’s employment was not “disciplinary” but related to “work performance” and his “suitability for the positions”.

The adjudicator’s preliminary ruling provided the confidence necessary to pursue the procedural fairness issue. It was framed in terms of whether the duty owed to Mr. Dunsmuir, under the principle established in Knight, had been breached. This argument flowed easily from the facts. Not only was Mr. Dunsmuir a contract employee, he was also an “at-pleasure” appointee of the Lieutenant Governor in Council. As Clerk of the Court of Queen’s Bench, Mr. Dunsmuir easily qualified as a public office holder.

The adjudicator summarily accepted Mr. Dunsmuir’s argument that the government had failed to inform him of the reasons for its dissatisfaction with his work and to provide him with an opportunity to respond and, therefore, the duty had been breached. The adjudicator then declared Mr. Dunsmuir’s discharge void and ordered retroactive reinstatement. Finally, the adjudicator acknowledged the possibility of judicial review before increasing the notice period from four to eight months, but without offering a legal justification for the increase.

In the Supreme Court, the newly minted deferential standard of reasonableness was applied to the adjudicator’s interpretative ruling. Correlatively, the Court was unanimous in declaring his interpretation unreasonable: “The decision of the adjudicator treated the appellant, a non-unionized employee as a unionized employee.” But, as the Court quickly noted, the interpretative ruling was “inconsequential to the overall determination of the grievance.” The adjudicator simply failed to decide whether or not the government had cause for terminating Mr. Dunsmuir’s employment. This meant that the success of Mr. Dunsmuir’s appeal hinged on the application of the procedural fairness duty.

The Supreme Court made no mention of the proper review standard for procedural fairness issues and understandably so. The Court had decided to overturn its earlier ruling in Knight. No longer was Mr. Dunsmuir owed the administrative duty. To borrow directly from Dunsmuir: “where a public employee is employed under a contract of employment, regardless of his or her status as a public office holder, the applicable law governing dismissal is the law of contract, not general principles arising out of the public law.”

Surely no one quibbles with the proposition that Dunsmuir got it “right” on the standard of review issue. And for the record, the notion that the interpretative (preliminary) issue qualified as a “true jurisdictional question” never crossed the mind of anyone and properly so! That said, I acknowledge a movement from within the Court to adopt a single unifying standard of reasonableness for all issues: see Wilson, per Abella J. I also acknowledge a movement from outside the Court to have the deferential standard extended to procedural fairness issues. Paul Daly, C. Bredt and A. Melkov argue in favour while (Justice) John Evans argues for the status quo: with respect to the American debate, see Adrian Vermule v (Judge) Richard Posner.

In the space of five paragraphs, the majority of the Supreme Court concluded the adjudicator’s interpretation of the enabling legislation was “deeply flawed” (paras. 72-76). That opinion was shared by those who wrote concurring opinions. Dunsmuir’s analysis of the interpretative issue has attracted criticism for applying the correctness standard under the banner of reasonableness. Both Matthew Lewans and David Mullan insist that the Dunsmuir Court breached its own directives when applying the reasonableness standard to the adjudicator’s interpretative ruling. And indeed, Professor Mullan made the same observation in regard to the decision of the Court of Appeal. On reflection, he writes with a gentle pen and the criticism of both scholars has merit. However, Dunsmuir is not the only Supreme Court precedent to engage in disguised correctness review. There are close to twenty post-Dunsmuir decisions listed on my scratch pad that warrant the same indictment.

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. Instead, the reviewing court begins its analysis by turning to the template set out in Elmer Dreidger’s modern principle of statutory interpretation; the one the Supreme Court consistently applies. This leads to an unanswered question: Why does the Court pursue correctness review under the banner of reasonableness? While several plausible explanations are available, Paul Daly offers valuable insights (“The Signal and the Noise in Administrative Law”).

Professor Daly observes, for example, that in cases where the issue is perceived as one of public importance, or of significance to the law, the greater the temptation to seek out the correct or preferred answer. There is no precedential significance in cases that say the interpretative result falls within a range of reasonable outcomes. In theory, such cases should never make it through the Court’s screening process. But once the interpretative issue is recast as a question of whether non-unionized employees should receive the same treatment as unionized ones, what judge would not grant leave to appeal? The opportunity to look into power imbalances in the workplace is the kind of stuff that fits nicely within the job description of any court of last resort. [No one who made an appearance in Dunsmuir anticipated the Supreme Court’s move to a single deferential standard of review and with a revised framework for isolating the proper standard; nor did anyone anticipate that Knight would be targeted.]

Additionally, I maintain the Court’s affinity for disguised correctness review most often stems from the failure of administrative decision-makers to offer an interpretative analysis that comports with Dreidger’s template. One has to assume as much, as the Court’s references to the decision-maker’s reasons invariably focus on the interpretative result to the exclusion of anything that might have been penned in support of one interpretation over another. This leads to the inference that the Court is too often presented with an interpretive result but not much in terms of justification. Accordingly, the Court has no practical alternative than to engage in correctness review.

The fact of the matter is that Mr. Dunsmuir never pursued the interpretative issue in terms of whether the legislation only allowed for terminations with cause. It would be unbecoming to engage in “bootstrapping” with respect to the reasons that propelled the Supreme Court to distance itself from the adjudicator’s approach to the interpretative issue (termination for “disguised” cause). In its place, I offer a compromise of sorts. I maintain there is an arguable case that Dunsmuir would be decided differently today.

My thesis rests on one’s acceptance of the premise that the Dunsmuir legislation was ambiguous as to whether all terminations of employment within the civil service must be for cause. As Professor Willis so aptly stated so long ago: “the words are ambiguous enough to induce two people to spend good money in backing two opposing views as to their meaning.” Assuming ambiguity is present and in the absence of compelling evidence that might shine light on the ever-elusive intent of the legislature, then the task of the adjudicator is to settle on an interpretation that it believes is consistent with the legislation’s objectives: see Mclean v British Columbia (Securities Commission), 2013 SCC 67.

Admittedly, any interpretative argument would have to overcome the presumption against legislation that abrogates common law rights such as the right to dismiss with proper notice/severance. That hurdle, however, is not insurmountable. Indeed, Paul Daly argues that administrative decision-makers should not be bound by the interpretative principles that bind the courts, a proposition with which I respectfully disagree. Additionally, he argues that statutory ambiguity should not be the gateway to administrative deference. On that issue we are also in respectful disagreement. Nevertheless, the fact that my real-life hypothetical assumes ambiguity may be sufficient for purposes of deflecting immediate criticism.

In the face of an ambiguity, one would expect the adjudicator’s analysis to embrace a candid consideration of the competing policy arguments in support of competing interpretations. At this point, the adjudicator now has the opportunity to demonstrate the expertise which is otherwise presumed. Surely, it is the expert who is aware of the workplace realities that permeate public sector employment (in New Brunswick) and is able to communicate those realities when explaining why one interpretation should prevail over another. And surely, everyone is entitled to know why the distinction between unionized and non-unionized employees should be dissolved when it comes to termination of employment.

Some will query why any government would want to relinquish its common law right to dismiss with notice in the face of what every employment lawyer knows is an “elevated” threshold for establishing just cause. Arguably, governments must be as fiscally responsible as employers in the private sector. Perhaps the answer lies in the understanding that, as an employer, the Crown owes more to its employees than do private sector employers. Or perhaps it is because of documented abuses surrounding dismissals with notice in the civil service. Surely, these are the kind of questions the labour expert is expected to address (with the assistance of counsel). Unfortunately, that type of analysis is not found in the any of the decisions underlying Dunsmuir (nor for that matter in Wilson).

At this juncture, the legal realist will take over where Paul Daly left off. Cases such as Dunsmuir have nothing to do with deference. The underlying issue is whether the historical power imbalance in the employment relationship is one requiring reform. The rule of law is preserved so long as administrative reform hinges on statutory ambiguity. The non-expert fails to recognize the influence of those who regard the common law as an impediment to achieving justice in the work place and, correlatively, the non-expert fails to recognize that dismissals with notice are unjust dismissals. Of course, this line of reasoning is consistent with that expected of an employee advocate and antagonistic to the majority view expressed in Dunsmuir. Here is what the majority had to say: “In the context of this appeal, it must be emphasized that dismissal with reasonable notice is not unfair per se. An employee’s right to terminate the employment relationship with due notice is simply the counterpart to the employee’s right to quit with notice [para. 105].”

The notion that a dismissal with notice is an unjust dismissal brings into consideration the Court’s post-Dunsmuir decision mentioned earlier. As in Dunsmuir, the issue in Wilson was whether a non-unionized employee could be terminated without cause. Mr. Wilson, an employee of a federally regulated employer, subject to the Canada Labour Code, was dismissed with severance in lieu of notice. Like Mr. Dunsmuir, he sought to grieve the dismissal but his employer objected for the same reason advanced in Dunsmuir. However, the federal legislation differs in wording. Under s. 240(1) of the Code, a person may grieve if she or he believes the dismissal is “unjust”. Relying on earlier arbitral precedents, the adjudicator held that a dismissal with notice/severance is itself an unjust dismissal. A divided Court (5/4) upheld that interpretative result. In short, terminations can only be for cause under the federal legislation. Curiously, the majority opinion did not address Dunsmuir’s observations with respect to dismissals with notice or severance. The minority opinion did!

Parenthetically, the majority in Wilson is also guilty of disguised correctness review and understandably so. The adjudicator based its decision on the earlier arbitral jurisprudence that favoured Mr. Wilson’s interpretation. As a result, there were no reasons upon which to measure the interpretative result. Further, no attempt was made to look for reasons that might lie elsewhere in the arbitral jurisprudence as happened in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61.

If Dunsmuir were to be re-litigated, Wilson is the one case that might reasonably impact on the outcome. Admittedly, the statutory scheme in Wilson differs in material respects from the Dunsmuir scheme, and in particular with respect to the history of the legislation and, correlatively, the evidence of Parliamentary intent. In short, Wilson serves as both a shield and a sword. As a shield, it counters a view expressed in Dunsmuir that a dismissal with notice is not “unfair” or “unjust”. In summary, there is an arguable case that Dunsmuir would be decided differently on the interpretative issue.

I turn now to the procedural fairness issue which had been abandoned in the Court of Appeal but resurrected for the benefit of the Supreme Court. Having regard to the Court’s subsequent decision in Canada (Attorney General) v Mavi, 2011 SCC 30, it appears Dunsmuir’s ruling is still good law. Hopefully, supporters of Knight will acknowledge an arguable case with respect to the incompatibility of administrative and contract law principles, having due regard to the significance of the good faith doctrine, as discussed in Dunsmuir, and more recently in the Court’s now lead decision of Bhasin v Hrynew, 2014 SCC 71. I also assume commentators will draw a distinction between express and implied employment contracts.

Personally, I believe that Dunsmuir got it right when it came to overruling the impact of Knight on employees who are subject to a written contract and who are also public office holders. But I am also convinced that even if Knight were still good law, Mr. Dunsmuir could not have succeeded. The adjudicator applied the “wrong” standard. In Knight the Court held: “The content of the duty of fairness would be minimal where dismissal is at pleasure.” In fact, the adjudicator in Dunsmuir imposed an “elevated” duty. As will be explained, the elevated one too closely resembles the one applied at common law for determining sufficient or just cause in those instances where the employment is terminated because of a failure to meet work performance expectations (“incompetence). But first, I offer a rudimentary understanding of the law surrounding Knight.

At common law, at-pleasure appointees could be terminated without notice, without cause and without ever knowing why the employer terminated the appointment. The duty of procedural fairness was intended to ensure that the reasons for termination were communicated to the appointee and, in turn, the appointee had the opportunity to address those reasons before the termination took effect. In theory, the appointee would have a chance to address misinformation that might reasonably influence the decision to terminate. This is administrative law’s equivalent of the last chance doctrine.

In Knight, the director of education for the school board had entered into a three-year contract of employment that provided for the possibility of a renewal for an additional three years. However, the contract also provided for termination by ether party upon the giving of three months’ notice. The parties began negotiations for a renewal but the school board was only prepared to renew for a year due to employment issues that had arisen over the preceding years. With no agreement in sight, the school board decided to terminate the contract with timely notice. Mr. Knight’s first argument was that under the Education Act he could only be dismissed for cause! As that interpretative argument failed, the Court focused on whether Mr. Knight’s employment attracted a public law duty of fairness.

The majority (4/3) of the Knight Court so found, but went on to hold there had been no breach. As an at-pleasure appointee, Mr. Knight was well aware of the reasons why his contract was not renewed. Further, he was given the opportunity to speak at the board meeting where the motion to terminate the contract on notice was passed. In brief, the minimal standard had been met. I now turn to an abbreviated recitation of Dunsmuir’s facts, as told by the Supreme Court.

Mr. Dunsmuir’s employment relationship was “not perfect”. The probationary period was extended twice to the maximum of 12 months. He was reprimanded on three occasions during his two years with the government. Two of the reprimands are relevant to the procedural fairness issue. The second reprimand led to a one-day suspension and to notice of work performance issues, including complaints from unnamed staff, lawyers and members of the public. The third reprimand embraced three alleged incidents relating to his job performance and contained a warning that a failure to improve would result in further disciplinary action up to and including dismissal. This was followed by a few meetings the Regional Director to discuss court backlogs and organizational problems in response to undocumented complaints lodged by staff. A further meeting was scheduled to deal with work-related issues but cancelled because of the decision to terminate Mr. Dunsmuir’s tenure with the government.

Now recall that Mr. Dunsmuir had argued that the government had breached its duty of procedural fairness by failing to inform him of the reasons for its dissatisfaction with his work and to provide him with an opportunity to respond. Recall also that the adjudicator summarily accepted that submission. With great respect, that is not a “minimal” threshold or standard. In fact, it is too closely aligned to the common law standard applied in cases where the termination of employment is for cause based on the employee’s inability to perform (“incompetence”). In such cases the employer must establish progressive discipline: sufficient calls for improvement and a warning that failure may result in dismissal.

Succinctly stated, the adjudicator in Dunsmuir effectively adopted the common law standard for establishing just cause as the administrative standard for establishing a breach of the procedural fairness duty. Importantly, the common law standard is incompatible with the minimal standard adopted in Knight! Finally, even if one were to apply the Knight standard, can one reasonably conclude that Mr. Dunsmuir had no knowledge of his employer’s concerns over his performance and no notice of possible termination of employment? Personally, I think Binnie J’s concurring reasons in Dunsmuir capture the essence of the case. The adjudicator had “stretched the law too far in coming to [Mr. Dunsmuir’s] rescue.” But of course I am not a disinterested observer!

The Return of Correctness in Judicial Review

A rebellion against deference is taking place is Alberta, but how just is its cause?

Shaun Fluker, University of Calgary

My initial reaction to Dunsmuir was Much Ado About Nothing. Grand statements by the Supreme Court that the decision would recalibrate substantive judicial review had many scurrying to decipher its ramifications for administrative law, but I could not figure out what all the fuss was about. For me, Dunsmuir (or at least the majority judgment) was little more than an acknowledgement by the Court of shifts that were already well underway in the jurisprudence by 2008 and thus it was hardly a landmark decision in Canadian administrative law. A decade of Dunsmuir has shown that I underestimated the Court’s recalibration intentions, but I remain convinced that Dunsmuir does not belong alongside the heavyweights of Roncarelli v Duplessis, [1959] SCR 121, Nicholson v Haldimand-Norfolk Regional Police Commissioners, [1979] 1 SCR 311, and Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817. These landmarks engage with the separation of powers and grapple with how the principle of legality informs executive and administrative decision-making. Dunsmuir falls well short of this mark.

Dunsmuir stands today as authority for a presumption of judicial deference to statutory decision-makers. This presumption was most forcefully articulated in Dunsmuir by Justice Binnie in his concurring opinion (at para 146). The presumption subsequently gained more traction with the Court in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association2011 SCC 61, where Justice Rothstein wrote that the principle of judicial deference reinforced with Dunsmuir had evolved into a presumption that the standard of review is the deferential reasonableness where a statutory tribunal applies and interprets its home statute (at para 39). The Court more recently endorsed the strength of this presumption in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd2016 SCC 47. The obvious problem with this presumption is its potential reach: Just about every statutory decision in some way applies or interprets a home statute.

Context matters in administrative law, and is not so easily dismissed. The bare assertion of a presumption of deference risks overlooking the context or subtle wrinkles that arise in the exercise of statutory power. Even at the current height of its reign, the presumption of deference still faces regular challenges from those seeking a return to a more contextual review of statutory authority. Madam Justice Deschamps wrote a series of concurring opinions in Dunsmuir (at paras 158-173) Alberta Teachers’ Association (at paras 78-89) and  Smith v Alliance Pipeline2011 SCC 7 (at paras 78-111) taking issue with the bare assertion of deference because it pays too little attention to nuances such as the precise nature of the question or the demonstrated expertise of the statutory decision-maker to determine a legal question. More recently in their Capilano dissent, Justices Côté and Brown cautioned that grounding tribunal expertise merely in its institutional setting risks making the presumption of deference irrefutable (at para 85): “Courts must not infer from the mere creation of an administrative tribunal that it necessarily possesses greater relative expertise in all matters it decides, especially on questions of law.”

Correctness is making a comeback, and the rebellion seems to have started in the rogue Province of Alberta. The Alberta Court of Appeal began its reasoning in Capilano, 2015 ABCA 85 with a shot across the bow (at para 11): “The day may come when it is possible to write a judgment like this without a lengthy discussion of the standard of review. Today is not that day.” The Court of Appeal made short work of deference in its 2015 Capilano decision and surprisingly pointed to the presence of a statutory right of appeal to the courts as a new exception to the presumption of deference (at para 24), all of which led me to ask “Where are we going on standard of review in Alberta?” The Alberta Court of Appeal has since not been shy about its mission to curb the presumption. In Stewart v Elk Valley Coal Corporation, 2015 ABCA 225 the Court of Appeal drew upon the legal realism of Oliver Wendell Holmes (at para 48) and played its Constitution card (at para 54) to trump the legislative branch and assert correctness review over the interpretation by a human rights tribunal of a provision in its home legislation. More recently in Garneau Community League v Edmonton (City), 2017 ABCA 374 the Alberta Court of Appeal doubled down on correctness review for a statutory tribunal interpreting its home statute where the legislature provides for a right of appeal to the Court on questions of law and, even after being reversed by the Supreme Court in the Capilano proceedings, boldly asserts the concept of deference has been reduced to mere rhetoric (at paras 93, 94).

Unfortunately for the rebellion, it has chosen a very unprincipled foundation upon which to confront the Supreme Court and construct its case for the return of correctness in judicial review. The terrain of statutory right of appeal provisions is largely devoid of principle, both in terms of why a legislature chooses to provide for a statutory right of appeal or how the courts exercise their discretion to grant leave to appeal under these provisions. The same type of tribunal in various provinces can be subject to a right of appeal in one jurisdiction but not another; sometimes an appeal lies only with leave of the court and sometimes not. Alberta courts, in particular, are also all over the map in how they determine whether a question of law emanating from a statutory decision is of sufficient importance to warrant appellate review under a statutory right of appeal. See Seeking leave to appeal a statutory tribunal decision: What principles apply? and A closer look at leave to appeal requirements under the Municipal Government Act (Alberta).

However, there is a new hope lurking about the jurisprudence: One which could bring peace to substantive judicial review. It requires a return to a more robust contextual approach, but also calls for a meaningful restatement of the separation of powers between the legislative and judicial branches of modern government. A coherent framework for substantive judicial review must also be constructed from an intelligible and transparent methodology for identifying those questions of law which are of real significance to a community or society as a whole – not just to the legal system – and for which superior courts get the last word. The decision which embarks down this path will mark the return of correctness in judicial review.

Stranger Things: A Defense of Dunsmuir

Did Dunsmuir actually do some good ― at least when it comes to judicial review of law society decisions?

Alice Woolley, University of Calgary

I love criticizing Dunsmuir v New Brunswick. Who doesn’t?  The majority judgment purports to simplify the identification of the standard of review, but sets out a test with the potential to bog a court down (precedent + the “standard of review analysis”). It suggests reasonableness as a deferential standard, yet invites courts to look not just at an administrative decision-maker’s reasons, but also at the outcome it reaches – an apparent invitation to a court to assess the substance of a case, instead of focusing on the administrative decision-maker’s analysis.  Indeed, in Dunsmuir itself the majority neither simplified its own identification of the standard of review nor genuinely deferred to what the labour arbitrator in that case had decided (as David Mullan pointed out at the time). And of course perhaps the most telling criticism arises from the case’s failure to accomplish what one would have thought was its core mandate: allowing the Supreme Court to move on from its preoccupation with, and disagreement about, what is a ultimately a secondary question in any administrative law case.  Standard of review is what the Supreme Court can’t quit. As recently as 2016 the Court split 5-4 on the appropriate standard of review in Edmonton (East) Capilano Shopping Centres Ltd.. And even in a straightforward case, the Court can still spill a remarkable amount of ink identifying the standard of review (see, e.g., Green v Law Society of Manitoba (2017)).

It thus saddens me to concede that this blog does not criticize Dunsmuir. It does not even offer praise only as cover for a nasty zinger or devastating critique. It instead reinforces the empirical studies by Gerald Heckman, Robert Danay and others (summarized by Paul Daly here) to suggest that, on the whole, the effect of Dunsmuir on judicial review of administrative decisions has been more positive than negative.

My contribution to the empirical conversation was to review Court of Appeal and Supreme Court decisions reported on CanLII involving judicial review of law society decisions (mostly through statutory rights of appeal). I reviewed 76 cases with “law /1 society” in the title and “standard /2 review” in the text, identifying the 59 decisions involving judicial review (the remaining cases were disputes to which the law society was a party). Of those, 40 cases were decided after Dunsmuir, and 19 before. I chose law society decisions because I can read those decisions and understand the issues quickly, which allows assessment of, for example, whether the law society acted badly such that the court’s interference was understandable, or whether the court was really just substituting its judgment for the law society’s. I analyzed the cases on the following grounds:

  1. Did the decision uphold or reverse the law society?
  2. Was the decision able to identify standard of review in five paragraphs or less?
  3. Was the standard identified reasonableness or correctness?
  4. Was the Court’s judgment analytically weird (for example, the Adams v LSA (2000) where the Alberta Court of Appeal applied the “error of principle or… unreasonable or demonstrably wrong” standard of review (and concluded that the decision was both “correct” and not “manifestly unreasonable”))
  5. Did the court in fact defer taking into account both the analytical methodology (i.e., focusing on the reasons of the law society rather than on the court’s own analysis of the issue in the case) and the grounds supporting the court’s interference with the law society’s decision?

My analysis suggests little difference between how willing courts are to uphold law society decisions before and after Dunsmuir. In both time periods courts upheld the law society decision more than 75% of the time (75% post-Dunsmuir; 79% pre-Dunsmuir).  Nor are judges notably more willing to use reasonableness review after Dunsmuir than they were before, at least on some of the issues raised by a case (84% pre-Dunsmuir; 90% post-Dunsmuir, including two dissenting judgments).

More significant differences arise with respect to how often the court is willing to use correctness, the length of its analysis in identifying the standard of review, and the likelihood of an odd judgment. In the pre-Dunsmuir cases the courts used correctness for at least part of the decision regularly – in 7 of the 19 cases (37%) correctness was employed in whole or in part. Conversely, in only 2 of the 40 post-Dunsmuir decisions was correctness used (5%), with one additional dissenting judgment using correctness (bringing the total to 7%).

Similarly, prior to Dunsmuir, courts regularly devoted a considerable amount of their decisions to identifying the standard of review. In the pre-Dunsmuir cases 32% of judgments spent more than 5 paragraphs identifying the standard of review, whereas subsequent to Dunsmuir only 12% did. In many of the post-Dunsmuir cases the court identifies the standard of review in a single paragraph.

Further, in almost all of the post-Dunsmuir cases the standard of review used by the court recognizably conformed to the Supreme Court’s jurisprudence. In one post-Dunsmuir case, DeMaria v LSS  (2015) the Saskatchewan Court of Appeal referenced the idea of a court needing a “palpable and overriding error” for reviewing a tribunal’s findings of fact, relying on Justice Deschamps’ concurring judgment in Dunsmuir, but the Court connected that concept to the idea of reasonableness, which seems defensible. In another British Columbia decision, Mohan v LSBC (2013), the Court did not identify the standard of review, but appeared to review for correctness a Law Society Review Panel’s assessment of a Hearing Panel decision, in circumstances where the appropriateness of a correctness standard is not obvious (the issue before the Court was the Review Panel’s assessment of the Hearing Panel’s findings of fact). The Court’s failure in that case to engage at all with its own standard of review is unusual. Mohan is the one post-Dunsmuir law society decision where, to my mind, the Court dropped the ball entirely on the standard of review analysis.

In the pre-Dunsmuir cases courts also mostly seemed to grasp the basic concepts that govern standard of review (correctness, reasonableness and (at the time) patent unreasonableness) but in 3 of the 19 judgments the court’s analysis seemed odd or off-base, which is a much higher percentage (16%) than the 2.5% (1/40) for the post-Dunsmuir decisions. In its 2000 judgment in Adams, referenced earlier, the Alberta Court of Appeal treated an error of principle, unreasonableness and being demonstrably wrong as a singular standard of review, and later upheld the law society’s decision on the basis that it was both correct and manifestly reasonable. The Court did not obviously appreciate the basic ideas of standard of review and judicial deference, or turn its mind to the level of deference it needed to exercise. In a 1999 decision, Phillon v LSA, the Alberta Court of Appeal did not identify the standard of review explicitly but upheld the law society in part “given the standard of review” – implying, I think, a reasonableness standard.  Yet the Court also overturned part of the law society decision on the basis that the law society had sanctioned a lawyer using guidelines not published until after the hearing. For that aspect of the decision the Court did not identify the standard of review it was using. That standard on that part of the decision appears to have been correctness but the court never says so. In 1993 the British Columbia Court of Appeal in McOuat v LSBC suggested that courts may only interfere with administrative decisions that fall within the decision-maker’s jurisdiction where the decision-maker has “abused its discretion”, which seems to adopt the pre-CUPE idea of radically different levels of deference based on the administrative decision-maker’s jurisdiction, rather than a post-CUPE concept of judicial review.

To my mind this comparison speaks in Dunsmuir’s favour. Some of these effects almost certainly arise from more than that decision – it is likely that less odd judgments arise post-Dunsmuir because of the Supreme Court’s repeated reiteration of the concepts of standard of review, not Dunsmuir on its own. A judge has to be pretty out of it nowadays not to know that correctness and reasonableness are the core concepts of standard of review, and to miss the need to identify the standard of review when considering an administrative decision. Nonetheless, the reduction in odd judgments is a good thing, and Dunsmuir deserves at least some of the credit for it. Further, the increased simplicity of identifying the standard of review is great. In almost all law society cases reasonableness should be the standard – so why belabor the identification of it? That simplification was something Dunsmuir explicitly sought to accomplish, and these cases suggest that it has done so. Dunsmuir also does not seem to have made courts any more willing to interfere in law society decision-making – courts, at least when it comes to law societies, are respectful of and deferential to administrative authority, and Dunsmuir has made them no less so.

Indeed, perhaps the thing that strikes me most about reading these judgments is how sound the courts’ instincts are in reviewing law society decisions. That is not to say that I agree with the result in every case here. In several cases I disagree strongly with the law society’s decision (e.g., Groia v LSUC), so I’m unlikely to agree with the outcome of the court decision that upholds it. But disagreement with the result does not suggest that the Court was wrong to defer. My observation is that, generally speaking, these cases show courts understanding what their role ought to be, and fulfilling it.

Generally speaking, courts focus on law society reasons, not the substantive issue in the case. Of the 42 post-Dunsmuir judgments, I assessed 75% as focused on the law society’s reasons and analysis, even where the court overturned that decision. In those cases courts did not seem interested in making their own decision and then weighing the law society’s against it. They looked instead at what the law society did, and whether it could be defended as reasonable. And where courts were not reasons-focused, that lack of focus was often understandable. In Trinity Western University v LSBC (2016), for example, the process and substance of the Law Society’s decision was fundamentally flawed such that the Court’s independent assessment of the legal and constitutional issues was understandable (even inevitable). Similarly, in Merchant v LSS (2014), the Court engaged in a detailed review of the issues, but it did so in significant part because of the intensity and detail of the arguments made by the lawyer challenging the decision – there was really no way for the Court to both defer and respond to the lawyer’s case.  Certainly sometimes the courts focused more on the substance of the issue before the court than on the law society’s reasoning. In Law Society of Newfoundland and Labrador v Regular (2011) for example, while I am persuaded by the Court’s reasoning, I do not think it acted deferentially in substituting its reasoning about conflicts of interest for the Law Society’s, especially given it reached the same result in the end. Overall, however, the cases did not bear out the concern that Dunsmuir encourages courts to focus on the justifiability of the outcome rather than on the administrative decision-maker’s reasons.

Further, and this is true of both pre- and post-Dunsmuir cases, most of the time I think courts interfered with law society decisions to about the right extent, substantively speaking. They did not tend to second-guess law society decisions about whether a lawyer has committed misconduct, or about the appropriateness of the penalty. They recognized that the law society was in the best position to decide those matters, and they let the law society’s decision and assessment stand. At the same time, however, courts appropriately checked law society over-reach. The Courts overturned decisions where the law society:

  1. Failed to take into account or even consider a lawyer’s exculpatory explanation for misconduct in assessing the appropriate penalty, or failed to consider joint submissions from the law society and the lawyer on penalty (Guttman v LSM (2010); Hamilton v LSBC (2006); McLean v LSS (2012); Rault v LSS (2009));
  2. Improperly assessed a delay as prejudicial for only one charge, even though the witness now unavailable was material to both charges (Stinchcombe v LSA (2002));
  3. Refused to compensate a client for funds paid to a lawyer on the basis that a lawyer who was suspended did not receive money in his capacity as a “lawyer” (Singh v LSA (2000));
  4. Applied sentencing guidelines that had not been in force at the time of the lawyer’s hearing (Phillon v LSA (1999));
  5. Had a review panel which did not apply the level of deference review panels of that law society are supposed to apply (LSUC v Abbott (2017); Vlug v LSBC (2017);
  6. Did not try to make a correct decision, but only tried to make a reasonable one (TWU v LSBC (2016) – although the Court also took the position that the law society denying accreditation to TWU would be an unreasonable violation of s. 2(a), which is more contestable);
  7. Had a review panel which incorrectly stated that a hearing panel had not made a credibility assessment of a witness, and then proceeded to assess the witness’s credibility without having heard the witness (Mohan v LSBC (2013));
  8. Imposed a condition that a lawyer provide a psychological assessment of her fitness to practice, when her competence was not at issue (Ritchot v LSM (2010));
  9. Charged the lawyer with having committed an act intentionally, but then convicted the lawyer on the basis of negligence (Merchant v LSS (2009)).

Of course one does have to remember that it is the court who gets to tell the story in cases like this, with the result that it is perhaps unsurprising that the court tends to look like it is doing the job well. At the same time, however, I chose law society decisions because I am somewhat less likely to be fooled by persuasive judicial writing in this area than I would be in, say, environmental law, where I know nothing. And based on such expertise as I have, it seems to me that the courts mostly have it right in terms of their willingness to interfere with law society decisions. This is the case even where I do not agree with the underlying law society decision such as Histed v LSM (2006) or Groia v LSUC (2016) (with the caveat that the dissent in Groia makes a persuasive case for correctness review and overturning the Law Society’s decision). But the point is that whether a law society reached the same decision I would have on the evidence is not a basis for judicial review, and the courts understand that.

What broader insights follow from this analysis? None, except cautiously and with significant caveats. Law societies have features that set them apart from other administrative decision-makers: the decisions reviewed are quasi-adjudicative; they have extensive procedural protections for the lawyer; many (most?) lawyers are represented by counsel at the law society hearing; most law societies have statutory rights of appeal that take them to appellate courts for judicial review in the first instance, which increases the likelihood of informed judges; the decision-makers are mainly lawyers who are less likely to make bad legal errors; their policy choices rarely come before the court on judicial review. These factors may enhance the likelihood that a court will do judicial review of law society decisions better than they do judicial review generally. On the other hand, courts have concurrent jurisdiction over lawyer conduct through the inherent jurisdiction of the court, and can reasonably be viewed as equally expert to law societies on what constitutes appropriate lawyer conduct. That could have made the court more willing to interfere – no matter how expert the law society, the court would see itself as just as expert. Certainly it was not obvious to me before I read these cases that I was going to find what I did – I expected courts to be much more willing to interfere in law society decisions than they turned out to be.

With that caution and those caveats in mind, I would offer up two tentative conclusions from this review. One is that, as noted before, the effect of Dunsmuir is largely positive or, at worst, not negative. The other, however, is to suggest that the Supreme Court might want to calm down on its standard of review jurisprudence. These cases suggest that appellate courts understand what they are supposed to be doing in judicial review, and they are doing it. Constant tinkering with judicial review by the Supreme Court does not seem to be necessary, and risks unsettling the good work the lower courts, at least in these cases, are doing.