reasonableness – Double Aspect

Alexion: No Blank Cheques Here

In Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157, the Federal Court of Appeal clarified the law of judicial review post-Vavilov (particularly as it applies to reasonableness review) and set out an important reminder: administrators are not a law unto themselves. In order to make sure that this is the case, particularly in situations of legislative interpretation, administrators must explain their decisions. They must do so in a way that engages with the statute under interpretation. In this way, Alexion says something important: when administrators interpret statutes, there is only so much of a margin of appreciation. They must deal with the law.

I first describe the controversy in Alexion and the Court’s holding. Then I outline why this decision is a landmark one for the post-Vavilov world.

Alexion is a pharmaceutical company that produces a drug called Soliris. The Patented Medicine Prices Review Board had to decide whether Alexion priced Soliris excessively under the Patent Act. The relevant section is s.85 (1), which lists a number of factors that the Board must consider to make a determination. One of the factors is “the prices at which the medicine and other medicines in the same therapeutic class have been sold in countries other than Canada” (s.85(1)(c)). Only after a consideration of these factors can the Board turn its attention (if necessary) to s.85(2), which asks the Board to also consider “the costs of making and marketing the medicine and any other factors it considers relevant.”

As the Court aptly notes, “Section 85 is the law. The Board’s analysis should start with the law. Whatever the Board does must be consistent with the law” (Alexion, at para 34). The Board, in making its excessive pricing decision, noted that it is charged with determining “the relevance and weight of each factor” in s.85 (Alexion, at para 43). The Board concluded that Soliris was priced excessively, largely because it was priced more than the lowest international price in a list of seven comparator countries (Alexion, at para 3). Put differently, out of all the seven countries, the Board found Soliris to be priced excessively because it was not the cheapest option. This was despite the fact that the Board’s own guidelines suggested that, normally, “the highest international price” is a key comparator (Alexion, at para 57). In reaching this conclusion, the Board seemingly followed a standard of “reasonableness”: because Soliris is price higher than one of the comparator countries, the Board implicitly concluded that the price of Soliris is unreasonable (see Alexion, at para 51).

For the Court, Stratas JA concluded that the Board failed to properly justify its decision with reference to the statute at hand: Alexion, at para 64, 66. The Court made a number of important comments justifying this decision:

Prior to Vavilov, “…the Supreme Court instructed us to do our best to try to sustain the outcomes reached by administrators” which included “reviewing courts [picking] up an administrator’s pen and [writing] supplemental reasons supporting the administrators’ outcomes” (Alexion, at para 8). This “ghostwriting” was, as is evident, “antithetical to the reviewing courts’ role as an independent reviewer” (Alexion, at para 8).
In this sense, there is a clear relationship between reasons and outcome on judicial review (Alexion, at para 28 et seq). While Vavilov speaks of outcome and reasons as separate, there are many cases where the reasoning on a particular legal question will lead to an illegal outcome; for example, in this case, “certain words the Board used suggest that it went beyond its permissible statutory mandate by regulating the reasonableness of pricing, rather than preventing abusive pricing…” (Alexion, at para 11). In this case, when the Board spoke of “reasonableness” rather than abusive pricing, “[i]t may be that the Board was trying to reach an outcome that on the facts and the law was not reasonably open to it” (Alexion, at para 32).
The failure of explanation in this case arose on a few different fronts:

The Board utterly failed to deal with the most important and central restriction on its authority: s.85 of the Patent Act. We know that in paras 120-122 of Vavilov the Court notes that “the merits of an administrative decision maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision,” and that the decision-maker must demonstrate that its alive to these “essential elements.” This is because “the governing statutory scheme is likely to be the most salient aspect of the legal context relevant to a particular decision” (Vavilov, at para 108). So when the Board adopted a standard of reasonableness rather than addressing the actual point of the statute—set out in s.85 and the associated case law—it transgressed its authority.
The Board’s failure to explain its departure from its own Guidelines was problematic from a reasonableness perspective. While Guidelines adopted by the Board cannot supercede an analysis based on s.85 itself, they can validly guide discretion. Here, the Board did not explain why it did not follow its own Guidelines, which stressed the highest price comparator country.

There is a lot packed into Alexion, but I think it is worth noting the various things the Court does with Vavilov, especially when it comes to the reasonableness standard.

First, the Court arguably doubles down on the statute as the most important restraint on administrative power. Many of us who read Vavilov for the first time in December 2019 fastened onto paras 108-110 (and also paras 120-122) of that decision as quite important. Those paragraphs hardened a cardinal rule of administrative interpretations of law: it is the statute that the administrator is interpreting (its text, context, and purpose) that cabin the discretion of an interpreting administrator. Now, how this happens is where the rubber meets the road. But the fact that the statement was made by the Supreme Court—and that it is adopted wholeheartedly by the Court of Appeal in this case—is promising.

There are, of course, different ways that a court can ask an administrator to abide by the terms of its statute, and these ways can be more or less interventionist. Alexion is somewhat reminiscent of another case decided post-Vavilov, Richardson. I blogged about that case here. While the comments made by Nadon JA in that case were obiter, they staked out an even more radical understanding of Vavilov’s paragraphs 108-110 and 120-122. In that case, the administrator at hand erroneously applied the “implied exclusion” rule of interpretation, which the Supreme Court has held is insufficient as the sole basis on which to understand the meaning of statutory provisions (see Green, at para 37). Imposing the Supreme Court’s method of interpretation, particularly with regards to particular canons, is one way to force an administrator to abide by a statute. Another, more general and less stringent way, is what Stratas JA did in Alexion. There the Board misapprehended its own statutory purpose and failed to actually deal with the overriding goal of s.85: excessive & abusive pricing. It also ignored many of the factors set out in s.85(1). This is just a different way of getting at paras 108-110 of Vavilov: the Board failed to address its statute under the governing approach to statutory interpretation.

The fact that the Court in Richardson and Alexion did the same thing in different ways is perhaps indicative of a challenge with Vavilov. The decision says a lot, not all of it always internally consistent. Specifically, the challenge going forward with this rather legalistic vision of reasonableness review is how it meshes with the deference that is built-in to the Vavilov framework. Vavilov makes clear at various points that administrators are not asked to engage in a formalistic interpretation exercise (para 119), and that ‘[a]dministrative justice’ will not always look like ‘judicial justice’…” (para 92). Accordingly, as Professor Daly notes, “some portions of Vavilov are liable to become battlegrounds between different factions of judges, those who favour more intrusive review on questions of law in one camp, their more deferential colleagues in the other” (at 15). One could conceive, as Professor Daly does, of Richardson as “betraying a favouritism for an interventionist standard of reasonableness review on issues of statutory interpretation” (at 14).

However, I would say that Alexion and Richardson are of the same ilk, different points on a similar spectrum. Both are directed towards subjecting administrators to legal requirements, but Alexion does so in a more general way, faulting the administrator for failing to address the relevant statutory purpose (among other things). Richardson does the same thing in a more specific way, faulting an administrator for applying a proper tool of interpretation to the exclusion of the statutory purpose. Both, in my view, are plausible views of Vavilov.

Methodologically, there are other important elements of Alexion. One element is the connection that Stratas JA draws between reasons and outcome. Vavilov speaks of reasons and outcome as separate things, but in reality, they are probably intrinsically connected in at least some cases. Alexion provides a good example. In many cases, it was simply impossible for the Court to determine whether the Board had ventured an opinion on the core legal issue at play in the case. Where the Board did offer an opinion, it cast its decision in terms of the wrong legal standards. This led it astray, and it was led astray because its reasoning failed to glom onto the important part of the entire thing: the statute.

This leads to a final point about Alexion. Thank goodness we no longer need to worry about courts coopering up deficient decisions under the Nfld Nurses line of cases. As the Court in Alexion mentions, this decision could have gone a very different way under pre-Vavilov case law. The Court would have asked itself to supplement reasons for decision instead of supplanting them. But as the Court notes, “[m]any of us recoiled at this” (Alexion, at para 9). Why? Because it offends the principle of legality, fundamental to the administrative law system, for a court to uphold a decision that is legally flawed. Of course, deference sometimes asks us to abridge the principle of legality in a strict sense; but there are extremes, and a court making a decision for an administrator is to my mind (and, apparently the mind of the Supreme Court) a bridge too far. As the Court in Alexion says, there are no blank cheques in the law of judicial review (Alexion, at para 44).

All told, Alexion is an important recap of developments post-Vavilov. Particularly on the application of the reasonableness standard, the Court moves the needle in important ways.

An Oddity in Strom

In October, the Saskatchewan Court of Appeal released its much-anticipated decision in Strom. Strom raised a number of important issues: “ “at the intersection between professional regulation, Ms. Strom’s private life, and the s.2(b) Charter guarantee of freedom of expression in the age of social media.”

Strom was a registered nurse. Her grandfather tragically passed at a long-term care facility. Strom took to Facebook to criticize the care her grandfather received at the facility. The facility’s employees reported the comments to the Saskatchewan Registered Nurses’ Association (SRNA). The SRNA charged Strom with professional misconduct, and the SRNA Discipline Committee found her guilty.

The Court ultimately overturned the Discipline Committee’s decision. For many reasons that I cannot explore here, I think this is the right decision, in law and in principle. But one aspect of the decision is of particular interest to me: the Court’s standard of review discussion as it related to the freedom of expression arguments raised by Strom.

Of course, in such a case, the framework that governs the standard of review analysis is Doré. Doré holds that the standard of review when a court reviews an administrative decision is reasonableness (Doré, at para 7). Doré also introduces a proportionality framework for assessing whether a decision-maker has struck a reasonable balance between the Charter right at hand and the statutory objective. Post-Vavilov, it is at least an open question about whether Doré is still good law. This is because Vavilov reaffirms that, when litigants challenge a law under the Constitution, the standard of review is correctness (Vavilov, at para 56). I, for one, have questioned why it is that different standards of review should apply, especially since the Court in Vavilov recognized that legislatures cannot “…alter the constitutional limits of executive power by delegating authority to an administrative body” (Vavilov, at para 56).

Enter Strom. In that case, both parties agreed that the standard of review is correctness on the Charter issue (Strom, at para 133). The Court also agreed, but only because the case came to court via a statutory right of appeal, and under Vavilov, statutory rights of appeal invite the appellate standards of review (correctness on questions of law, palpable and overriding error on questions of fact/mixed fact and law) (see Strom, at para 133). The Court noted, though, the following, at para 133:

It is not necessary to consider the question left unanswered by Vavilov, at paragraph 57; that is, what is the standard of review when the issue of whether an administrative decision has unjustifiably limited Charter rights is raised on judicial review, rather than on appeal?

This, in itself, is not really problematic. Given the fact that, for now, Doré lives another day, it would not be appropriate for an appellate court to apply the correctness standard to Doré-type situations. It is defensible—and proper—to simply classify a constitutional issue as a question of law that falls under the scope of an appeal right. And at the end of the day, it does not matter much for a results perspective, because the standard will be correctness either way.

However, in choosing the correctness standard, the Court then did something that is difficult to understand. It said the following, at para 140:

What, then, is an appellate court’s task when reviewing whether the decision of an administrative body unjustifiably infringed a Charter right? In substance, that task is summarily described in Doré at paragraph 6, despite the fact that the standard of review is correctness. The Court’s task is to determine whether the decision-maker disproportionately limited the Charter right or struck an appropriate balance between the Charter right and statutory objectives.

The Court went on to describe the question raised by the case, at para 166:

The question as to whether it has imposed excessive limits is the proportionality question. Here, it is whether the Discipline Committee advanced its statutory objective in a manner that is proportionate to the impact on Ms. Strom’s right to freedom of expression. One aspect of that question is whether the impact on her freedom of speech in her private life was minimal or serious.

The Court then went on to apply the Doré framework, though made reference to some parts of the Oakes test (see para 153).

This strikes me as an oddity. Let’s take what the Court describes its task to be. When courts apply the correctness standard, courts focus on “the conclusion the court itself would have reached in the administrative decision maker’s place” (Vavilov, at para 15). The proportionality analysis advanced in Doré, however, seems to have deference built-in to it. While Doré notes that the Oakes test and the Doré framework “exercise the same justificatory muscles,” (Doré, at para 5), Doré deference asks courts to give some weight to the statutory objective being advanced by the decision-maker. This was, indeed, a bone of contention for the dissent of Brown and Côté JJ in Trinity Western. But when a court conducts correctness review, at least in theory, the court should not give any weight to what the decision-maker’s reasons are for making

That said, there are no perfect Platonic forms in law. It is true that Oakes itself has developed to contemplate deference in its application. And it is also true that courts, post-Vavilov, have applied what I call “light correctness review” (see Planet Energy, at para 31), where a certain amount of weight is given to the decision-maker’s “…interpretation respecting the words of the Act, the general scheme of the Act and the policy objectives behind the provision.” This could be seen as a sort of S kidmore-like deference, under which courts give non-binding weight to an administrative interpretation.

That said, the inherently deferential idea of Doré review seems inconsistent with a stringent application of the correctness standard. This, to me, is a theoretical oddity, even if its effect is blunted on the edges.

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.

Tout nouveau, tout beau?

Ce que dit, et ce que ne dit pas, l’arrêt Vavilov, pour nos lecteurs francophones

Ce billet est co-rédigé avec Mark Mancini

L’arrêt Canada (Ministre de la Citoyenneté et de l’Immigration) c Vavilov, 2019 CSC 65 de la Cour suprême a fait l’objet de nombreux commentaires, tant sur ce blogue qu’ailleurs, – mais dans la langue de Laskin, pas celle de Beetz. Nous nous proposons donc de combler ce vide. Ce billet ne saurait reprendre les analyses et les critiques détaillées que nous avons tous deux déjà publiées (dont la liste suit ci-dessous) et celles, peut-être, encore à venir. Il se limite plutôt, d’une part, à offrir à nos lecteurs francophones un résumé des points saillants de l’arrêt et, de l’autre, à attirer leur attention sur les enjeux que risque de soulever la mise en œuvre de celui-ci par les tribunaux.

Ainsi qu’elle l’avait annoncé dans son jugement accordant l’autorisation de pourvoi, la Cour suprême profite de l’affaire Vavilov pour ajuster le cadre d’analyse employé par les tribunaux lorsqu’ils révisent une décision administrative sur le fond. Si les normes de contrôle disponibles demeurent celles que les tribunaux canadiens ont appliquées depuis l’arrêt Dunsmuir c Nouveau-Brunswick, 2008 CSC 9, [2008] 1 RCS 190, et que la présomption de l’application de la norme de la décision raisonnable demeure en vigueur, tant les fondements théoriques de ce cadre d’analyse que les circonstances où la présomption est repoussée sont révisées. De plus, la Cour fournit des explications étoffées sur la façon d’appliquer la norme de contrôle de la décision raisonnable, qui seront sans doute un enseignement tout aussi important, et probablement plus difficile à appliquer, de cet arrêt.

Le principe qui guide le choix de la norme de contrôle appliquée lors de la révision d’une décision administrative est celui voulant que cette norme doit « refléter l’intention du législateur sur le rôle de la cour de révision, sauf dans les cas où la primauté du droit empêche de donner effet à cette intention » [23]. Selon la Cour, cela signifie généralement que, « [s]i le législateur a constitué un décideur administratif dans le but précis d’administrer un régime législatif […] on peut aisément présumer que le législateur a voulu que celui‑ci puisse fonctionner en faisant le moins possible l’objet d’une intervention judiciaire » [24]. Il s’ensuit que c’est la norme de contrôle empreinte de déférence, soit celle de la décision raisonnable, qui s’applique – en principe.

Il faut bien noter que c’est le seul choix du législateur qui dicte cette conclusion. L’expertise réelle ou présumée du décideur administratif n’y est pour rien, à la différence de ce qui a pu être le cas dans la jurisprudence (dont l’arrêt Edmonton (Ville) c Edmonton East (Capilano) Shopping Centres Ltd, 2016 CSC 47, [2016] 2 RCS 293 est un exemple particulièrement frappant). La notion d’expertise n’est pas tout à fait reléguée aux oubliettes – nous y reviendrons –, mais son exclusion de l’analyse quant choix de la norme de contrôle a des conséquences importantes, et pourrait en avoir d’autres, non moins significatives. Nous y reviendrons aussi.

La présomption voulant que la norme de contrôle d’une décision administrative soit celle de la décision raisonnable est repoussée dans deux cas. Le premier est celui où le législateur a lui-même indiqué qu’une autre norme de contrôle est applicable. Il peut le faire en légiférant directement sur le sujet. Il peut aussi, cependant, le faire en créant un droit d’appel – avec ou sans autorisation – à une cour de justice. Lorsqu’elle siège en appel d’une décision administrative, c’est la norme de contrôle qui s’appliquerait à une question équivalente dans un appel d’une décision judiciaire que la cour doit appliquer. Ainsi, « elle se prononcera sur des questions de droit, touchant notamment à l’interprétation législative et à la portée de la compétence du décideur, selon la norme de la décision correcte » [37]. Il s’agit là d’un changement important par rapport à la jurisprudence précédente qui, suivant l’arrêt Pezim c Colombie‑Britannique (Superintendent of Brokers), [1994] 2 RCS 557, recourait généralement, même en appel, à la norme de contrôle de révision judiciaire, en raison notamment de l’expertise supposée des décideurs administratifs. (Notons, cependant, « que ce ne sont pas toutes les dispositions législatives envisageant la possibilité qu’une cour de justice puisse contrôler une décision administrative qui confèrent dans les faits un droit d’appel » [51]. En particulier, l’arrêt Canada (Citoyenneté et Immigration) c Khosa, 2009 CSC 12, [2009] 1 RCS 339 et son interprétation, qui nous semble erronée, de la Loi sur les cours fédérales, ne semblent pas affectés par Vavilov.)

Le second cas où la présomption de l’application de la norme de la décision raisonnable est repoussée est celui où son application serait contraire à la primauté du droit. Vavilov enseigne que celle-ci exige une réponse correcte, et non seulement raisonnable, à trois types de questions. Il s’agit, en premier lieu, de questions de validité constitutionnelle; en deuxième lieu, de « questions de droit générales d’une importance capitale pour le système juridique dans son ensemble » [53]; et, en troisième lieu, de celles concernant « la délimitation des compétences respectives d’organismes administratifs » [63]. D’autres types de questions pourraient, en principe, s’ajouter à cette liste, mais la Cour semble plutôt sceptique à ce sujet.

Trois observations s’imposent ici. Premièrement, s’agissant de questions constitutionnelles, Vavilov ne remet pas en cause – à première vue en tout cas – l’arrêt Doré c Barreau du Québec, 2012 CSC 12, [2012] 1 RCS 395. La Cour souligne expressément qu’elle ne se prononce pas sur la validité du cadre d’analyse qui y a été établi. Deuxièmement, s’agissant de « questions d’une importance capitale », cette catégorie se trouve possiblement élargie en comparaison avec le cadre d’analyse de l’arrêt Dunsmuir, puisqu’elle ne dépend plus d’une évluation de l’expertise relative du tribunal et du décideur administratif. Troisièmement, la catégorie de « véritables questions de compétence », retenue dans Dunsmuir et préservée, en ne serait-ce qu’en théorie, dans la jurisprudence subséquente, est abolie par Vavilov, du moins au stade du choix de la norme de contrôle.

Ces ajustements au choix de la norme de contrôle apportés, la Cour se tourne vers la norme de la décision raisonnable. Elle explique que « le contrôle selon la norme de la décision raisonnable a pour point de départ la retenue judiciaire et le respect du rôle distinct des décideurs administratifs » [75]. Ce contrôle vise néanmoins à s’assurer que le décideur administratif tienne compte des « contraintes juridiques et factuelles auxquelles [il] est assujetti » [85] et qu’il explique sa décision à ceux et celles qu’elle affecte.

Les motifs du décideur administratif occupent donc une importance centrale dans le contrôle judiciaire – et ce, même si la Cour suprême reconnaît qu’un décideur n’est pas toujours tenu de les rédiger. C’est le raisonnement du décideur administratif, tel que représenté dans les motifs, qui fait l’objet d’examen :

Une cour de justice qui applique la norme de contrôle de la décision raisonnable ne se demande donc pas quelle décision elle aurait rendue à la place du décideur administratif, ne tente pas de prendre en compte l’ « éventail » des conclusions qu’aurait pu tirer le décideur, ne se livre pas à une analyse de novo, et ne cherche pas à déterminer la solution « correcte » au problème. [83]

La cour de révision ne doit pas, non plus, « élabore[r] ses propres motifs pour appuyer la décision administrative » ou encore « faire abstraction du fondement erroné de la décision et […] y substituer sa propre justification du résultat ». [96] Cependant, les motifs ne sont pas tenus à la perfection et peuvent, le cas échéant, être lus à la lumière du dossier. Les motifs peuvent également permettre au décideur de démontrer son expertise et d’ainsi justifier « un résultat qui semble déroutant ou contre‑intuitif à première vue » comme étant « néanmoins conforme aux objets et aux réalités pratiques du régime administratif en cause » [93].

Appliquant la norme de la décision raisonnable, la cour de révision s’intéresse donc à la fois au raisonnement du décideur et au résultat auquel celui-ci a abouti. Les deux doivent être justifiables et justifiés. La Cour suprême propose une liste, qui se veut non-exhaustive, « de questions qui peuvent révéler qu’une décision est déraisonnable » [101]. Certaines concernent la cohérence du raisonnement du décideur administratif. Une décision irrationnelle, entachée de paralogismes, dont « la conclusion […] ne peut prendre sa source dans l’analyse effectuée » [103] ou celle dont « il est impossible de comprendre, lorsqu’on lit les motifs en corrélation avec le dossier, le raisonnement […] sur un point central » [103] doit être traitée comme déraisonnable.

Tel est aussi le cas d’une décision qui ne tient pas compte du contexte juridique et factuel dans lequel elle est rendue. La Cour souligne que

le régime législatif applicable est probablement l’aspect le plus important du contexte juridique d’une décision donnée. Le fait que les décideurs administratifs participent, avec les cours de justice, à l’élaboration du contenu précis des régimes administratifs qu’ils administrent, ne devrait pas être interprété comme une licence accordée aux décideurs administratifs pour ignorer ou réécrire les lois adoptées par le Parlement et les législatures provinciales. [108]

D’une part, même lorsque le décideur administratif jouit d’un pouvoir discrétionnaire, « tout exercice d’un [tel] pouvoir […] doit être conforme aux fins pour lesquelles il a été accordé » [108]. De l’autre, « un organisme administratif ne saurait exercer un pouvoir qui ne lui a pas été délégué ». [109] La porté du pouvoir délégué ou l’étendue des raisons de cette délégation varie selon le texte législatif applicable. Le contrôle en vertu de la norme de la décision raisonnable exige donc de la cour de révision « de déterminer si […] le décideur a justifié convenablement son interprétation de la loi à la lumière du contexte. Évidemment, il sera impossible au décideur administratif de justifier une décision qui excède les limites fixées par les dispositions législatives qu’il interprète ». [110]

La marge de manœuvre du décideur administratif dépend, en outre, des autres lois ou règles du droit prétorien qui peuvent s’appliquer à la décision. La décision administrative doit, notamment, tenir compte des règles d’interprétation législative, sans pour autant forcément « procéder à une interprétation formaliste de la loi » [119]. Le décideur administratif peut tenir compte de ses connaissances et de son expertise spécialisées, mais « il [lui] incombe […] de démontrer dans ses motifs qu’il était conscient [des] éléments essentiels » [120] de l’interprétation législative, et il ne lui est pas loisible d’ « adopter une interprétation qu’il sait de moindre qualité — mais plausible — simplement parce que cette interprétation paraît possible et opportune » [121].

Par ailleurs, une décision administrative doit aussi se justifier au regard de la preuve, des arguments des parties et de la pratique administrative. Elle doit aussi refléter, le cas échéant, son importance pour la personne visée : « Lorsque la décision a des répercussions sévères sur les droits et intérêts de l’individu visé, les motifs fournis à ce dernier doivent refléter ces enjeux. […] Cela vaut notamment pour les décisions dont les conséquences menacent la vie, la liberté, la dignité ou les moyens de subsistance d’un individu » [133].

Un dernier enseignement en matière de l’application de la norme de la décision raisonnable sur lequel nous voudrions attirer l’attention du lecteur concerne les réparations que peut accorder une cour de révision. La Cour suprême explique que « lorsque la décision contrôlée selon la norme de la décision raisonnable ne peut être confirmée, il conviendra le plus souvent de renvoyer l’affaire au décideur pour qu’il revoie la décision, mais à la lumière cette fois des motifs donnés par la cour ». [141] Cependant, et il s’agit, dans une certaine mesure, d’une nouveauté, la Cour précise qu’ « il y a des situations limitées » [142] où la cour de révision doit elle-même trancher le différend, pour éviter de le prolonger inutilement. C’est notamment le cas lorsqu’une seule réponse est possible a une question d’interprétation, mais d’autres facteurs, y compris ceux concernant les coûts, tant pour les parties que pour l’administration et le système de justice, doivent aussi être pris en compte.

L’arrêt Vavilov promet – pas pour la première fois en droit administratif canadien – « d’apporter une cohérence et une prévisibilité accrues à ce domaine du droit ». [10] Cette promesse sera-t-elle tenue? À certains égards, les enseignements de la Cour suprême sont prometteurs. Notamment, la nouvelle approche au choix de la norme de contrôle, qu’on soit ou non d’accord avec la présomption du choix de la norme de la décision raisonnable ou encore avec l’abolition de la catégorie de questions de compétence, promet du moins une certaine simplification par rapport à l’état du droit avant Vavilov. L’insistance de la Cour sur l’importance des motifs et du respect du cadre législatif par les décideurs administratifs est elle aussi plus que bienvenue.

Plusieurs questions importantes restent toutefois sans réponse. Les cours de révision, et éventuellement la Cour suprême elle-même, devront y répondre pour que l’on puisse véritablement affirmer que le droit administratif canadien est simple est prévisible. En voici quelques unes.

Quelle sera la portée réelle des catégories de questions où la primauté du droit exige l’application de la norme de la décision correcte? En particulier, quel avenir réserve la Cour à l’arrêt Doré?

Comme nous l’avons souligné ci-dessus, l’arrêt Vavilov semble élargir quelque peu la catégorie de questions « d’une importance capitale pour le système juridique », en raison de l’abolition de la référence à l’expertise dans sa délimitation. Or, si la Cour résume la jurisprudence existante à ce sujet et dit que celle-ci « continue de s’appliquer essentiellement telle quelle » [143], ce résumé ne fournit que des exemples, et non de véritables lignes directrices. L’incertitude risque de persister à ce sujet.

Plus grave encore, mais peut-être susceptible d’une résolution plus rapide, est l’incertitude quant à l’avenir du cadre d’analyse posé dans l’arrêt Doré et raffiné ou modifié dans École secondaire Loyola c Québec (Procureur général), 2015 CSC 12, [2015] 1 RCS 613 et Law Society of British Columbia c Trinity Western University, 2018 CSC 32, [2018] 2 R.C.S. 293. La Cour, nous l’avons déjà dit, se garde de se prononcer explicitement à ce sujet. Pourtant, les fondements de cette jurisprudence, qui repose en bonne partie sinon entièrement sur la volonté de respecter l’expertise – réelle ou supposée – des décideurs administratifs, nous semblent incompatibles avec l’exclusion de l’expertise de l’analyse quant au choix de la norme de contrôle dans Vavilov. De plus, nous sommes sceptiques face à l’idée que le législateur puisse dicter, implicitement ou même explicitement, le choix de la norme de contrôle en matière constitutionnelle, qu’il s’agisse de questions de validité ou des celles concernant la constitutionnalité de décisions particulières. La Cour suprême le dit fort bien dans Vavilov : « si un législateur peut choisir les pouvoirs à déléguer à un organisme administratif, il ne peut déléguer des pouvoirs dont la Constitution ne l’investit pas. Le pouvoir constitutionnel d’agir doit comporter des limites définies et uniformes, ce qui commande l’application de la norme de la décision correcte » [56].

Les questions de compétence sont-elles véritablement à oublier?

La catégorie de « véritables questions de compétence » est écartée de l’analyse quant au choix de la norme de contrôle. Pourtant, en affirmant que « certaines questions touchant à la portée du pouvoir d’un décideur […] ne sauraient commander qu’une seule interprétation », et qu’ « [é]videmment, il sera impossible au décideur administratif de justifier une décision qui excède les limites fixées par les dispositions législatives qu’il interprète », [110] la Cour semble tout simplement utiliser une nouvelle étiquette pour la décrire. Par ailleurs, les tribunaux pourraient être appelés à décider une question en est une de compétence en disposant d’appels autorisés par des dispositions législatives qui y font référence.

Comment la norme de la décision raisonnable sera-t-elle appliquée en l’absence de motivation adéquate par le décideur administratif?

Si l’on peut se réjouir du fait que la Cour suprême semble souhaiter mettre un frein à la tendance, qui s’est parfois manifestée dans la jurisprudence, de l’écriture rétroactive des motifs de décision administrative par les cours de révision, on peut se demander jusqu’où sa détermination ira en pratique. La Cour insiste, d’une part, pour dire qu’une décision administrative qui doit être motivée mais ne l’est pas ou ne l’est pas adéquatement sera déraisonnable, mais, d’autre part, elle souligne « qu’une cour de révision doit examiner le dossier dans son ensemble pour comprendre la décision et qu’elle découvrira alors souvent une justification claire pour la décision » [137]. L’équilibre entre ces deux exigences ne nous semble pas évident à trouver.

De la déférence à l’égard du décideur administratif et de la vigilance quant au respect du cadre législatif, laquelle va l’emporter de l’application de la norme de la décision raisonnable?

La Cour offre, à ce sujet, des enseignements qui peuvent sembler contradictoires. Elle affirme, notamment, dans un seul et même court paragraphe, que « [l]e contrôle selon la norme de la décision raisonnable […] tire son origine du principe de la retenue judiciaire », mais aussi que « [c]e type de contrôle demeure rigoureux ». [13] Comment la cour de révision s’y prendra-t-elle pour exercer son pouvoir avec retenue et vigueur à la fois? Comment va-t-elle déterminer si un décideur administratif a respecté les contraintes que la loi lui imposait sans pour autant tenter de délimiter l’ « évantail » des solutions possibles, ou encore vérifier s’il a respecté les principes d’interprétation législative tout en gardant à l’esprit que « La ‘‘justice administrative’’ ne ressemble pas toujours à la ‘‘justice judiciaire’’ » [92]?

Le fondement théorique de l’arrêt Vavilov, soit le respect de la volonté du législateur (circonscrit par le principe de la primauté du droit, mais déterminant dans les limites que celui-ci impose), ne permet pas de résoudre cette tension. S’il est vrai que le législateur confie l’application et donc la première interprétation de la loi au décideur administratif, c’est aussi le législateur qui choisir de limiter le pouvoir discrétionnaire de ce dernier par le texte de loi qu’il adopte. Il faudra donc voir comment les tribunaux, y compris la Cour suprême elle-même, appliqueront la norme de contrôle de la décision raisonnable, et s’ils parviendront à résoudre les tensions présentes dans les motifs de la Cour. Ce n’est qu’en cas de succès, qui n’est pas acquis d’avance, que l’on pourra affirmer que l’arrêt Vavilov a véritablement réglé les problèmes de cohérence et de prévisibilité du droit administratif auxquels la Cour suprême s’y attaquait.

L’arrêt Vavilov sera, évidemment, un jalon important dans le développement du droit administratif canadien. Cependant, ses silences et ses contradictions pourraient s’avérer tout aussi importants que ses enseignements. Aussi important ce jalon soit-il, il est loin de marquer la fin du parcours souvent tortueux de ce domaine du droit.

Voici la liste, mentionnée ci-dessus, de billets que nous avons publiés sur l’arrêt Vavilov et ses conséquences, en ordre chronologique:

Mark Mancini, Vavilov: A Step Forward
Mark Mancini, Canada Post: Vavilov’s First Day in the Sun
Léonid Sirota, Not Good Enough
Mark Mancini, Vavilov: A Note on Remedy
Mark Mancini, Vavilov’s Reasonableness Standard: A Legal Hard-Look Review
Mark Mancini, After Vavilov, Doré is Under Stress
Mark Mancini, CBC v Ferrier, 2019 ONCA 1025: Considering Consideration of the Charter
Léonid Sirota, Chevron on 2

Chevron on 2

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

After Vavilov, Doré is Under Stress

Part I of a two-part series on Doré

**This is Part I of a two part series on the interaction between Doré and Vavilov. Tomorrow, I will post a review of one of the first post-Vavilov cases, Ferrier at the ONCA. Ferrier raises issues about the standard of review on constitutional matters**

Vavilov ushhered in a new era in Canadian administrative law, particularly as it pertains to judicial review of administrative interpretations of law. That new era, as far as I can tell, is wholly inconsistent with the justifications underlying the Supreme Court’s decision in Doré in which the Court held that courts should defer to administrative decisions that engage the Charter; specifically, an administrator’s balancing of Charter values with statutory objectives. Doré is inconsistent with Vavilov in at least two ways: (1) Doré’s treatment of expertise is inconsistent with Vavilov’s treatment of the same subject; (2) Vavilov’s comments about the Rule of Law present no principled reason to distinguish between statutory constitutional questions and administrative constitutional questions (3) even if the Doré reasonableness standard is maintained, reasonableness will likely mean much more than it has in the Court’s cases subsequent to Doré . In total, what we are seeing is two cases represented by two completely different theories of administrative law. The tension is strong.

First, an admission: Vavilov hedged on Doré. This is what the Court had to say:

Although the amici questioned the approach to the standard of review set out in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, a reconsideration of that approach is not germane to the issues in this appeal. However, it is important to draw a distinction between cases in which it is alleged that the effect of the administrative decision being reviewed is to unjustifiably limit rights under the Canadian Charter of Rights and Freedoms (as was the case in Doré) and those in which the issue on review is whether a provision of the decision maker’s enabling statute violates the Charter (see, e.g., Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 65). Our jurisprudence holds that an administrative decision maker’s interpretation of the latter issue should be reviewed for correctness, and that jurisprudence is not displaced by these reasons [57].

The Court was clearly right not to take the amici’s suggestion about Doré. There was no question of administrative interpretation engaging Charter rights or values on the facts of Vavilov (or the companion case of Bell/NFL), so it would be an unjustified expansion of the judicial role to deal with questions that were not before the court. But this does not mean that Doré sits easily with the new era of administrative law that Vavilov has ushered in.

Take, first, Vavilov’s comments on expertise. Vavilov concludes that expertise is not a legal reason for deference, as far as determining the standard of review [30-31]. Put differently, expertise cannot justify a presumption of deference because:

…if administrative decision makers are understood to possess specialized expertise on all questions that come before them, the concept of expertise ceases to assist a reviewing court in attempting to distinguish questions for which applying the reasonableness standard is appropriate from those for which it is not [28].

Specifically, then, expertise cannot assist a court in reviewing administrative interpretations of law, because it is not a good working assumption that decision-makers are expert on all matters that come before the court.

Now compare the tenor of these comments to what Doré had to say about expertise on constitutional matters. The Court in that case noted that a revised approach to the review of administrative decisions implicating the Charter involved “recognizing the expertise of these decision-makers” [35]. Specifically:

An administrative decision-maker exercising a discretionary power under his or her home statute, has, by virtue of expertise and specialization, particular familiarity with the competing considerations at play in weighing Charter values [48].

Putting Vavilov and Doré side by side like this illustrates the ill-fit: Doré’s underpinning concept is that of expertise, particularly the notion that administrators have expertise in legal matters as a presumptive rule. But if this is no longer assumed when it comes to selecting the standard of review in the Vavilov context, there is no reason to assume it in the constitutional context, where the case for expertise is—logically—weaker. In other words, constitutional law is not the same as routine legal matters with which administrators may have experience. Making the jump from these routine legal matters to constitutional matters was always the fatal flaw of Doré, and now that Vavilov does not even assume expertise when it comes to legal matters, there is no reason to make that same assumption on constitutional matters.

Next, consider what Vavilov had to say about the Rule of Law. The Rule of Law, according to the Supreme Court, will sometimes require “a singular, determinate and final answer” to the question before a particular court (Vavilov, at para 32). This makes sense: the Supreme Court has also said that the Rule of Law, among other things, “requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order” (Reference re Manitoba Language Rights, at 749). On certain questions, it would undermine this “general principle of normative order” for a court to take a “hands-off” approach to a certain decision, or to permit multiple “reasonable” interpretations of a particular issue to stand when it comes to the Constitution.

One of the categories of correctness review emphasized in Vavilov is 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). Under this understanding, there is no principled reason that Vavilov’s comments about the Rule of Law and constitutional questions should necessitate a different response just because of the forum in which the constitutional argument arises. Just because, on judicial review, an applicant challenges a statute as opposed to an administrative decision should not change the task of the judiciary to be the final expositors of the Constitution. This, again, was a fatal flaw of Doré. It is, in my view, difficult for Doré to stand given Vavilov’s doubling-down on the traditional role of the courts in interpreting and applying the Constitution.

True, the concurring opinion in Vavilov (Abella and Karakatsanis JJ) was quick to point out that “[t]he majority’s approach to the rule of law, however, flows from a court-centric conception of the rule of law rooted in Dicey’s 19^th century philosophy.” I’ve always been struck by the intellectual laziness of the charge of “Dicey” as a legal argument; but no matter, in the context of the Constitution, the Rule of Law is primarily the rule of courts, at least on the majority’s understanding in Vavilov. And, what’s more, the majority’s understanding is consistent with what the Supreme Court has said itself about the role of the judiciary in a constitutional democracy, in a variety of different contexts: Hunter v Southam, at 155: “The judiciary is the guardian of the constitution…”; Ell v Alberta, at para 23: “[a]ccordingly, the judiciary’s role as arbiter of disputes and guardian of the Constitution require that it be independent from all other bodies”; United States v Burns, at para 35: “…the Court is the guardian of the Constitution…”; Kourtessis v MNR, at 90: “The courts are the guardians of the Constitution and they must have the powers to forge the instruments necessary to maintain the integrity of the Constitution and to protect the rights it guarantees”; and in a judgment jointed by Abella and Karakatsanis JJ in the Nadon Reference, the Court endorsed the proposition that since the judiciary became the “guardian of the Constitution,” the Supreme Court itself became a “foundational premise of the Constitution” (at para 89). These comments can easily be taken to imply that courts, in comparison to administrators, have a unique role in interpreting the Constitution by systemic legal design, even if administrators, in the odd case, may have something of value to say about the Constitution. Particularly apt, on this score, is the comment in Ell regarding independence: courts are the only independent guardians of the Constitution.

Finally, there is something to say about reasons, even if correctness is not the applicable standard of review. Applying the reasonableness standard in the Doré context requires proportionality (see Doré , at para 56), but Doré does not explain explicitly what is required in terms of reasoning. That said, the Court has been reticent to adopt a formal reasons requirement for Doré -type decisions, consistent with the Court’s jurisprudence that reasonableness means different things in different contexts (see Catalyst, at para 18), and that the adequacy of reasons is not a standalone basis for review (see Newfoundland Nurses, at para 14), with courts being permitted to supplement reasons for decision (Newfoundland Nurses, at para 12). The classic example of this was in TWU, where the majority of the Court, relying on these authorities, concluded that simply because the Benchers were “alive” to the Charter issues, there was no issue of discretion fettering when the Law Society ordered a referendum on TWU (TWU, at para 56). In dissent in TWU, Brown and Côté JJ would have required more in the way of justification from the Law Society, especially given the Charter rights at play (TWU, at paras 295-296).

Vavilov says something different about what reasonableness requires, putting stress on Doré and its progeny. The Vavilov framework withdraws from the “supplementation” of reasons (Vavilov, at para 96), still permitting the reviewing court to look to the record, but not permitting courts to gin up its own reasons for decision. But reasons take on an expanded importance in Vavilov, specifically requiring a decision-maker to justify decision in relation to particular legal constraints on the decision-maker (Vavilov, at para 108) and in terms of the impact on the affected individual (Vavilov, at para 133), among other things. Interestingly, Vavilov does note that its reasons first methodology will be difficult where reasons are not provided (Vavilov, at para 137), explicitly citing TWU, and further notes that in the absence of reasons, courts must still apply the various constraints on the decision-maker, but that the analysis may focus more on outcome that on reasoning (Vavilov, at para 138).

Even with these comments in mind, the past precedent, TWU, and Vavilov do not stand easily together. Specifically, the most important legal constraint on any decision-maker is the Constitution. It is difficult to see how a decision-maker could fail to justify a decision under the Constitution and for a court to rule that that decision is reasonable—courts should not cooper up bad or non-existent reasoning in these cases. This is even more so given that one of the constraints on the decision-maker, the impact and importance to the affected individual, is particularly acute in situations involving constitutional rights. It might appear that in the constitutional context, more should be required if we retain a reasonableness standard on constitutional matters. Simply put, reading TWU and concluding that the decision-maker was “alive” to the Charter issues seems to be the wrong line of thinking, with Vavilov. In this sense, there are genuine signals pointing to Brown and Côté JJ’s dissent in TWU, where they would require more in term of reasoning. That said, this is an area of genuine ambiguity that I cannot resolve here, and there are also signals in Vavilov that cases like TWU are still good law.

I do not make these comments with the naïve understanding that the Court could not save Doré in light of Vavilov. Vavilov explicitly does not mention the Charter in the class of cases to which correctness should apply. And the Court’s approach could, admittedly, allow for Doré to stand. For example, courts could continue to apply the reasonableness standard to constitutional questions where expertise is demonstrated by an administrator in interpreting the Constitution. This finds some support in Vavilov, where expertise is “folded into the new starting point and, as explained below, expertise remains a relevant consideration in conducting reasonableness review” (Vavilov, at para 31). But this runs into a number of problems: first, it continues to apply a reasonableness standard even though expertise is no longer is a reason to apply that standard under Vavilov. Second, it would require courts, in each case, to measure expertise as an empirical matter on constitutional questions. While rules of thumb could be used to assist in this matter, it is unlikely to be an attractive option to the Court.

At the very least, Doré now stands at odds with Vavilov, its underlying justifications under stress because of the new administrative law foundation introduced by the Supreme Court. In my view, the two cases represent two different visions of administrative law. On one hand, Vavilov is indeed a move towards Diceyanism (and I mean this in the best way possible), in the sense that the statute is the centrepiece of the analysis when it comes to selecting the standard of review and applying it. Doré is based on more functional concerns, notably, expertise. There is a fundamental mismatch here. How long Doré lasts, only time will tell. But there is at least some reason to think that Doré is under significant tension because of Vavilov.

Vavilov’s Reasonableness Standard: A Legal Hard-Look Review

In my first post on Vavilov, I celebrated the Court for finally bringing some sense to the Canadian law of judicial review. Particularly, I focused on three issues relevant to determining the standard of review: the banishment of jurisdictional questions, the introduction of statutory rights of appeal as a category of correctness review, and the sidelining of expertise from the task of determining the standard of review. I did not address what I consider the real meat of Vavilov: the application of the new, robust [13], reasonableness standard.

As I will set out here, this is the strength of Vavilov because it creates a real legal standard for deference that does not permit decision-makers to “drift” beyond statutory boundaries. It forces reasoning that is explicitly tied to the enabling statute, rather than extraneous “policy” factors. This is a form of legal “hard-look” review that will not enable decision-makers much room to justify outcomes that are inconsistent with the enabling statute or otherwise do not engage with core interpretive elements. Indeed, the enabling statute is “likely to be the most salient aspect of the legal context relevant to a particular decision” [108]. This overarching theory is employed in what the Court mandates for decision-makers, creating a framework, at least on questions of law, that looks something like this:

Decision-makers must render a decision that is consistent with the text, context, and purpose of the statute [120] (a focus on outcome)
Decision-makers must engage with the most pertinent aspects of text, context, and purpose, with only limited room for omissions where those omissions are “minor” [122], while writing reasons that justify these interpretive choices [84], showing that a decision-maker was “alive to these essential elements” [120].
Courts will no longer cooper up defective interpretations of law by ginning up their own reasons for decision [96].

Overall, these three restraints on administrative excess ensure that the statute—as interpreted by the decision-maker, through reasons—is the starting point for all administrative review. This does not abdicate a court’s function; fundamentally, the court will determine whether the reasons evince an engagement with the statutory context in a way that is justifiable and justified [86].

Take first the requirement that a decision-maker render a decision consistent with the text, context, and purpose of the statute. The focus here has two dimensions that make it ideal for the conduct of judicial review as a matter of appreciating statutory boundaries. First, the “reasons first” [84] methodology of the Court protects against what I call the real legacy of Dunsmuir: disguised correctness review. The evil of disguised correctness review was not that it unduly impacted administrative prerogative; it is that it potentially limited the scope of delegated power set by Parliament. The potential for disguised correctness review is now, at the very least, curtailed. Courts have to start with the reasoning of the decision-maker to determine whether it falls within the scope of the legislation [116]. That scope will sometimes be wide, sometimes be narrow, [110] but the administrative reasons, as they interpret the scope of the legislation, are the starting point.

What is to be avoided on this line of thinking is what Justices Abella and Martin did in the Canada Post decision. There, they largely reasoned from their own view of the statute at play, and used that reasoning to judge the decision-maker’s interpretation of the law. This seems odd, considering Justice Abella’s cries about deference in Vavilov itself. Nonetheless, this approach is not–and should not be–a majority approach.

But this is not the end of the inquiry. Ultimately, a court must review, and it will be the reviewing court’s decision as to whether the administrative decision-maker has made a decision that transgresses the scope of the statute. After all, “[i]t will, of course, be impossible for an administrative decision maker to justify a decision that strays beyond the limits set by the statutory language it is interpreting,” which justification is assessed “in the eyes of the reviewing court” [110]. Here, the court takes a meaningful role in determining whether the decision strayed beyond the scope of the legislation the decision maker is interpreting; the merits of a decision must be consistent with the text, context, and purpose of the provision [120]. Under this framework, then, courts have a meaningful role to play in implicitly determining the boundaries of statutory limits, in order to then determine whether the administrator’s interpretation can be justified by the legal constraints bearing on it. In other words, under Vavilov, the application of legal constraints is still a preserve of the courts.

Now, consider the requirement that a decision-maker must engage with the essential elements of statutory interpretation: the text, context, and purpose. Here, another balance is struck. On one hand, a decision-maker is not required to engage the formalistic tools of interpretation, at least in “every case” [119]. I take this to mean that decision-makers will not be required to apply ejusdem generis or noscitur a sociis, or other lawyerly lingo. But, it will be necessary for decision-makers to ensure that they do not miss the most salient aspects of text, context, and purpose—at least in some cases—lest their decisions be unreasonable [122]. Their reasons must evince that they weighed the interpretive tools of text, context, and purpose, determining in a given case which is dominant [120].

Ultimately, this is a good development. Administrative decision-makers do not have to dress up their reasons in legal garb, but if they are to be true participants in the legal system—and if they are truly joint partners in upholding the Rule of Law—their reasons must be cognizable to the rest of the legal system. Reasons that are written exclusively in the vernacular of a particular industry or policy area do no good to others seeking to determine whether the decision is consistent with particular statutory limitations. In this sense, while we cannot expect decision-makers to know semantic canons of interpretation, they must justify their decisions so that they are rendered in the language of the most basic tools of interpretation: text, context, and purpose. This is the language of law, and decision-makers, if they are to truly be partners in the enterprise, must speak it to some degree.

In particular, reasons serve a transmitting function on this account. They are a means to and end: the end of judicial review. Their purpose is ensure that courts can adequately assess whether decision-makers have justified their decisions in relation to statutory limits. In this way, the reasons requirement instantiated in Vavilov is ultimately tied back to the enabling statute, the fundamental basis of all administrative law.

Finally, and connected to the above, the importance of reasons means that courts cannot gin up reasons for decision when they are absent on a particular essential element [96]. Indeed:

Where, even if reasons given by an administrative decision maker for a decision are read with sensitivity to the institutional setting and in light of the record, they contain a fundamental gap or reveal that the decision is based on an unreasonable chain of analysis, it is not ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision.

Why shouldn’t this be permissible? As Justice Stratas noted pre-Vavilov in Bonnybrook (at para 93):

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

Bonnybrook’s understanding is basically now the law in Vavilov. When administrative decision-makers are delegated power, they are delegated that power with the understanding that they will make decisions at first instance, not courts. If these administrative decision-makers fail to live up to that delegated mandate, that is no fault of the courts, and so it is not the job of the courts to make the decision for the decision-maker. It is, however, the job of the courts to render the decision unreasonable. This is particularly the case where there is a missing part of the decision on a core interpretive element, under which the result of the decision would be different (Vavilov, at para 122).

All together, what Vavilov has created is a new reasonableness standard that is tightly focused statutory limits, using statutory interpretation as a tool for discerning those limits. Of course, there are other “constraints” on decision-making that matter (see Vavilov, para 106) —but where we are talking about legal interpretation, legal constraints will be the most salient element of the decision-maker’s reasoning. Ultimately, this is a positive step forward, since all administrative law is a function of statutory interpretation and analysis.

Not Good Enough

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[t]hat Reasonableness is a deferential standard animated by the principle that … certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. [47]

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

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

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

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

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

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

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

Is This Correct?

Should deference be denied to administrative interpretations of laws that implement international human rights?

Gerald Heckman and Amar Khoday have recently posted on SSRN a forthcoming article, due to be published in the Dalhousie Law Review, called “Once More Unto The Breach: Confronting The Standard of Review (Again) and the Imperative of Correctness Review When Interpreting the Scope of Refugee Protection”. As the title suggests, Professors Heckman and Khoday advocate that correctness, rather than reasonableness, be standard used to review questions of law relating to the interpretation of the provision of the Immigration and Refugee Protection Act (IRPA) relative to refugees, especially sections 96-98, which implement in Canadian law the requirements of international treaties on the rights of refugees and persons in danger of being subject to torture. Long-time readers of this blog will not be surprised to hear that I welcome this pushback against the dogma of reasonableness review. Despite this, I have serious reservations about the argument made by Professors Heckman and Khoday. If its implications are pursued to their logical conclusion, they may swallow the law of judicial review whole. This may not be a bad result, but I would rather that it were brought about differently.

Professors Heckman and Khoday begin by reviewing the existing cases on the standard of review in the refugee protection context. They find that

the Federal Court and Federal Court of Appeal are now reviewing decisions involving administrative decision-makers’ interpretation of provisions of the IRPA that implement the basic human rights conferred by international conventions on a reasonableness standard because in their view, the presumption of reasonableness review of these decision-makers’ interpretations of their home statute has not been rebutted. (9-10)

They also note, however, that the Supreme Court, when it has ventured into the immigration and refugee law area, has often conducted searching review, albeit sometimes under the label of reasonableness, which in principle calls for judicial deference to administrative decision-makers. The Federal Court of Appeal too has sometimes remarked that, while the reasonableness standard applies, the range of reasonable outcomes in this area may be very limited, so that there is little to choose from between reasonableness and correctness.

Professors Heckman and Khoday disagree. They are concerned that deferential review opens the door to inconsistent decisions behind upheld as reasonable. In their opinion, this is intolerable: “[t]he scope of universal protections” embodied in IRPA’s provisions “cannot depend on whether a refugee claimant has the good fortune of having her claim decided by an adjudicator who happens to subscribe to” a view of those provisions that is favourable to her case instead of a different “yet equally reasonable alternative interpretation”. (22) And while “disguised correctness review” would help avoid this problem, it is not principled or transparent.

Intead, Professors Heckman and Khoday insist that

a non-deferential approach to judicial review is required for questions of law arising from administrative decision-makers’ interpretation of statutory provisions that serve to implement human rights conferred in international conventions that bind Canada (11)

After all, non-deferential correctness review is still supposed to be applied to questions of central importance to the legal system ― and, according to Professors Heckman and Khoday, the interpretation of statutory provisions that give effect to Canada’s commitments under international human rights law belong to this category. This is both because of the importance of the substantive interests at stake for refugee claimants and because, due to their “proclaimed universality”, “basic international human rights” must receive a uniform interpretation. (13) Indeed, “[t]he provisions of an international convention defining the scope of basic human rights protections can only have one true meaning”. (22)

Professors Heckman and Khoday add that there is a multitude of decision-makers who may be involved in deciding questions involving the interpretation of the IRPA‘s refugee-related provisions; that most of them are not legally-trained; and that Parliament itself has recognized, in section 74(d) of the IRPA, the existence of “serious question[s] of general importance” in this area. These reasons too suggest that courts should see to it that the IRPA‘s provisions receive a uniform, and legally correct, interpretation. And, they argue, if the Supreme Court will not do so, then Parliament should intervene and legislate correctness review for questions of law arising out of the application of the IRPA‘s refugee-protection provisions.

One way to read Professors Heckman and Khoday’s article is as a recognition of the dark, repressive side of the administrative state. Contrary to a certain progressive mythology, in whose thrall we still live, as co-blogger Mark Mancini recently observed here, the administrative state doesn’t only consist of benevolent and beneficent technocrats, rainbows, and unicorns. As I wrote in my contribution to last year’s Dunsmuir Decade symposium, we must

recall what is at stake in judicial review of administrative decisions. Proponents of deference often think of it as a means of protecting the decisions of an administrative state devoted to economic regulation in the name of social justice, or at least of enlightened technocracy. But there is much more to the administrative state economic than labour boards or arbitrators, whose decisions supply a disproportionate share of material for the Supreme Court’s administrative law decisions. The law of judicial review of administrative action applies also to the review of correctional authorities, professional licensing bodies, immigration officers, human rights tribunals, even universities and municipalities, and much else besides. People’s ability to enjoy their property or to practice their profession, their right to enter into or to remain in Canada, even their liberty … can depend on the way in which an official or a body exercising powers (purportedly) delegated by a legislature interpret the law.

I asked, then, whether “[i]s it enough to tell” people whom the state is about to deprive of these important rights or interests, that this deprivation rests on a legal interpretation that is “justified, transparent, and intelligible” ― but doesn’t have to be correct. Professors Heckman and Khoday say that, at least as to refugee claimants, the answer is “no”. I certainly make no objection to that, and I would welcome similar blows being aimed at as many of the other heads of the administrative hydra as possible. If anything, I think it is too bad that Professors Heckman and Khoday don’t say much about this broader context.

Now, of course there is nothing wrong with an article such as theirs concentrating on the inadequacy of deferential review in just one area. But the trouble with the approach taken by Professors Heckman and Khoday is that, although they do not say so, it reaches very far indeed. If the fact that a Canadian law implements some supposedly important right under international law must mean that this law has “one true meaning” that must be ascertained and enforced by the courts, then reasonableness review of administrative decisions is an endangered species, perhaps critically so.

It’s not just the bureaucrats who administer refugee law and the human rights tribunals, which Professors Heckman and Khoday briefly mention, who will lose the benefit of deference. It’s the correctional authorities, since Article 10 of the International Covenant on Civil and Political Rights (ICCPR) provides that “[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person” and, further, that “[t]he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation”. It’s labour boards of all sorts, since the right to join labour unions is protected by Article 23 of the Universal Declaration of Human Rights, as well as provisions of both the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR); the latter specifically protects the right to strike, too. It’s employment tribunals and arguably various professional licensing bodies, too, since Article 23 also protects “the right to work [and] to free choice of employment”, and the ICESCR includes provisions to the same effect. It’s various social security tribunals, since Article 11 of the ICESCR protects “the right of everyone to an adequate standard of living”. It might be the CRTC, since Article 19 of the ICCPR protects “the right to freedom of expression … includ[ing] freedom to seek, receive and impart information and ideas … through any … media of his choice”. It will even be the Patent and Copyright Offices, since Article 27(2) of the Universal Declaration stipulates that “[e]veryone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”.

This list is not at all intended as exhaustive ― I’ve put it together after quickly skimming just the three major international human rights documents. There are many others, and they contain rights galore, any number of them reflected, in one way or another, in Canadian law. (I should, perhaps, make it clear that I do not mean to suggest that we should have all the “rights” purportedly recognized in these documents. Some of them, such as the “rights” of organized labour, are pernicious nonsense. But the point is that international law recognizes these things as important rights, and Canada subscribes to this view, however unfortunate this may appear to me personally.)

Of course not all legislation giving effect to these rights draws the connection as explicitly as the IRPA does in the case of its refugee protection provisions. But that shouldn’t matter, I think. Whether Parliament legislates in order to give effect, more or less transparently, to pre-existing international commitments, or the Crown subscribes such commitments on the strength of pre-existing legislation, the issue for Canadian administrative tribunals, and for Canadian courts reviewing these tribunals’ decisions, is how Canadian legislation is to be interpreted (if possible, consistently with Canada’s international obligations). So, to repeat, if follow the approach proposed by Professors Heckman and Khoday, we might have to get rid of deferential judicial review, if not across the board, then at least in many of the cases where it currently applies.

As an outcome, this would not be half bad. My own inclination would be to get rid of deference (almost) everywhere. A recognition that legislation has correct meanings that can and must be established by courts (even though this is, admittedly, not always easy) is most welcome, as I noted here. But if we are to come to this recognition, I would rather that we do in a different way than that suggested by Professors Heckman and Khoday. The existence ― or otherwise ― of legally ascertainable meanings is not, surely, a function of whether a statute reflects or even incorporates an international treaty. If legislative texts can have no meanings, then it’s not clear why treaties would escape this sorry fate; if they can, then treaties are not unique.

Canadian administrative law must change, and change radically, for reasons that have nothing to do with Canada’s commitments under international law ― though it may well be the case that such radical change will make it possible for Canada better to fulfill these commitments. That said, Professors Heckman and Khoday provide a practical illustration of one of the downsides of the status quo. More than this, they help undermine the prevailing assumption of the goodness of the administrative state and the judiciary’s deference to it. For these reasons, theirs is a welcome, if not an entirely compelling, contribution to the standard of review discussion in Canada; it is reasonable, one is tempted to say, if not altogether correct.

A Perspective from the North

A review of Jeffrey Pojanowski’s “neoclassical” approach to administrative law

Jeffrey Pojanowski, whose contribution of “A View from South of the Border” to the Dunsmuir Decade symposium readers may recall, has posted a very interesting paper on “Neoclassical Administrative Law” on SSRN. (The article is to be published in the Harvard Law Review later this year.) Although written in an American context, Professor Pojanowski’s article should be read north of the border too, because it is framed around the tension that is central to Canadian, as well as if not more than, American administrative law: that between the Rule of Law and (what we in the Commonwealth call) Parliamentary sovereignty. Professor Pojanowski’s solution to this tension ought to be appealing in Canada ― though accepting it would require giving up some of the assumptions that are built into our administrative law.

Professor Pojanowski starts by describing three ways of addressing the conflict between the courts’ role of saying what the law is and the legislatures’ prerogative of committing certain governance issues to the resolution of administrative decision-makers. What he terms “administrative supremacy”

sees the role of courts and lawyers as limited to checking patently unreasonable exercises of power by the administrative actors who are the core of modern governance. To the extent that durable, legal norms are relevant, the primary responsibility for implementing them in administrative governance falls to the discretion of executive officials, who balance those norms’ worth against other policy goals. (7)

“Administrative skepticism”, by contrast,

rejects deference to agency interpretations of law, even if the agency is charged with administering the statute. Deference shirks the judicial duty to say what the law is and introduces a pro-government bias of dubious constitutional provenance. (14)

As for those cases where the lawyers’ traditional interpretive tools are of no avail, because the administrative decision-maker has been given a policy-making role, “the [American] administrative skeptic is more likely to recommend an approach that is both more radical and more modest: invalidating the provision on non-delegation grounds”. (16-17)

Finally, the approach Professor Pojanowski terms “pragmatist” “seeks to reconcile the reality of administrative power, expertise, and political authority with broader constitutional and rule-of law values”. (18) It is relatively deferential to administrative interpretations of law, but makes “certain exceptions, such as withholding deference on major questions or jurisdiction”, (18) and “may … demand evidence that the agency engaged in reasoned decisionmaking” (18) even on those issues where it is normally prepared to defer, both interpretive and policy ones.

In jurisprudential terms, administrative supremacy comports with “a form of legal realism that dissolves the line between legal interpretation and policymaking”, deeming “most interesting questions of legal interpretation … inextricable from legislative policy choices”. (13) The skeptical position embraces A.V. Dicey’s vision of ordinary courts interpreting law as the keystone of the Rule of Law. The pragmatist view reinterprets the Rule of Law as involving “requirements of fair participation and reasoned justification”, and asks the courts to enforce these requirements, rather than to impose their view of what the law actually is.

Professor Pojanowski articulates and begins the defence of another approach to administrative law, which differs from those just outlined, though it has some affinities with each of them, perhaps especially the skeptical one. This “neoclassical administrative law … is skeptical of judicial deference on questions of law but takes a much lighter touch on review of [administrative] agencies’ procedural and policymaking choices”. (23) It seeks to preserve, indeed it emphasizes, the distinction between law and policy, and makes the courts masters of the former while asking them to stay out of the latter.

In part, this is motivated by a “formalist” rejection of the “legal realist premise that all interpretive uncertainty involves policy choices calling for political accountability and non-legal expertise”. (27; footnote omitted) To be sure statutes sometimes employ language that is only amenable to policy-laden elaboration (such as “in the public interest”); such elaboration should be the preserve of administrative decision-makers, subject only to a thin rationality review. However, this is precisely because in such “cases … there is no surface upon which traditional lawyers’ tools can have purchase”, (31) and the obverse of accepting this is a denial of “the more generalized presumption of implicit [legislative] delegation of interpretive authority”, which is no more than “a legal fiction delicately veiling a functionalism that dare not show its face”. (26) Legal questions, even difficult ones that have “more than one reasonable answer”, (33) can and ought to be answered by the courts, although “reviewing judges are likely to confer at least some mild epistemic authority on expert agencies”. (25n) In addition, the “neoclassical” position rests on a belief in the importance of the legislation governing judicial review of administrative decisions, especially (in the United States) the Administrative Procedure Act.

But while the “neoclassical” approach is similar to the skeptical one in its confidence in the law’s autonomy from politics and policy, it does not go as far in its rejection of the administrative state. It does not seek to reinvigorate the constitutional non-delegation doctrine (which holds that only the legislature, and not its creatures in the executive branch, can make law). Instead, “[t]he neoclassical approach turns down the constitutional temperature”, (36) accepting that the administrative state’s rule-making and discretionary powers are here to stay. It, in other words, “classical Diceyan public law theory adapted and persisting in a new regulatory environment”. (38)

Professor Pojanowski ends by addressing some potential criticisms of “neoclassical administrative law”. Of greatest relevance to Canadians will be his admission that

much here turns on interpretive method. The extent to which appeal to craft determinacy is plausible goes a long way toward deciding whether neoclassicism is promising or misguided. Furthermore, if interpretive formalism is inferior to strong purposivism or dynamic statutory interpretation, the case for deference is far stronger. Those methods explicitly, and to a greater degree, call for interpreters to consider policy consequences and evolving public values alongside, and sometimes above, formalist tools. The more those values infuse legal interpretation, the stronger the bite of arguments for deference based on political accountability and technical expertise. (40; footnote omitted)

Professor Pojanowski points out, however, that the pragmatist view, at least, is also tenable only if there are legal answers to at least some interpretive questions, which its adherents exclude from the scope of judicial deference.

I find Professor Pojanowski’s summary of the various existing approaches to administrative law illuminating, and his own “neoclassical” approach, mostly compelling. As a matter of first principle, I might be attracted by anti-administrativist skepticism but, especially in Canada, it is not a plausible position. Whatever might be the persuasiveness of the originalist arguments in favour of the non-delegation doctrine, and of strict separation of powers more broadly, in the United States, I doubt one can take them far in Canada. Subject to (somewhat vague) constraints on legislative abdication, the delegation of discretionary and rule-making authority is within the powers of Parliament and the provincial legislatures under the Constitution Act, 1867. The question, then, is not whether we can burn the administrative state to the ground, but whether we can ensure that it remains subject to law. The “neoclassical” understanding of administrative law is a better way of doing that then the available alternatives.

At present, Canadian administrative law is torn between “administrative supremacy” and “pragmatism”. Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, the soon-to-be-former leading case, is representative of the pragmatic approach, with its insistence that

[i]n judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [47]

By contrast, cases such as Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, which allow unjustified, unreasoned administrative decisions to stand in the name of an (almost?) irrebuttable “presumption of expertise”, epitomize administrative supremacy. That said, even the pragmatist strand of Canadian administrative law is infected with a metastasizing belief in the absence of legal answers to interpretive questions which in Dunsmuir and elsewhere has been said to warrant thoroughgoing deference to administrative interpretations of law.

In the circumstances, even reasserting the belief in the law is in fact autonomous from policy and politics, and that interpretive questions must be resolved by relying on legal rather than on administrative expertise, is a tall order. Professor Pojanowski points out that this belief goes hand in hand with a commitment to interpretation based “on the text’s original meaning, statutory context and structure, linguistic canons, and perhaps historical intent … rather than normative canons or legislative purpose at a high level of generality”. (34) Contrast this with the broad pro-regulatory purposivism of cases like West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 SCR 635, and you will see just how far we have to go. Yet West Fraser, with its purported acknowledgement of an “unrestricted delegation of power” [11] to an administrative tribunal, illustrates the dangers of the prevailing Canadian approach.

That said, I have a couple of interrelated concerns about Professor Pojanowski’s approach. The broader one has to do with judicial review of policy decisions, including “interpretation” (or rather construction) of such terms as “reasonable” or “in the public interest”. I am inclined to think that the approach to (constitutional) construction set out by Randy Barnett and Evan Bernick in “The Letter and the Spirit: A Unified Theory of Originalism” is apposite here. A reviewing court should ensure, not that just that the administrative decision is rational, but also that it is a good faith attempt to further the original purpose of the statutory provision on which it is based and of the statute as a whole. While legal craft may not be able to tell us how best to serve the public interest in a particular regulatory context, it can help shed some light on statutory purpose. Indeed, I think it is necessary that courts, rather than administrative decision-makers naturally incentivized to overvalue to importance of their perceived mission and to underrate the countervailing considerations that may well have led a legislature to limit their ability to advance their agenda, be the final arbiters of statutory purpose. As Justice Rand famously said in Roncarelli v Duplessis, [1959] SCR 121

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

A related but more parochial concern has to do with constitutional law. Whatever deference might be warranted to administrative decision-makers engaged in the policy-laden elaboration of vague statutory terms, none should be accorded on constitutional issues. As a matter of the positive law of the Canadian constitution, the courts are the supreme arbiters of its meaning, against the executive branch as well as against the legislative. This question, if I understand correctly, does not even arise in the United States, but so long as Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 remains on the books, it must be flagged in the Canadian context.

Another somewhat parochial question that the “neoclassical” approach to administrative law would force us to confront is that of what to do about a large number of statutory provisions that Canadian courts have so far more or less deliberately ignored or distorted beyond recognition. These are, on the one hand, “privative clauses” that purport to preclude review of administrative decisions; and on the other provisions such as section 18.1(4) of the Federal Courts Act, sections 58 and 59 of the Administrative Tribunals Act of British Columbia, and other provisions that seek to guide judicial review of administrative decisions. Privative clauses would be unconstitutional if taken literally; but instead of holding them unconstitutional and simply ignoring them as nullities, Canadian courts (used to) affect to take them seriously rather than literally, as indications that the decisions of tribunals protected by such clauses should be given greater deference. As the “presumption of deference” spread, even this position has become increasingly meaningless. Meanwhile, as co-blogger Mark Mancini has pointed out, in Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339, the Supreme Court subverted the guidance that section 18.1(4) provides, insisting on imposing its own views on the standard of review applicable to decisions of federal boards and tribunals. The Supreme Court has similarly ignored provisions creating statutory rights of appeal, treating appeals from administrative decisions like judicial reviews.

Professor Pojanowski calls for such legislation to be taken as binding law rather than guidelines to be subsumed into or overridden by the Suprme Court’s own views about judicial review. This should be the obvious thing to do: statute trumps the common law. However, there is a catch; two even. First, the principle of legality holds that common law rights, including the right to access courts, including, I think it is fair to say, for the purposes of judicial review, cannot be abolished by implication. I’m not sure whether this has repercussions for interpretation of legislation that guides judicial review, but it might in some cases. Often, however, the legislation is quite clear. Notably, section 58 of the above-mentioned BC statute requires review for patent unreasonableness, including on questions of law in the case of certain tribunals. I think the courts would need to squarely face, in an appropriate case, the question of whether legislatures are constitutionally permitted to set the bar so high. And the courts should stop pretending to attach any significance to unconstitutional privative clauses.

Professor Pojanowski has articulated an approach to administrative law that is at once principled and (relatively) realistic. It responds to concerns that animate not only American, but also Canadian law, and should therefore be of considerable interest to us, not just as a comparativist curiosity, but as a source of compelling ideas. For this approach to take hold in Canada, long-held assumptions will require revision, and difficult questions will need answering. Yet it is quite clearly superior to available alternatives. Count me a cautious neoclassicist.