Doré Revisited: A Response to Professor Daly

Over on Administrative Law Matters, Professor Paul Daly argues that Doré  actually “emerges strengthened” from Vavilov. Professor Daly’s post responds to my own paper (The Conceptual Gap Between Doré and Vavilov) and post, where I argue the opposite. In this post, I would like to respond critically to Professor Daly’s interesting and provocative arguments. I first recap my position on the matter. Then, I review Professor Daly’s arguments, and respond in turn. In whole, I remain convinced that Doré is inconsistent with Vavilov. Specifically, I disagree with Professor Daly that the presumption of reasonableness applies to Charter issues arising in the scope of administrative jurisdiction. Moreover, I disagree that Vavilov’s articulation of reasonableness review is functionally similar to Doré’s. As it turns out, these disagreements matter for the continued propriety of Doré post-Vavilov.

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As I wrote in both my paper and post on the matter, there are key tensions between Vavilov and Doré  that deserve some attention.

These tensions arise with respect to both selecting and applying the standard of review. On the selection front, Doré  reasonableness is based on a functionalist idea, where the expertise of decision-makers in deciding constitutional matters is presumed (see Doré , at para 46). This justified the selection of a reasonableness standard of review when an administrative decision is challenged as unconstitutional—even though a correctness standard applies when a statute under which an administrator may operate is challenged (see Vavilov, at para 57).   However, Vavilov resiled from this presumptive stance on ordinary questions of law, instead rooting the presumption of reasonableness review on the fact of delegation, not expertise (see Vavilov, at para 30). This, to my mind, illustrates an inconsistency: why would a court presume expertise on constitutional matters, but not on ordinary legal interpretation (the stuff of Vavilov)?

On the application front, I argued that Vavilov probably introduced stricter reasonableness review than the sort of reasonableness review envisioned in Doré and later represented in its progeny (for example, TWU). This is because there are aspects of Vavilov that are more formalist: for example, the focus on the statute as the “most salient aspect” of the legal context relevant to judicial review (Vavilov, at para 108). Transposed into the Doré  context, this might mean that decision-makers should focus on the existing constitutional text instead of abstract values. I also admitted in my paper that Vavilov isn’t just one thing—there is a focus on developing a “culture of justification” in administrative decision-making (see Vavilov, at para 2; The Conceptual Gap, at 13-14). But even this is inconsistent with Doré , which said very little about the sorts of reasons required in a constitutional context; in fact, no guidance was given in Doré  at all, except to say that decision-makers should balance “the Charter values with the statutory objectives” (Doré , at para 55). Contrast this with Vavilov’s detailed approach to reasons-giving, and we see not only an inconsistency, but a schism.

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Not so fast, says Professor Daly. For him, when it comes to both selecting and applying the standard of review, there are no great tensions between Vavilov and Doré.  Indeed, for Professor Daly, “…Doré  emerges strengthened from Vavilov, not weakened.” This is because “…the excision of expertise from the process of selecting the standard of review means that the presumption of reasonableness review certainly applies to Charter issues.” Vavilov indeed does draw a distinction between “merits” review, under which reasonableness presumptively applies, and issues of procedural fairness (see Vavilov, at para 23). If this is the case, expertise no longer matters one way or another to determining the standard of review. Professor Daly further argues that the exercise of discretion implicating constitutional matters is different than pure challenges to statutes under the Charter. In the latter case, uniformity is required, on Vavilov’s own terms. But in the former case: “…answers can legitimately vary as between different regulatory regimes: for example, what is a proportionate restraint on freedom of expression in the workplace may not be proportionate in a municipal election campaign…”

When it comes to applying the standard of review, Professor Daly notes that “[t]here is nothing formalist about the detailed articulation of reasonableness in Part III of Vavilov” (though he goes on to concede that “[s]ome components of Vavilovian reasonableness review can fairly be described as formalist or Diceyan”). He concludes that “[a]dministrative decision-makers can continue to contribute to our collective understanding of the Charter in its application to particular regulatory settings.”

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While I will note areas of agreement, I must strenuously disagree with much of what Professor Daly says about Doré in light of Vavilov, when it comes to selecting the standard of review. The core disagreement between our positions lies in how far each of us would extend the presumption of reasonableness. For Professor Daly, the presumption applies to Doré -type issues. But for me, the presumption of reasonableness outlined in Vavilov must necessarily exclude Doré -type issues. This is for two reasons. First, the presumption, rooted in legislative intent, cannot apply to Charter issues—the legislature cannot intend anything with respect to the depth of scrutiny used by a reviewing court on constitutional matters. Second, the standard of review applied to Charter issues should not depend on the context in which these issues are raised: either way, the Constitution is a fundamental constraint on government actors, requiring uniform interpretation by the courts.

Let’s begin with the first argument by reviewing the conceptual basis for the presumption of reasonableness. As the Court notes in Vavilov, the presumption of reasonableness review is based on the “very fact that the legislature has chosen to delegate authority…” (Vavilov, at para 30). In other words, “[t]he presumption of reasonableness review…is intended to give effect to the legislature’s choice to leave certain matters with administrative decision makers rather than the courts” (Vavilov, at para 33). Legislative intent guides the presumption of reasonableness review, at least on ordinary questions of law. The fiction being deployed here is that the legislature intended deference when it delegated authority to an administrative decision-maker.

While it might be defensible to suggest that a legislature intends deference when it delegates (though such a suggestion itself requires a leap of logic that some might find implausible), it is another thing altogether to impute to the legislature an intent to defer on constitutional matters. This is because  legislatures cannot meaningfully alter the depth of constitutional scrutiny afforded its own enactments by courts. Such alteration would strike at the core of powers exercised by judicial review court. Specifically, the Supreme Court has held that legislatures do not have the ability to “limit judicial review of constitutionality” (see Amax Potash Ltd Etc v The Government of Saskatchewan, [1977] 2 SCR 576, which was rendered in the context of a division of powers case, but with comments equally applicable to Charter issues). Vavilov alludes to this limitation more specifically. It says that legislatures can only specify the standard of review “within the limits imposed by the rule of law” (Vavilov, at para 35). The Rule of Law includes “constitutional questions” which include challenges to statutes on division of powers and Charter grounds. On these questions, correctness rules the day, and the legislature’s intent is of no moment.

Is the same true for exercises of administrative discretion implicating the Charter? It should be, because the legislature cannot do indirectly what it cannot do directly. The legislature should not be able to escape the full scrutiny of the courts under the Constitution simply by delegating. An adjunct to this principle was set out in Eldridge, at para 42, in the context of Charter applicability. There, La Forest J, relying on his decision in McKinney, noted that legislatures should not be able to evade Charter responsibility by simply delegating power. While this decision was rendered in terms of Charter applicability, the same principle applies to questions of standard of review. The level of scrutiny applied by the Court should not differ depending on whether the legislature decides to delegate. Put differently, courts should not impute to the legislature an intent to alter the status quo ante of correctness review simply through the act of delegation.

Put this way, if we cannot speak of a legislative intent to defer on constitutional matters regarding statutes, the same is true on matters arising in administrative jurisdiction. Applying the Vavilov presumption to these questions would mean that we can implicitly conclude that the legislature intended deference on these constitutional matters. But for the reasons above, if we apply the same rules to administrative discretion implicating the Charter, then we cannot speak of a legislative intent on these matters either. Put simply: the legislature is constitutionally incapable of possessing an intent when it comes to the standard of review courts apply on constitutional questions, no matter the context in which the questions arise.

This leaves an important question: if the Vavilov presumption does not apply to Dore-type issues, where do these issues fit in the Vavilov framework? In my view, Doré -type questions involve the Rule of Law, warranting correctness review, as described in Vavilov. While Professor Daly notes that challenges to administrative discretion may admit of more than one answer, one must remember that we are speaking of the Constitution’s protections, not of the ability of administrators to have more lee-way in the context of their regulatory regimes. These issues are still constitutional questions that require a uniform interpretation by the courts, even if the issues arise in challenges to administrative discretion. In fact, the power of judicial review exercised in constitutional and administrative contexts derives from the same source. As Justice Beetz noted in Syndicat des employes de production du Quebec:

              Furthermore, I do not see why different rules would be applied in this regard depending on whether it concerns judicial review of an administrative or quasi-judicial jurisdiction, or judicial review of legislative authority over constitutional matters. When the courts of law have to rule on the validity of a statute, so far as I know they do not ask whether Parliament or the legislature has expressly or by implication given ss. 91  and 92  of the Constitution Act, 1867  an interpretation which is not patently unreasonable. Why would they act differently in the case of judicial review of the jurisdiction of administrative tribunals? The power of review of the courts of law has the same historic basis in both cases, and in both cases it relates to the same principles, the supremacy of the Constitution or of the law, of which the courts are the guardians (at 443-444).

Putting aside the old administrative law language of “jurisdiction” and the fact that we currently accept reasonableness review on the merits, there is an overall point here the bears repeating: even if a constitutional issue arises in administrative proceedings, it is the same power of judicial review that is exercised by a court when it reviews statutes for their constitutionality. The role of the courts should be the same in each context: as guardians of the Constitution, courts must render uniform interpretations of the Charter, even in cases of administrative discretion.

Relatedly, there is also an important perspective to consider here: that of the holder of the right. How does one explain to her that her right means something different because an administrator made the decision? How does a Court conclude that the Constitution’s meaning could potentially be different—not for reasons of text, precedent, or structure—but because the procedural trappings of a case happen, fortuitously, to be different? Administrative exigency is no excuse—or at least, not a good one—to limit one’s Charter rights.  (see, for more on the arbitrariness of Doré, Evan Fox-Decent and Alexander Pless, “The Charter and Administrative Law: Cross-Fertilization or Inconstancy?” in Lorne Sossin & Colleen Flood, eds, Administrative Law in Context (Toronto: Emond Montgomery, 2012) at 431).

Professor Daly might respond that the Constitution could mean different things in regulatory contexts.  But this point seems to view the matter from the wrong perspective. The question is not what makes the most sense for administrators given the different contexts that they render decisions. The question, instead, is whether there is some principled reason, besides administrative exigency, for a lower standard of scrutiny to be deployed when reviewing administrative decisions under the Charter. As I’ve written before, doctrine should not “require the weakening of constitutional norms to suit the prerogative of administrative decision-making.”

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With my remaining space, I’d like to turn to the issue of applying the reasonableness standard. Here, I agree with much of what Professor Daly says. As he notes, and as I argue in my paper, there are tensions in Vavilov’s articulation of reasonableness review (see the Conceptual Gap, at 15). I acknowledge, specifically, that aspects of Vavilov reasonableness may have a Diceyan quality to them, while other parts of Vavilov are more designed to encourage space for decision-makers to justify their decisions to the public (Vavilov, at para 14). Other aspects of Vavilov are not formalist at all—for example, the recognition that administrative justice need not look like judicial justice (Vavilov, at para 92). On this, I think there is agreement.

But this does not change the fact that there are aspects of Vavilovian review that are decidedly formalist, and which conflict with Doré on its own terms. Recall that the governing statutory scheme will be the most salient aspect of the legal context relevant to judicial review (Vavilov, at para 108), with the principles of statutory interpretation acting as necessary constraints on decision-makers. As noted above, if we transposed this requirement into the constitutional context, we would expect the Constitution—specifically, its text—to be even more fundamental than statutes, to the extent that decision-makers must always consider the Charter within their scope of discretion (Doré , at para 35; Slaight Communications, at 1077-1078). As I note in my paper:

Recall that Vavilov, in the context of legislative interpretation by administrators, asked decision-makers to focus on a number of “constraints” that would determine whether a particular decision is reasonable or not. Some of these constraints are particularly relevant to the constitutional context. For example, in the context of assessing the reasonableness of a decisionmaker’s constitutional conclusions, Vavilov’s focus on the “governing statutory scheme” could easily simply be rebranded as the governing constitutional text; precedent, in both contexts, would be relevant; and the principles of statutory interpretation emphasized in Vavilov could become the principles of constitutional interpretation in the Doré context. Additionally, the Court could impose explicit reasoning requirements on all of these constraints; where they are in play, decision-makers should reason in relation to them, just as the Court asked decision-makers to reason respecting the Vavilov constraints (The Conceptual Gap, at 26).

And more specifically, the exercise of discretion under the Charter still requires justification. This was not alluded to in Doré, and yet Vavilov centres the entire edifice of reasonableness review on this principle. Justification, for example, requires the consideration of “…the perspective of the individual or party over whom authority is being exercised” (Vavilov, at para 133). Where rights and interests are stake, one must assume that the standard must be something more than being “alive” to the Charter issues at stake, as the majority concluded in TWU. While I acknowledge that TWU was a law society case, where reasons take on a different character, I must note the dissent’s point of view in TWU. Arguably, the dissent’s comment is more in line with what Vavilov requires:

While the Benchers may not have had a duty to provide formal reasons…the rationale for deference under Doré —expertise in applying the Charter to a specific set of facts…–requires more engagement and consideration from an administrative decision-maker than simply being “alive to the issues,” whatever that may mean… (TWU, at para 294).

In sum, I continue to believe, despite Professor Daly’s strong arguments, that Doré  is vulnerable to attack after Vavilov. While I would be prepared to make arguments that attack Doré  head-on, there is value in comparing Vavilov to Doré. Far from emerging strengthened, I continue to hold the view that Doré requires assimilation to the Vavilov framework. But I part ways with Professor Daly on precisely how this is done.

The Life and Times of Patent Unreasonableness

Post-Vavilov, can a legislature freely specify the standard of review? The answer seems obvious. Legislation overrides the common law, so as the Vavilov majority states, “…where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law” (Vavilov, at para 35).

In most cases, this clear language of the Court will be dispositive. Clearly, where the legislature specifies a standard of review (as opposed to a ground of review—see Khosa), it must be given effect. However, there are niche issues to consider. For example, what about standards of review that have defined statutory or common law meanings? Such a term, for example, is the patent unreasonableness standard, a standard of review that typified the “pragmatic and functional” era in administrative law, and that was put to bed in Dunsmuir. Patent unreasonableness still has some play in the BC Administrative Tribunals Act and in the Ontario Human Rights Code (s.45.8) in relation to decisions by the Ontario Human Rights Tribunal. How affected is the patent unreasonableness standard by Vavilov?

In this post, I want to explore the status of patent unreasonableness post-Vavilov. First, I want to suggest that patent unreasonableness, as a statutory standard of review, is a distinct standard that should be respected post-Vavilov as an instantiation of legislative intent, absent constitutional constraints. I then turn to ask whether such constraints are present, either because of Vavilov or otherwise. As I will note, there are constitutional issues with patent unreasonableness on questions of law that can be framed in various ways. I conclude by noting that patent unreasonableness may be an unconstitutional standard of review.

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Patent unreasonableness, as a standard of review, originally had a common law meaning, as set out in CUPE v New Brunswick (see Dunsmuir, at para 35). In addition to the standards of review of reasonableness simpliciter and correctness, patent unreasonableness was the most deferential standard of review. Patent unreasonableness refers to the “immediacy” or “obviousness” of the defect in a decision-maker’s decision (see Southam, at para 57; Dunsmuir, at para 37). In order for a decision to be found patently unreasonable, the decision must be immediate and obvious (this reminds me of the old ground of an “error on the face of the record). This is the distinguishing factor between the previous distinction between “reasonableness simpliciter” and “patent unreasonableness.”

In Dunsmuir, of course, the Court did away with this distinction, deciding that patent unreasonableness was no longer an available standard of review. The Court reasoned (1) that the distinction between patent unreasonableness and reasonableness was largely illusory (Dunsmuir, at para 41) and (2) that patent unreasonableness might require a a court to accept a decision that is irrational, simply because the error isn’t clear enough—this presents Rule of Law issues (see Dunsmuir, at para 42).

That said, patent unreasonableness as a statutory standard of review remains in some contexts. The BC Administrative Tribunals Act, for example, prescribes a standard of patent unreasonableness where the statute contains a privative clause (section 58(1)). In Ontario, the Human Rights Code, as noted above, prescribes a standard of patent unreasonableness—though the Ontario courts have interpreted this provision as only requiring reasonableness review, in light of Dunsmuir (see Shaw v Phipps ONCA, at para 10). The Supreme Court has held that the standard of patent unreasonableness in this context has a distinct meaning, “but the content of the expression, and the precise degree of deference it commands in the diverse circumstances of a large provincial administration, will necessarily continue to be calibrated according to general principles of administrative law” (Khosa, at para 19).

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The first issue with patent unreasonableness raises the question of how far the common law analysis set out in Vavilov can go to alter the standard of patent unreasonableness, given the comments in Khosa. BC courts have split on the issue. As I have blogged about before, in College of New Caledonia, the Court concluded that “Vavilov has not changed the law with respect to the meaning of patent unreasonableness under [the BC ATA]” (College of New Caledonia, at para 33). Meanwhile, in Guevara v Louie, the BCSC concluded that Vavilov’s comments on the reasonableness standard “also apply to a review of reasons on the standard of patent unreasonableness” because common law jurisprudence may impact what constitutes a patently unreasonable decision (Guevara v Louie, at para 48).

Generally, I am of the view that patent unreasonableness as a standard, if prescribed by the relevant legislature, must remain as distinct as possible. This is because the selection of patent unreasonableness—either as defined by the legislature explicitly or by the common law, as incorporated by legislation—is a distinct choice by the legislature that should be respect. The legislature clearly could not have intended that patent unreasonableness would be modified by Vavilov. So, as much as possible—in order to respect legislative choice—patent unreasonableness should be considered a distinct legislative standard.

Of course, this does not rule out the influence of the common law. In the BC ATA, patent unreasonableness is largely defined by grounds that resemble abuse of discretion—here, the common law cannot play much of a role, because patent unreasonableness has been defined clearly by the legislature. But in the Ontario Human Rights Code, patent unreasonableness is not defined. Here, the common law definition of patent unreasonableness—as it existed at the time of enactment—can supplement the legislative term. In such cases, the benchmark for patent unreasonableness may draw limited inspiration from Vavilov. But to say that Vavilov turns patent unreasonableness into a wholly different standard is a different matter altogether; one that, to my mind, disrespects the legislative choice to enact a more deferential standard of review. To my mind, College of New Caledonia gets this basically correct.

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If patent unreasonableness is a distinctive standard, then the question becomes: is it a constitutional standard of review on questions of law? To be sure, issues regarding the constitutionality of various standards of review are not often explored in Canadian administrative law. In Quebec, however, the constitutionality of the Court of Quebec applying deferential standards of review is an issue that will be heard by the Supreme Court of Canada soon. This indicates that the constitutionality of particular standards—especially those prescribed in legislation—might be an important issue going forward. In my view, there are two such potential constitutional issues with the patent unreasonableness standard. First, the Rule of Law—as conceived in Vavilov—could be a fetter on the legislature’s choice to prescribe a patent unreasonableness standard of review. Second, s.96 could itself found a challenge to the patent unreasonableness standard. In whole, I find this latter challenge more convincing.

First, Vavilov’s comments on the Rule of Law present a challenge to the imposition of a patent unreasonableness standard on questions of law. Recall that, in Dunsmuir, the Court (in a throwaway line, mind you) reasoned that patent unreasonableness presents rule of law issues, because it could shelter otherwise illegal decisions from review. Indeed, as noted above, the Ontario courts have taken these concerns to heart. They have read the “patent unreasonableness” standard in the Human Rights Code as merely demanding “reasonableness” review (see Intercounty Tennis Association, at para 45). In Intercounty Tennis Association, the Court relied on Vavilov’s Rule of Law comments (at para 43, saying that the legislature’s standard of review choice must be respected “within the limits imposed by the rule of law”) to reach this conclusion:

[44] As set out above, returning to an era where “patent unreasonableness” is given a meaning beyond “reasonableness” does raise rule of law concerns – namely, the fact that an irrational decision is allowed to stand because its irrationality is not “clear” or “obvious” enough.

I am sympathetic to these Rule of Law concerns. But there is a preliminary question that must first be answered: does the Rule of Law have substantive force, such that it can bind the choice of legislatures within its limits?

Of course, the Court has previously held that the Rule of Law cannot be used to attack the content of legislation (Imperial Tobacco, at para 59). But as Leonid Sirota notes, there might be valid reasons to distinguish Imperial Tobacco. And at the very least, Vavilov’s comments on the Rule of Law, particularly the comment that legislatures can specify the standard of review within the limits imposed by the Rule of Law, seem to suggest that the Rule of Law, as a principle, will set the boundaries for the standards the legislation can choose.

The other way to view the issue is that Vavilov merely spoke to the common law standard of review analysis. That is, the Rule of Law, within the common law analysis, can impact the court’s choice of a standard of review. But once the legislature legislates, the common law analysis—including the comments on the Rule of Law—cease to apply.

I must admit that, at first, I was drawn by this common law angle. But how does one square the Court’s comments, then, about the limits imposed by the Rule of Law? I can’t seem to reconcile these comments, to be frank. They seem to suggest that the Rule of Law will impose limits on the legislature’s selection of the relevant standard of review. Given that this is likely the case, it would seem to suggest that the Rule of Law does have substantive content, contrary to Imperial Tobacco.

I think a preferable interpretation, rather than relying on a potentially limitless unwritten constitutional principle, is one rooted in s.96 of the Constitution Act, 1867. That is, s.96 has developed such that the role of the superior courts in policing the boundaries of administrative action is constitutionally guaranteed, especially on questions of law: see Crevier. Patent unreasonableness, as a statutory standard, is one that impacts this supervisory function of the superior courts—it requires a court, having identified an error, to measure whether it is “obvious” enough to warrant intervention. This means that certain errors—even material ones—will be allowed to stand . In Quebec, this issue is currently being litigated with respect to the Court of Quebec and the potential requirement of “double deference’”—which has the effect of sheltering illegal decisions from review. This clearly impacts the reviewing function of the Court. In this respect, patent unreasonableness could be unconstitutional because it requires courts to simply ignore errors that otherwise arise.

In light of this conclusion, the question then arises: what do courts do with this when faced with a ptent unreasonableness standard? One could imagine two scenarios. First, one can take the Ontario court’s position, which is to say, a position rooted in constitutional avoidance: read patent unreasonableness to simply mean something else. Another option is to simply strike the legislation prescribing patent unreasonableness, either pursuant to the Rule of Law or under s.96. I think constitutional avoidance in this context is not a sound idea, because as I said earlier, patent unreasonableness can have a distinct meaning if set out in statute (like the BC ATA) and otherwise draws inspiration from the common law definition of patent unreasonableness. This takes “avoidance” too far—avoidance is typically only feasible when a term is ambiguous and there are two plausible meanings one could take of the view. But here, patent unreasonableness is, to my mind, not necessarily ambiguous—though its contours may be hazy.

In my view, we must deal with any constitutional problem faced by patent unreasonableness head on. In my view–and holding my tongue as much as possible in light of the Quebec case on deference–the patent unreasonableness standard has the potential to shelter material errors of administrative actors from judicial scrutiny. This, on an understanding of s.96, is unconstitutional.

Put differently, I think the best way to approach the patent unreasonableness standard, post-Vavilov, is to simply conclude that it is unconstitutional because it minimizes and restricts the reviewing role of the courts. I do not expect anyone to actually pick up this argument—but I think it is a fair point to make in light of that standard. Overall, though, the question of patent unreasonableness will continue to grip courts in jurisdictions where the standard is relevant. This post is designed to provide a toolbox of arguments as litigants and courts deal with this question.

The Nero Post: Two Niche Issues in Judicial Review Post-Vavilov

Lest I be accused of fiddling while Rome burns, I wish to note that I approach a pandemic as a time in which we must, subject to social distancing and isolation, proceed as normal as much as possible. Indeed, it is this sense of normalcy that should characterize what we do as much as possible. Because eventually, we will return to a sense of normal; and once we do so, we need to be equipped to handle the new world in which we will experience. Surely, life will be different. But we must be ready to tackle those challenges, and so we can’t close the door on the world. Life must, to the extent possible, go on.

In that spirit, I write today’s post, tackling two niche issues in the law of judicial review, post-Vavilov: the scope of the correctness categories, particularly the “general questions” category, and the effect of Vavilov on the BC Administrative Tribunals Act.

Let’s start first with the general questions category. As a reminder, Vavilov amended this category, a hold-over from Dunsmuir, to exclude considerations of expertise (Vavilov, at para 61). Now, the category reads as “general questions of law of central importance to the legal system as a whole.” If a question falls in this category, it will be subject to correctness review by the reviewing court. The logic behind this category is that certain questions transcend particular administrative regimes and require consistent answers from the reviewing court (Vavilov, at para 59). But the Court, in Vavilov, cautioned against an expansion of this category: questions that merely address issues of wider public concern do not fall in this category, and the simple fact that a question might be “important” in an abstract sense does not satisfy the category. In short, this category is not a “broad catch-all category for correctness review” (Vavilov, at para 61). Indeed, of all the questions so far recognized by the Supreme Court as falling into this category, all have had constitutional dimensions transcending the boundaries of a particular statutory scheme (see Justice David Stratas’ work, here, at pg 37).

Post-Vavilov, courts have largely heeded the call to interpret this category narrowly. For example, in Bank of Montreal v Li, the Federal Court of Appeal held that the issue of waiver of statutory entitlements was not an issue of general importance. The Court held that there was “no constitutional dimension to the question of whether an employee can contract out of a specific provision of a statute” and that the answer to the question posed “will not have legal implications for a wide variety of other statutes” (Li, at para 28). The Court again cautioned that this category is narrowly construed.

Similarly, in Beach Place Ventures, the BCSC also rejected the invitation to label a question as a general question of central importance. The controversy in that case involved whether certain complainants were “employees” under the Employment Standards Act [ESA]. The Court rejected the invitation to characterize this question as one of general importance. While the Court agreed that “what constitutes ‘employment’ is an important societal question,” the employee determination is one cabined by “statutory provisions rather than left to general principles of law” (Beach Ventures, at para 33). Put differently, the employee determination is one that is particular to the ESA, and the fact that the legislature chose to vest this question in the ESA was determinative for the Court.

But there has been at least one case where general questions were recognized. Take College of Physicians and Surgeons v SJO, where the issue was the production of documents in the context of a professional conduct investigation. The subject of the complaint raised an issue of privilege. The Court held that correctness should apply to this question, because “the way the disclosure and production issue has been raised here impacts in a broad way on the operation of the professional regulatory system” (SJO, at para 10).

Overall, I would say that the ground has largely stayed the same post-Vavilov on this ground of questions. Of the three cases cited above, two have recognized that this category is not a broad way to invite the application of the correctness standard. The only case that has recognized such a question, SJO, largely does so on solid ground: indeed, the Supreme Court has already noted that solicitor client privilege is a general question of central importance (see University of Calgary, at para 20). While SJO did not involve solicitor client privilege, it is only a hop, skip, and a jump from solicitor client privilege to other forms of privilege, even those not currently recognized at law. Indeed, the form of privilege asserted by the subject of the investigation in SJO was not recognized at law, but could impact other claims of privilege across the professional regulatory system. This, as I see it, is at least facially supported by existing Supreme Court precedent.

Overall, though, there has been little movement on this ground. And I think this is for the best. The central questions category is one that preserves the Rule of Law, but if it is used liberally, it could eat away at duly-delegated authority over certain questions. In this sense, I see the warning in Beach Place Ventures as apposite: a liberal application of the central questions category arrogates greater power to the courts to overturn decisions that, at least facially, have been delegated to administrative decision-makers. In the ordinary course, the scope of power delegated to a decision-maker, discernible through the ordinary rules of interpretation, should dictate the space available to a decision-maker—the level of deference (see Vavilov, at para 90 for a similar approach in which statutes, among other things, constrain a decision-maker). The ready imposition of an artificial correctness category risks upsetting this ordinary task. While this category should obviously exist, it must be left for questions with truly transcendental impact.

The second issue: the impact of Vavilov on the BC ATA. So far, there are duelling cases out of the BCSC that deal with this issue. In College of New Caledonia, the Court concluded that “Vavilov has not changed the law with respect to the meaning of patent unreasonableness under [the BC ATA]” (College of New Caledonia, at para 33). Meanwhile, in Guevara v Louie, the BCSC concluded that Vavilov’s comments on the reasonableness standard “also apply to a review of reasons on the standard of patent unreasonableness” because common law jurisprudence may impact what constitutes a patently unreasonable decision (Guevara v Louie, at para 48).

Of course, this is a classic problem: what role does the common law play in elucidating statutory guarantees? The Guevara Court cited to Khosa, at para 19, where the Court did say that patent unreasonableness in BC will be interpreted in light of general common law principles of administrative law. But this passage, in my view, should not be taken so far. While patent unreasonableness may receive limited inspiration from common law principles, it is also a distinct standard of review that differs from reasonableness as defined by the Supreme Court. Its distinctiveness comes from the fact that it is a statutory standard of review. As recently confirmed in Vavilov, legislated standards of review such as the patent unreasonableness standard should be given effect (Vavilov, at paras 35-36). This is simply a function of the hierarchy of laws; statutes (explicitly or by necessary implication) trump the common law. The common law cannot override the statutory standard, and I fear that is what happened in Guevara, and what a liberal application of Khosa would entail (just another reason to disfavour Khosa).

Overall, these two niche issues in judicial review will continue to be fleshed out in lower courts. For now, sit back, quarantine, and stay strong.

UAlberta Pro-Life: Another Nail in the Doré Coffin?

On the Ontario Bar Association website, Teagan Markin describes and analyzes the recent UAlberta Pro-Life Case, 2020 ABCA 1. I had meant to blog on this decision when it came out, but life intervened, so I thank Markin for reminding me of the case. In the case, Watson JA employs a creative use of the Doré test, similar to how the Ontario Court of Appeal’s approach in Ferrier (which I blogged about here). Both Ferrier and UAlberta Pro-Life “bifurcate” the standard of review, so that the definition or scope of the Charter right at issue is reviewed on a correctness standard, while the right’s application in a proportionality analysis is reviewed on a reasonableness standard.

While I understand the impetus to clarify what the Court calls the “unelaborated language” of Doré (UAlberta Pro-Life, at para 166), I see bifurcation as only a medium-term solution because there are more fundamental issues between Doré and Vavilov. I actually see bifurcation as introducing more problems than it solves. It raises tricky issues about what the scope of a Charter right is versus its application; it is plainly inconsistent with Doré ; and if one takes Vavilov seriously, bifurcation arguably does not go far enough. If constitutional questions are so connected to the Rule of Law that they require consistent answers from the courts, bifurcating the standard of review is at best an intermediate solution to a more serious problem: Doré is simply inconsistent with Vavilov, on its own terms.

In this post, I explore this argument.

***

The UAlberta Pro-Life Case involved two appeals. The first appeal concerned a 2015 demonstration by the UAlberta Pro-Life group. The Pro-Life group complained to the University that counter-protests erected in response to the pro-life protest “breached the University Code of Student Behaviour” [4]. This first issue, while interesting, is not in my cross-hairs for this post.

The second issue relates to a request by the Pro-Life group for permission to hold another demonstration in early 2016. The University determined that the group would be permitted to hold the event, so long as the group agreed to defray the costs associated with security for the event, estimated to be around $17 500. The Pro-Life group “said the cost was prohibitive and amount to denial of their exercise of freedom of expression” [5].

On judicial review, the chambers judge, relying on Doré , concluded that the University decision fell within “the range of possible acceptable outcomes” [156] because even though the costs of security impacted Pro-Life’s freedom of expression, “[t]hat impact had to be balanced against other interests” [156].

For the Court of Appeal, a number of issues presented themselves, including the thorny issue of whether the Charter applies to universities [148-149]. However, for our purposes, the relevant part of the decision dealing with the standard of review and the articulation of the Doré test are most important. The Court, early in the decision, says the following:

The standard of review as to the definitional scope of a Charter right or the definitional scope of s.32 of the Charter must be correctness. These are transcendent questions of law not resting within the enabling legislation of any specific decision-maker…By comparison, for issues of fact or discretion, the reviewing court is to “tread lightly”[30].

The Court, later in the decision, went on to explain that since the chambers judge’s error in applying the Doré test (which I will address below) “was erroneous on a Constitutional legal test, it is reviewed for correctness and it is reviewable as incorrect” [169].

Why is the articulation of a constitutional test a matter for correctness review? The Court couched the answer to this question in Vavilov:

In this respect, the Supreme Court in Vavilov recently referred briefly to Doré and appeared to distinguish review of the “effect” of a judicially reviewable administrative ruling from a specific finding of unconstitutionality of a statute on the basis of Charter inconsistency. The Supreme Court said “correctness” applied to the latter. The Court, however, did not state the standard of review for “effect” cases, and did not erase the above passages from TWU 1 and TWU 2. Significantly, the Court also reinforced at para 53 and elsewhere in their reasons, that correctness review applies to any determination of law linked to respect for the rule of law name ly “questions: constitutional questions, general questions of law of central importance to the legal system as a whole and questions regarding the jurisdictional boundaries between two or more administrative bodies.” I read, therefore, Vavilov as being consistent with the approach taken here [170].

With the standard of review set out, the Court also looked at the chambers judge’s application of the Doré test. There were two problems with this test, in the Court’s eyes: first, the chambers judge failed to articulate the proper s.1 limit, and second, she failed to properly allocate the proper burden of proof. On the first issue, the Court concluded that “the limitation must, in my view, be demonstrably justified in a free and democratic society. Although that expression about demonstrable justification does not figure prominently in the cases from Doré onward, it is not erased from the Charter as linguistic frill” [161]. Since the chambers judge failed to ground her analysis in the language of s.1, she “applied a utilitarian approach” that failed to “apply the correct criteria” [159].

On the second issue of onus, the Court concluded that even under the Doré administrative law approach, “the onus on proving the ‘section 1 limit’ on expression freedom…should be on the state agent” [161]. This suggestion is reminiscent of both McLachlin CJC’s and Rowe J’s opinions in Trinity Western, where they suggested friendly amendments to the Doré framework. But Doré was quite unclear on this point, as a matter of first principle.

Overall, the Court chastised the Doré framework, concluding that “[w]ith respect, Doré was expressed in elastic terms after which incorrect readings of Doré exposed Charter rights and freedoms to an inadequate level of protection” [166].

***

Bifurcation is not necessarily a new way to deal with issues of Charter rights. As Professor Daly points out, it is an approach that appears in the Supreme Court’s duty to consult jurisprudence (particularly, look at Rio Tinto and Moldaver J’s opinion in Ktunaxa). Ferrier, as I’ve written about before, is also an example of this approach. One understands the impetus for the Court of Appeal’s reasoning in UAlberta Pro-Life, from both a first-principles perspective and from a Vavilov perspective. From first principles, Doré , to many, has turned out to be a way to disempower Charter rights by reference to untethered “values,” and to let the government off scot-free, escaping the traditional justification it must bear under s.1. Indeed, as noted above, this was the impetus behind McLachlin CJC’s and Rowe J’s opinions in Trinity Western. For the then-Chief Justice, bifurcation seemed on the cards, because “the scope of the guarantee of a Charter right must be given a consistent interpretation regardless of the state actor, and it is the task of courts on judicial review of a decision to ensure this” (Trinity Western, at para 116). For Rowe J, the focus on values could lead to “unpredictable reasoning” (Trinity Western, at para 171) that, one can imagine could lead to under-powered Charter rights.

As the then-Chief Justice seems to understand, reasonableness does not help the situation. It means that the initial scope of a right might be given inconsistent (but reasonable) interpretations by different decision-makers. These inconsistent interpretations could be given even more power by sloppy “values-based” reasoning that divorces Charter analysis from the actual text of Charter rights. Bifurcation solves this problem. It forces courts to give a consistent interpretation, through correctness review, on issues of the scope of Charter rights. Conceivably, such decisions transcend the scope of particular statutory objectives and contexts, and go to the force of Charter rights in the abstract. Correctness review, then, adequately guards the consistent application of the scope of particular Charter rights in different statutory contexts.

But Vavilov, as I have written before, could also support this sort of bifurcation based on the principle of consistency. Recall that while Vavilov did not squarely address the Doré framework (see Vavilov, at para 57), it did expand on what the Rule of Law requires in the context of selecting the relevant standard of review. Sometimes, to the Court, “respect for the rule of law requires courts to apply the standard of correctness for certain types of legal questions…” (Vavilov, at para 53). This is particularly so with constitutional questions, where

[t]he application of the correctness standard…respects the unique role of the judiciary in interpreting the Constitution and ensures that courts are able to provide the last word on questions for which the rule of law requires consistency and for which a final and determinate answer is necessary (Vavilov, at para 53).

The scope of Charter rights, as the then-Chief Justice noted in Trinity Western, requires consistency. Correctness review on the scope/definition of Charter rights would accomplish that goal, at least in theory.

But bifurcation presents two problems: both from the Doré perspective and from the perspective of Vavilov. Like it or not (and I don’t) Doré is a binding precedent of the Supreme Court. As Markin argues in her post, Doré —and most recently, Trinity Western—were largely silent on this sort of bifurcation of the standard of review. While it has been recognized that the Doré test requires two distinct steps (1) “whether the administrative decision engages the Charter by limiting Charter protections” and (2) proportionate balancing (see Trinity Western, at para 58), the Court in both Doré and Trinity Western only said that the standard of reasonableness applies to decisions taken by decision-makers that impact Charter rights (see Trinity Western at paras 56-57; Doré , at para 56-57). It did not mention bifurcation as a proper approach. Indeed, Doré was an attempt to comprehensively address this standard of review issue—indeed, it arose, because of the Court’s appraisal of a “completely revised” relationship between the Charter and administrative law (Doré , at para 30). One would have expected such a comprehensive approach to mention bifurcation if it indeed was a doctrinal solution that the Court could endorse.

This, of course, does not mean that Doré is on solid ground. Indeed, much of Vavilov can be read as a way to undermine Doré , as I wrote about here. And on this front, one could make a convincing argument that bifurcation simply does not go far enough in light of Vavilov. Vavilov says that issues involving the Constitution should be reviewed on a correctness standard. Again, it is because these questions require consistency from the courts, as courts are in the unique position of being guardians of the Constitution (see Hunter v Southam, at 155: “ Ell v Alberta, at para 23; United States v ; Kourtessis v MNR, at 90). Based on this idea, one could convincingly argue that the proportionality analysis—not just the issue of the scope of Charter rights—should also be reviewed on a correctness standard.

This is true for a few reasons. First, Doré was premised on a functional idea of expertise as a reason for deference. The idea was that, in the context of statutes under which administrative decision-makers receive power, administrative decision-makers are best suited to be able to balance the Charter values at play in light of the statutory objectives (see Doré , at paras 35, 46). Vavilov resiles from expertise as a reason for applying the reasonableness standard reflexively (Vavilov, at para 31). Now, expertise is a reason for deference, but only after reasonableness has been selected for other reasons going to legislative intent (Vavilov, at para 31). There is no warrant to impose a different standard when it comes to constitutional questions, even those that arise in statutory contexts with which decision-makers may be familiar. That is, if we do not presume expertise on run-of-the-mill, humdrum legal questions, then why should we presume it in the context of constitutional questions? My uneducated guess is that most decision-makers do not have expertise on constitutional matters, even if they arise in the context of familiar statutes. And if expertise is no longer a reason for reflexive deference, then the rug is pulled out from Doré as a matter of first-principles. Now, courts should not lessen the robustness of review based on questions of expertise. Vavilov, then, lowers the importance of functional reasons for deference.

Second, proportionality still counts as a “constitutional question” that should be subject to Vavilov’s comments about the Rule of Law. One might argue that there is a difference in kind between the scope of Charter rights and their application/balancing in the proportionality context. For one, the scope of a Charter right is a pure question of law, and application considerations are probably questions of mixed fact and law, to which we might owe deference. But there is no reason to think this strict division will hold all the time. In the first place, I am skeptical of the ability of courts to reliably decide what is an issue of “scope” and what is an issue of “application.” Indeed, constitutional challenges as against statutes largely depend on their facts—this is borne out if one looks at cases like Bedford and Carter. And yet, in statuory contexts, we apply a correctness standard (see Vavilov, at para 57). We might lessen the force of a correctness standard in respect of particular facts—ie the margin of appreciation—but that margin is not always applicable. Neither it should be in the Doré context.

All of this to say, the UAlberta Pro-Life Case is a good illustration of the ways in which courts are trying to navigate Doré post-Vavilov. As noted above, I understand the impetus behind bifurcation as a medium-term way to bridge the gap between Doré and Vavilov. But I still see fundamental strains between Doré and Vavilov that bifurcation cannot solve.

What Does Vavilov Stand For?

This post is co-written with Leonid Sirota.

As we previously noted in a joint post on Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, that decision leaves open the question whether reasonableness review, as explained in the majority reasons, tends toward deference or vigilance, and so whether it will be more rigorous than pre-Vavilov reasonableness. After all, Vavilov begins by saying that its application of the reasonableness standard is based on a principle of judicial restraint, one which “demonstrates a respect for the distinct role of administrative decision-makers” (Vavilov, at para 13). Yet in the same breath the majority insists that reasonableness “remains a robust form of review” (Vavilov, at para 13). It then adds that the reasonableness standard is strong enough to guard against threats to the Rule of Law—yet not so strong as to revert to a form of jurisdictional review (Vavilov, at para 67).

Because of these statements, it is not surprising that some suggest that Vavilov is more robust than restrained, while others view it as “inherently deferential”. At first blush, these different takes on Vavilov could be argued to reflect confusion at the heart of the decision. And Vavilov’s rhetoric is indeed confusing. But an optimistic interpretation of the majority’s reasons might be that they speak to the great variety of cases to which they apply. In some, review will be more constrained; in others, it will be more rigorous. It will be the task of lower courts to parse the Vavilov judgment to determine which circumstances call for which application. But it is not clear that Vavilov prescribes an approach to judicial review that is uniformly more or less restrained.

While it is too early to draw any trend lines, the lower courts have had a chance to weigh in on this question, and they too are divided. But taking the cases together, they might support the conclusion that Vavilov is more contextual than categorical. On one hand, some cases have put forward more interventionist readings of Vavilov. One of us wrote here about Canadian National Railway Company v Richardson International Limited, 2020 FCA 20. There Nadon JA applied the appellate correctness standard, but he added that had he applied reasonableness review, he would have found the decision unreasonable. Nadon JA faulted the Canadian Transportation Agency for failing to take account of statutory context by focusing too much on the text of the relevant statutory provision—and said this would have been just as much of a problem on reasonableness review. Similarly, in Farrier c Canada (Procureur général), 2020 CAF 25, Gauthier JA explained that while she might have found a decision of the Appeal Division of the Parole Board of Canada reasonable under Dunsmuir and its progeny, under Vavilov, the story was different (Farrier, at paras 12, 19). The failure of the administrative decision-maker to provide reasons on some key legal elements of the decision was fatal.

By their own admission, these cases take a harder look at the administrative decisions under review than one would have expected prior to Vavilov, especially in how they scrutinize the administrative decision-makers’ reasons. This seems fully consistent with Vavilov’s “reasons first” approach to judicial review (Vavilov, at para 84) and its clear rejection of the practice of judicial supplementation of reasons (Vavilov, at paras 96-97). Coupled with these changes, Vavilov introduces what one might call a “legal hard look review”. There is now an expectation that administrators will reason with reference to their enabling statutes and take account these statutes’ text, context, and purpose (Vavilov, at para 120). Their omissions in this regard can only be tolerated if they are minor (Vavilov, at para 122). But, as Richardson holds, a failure to justify a decision in relation to the statute at all will be fatal.

By contrast, some decisions in Ontario’s Divisional Court fail to see a meaningful difference between Vavilov and the previous judicial review regime. In Radzevicius v Workplace Safety and Insurance Appeals Tribunal, 2020 ONSC 319 , for example, Swinton J asserts that “Vavilov does not constitute a significant change in the law of judicial review with respect to the review of the reasons of administrative tribunals” (Radzevicius at para 57). She holds that, because there was no “fundamental flaw or gap in the Tribunal’s analysis”, the decision was reasonable (Radzevicius, at para 59). And in Correa v Ontario Civilian Police Commission, 2020 ONSC 133, Swinton J (writing for a differently composed panel) was similarly disposed, insisting that Vavilov did not impose a “more robust reasonableness review” (Correa, at para 54).

These cases divide on a basic question: is Vavilov reasonableness review more robust than what preceded it? The temptation is to fall on one or another side of this question, but the truth might be a bit more nuanced. The decisions we have just discussed suggest that, while Vavilov may impose more robust review in some circumstances, it is also possible that, in other cases, Vavilov will, indeed, not change the degree of deference.

In Richardson and Farrier, at issue were questions of legal interpretation: questions that required the decision-maker to engage with the enabling statute to determine the meaning, in context, of relevant provisions. A failure to engage with key elements of the statute, insofar as such a lack of consideration may change the result, is not reasonable, according to Vavilov (Vavilov, at para 122). It is probably fair to say that, at least when it comes to pure questions of statutory interpretation, reasonableness review may now take on a more interventionist flavour, particularly where decision-makers are not simply applying a statutory provision to facts but are actually attempting to determine the meaning of particular provisions. When decision-makers are interpreting a statute, Vavilov demands more of them than the cases it supersedes.

Radzevicius and Correa, by contrast, presented issues of mixed fact and law. Decision-makers having applied legal standards to particular facts and evidence; they did not fail to take account of relevant legal provisions or fundamentally misunderstand them. Vavilov says that while the evidence acts as a constraint on the decision-maker, courts must refrain from reweighing evidence or holding decision-makers to a high evidentiary standard (Vavilov, at para 125). This injunction is consistent with Vavilov’s judicial restraint theme. When evidence is more central to the disposition of the case, we might expect review to be more deferential. Whatever else it did, Vavilov did not—for better or for worse—bring back the concept of jurisdictional fact.

This division finds some theoretical support in the literature, specifically Jeffrey Pojanowski’s recent paper advocating for a “neoclassical” approach to administrative law (which one of us reviewed here). Under the neoclassical approach, courts take a harder look at agency legal interpretations while respecting agency space to maneuver on policy or evidentiary matters (883). Neoclassicism pays attention to what both a particular decision-maker’s enabling statute and general legislation, such as the American Administrative Procedure Act indicate about the intensity of the review to which the decision-maker is subject. This approach is to be contrasted with, among others, “administrative supremacy”, which advocates across-the-board deference on all questions of law, reducing the rule of law to a “thin residue” around the margins of delegated power (869).

Vavilov, on the understanding expounded in this post, lends itself to a neoclassical interpretation. On one hand, it asks decision-makers to specifically reason in relation to the limitations on their power, most notably their enabling statute (Vavilov, at paras 108-110, 120). It introduces new requirements to engage with the text, context, and purpose of the statute (Vavilov at para 118 et seq). All of these requirements are rooted in the centrality of the enabling statute, and the role of courts to interpret that statute to decide on the intensity of review. But on the other hand, Vavilov largely incorporates existing law in asking courts to stay their hand when it comes to the evidence before a decision-maker, and the way it might have been assessed (see Khosa, at para 61). In part, this can be justified as a dutiful reflection by the courts that the decision-maker was (1) the initial merits decider and (2) Parliament’s chosen delegate, established to be the merits decider. This division is therefore rooted in a plausible understanding of the respective roles of courts and delegated decision-makers.

Some caveats are in order. First, the distinction between questions of law and questions of evidence will not necessarily be perfectly neat. Indeed, it is true that sometimes, on legal questions, a decision-maker will have a wide margin in which to operate because of the words of a statutory grant of authority (Vavilov, at para 110). As a result, the distinction we draw here might not be helpful in every case. Our point is simply that it may help explain how courts have thus far treated Vavilov. And second, we do not know whether this distinction is really what drove the courts’ reasoning in these cases. Or was their reasoning, instead, primarily a function of individual or institutional views on judicial review, which are bound to influence judges as they work to make sense of equivocal guidance from the Supreme Court? It will be interesting to see, for example, how the Federal Court of Appeal treats more fact-bound cases and, conversely, how the Divisional Court will approach those where statutory interpretation is at the forefront.

That said, if there is one thing that is clear about Vavilov, it is that the various constraints that operate to limit the space within which a decision-maker can maneuver are supposed to be sensitive to context. As the relevant facts and applicable law vary, so different constraints come to the fore. The constraints that apply in a given case lead to more or less interventionist review. One of us suggested, in a contribution to the symposium on the tenth anniversary of Dunsmuir, that the administrative law framework that should replace the one that built on Dunsmuir (or on its ruins) ought to “abandon the pursuit, or the pretense, of across-the-board deference” in favour of greater sensitivity “to the circumstances of particular cases … As these circumstances vary, so must the applicable rules.” Ostensibly, Vavilov instead doubles down a one-size-fits-most reasonableness standard of review. But it may be that, in practice, it makes sufficient room for a more nuanced approach.

In the short term, this might lead to more confusion. In the long run, however, it may prove a more fruitful way of developing the Canadian law of judicial review. For now, it is for the lower courts to work out the precise circumstances in which more or less deference is due to administrative decision-makers. As a result, confident broad judgments about Vavilov’s true import are probably premature.

A Matter of Unwritten Principle

Unwritten constitutional principles have an important, and rightful, place in Canadian constitutional law

The most striking thing, to me anyway, about the symposium on dissents from Supreme Court judgments that this blog hosted over the holidays was the popularity of Justice LaForest’s dissent in the Provincial Judges Reference, [1997] 3 SCR 3. No fewer than five of our contributors mentioned it as one of their top three: Dwight Newman, Emmett Macfarlane, Jonathan Maryniuk, Howard Kislowicz (although he cautions that he might not actually agree with Justice LaForest), and Bruce Ryder. They have all praise Justice LaForest for emphasizing the importance of constitutional text, as opposed to the unwritten, extra-textual “underlying principles” on which the majority relied. Agreeing with them, albeit relying on a different dissent, that of Justice Rothstein in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31 was Asher Honickman.

This degree of agreement among an ideologically and professionally diverse group sets off my contrarian instincts. So in this post I want to take issue with one aspect of Justice LaForest’s dissent, and with the esteemed scholars who are extolling it. I want to argue that unwritten principles have an important place in Canadian constitutional law, both as a descriptive and as a normative matter. To be clear, it’s not that I have come to like, or even regard as defensible, the majority opinion in the Provincial Judges Reference. Indeed, I stand by my assessment of it as one of the Supreme Court’s worst decisions! But my beef with it was, and is, not simply that it relied on unwritten principles, but that in doing so it disregarded clear, on-point constitutional text, and further that I do not think “it plausible that complex institutional arrangements”―such as independent commissions to determine judicial pay―”are constitutionally required if the constitution says nothing about them”. In other circumstances, reliance on unwritten principles can be much more justifiable.


Justice LaForest’s attack on judicial reliance on underlying principles starts from his understanding of what makes judicial review of legislation legitimate:

The ability to nullify the laws of democratically elected representatives derives its legitimacy from a super-legislative source: the text of the Constitution.  This foundational document (in Canada, a series of documents) expresses the desire of the people to limit the power of legislatures in certain specified ways.  [314]

In a democratic society, judicial review is tolerable so long, but only so long, as it amounts to nothing more than the enforcement of choices democratically made through the process of constitutional entrenchment and amendment. Its “legitimacy is imperiled … when courts attempt to limit the power of legislatures without recourse to express textual authority”. [316] “Textual authority” is be all, end all of judicial review:

The express provisions of the Constitution are not, as the Chief Justice contends, “elaborations of the underlying, unwritten, and organizing principles found in the preamble to the Constitution Act, 1867” [107].  On the contrary, they are the Constitution.  To assert otherwise is to subvert the democratic foundation of judicial review. [319; emphasis in the original]

This paean to democracy and to textualism as a means of giving effect to democracy is appealing. As many of the contributors to the dissents symposium pointed out, it seems to have carried the day in in British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49, [2005] 2 SCR 473, where Justice Major, writing for the unanimous court, proclaimed that

in a constitutional democracy such as ours, protection from legislation that some might view as unjust or unfair properly lies not in the amorphous underlying principles of our Constitution, but in its text and the ballot box. [66]

This was, I am afraid, a crassly cynical statement, considering that the invitation to resort to the protection of the ballot box against retroactive legislation was being extended to non-voters ― to corporations, and to (understandably) very unpopular corporations at that. But, like Justice LaForest’s, this argument has undeniable rhetorical appeal.


Yet it is, in my view, a mistake to claim that it has prevailed as a matter of positive law. Before getting to its current status, let me point out that the idea that underlying constitutional principles exist and constrain government goes back at least to Justice Martland and Ritchie’s powerful dissent on the legal question in the Patriation Reference, [1981] 1 SCR 753. (It is at least arguable that it actually goes back much further, to Roncarelli v Duplessis, [1959] SCR 121 and indeed Attorney General of Nova Scotia v Attorney General of Canada, [1951] SCR 31, even the Labour Conventions Reference, [1937] AC 326, [1937] 1 DLR 673, but I will ignore these cases here.)

The key passage in Justices Martland and Ritchie’s Patriation Reference dissent is the following:

It can fairly be said … that the dominant principle of Canadian constitutional law is federalism. The implications of that principle are clear. Each level of government should not be permitted to encroach on the other, either directly or indirectly. The political compromise achieved as a result of the Quebec and London Conferences preceding the passage of the B.N.A. Act would be dissolved unless there were substantive and effec­tive limits on unconstitutional action. (821)

From there, it was not such a large step to say that these limits on unconstitutional action could, and must be, enforced by the courts, even if they were not spelt out in the constitutional text.

A different unwritten principle, that of the Rule of Law, was also crucial in the Reference re Manitoba Language Rights, [1985] 1 SCR 721. This is well known. Equally well known is the Supreme Court’s reliance on underlying constitutional principles, four of them, in Reference re Secession of Quebec, [1998] 2 SCR 217, to try to construct a legal ― although seemingly not an enforceable ― framework for dealing with separatism. (The Court referred to Justices Martland and Ritchie’s Patriation Reference dissent, although it did not acknowledge that it was, in fact, citing to a dissenting opinion!) Less famous, and not employing the rhetoric of unwritten principles, but relying on this idea in substance, are the cases of Amax Potash Ltd v Saskatchewan, [1977] 2 SCR 576, and Air Canada v British Columbia (Attorney-General), [1986] 2 SCR 539. In both of them, the Supreme Court held, without relying on any specific written constitutional provision, that provinces could not prevent litigants from arguing that provincial legislation was unconstitutional, because this would undermine the Canadian constitutional order as one in which government powers are constrained and limited.

Did the Imperial Tobacco case repudiate all this? I don’t think so. For one thing, the Supreme Court was less categorical there than the passage most often quoted, including above, would seem to suggest. Justice Major did not reject the argument based on the Rule of Law principle out of hand. He reviewed the previous cases where the principle had been invoked (though not Amax Potash and Air Canada), and concluded that it was a relatively narrow one and did not “speak directly to the terms of legislation”. [59] Yet “[t]his does not mean that the rule of law as described by this Court has no normative force”. [60] According to Justice Major, the Rule of Law mostly constrains the executive and the judiciary rather than legislatures but, at least as to them, it does have a real content.

The Supreme Court’s recent decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, however, embraces the Rule of Law principle even more clearly and, crucially, as a constraint on the legislative power. According to the Vavilov majority,

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

The majority goes on to specify that “[t]he starting point for the analysis is a presumption that the legislature intended the standard of review to be reasonableness”, [23] but “respect for the rule of law requires courts to apply the standard of correctness for certain types of legal questions”, [53] legislative intent notwithstanding. With Vavilov, unwritten principles, especially the Rule of Law, are back as a fully operative, and crucially important, source of our constitutional law, if indeed they had ever been displaced from that position. While Vavilov does not invoke them to explicitly invalidate legislation, it makes quite clear that legislation that conflicts with them will not be given effect.


Is this something to be regretted though? Was Justice LaForest right that judicial review in a democracy must only ever be textualist judicial review? I don’t think so. As Stephen Sachs explains in an important essay (which I discussed here), “[n]ot all law is written law, and not every society needs to rely on it in the same way”. (164) Some societies ― including democratic societies ― may well make the choice to have unwritten law as part of their binding constitutional constraints. They might write down some constitutional rules without thereby excluding others, and then a single-minded focus on constitutional text as exhaustive of constitutional law would means that “we could be reading the text correctly while utterly misunderstanding the legal role it was to play”. (165) The question is whether Canada is that kind of society or the one envisioned by Justice LaForest.

Actually, here is another question, which might help answer the previous one: are there any societies of the kind described by Justice LaForest, where the constitution, in the sense of the supreme law, is nothing more and nothing less than the sum of written textual provisions? In the United States, for example, constitutional law includes unwritten principles (though they are not labelled in exactly this way), especially separation of powers, but also federalism. The Australian constitution has been held to incorporate implied freedoms. There might be examples to support Justice LaForest’s views, of course, but, to say the least, these views aren’t a self-evidently correct description of the concept of constitutionalism in a democratic society (which is, I think, how Justice LaForest means them). Nor are they an obviously correct interpretation of constitutionalism in Canada, given the numerous cases referred to above.

To repeat, this is not to defend the majority decision in the Provincial Judges Reference, or even to say that the outcome of Imperial Tobacco was wrong (though Justice Major’s disdainful characterisation of unwritten principles was). What arguably makes these cases different from the likes of Amax Potash, the Patriation and Secession Reference, and Vavilov, is that they involved invocations of principles to run around fairly specific textual choices. Judicial independence is protected to a greater extent, and retroactive legislation proscribed, in the context of criminal law, but not in the civil law. Right or wrong, this is the sort of “political compromise” to which Justices Martland and Ritchie referred, and courts must be careful not to “dissolve” it.

But, by the same token, they must not allow the political compromises that made Canada into a federal state, bound by a supreme constitution, and one where public authority is constrained by the Rule of Law, to be dissolved either. No doubt it is possible to take arguments based on constitutional principles too far, just as it is possible to misread or twist the meaning of constitutional text. But this is not a reason for peremptorily rejecting these arguments, let alone claiming that they are illegitimate in our constitutional order. Justice LaForest was wrong to suggest otherwise in the Provincial Judges Reference, and so, respectfully, are those who extol his dissent today.

Richardson: Rigorous Vavilov Review

In one of the Federal Court of Appeal’s post-Vavilov cases, CNR v Richardson, the Court (per Nadon JA) demonstrates that Vavilov review, on substantive questions of law, will not be inattentive or subordinate to administrative discretion. Indeed, while some suggest that Vavilovian review is “inherently deferential,” I see the matter quite differently:  Richardson shows how Vavilov review puts the court in the proper position to rigorously enforce the statutory boundaries of administrative decision-making, particularly where decision-makers fail to engage with elements of the statute at all.

Richardson is an agri-food business that owns and operates 54 grain elevators [3]. CN and CP serve a number of Richardson’s elevators [3].  Meanwhile, the Canadian National Railway Company (CN) and the Canadian Pacific Railway Company (CP) connect railway networks at Scotford, Alberta [5], though the mainlines of each do not connect at Scotford. Around this connection (about 30km) lays Richardson’s Lamont elevator, located on CN’s main line [6].

Richardson filed an application before the Canada Transportation Agency, asking that the Scotford site be deemed an “interchange” and that Richardson traffic be transferred for “interswitching” between Scotford and Lamont elevator. Under the relevant statute (the Canada Transportation Act), an interchange “means a place where the line of one railway company connects with the line of another railway company and where loaded or empty cars may be stored until delivered or received by the other railway company” (s.111). Meanwhile, “interswitch” “means to transfer traffic from the lines of one railway company to the lines of another railway company” (s.111). The goal of interswitching is to ensure that shippers with only one choice of railway have “fair and reasonable access to the rail system at a reasonable rate.” Obviously, this would benefit Richardson.

The Agency first concluded that CN and CP operated an interchange, under the statute, at Scotford. While the Agency noted CN’s argument that its main line did not connect with CP’s main line at Scotford, it ultimately held that s.111 of the statute did not make a distinction between the type of railway line required to make the connection [11]. Rather, under the statute, a railway line is defined broadly [11]. Further, s.140 of the statute outlines exemptions for what a “railway line” does not include. To the Agency, if Parliament wanted to limit interchanges to areas where main lines connected, it could have include a similar exclusion in s.111 of the statute [11].

On judicial review, CN argued that the Agency erred in interpreting the definition of “interchange.” The first question for Nadon JA was the standard of review. He concluded that while, pre-Vavilov, the standard was reasonableness, the case came before the Court on a statutory right of appeal, which meant that the standard of correctness applied [42-44]. But Nadon JA went on to conclude in obiter that even though the standard of review was correctness, “[u]nder the previous standard of reasonableness, I would have had no hesitation concluding that the Agency’s interpretation was unreasonable because it failed to consider both context and the legislative scheme as a whole” [46]. Moreover, the Agency misapplied a principle of statutory interpretation—the so-called “implied exclusion rule” adopted by the Agency was inconsistent with Supreme Court precedent  (see Green, at para 37). As such, Justice Nadon remitted to the Agency to receive its view about the interpretive matter, especially in light of the new correctness standard.

Nadon JA’s analysis is tightly connected to Vavilov, and demonstrates how courts should apply Vavilov in light of defective statutory reasoning. As Vavilov notes, at para 108, the governing statute is the most “salient” aspect of the context bearing on a decision-maker. As such, this most salient aspect must be rigorously enforced against the decision-maker. But a court cannot do so in absence of reasons from the decision-maker engaging with the statute.  Indeed, the reasons must demonstrate some engagement with this and other constraints (Vavilov, at para 120). It is for this reason that decision-makers are required to interpret the law in concert with its text, context, and purpose (see Vavilov, at paras 118, and 120). While the Agency is not required to engage in a “formalistic analysis” (Vavilov, at para 119), and not all errors will be material (Vavilov, at para 122), a failure to engage with purpose at all as in Richardson must be considered fatal, if the governing statutory scheme is a real constraint on administrative decision-making. More specifically, purpose and the overall context must always be considered in run-of-the-mill statutory interpretation cases, and a failure to do so is fatal in that context (see ATCO Gas & Pipelines, 2006 SCC 4 at para 48), as Vavilov says it can be in the administrative context. And what’s more, a failure to use the proper principles of interpretation is a failure of reasoning that Vavilov says is impermissible, because a decision-maker’s interpretation of a statutory provision must be consistent with the text, context, and purpose of a provision, and because “the usual principles of statutory interpretation apply equally when an administrative decision maker interprets a provision” (Vavilov, at para 120).

Richardson, then, is on solid ground. The Agency’s failure to consider the overall statutory context means that it was not “alive” to an essential element of interpretation (Vavilov, at para 120). A failure to engage with the statute at all cannot, on any understanding of the term, be reasonable. And the Agency’s use of the implied exclusion rule, without considering the broader context and purpose, clearly runs counter to the Supreme Court’s comments in Green about the implied exclusion rule. The failure to properly engage with the statute in its entirety, without using the proper tools of interpretation, is a Vavilovian error.

There is a broader point of principle here. As Vavilov implicitly holds, it is not formalistic to expect decision-makers, who share in the enterprise of law-making, to actually do the task properly. Indeed, proponents of deference cannot say two things at once: they cannot insist that decision-makers are contributors to law-making, but then grant decision-makers the ability to engage in reasoning that does not engage with the most obvious and natural limitation on administrative decision-making (Vavilov, at para 109). Either decision-makers are shared partners in law-making or they are not.

It is true that reasons are the focus of Vavilov, and so it is methodologically deferential to look at those reasons first. But this does not lessen the rigorousness of Vavilovian review, at least as exemplified by Nadon JA in Richardson. Indeed, the reasons are merely the window into the application of the constraints on the decision-maker. They are not an invitation for courts to sit back—reasons require responsive engagement by the Court, in relation to the application of the principles of interpretation.

While Nadon JA’s remarks in Richardson are obiter, they are a good example of the promise of Vavilov: rigorous reasonableness review that is focused on the statute and in ensuring that administrative decision-makers engage with the statute.