Right Is Wrong

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

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

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


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

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

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

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

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

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

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

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

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

But the Vavilov majority could not bring itself to take that approach, because it would be fatal to the entire conceit of deferential review on questions of law which the Supreme Court embraced in CUPE, Local 963 v New Brunswick Liquor Corporation, [1979] 2 SCR 227, and on various forms of which it has doubled down ever since. As Justice Brown wrote in West Fraser Mills Ltd v British Columbia(Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 SCR 635, “in many cases, the distinction between matters of statutory interpretation which implicate truly jurisdictional questions and those going solely to a statutory delegate’s application of its enabling statute will be, at best, elusive”. [124] When an administrative decision-maker is resolving questions of law, notably when it is interpreting the legislation granting it its powers, it is always engaged in the drawing of the boundary between its jurisdiction and that of the courts. To admit ― as one ought to ― that the Rule of Law requires these questions to be resolved by courts would cause the entire structure of Canadian administrative law to come crashing down. And so, to preserve it, Vavilov asks the courts to pretend that things that are actually entirely alike from a Rule of Law perspective are somehow mysteriously different. It is, as I said in the post linked to at the start, an instance of post-truth jurisprudence.


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

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

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

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

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


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

The Continued Relevance of “Jurisdiction”

This post is co-written with Leonid Sirota

One of the innovations of Vavilov was its dispatch of so-called “jurisdictional questions” from the standard of review analysis. A long-time feature of Canadian administrative law, jurisdictional questions were said to arise “where the tribunal must explicitly determine whether its statutory grant of power gives it authority to decide a particular matter” (see Vavilov, at para 65; Dunsmuir, at para 59). These questions would attract correctness review. But as the Vavilov majority acknowledged, “…majorities of this Court have questioned the necessity of this category, struggled to articulate its scope and ‘expressed serious reservations about whether such questions can be distinguished as a separate category of questions of law” (Vavilov, at para 65; Alberta Teachers, at para 34).   As a result, the Court decided that it would “cease to recognize jurisdictional questions as a distinct category attracting correctness review” (Vavilov, at para 65), satisfied in the knowledge that the robust reasonableness review it articulated would solve a potential problem of decision-makers arrogating power to themselves they were never intended to have (Vavilov, at para 68; para 109).

We question whether matters are so simple. While the Court purported to rid Canadian administrative law of “jurisdictional questions,” clearly the concept of jurisdiction remains. In this post, we outline the four ways in which it remains relevant in Canadian administrative law, despite its absence from the standard of review analysis. This happens (1) in the course of statutory interpretation under Vavilov itself; (2) in the presence of certain statutory rights of appeal; (3) when drawing the boundaries between the remits of two or more tribunals; and (4) when determining whether a tribunal is empowered to consider Charter questions.

A note before beginning: between us, we view questions of jurisdiction differently. One of us (Mancini) has previously argued that jurisdictional questions should simply attract reasonableness review, since jurisdictional questions are merely a subset of a larger category of questions of law; in his view, there is no meaningful difference between jurisdictional questions and other questions of law, for the purposes of the standard of review (see the reasons of Stratas JA in Access Copyright (2018) at para 75). The other (Sirota) disagrees with this position, and instead believes that questions of jurisdiction must attract a correctness standard of review, and that if this means that most or all questions of law, being jurisdictional in some sense, require correctness review, so much the better. This difference is not material for the purposes of this post. We only mean to argue that the Vavilov judgment should not be read as dispensing with the existence of all questions of jurisdiction, let alone with the concept of jurisdiction writ large. Indeed, jurisdiction still remains an important and relevant concept in distinct areas of Canadian administrative law, an idea recognized in some respects by Vavilov itself.

Statutory interpretation under Vavilov

As noted above, Vavilov ceases to recognize jurisdictional questions as a distinct category attracting correctness review (Vavilov, at para 65). This is not a surprise, as majorities of the Court had previously thrown doubt on both the concept of jurisdiction (see CHRC, at para 38) and the means used to identify jurisdictional questions (McLean, at para 25).

And yet: chassez le naturel, et il revient au galop. When the Court goes on to describe the statutory context within which a particular decision-maker operates as an “obvious and necessary constraint” on administrative power (Vavilov, at para 109),  the Court’s explanation harkens back to the language of jurisdiction. The Court says that

Reasonableness review does not allow administrative decision-makers to arrogate powers to themselves that they were never intended to have, and an administrative body cannot exercise authority which was not delegated to it (Vavilov, at para 109, our emphasis).

What is this if not an invocation of the concept of jurisdiction, albeit in plain English? Whether we frame the issue as one of statutory authority or jurisdiction, the point is the same: administrative decision-makers only have the power that is explicitly or impliedly delegated to them by legislation (or that they hold under the royal prerogative). If they go beyond the scope of the delegation, the decision-makers lose their authority to act. Far from doing away with the concept of jurisdiction, then, the Court embraces it in its articulation of the legal limits of reasonableness review.

Moreover, the Court explains that “[i]f a legislature wishes to precisely circumscribe an administrative decision maker’s power in some respect, it can do so by using precise and narrow language and delineating the power in detail, thereby tightly constraining the decision maker’s ability to interpret the provision” (Vavilov, at para 110). In such cases, “questions relating to the scope of a decision maker’s authority … may support only one” permissible interpretation (Vavilov, at para 110), by contrast with others where the statutory language is more open-ended. While the Court resists the analogy, it is difficult to distinguish single-answer “questions relating to the scope of a decision maker’s authority” from pre-Vavilov questions of jurisdiction. What is new, perhaps, is the implicit recognition that even open-ended grants of authority must have their limits.

This is not something to be worried about―even though, as the Vavilov majority noted, every question regarding an administrative decision-maker’s statutory limits can be conceived as a question of jurisdiction (see Vavilov, at para 66), and is so conceived elsewhere (see Peters v Davison (NZCA) explaining that UK case law, followed in New Zealand, has served to “render redundant any distinction between jurisdictional and non-jurisdictional error of law”). Indeed, the Court is correct in saying that jurisdiction (or statutory authority) is a natural limit on administrative discretion. Although it does not serve as the lynchpin for a distinct category of legal questions for the purposes of standard of review analysis, the concept remains in the articulation of the limits on administrative decisions.

Statutory Rights of Appeal and Privative Clauses

Under Vavilov, different standards of review apply on statutory appeals and on judicial review. On appeal, when a case involves a question of law, the standard will be correctness; when a case involves a question of fact or mixed fact and law, the standard will be palpable and overriding error. On judicial review, by contrast, most questions of law, as well as questions of fact and policy, attract reasonableness review.

Hence the scope of statutory rights of appeal, and thus whether a given issue can be appealed or must be judicially reviewed, may be decisive for the outcome of a case. This scope can be circumscribed; one common way in which this is done is by limiting the right of appeal to “questions of law and jurisdiction” as, for example, in the Broadcasting Act provision at issue in Vavilov’s companion case, Bell/NFL.

How are such provisions to be interpreted? Vavilov could be read in one of two ways on this score. First, one could read Vavilov to suggest that when a legislature provides an appeal on a question of law or jurisdiction, jurisdiction means the same thing as “law.” This appears to be what the Court did in Bell, when it did not mention the difference in legislative language between questions of law or jurisdiction. Secondly, one could read Vavilov as retaining the concept of jurisdiction, but simply concluding that for standard of review purposes, the distinction between law and jurisdiction does not matter. This retains the concept of jurisdictional questions.

But what if the appeal right only extends to questions of jurisdiction, not to non-jurisdictional questions of law?  (See, for a version of this in Quebec, Mancini’s article on the subject). If this happens, there are three options. If Vavilov is read as saying that the concept of jurisdiction has no distinct meaning, courts can safely ignore the privative clause and simply consider the right of appeal as either extending to questions of law, or perhaps as covering a null set of cases. We find either of these solutions to be undesirable. If a legislature uses the term “jurisdiction” in a right of appeal, in contrast to the term “law” in a privative clause, the legislature’s use of that term must be given effect: this is simply an application of the presumption against tautology, endorsed in Vavilov itself (see para 45). If the legislature uses the term jurisdiction in a statutory right of appeal, it must mean something over and above a question of law, however much courts and scholars might disagree with its implicit determination that there exist non-jurisdictional questions of law.

This means that courts, in determining whether a particular matter falls within such a right of appeal, must come to its own determination about whether the subject matter is “jurisdictional.” Jurisdiction, then, continues to rear its head in these scenarios.

Jurisdictional Boundaries Between Two or More Administrative Bodies

The Vavilov majority retained, as a category of question attracting correctness review, the determination of “jurisdictional boundaries between two or more administrative bodies” (Vavilov, at para 53).  This happens when it is unclear which body must resolve a given issue, and one body attempts to address a matter that may be considered to fall within a comprehensive legislative regime administered by another.

The Court says that “[a]dministrative decisions are rarely contested on this basis” (Vavilov, at para 64). This observation is true, but the category is not without controversy. In fact, the Court will hear a case, Horrocks, which considers the demarcation of the respective spheres of authority of human rights tribunals and labour arbitrators, and the governing test for determining which actor should assume jurisdiction in a particular case (see Weber, Figliola). In these cases, the Court uses “jurisdiction” in its standard sense: as the power to hear and decide certain matters. If a tribunal proceeds erroneously on this score, it would incorrectly assume jurisdiction.

It might seem puzzling that Vavilov retained this category of review while purporting to rid Canadian administrative law of other “jurisdictional questions.” And yet, what choice did the Court have? As it pointed out, litigants (and indeed tribunals themselves) need to know which administrative body is tasked with resolving a given question.

Jurisdiction to Consider Charter Questions

The question of whether a decision-maker can consider the Charter is also a question of jurisdiction in the classic sense. It is noteworthy that the term “jurisdiction” appears 89 times in the Supreme Court’s reasons in Martin, which set out to re-appraise the rules governing whether a decision-maker has the authority to consider Charter issues. This is a preliminary question that must be asked before dealing with the merits of a particular constitutional challenge. The Court in Martin concluded that where there is jurisdiction to decide questions of law, there is also jurisdiction to consider the Charter (see Martin, at para 36). For the Martin Court, jurisdiction is defined as “the power to decide” (Martin, at para 36). It will be a “jurisdictional question,” therefore, whether a decision-maker has power to determine how the Charter applies to a matter on which it is required to rule. When a court reviews a decision-maker’s conclusion on this front, the court will owe the decision-maker no deference (see Martin, at para 31).  In this manner, the concept of jurisdiction will continue to inform whether a decision-maker has power to decide a Charter matter, and such questions will function much the same way as they did pre-Vavilov.

This isn’t to say that this category of review is justified from a perspective of first principles or precedent. The Constitution is always a limitation on government action, whether that action is legislative or administrative. That is, legislatures should not be able to “delegate out” of the Constitution by empowering an administrative actor. While it is true that administrative decision-makers are creatures of statute, constitutional constraints circumscribe statutory grants of authority whether they are mentioned or not. Indeed, the better view is that a legislature cannot preclude a decision-maker from considering the Constitution even by saying so. And from the perspective of precedent, Martin is difficult to reconcile with Doré, which held that “…administrative decisions are always required to consider fundamental values” (Doré, at para 35). While we both consider Doré to be unjustified in every other respect, this aspect of Doré―at least if for the extra-constitutional “values” we substitute the more appropriate “law”―is supported by the fundamental idea that the Constitution is supreme in the hierarchy of laws: s.52 of the Constitution Act, 1982 (see also Canada (Citizenship and Immigration) v Tennant, 2018 FCA 132).

Normative Implications

In our view, the holding in Vavilov on jurisdictional questions must be considered quite limited. The Court must not be taken as saying that “jurisdictional questions” do not exist as a conceptual matter. Nor is the Court saying that, in other contexts, courts must defer on questions that can be identified as jurisdictional.

Rather, the situation is much more nuanced. Jurisdiction remains a relevant principle in Canadian administrative law, in at least four areas where courts will be called upon to delineate the scope of the authority of particular decision-makers, whether in the ordinary process of statutory interpretation, in demarcating jurisdictional lines, construing statutory rights of appeal, and in relation to Charter questions. Courts will need to return to a stable definition of jurisdiction. It will do no good to suggest that “jurisdictional questions” have been banned from the world of Canadian administrative law. Horrocks is an example: there, the Court will need to decide whether its test for determining which particular body has jurisdiction is adequate.

In our view, this narrow reading of Vavilov is normatively desirable. Jurisdiction is not the will-o’-the-wisp some make it out to be. Scholars obsessed with the “bad old days” of pre-CUPE administrative law always speak of jurisdiction as if it is some major impediment to administrative decision-making. But that is only so if administrators must, contrary to basic constitutional principles requiring all public power to be constrained by law, be allowed to roam free of legal fetters. Such claims by the defenders of the administrative state are an admission against interest, and quite an unnecessary one. Administrative decision-makers function just fine in jurisdictions where their jurisdiction and, indeed, the correctness of their legal interpretations are fully policed by the courts.

It is true that judges of a particular era were pre-disposed to view administrative power with skepticism. But they had good reason: the rise of administrative power was not an inevitability or a phenomenon that was totally consistent with fundamental constitutional principles. Jurisdiction—the idea that a law (typically statute but sometimes the common law) that exists outside the administrator’s subjective preferences and is subject to judicial interpretation determines whether the administrator can hear or decide a matter—is merely a constitutionally required limit on administrative power (see Vavilov, at para 109). No amount of tinkering with standards of review can change this. Courts trying to flee from constitutional principles will find that they cannot outrun them. They must reckon with this reality and devote their energy to working out how these principles are to be applied, rather than to futile escapades.