The New Administrative Law II: Why Defer?

Part II of a two-part series on administrative law

In Part I of this series on administrative law, I set out the reasons why the Progressive mode of thinking about the subject has lost force in the 21st century. The basic point was that the Progressives—who thought agencies could be staffed by expert, well-intentioned people to achieve progressive goals—assumed too much. In today’s day and age, deferring to agencies on the basis of expertise or their particular substantive goals would mean drawing a consistent rule that applies to inexpert agencies and those who do not hold progressive goals.

In truth, though, this tells us nothing about what sort of judicial review doctrine should be adopted by courts—what the posture of courts should be on judicial review. The only reason I needed to write the first post in the series is because the Progressives, who are the architects behind today’s administrative state, made these weak reasons for deference the basic building blocks. The Progressives made it so political appreciations of agencies justified a deferential posture. The problem with these assumptions, though, is that they require a constant justification according to empirical facts, and a costly court-led investigation into the reasons for deference in every case. The assumptions must be true. And if they are not true, the reasons for deference melt away.

More importantly, these functional reasons for deference are not legal reasons for deference. As Justice Scalia said, they are not reasons for motivating a court to refuse to take an independent view of an agency decision.

So, the first post in this series was not a post I wanted to write, because expertise and the political goals of an agency should be wholly irrelevant to judicial review. But it was a post I had to write, because these reasons for deference need to first be put aside before embarking on a far more ambitious task: describing a defensible doctrine of judicial review.

In the spirit of the Court’s upcoming administrative law trilogy decisions, I invite readers to take a step with me into a world where there is no administrative law doctrine—but there are courts and administrative agencies. Let’s say that there is no court-made law governing the relationship between courts and agencies. All we have is our Constitution and the principles that animate it, and statutes

Luckily for us behind this veil of administrative ignorance, the Constitution itself gives some thought to how Parliament and courts should interact. When Parliament passes law, absent constitutional objection, its law binds because of the idea of parliamentary sovereignty. Putting aside thorny issues of an unconstitutional delegation of power or other constitutional challenges to administrative discretion, most administrative issues are just ordinary, hum-drum stuff involving an exercise of discretion or the interpretation of a statute.

When an administrator is delegated power under Parliament’s law to make determinations, issue rules and regulations, or adjudicate disputes, its power is confined by the statute that creates it. The administrator cannot make a decision forbidden to it by statute. Traditionally, in the common law, it was the job of the courts to interpret the limits of statutory bounds and say when a decision-maker took a decision that was not prescribed by statute. In other words, courts interpret statutes to give effect to legislative meaning regarding agencies. Courts do not invent standards to govern those agencies.

In this way, the concept of jurisdiction at common law was an attempt to synthesize parliamentary sovereignty with the rule of law. Of course, jurisdiction became a problematic concept, for the same reason that the Progressive approach to administrative law is problematic. It read a judicial conservatism into the statutes adopted by Parliament, just like Progressives wanted judges to read labour-friendly standards of review into the law. But the concept that jurisdiction was getting at—the “statutory authority” of the decision-maker—was basically sound. The idea, expressed in Bibeault, that all of judicial review is fundamentally a matter of statutory interpretation is the simple reality of the matter.

This raises the question: when does a court defer under this arrangement? In my view, the only legal and constitutional basis for deference is when a legislature expressly or implicitly says so. I have already expressed why functional or policy reasons for deference are underwhelming reasons for a court to take a hands-off approach in the interpretive process. They are empirically doubtful, and do not legally bind, because it is Parliament, not the courts, that prescribe the level of deference.

When Parliament expressly provides in a statute for the standard of review, the issue is easy. Parliament’s law binds. The trickier question exists, in the vast number of cases, where Parliament or legislatures do not expressly provide for a standard of review, and courts must do the best they can with the statute in front of them.

This moves us from the world of abstract principles in the technical, doctrinal question of judicial review: which doctrinal tools should courts use to approximate legislative meaning on standard of review when there is no clear legislative meaning available? There are any number of options, but one can divide the world into two different types of legal doctrines: rules and standards. A standard might look something like the Dunsmuir factors, in which courts are asked to look to the various indicia like the expertise of the decision-maker, the nature of the question at issue, or the existence of a privative clause or a statutory right of appeal; the former a non-binding sign that courts must defer, the latter a sign that legislatures contemplated a more searching standard of review. The goal of the standard is to take into account “context” to approximate all of the conditions under which deference could exist.

One could also imagine a rule. This has been the approach adopted by the Supreme Court as of late. In both Edmonton East and CHRC, the Court went to pains to explain that its preferred approach was a presumption of deference, based on the expertise of the “tribunal” as an “institution.” To the Court, a strong-form presumption of deference is designed to simplify the standard of review analysis and “get the parties away from arguing about the tests and back to arguing about the substantive merits of their case” (Alberta Teachers, at para 36, citing Dunsmuir, at para 145).

There are costs and benefits to both rules and standards, the complexities of which I cannot explore here. But, in at least one respect, the costs of standards cut hard in the direction of rules when it comes to administrative law: that is, the costs of “compliance” with a standard are likely exponential in a world where administrative agencies take different forms, carry different legislative, executive, and judicial functions, and take on varying policy tasks in complex regulatory environments. It is difficult for litigants to approximate the standard of review under the current scheme, because they cannot be sure with any degree of regularity what the standard will be in their case. There is also a kernel of truth in the Court’s reasoning about deferential presumptions: at the very least, they focus the parties in on the merits at the expense of the rather abstract standard of review.

But the standard of review, nonetheless, is integrally important in a world where government action is confined by law. It prescribes the conditions under which unelected judges can interfere with the actions of delegated actors, acting under authority delegated to them from elected actors. It is important to get the question right, as a matter of the rule of law. But it is also important to stabilize the law, also as a matter of the rule of law.

How do we balance these considerations? I favour a rule of interpretation similar to the one advanced by Martin Olszynski: there should be a presumption of correctness review. That presumption would operate under the well-supported idea that the legislature must affirmatively—explicitly or implicitly—speak before a court will infer deference. In other words, deference does not accrue to administrative agencies from the heavenly font of judicial chambers. It does not exist in the ether because of some expertise-worship or the desires of progressives; after all, experts should be “on tap, not on top.” Deference is, in reality, only a legal matter—only prescribed by legislators—and must be fairly interpreted to exist by courts.

The rule can be slightly relaxed when we come to understand under what conditions deference should operate. A privative clause, within constitutional limits, should bind courts and be a sign of deference—it should operate as a statutory “clear statement rule” that deference was intended by the legislature. In less clear cases, such as when statutes delegate power in broad terms (the classic “public interest” delegation is an example), courts should also defer, on the grounds that legislatures would have spoken more specifically if it wished the agency to have a more limited range of factors to consider in making a decision. Where a legislature uses a “statutory recipe,” deference should be very narrow, perhaps non-existent: if an agency has a list of factors to consider, it must consider that list, nothing more or less.

Of course, what I have said here is open to criticism (Professor Daly, for example, wrote a piece a few years back criticizing this line of thinking; I responded to Professor Daly’s piece, here). And nothing in here is necessarily new. Justice Stratas, for example, has written decision after decision at the Federal Court of Appeal level along these lines. Nonetheless, the contribution I seek to make here must be read in light of my previous post. My conclusions can be summarized as follows:

  1. Legislatures are sovereign within constitutional limits.
  2. This means that when legislatures delegate power, within constitutional limits, courts (as unelected actors) should respect the will of elected actors. This is a simple corollary of the English Bill of Right
  3. On that logic, it is for the legislature to tell courts just how far courts can go. In the state of nature, courts must fairly interpret those boundaries.
  4. Courts should not read progressive (or conservative) justifications for deference into the law. Courts should not presume expertise where it does not exist. Courts should not presume that agencies are owed deference because they are part of the “social welfare” state. In the latter part of the 20th century, the courts swerved in the direction of leftist politics rather than law. That tendency should be guarded against, not only because it is wrong as a matter of law, but also because it is empirically untrue. But so should the tendency to shift in conservative directions.
  5. The best rule, with this in mind, is a presumption of correctness review, with the onus on the legislature to stipulate if it wishes more deference in the context of particular statutes, using either (a) privative clauses/statutory rights of appeal or (b) broad language, implying that the legislature did not wish to limit the considerations an agency can take into account in carrying out its tasks.

The methodology here is not perfect, the considerations are not complete, and there is more that can be said. But at the very least, in this series of posts, I hope to have inspired a re-evaluation of the existing reasons why we defer to agencies. I also hope to have encouraged readers to reflect on the real reasons why we should ever defer at all.

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.

Lowering Expectations: The Supreme Court’s Standard of Review Cases

Why, sadly, Canada’s administrative law community should probably lower its expectations.

Next week, the Supreme Court of Canada will finally conduct its once-per-decade review of the standard of judicial review. In Vavilov, and Bell/NFL, the Court will hear about a number of issues: the standard of review on questions of law, the role of reasons in administrative law, and the role of so-called “jurisdictional questions,” among others. Many administrative law aficionados will pay close attention to next week’s hearings. I have outlined my proposals for how the Court should handle these cases and judicial review more generally (here, here, and here). But no matter what one thinks about the merits of the law of the judicial review in Canada, I do not think the Court will do anything in these appeals that will affect, in any substantive way, the standard of review.

I take as a given “Daly’s law”: that is, the idea that “the more excited administrative law aficionados are beforehand, the more disappointed they will be afterwards.” Evidence helps us with this conclusion. Most recently, many administrative law watchers had high hopes for the Court’s Tran case last year. Tran was an appeal from a Federal Court of Appeal decision, where the FCA expressly noted the difficulty of applying the Supreme Court’s standard of review precedents on questions of law. But Tran frustrated our expectations by simply saying that its result would be the same under any standard of review.

I do not think we will get a Tran-type conclusion in the Vavilov and Bell/NFL cases; I expect a bit more than that given the Court’s express request for submissions on the standard of review. But I do not think that the Court will do anything exciting or substantive in these appeals. And so, I think we should all temper our expectations.

The Court is notoriously divided on administrative law in general, and the divisions are deep and intractable on foundational questions. This makes it difficult to hope that the Court will come up with a workable and constitutionally justifiable doctrine. For example, the Trinity Western case, while focused on matters outside the direct scope of these appeals, demonstrated the fault lines in how the Court views issues of judicial review. The Court has also divided on the specific issue of jurisdictional questions: see Guerin and CHRC. In those cases, the dissenters viewed the category of jurisdictional questions as fundamental to the Rule of Law. On those terms, it’s difficult to assume there is much wiggle room for the dissenters on the category. What’s more, the Court has divided on the factors that rebut the presumption of reasonableness review. In Groia, Justice Côté would have found that the presumption of reasonableness review was rebutted by the fact that “the impugned conduct occurred in a courtroom…” [166]. This factor was previously unknown to the standard of review framework, and indicates the breadth of considerations that at least one judge is thinking about on the issues. Other cases demonstrate more fundamental problems. In West Fraser, then-Chief Justice McLachlin (with the agreement of five other judges) claimed that the decision-maker in that case was the recipient of the delegation received unrestricted powers because of an “unrestricted” delegation, and so was (presumably) owed unrestricted deference. This is a bold statement that is strikingly at odds with a fundamental concept of administrative law in Roncarelli: there is no such thing as untrammeled discretion. Naturally, dissenting judges found that the enabling statute actually did confine the decision-maker at issue in West Fraser.

The problem transcends administrative law and affects broader issues that define the parameters of the debate. In Mikisew Cree, the Court split over the circumstances in which the duty to consult attached to legislative action. Two judges (Abella and Martin JJ) would have found that the legislative process was “Crown conduct” subject to the duty, despite the fact that in the Westminster tradition, the entire law-making process is immune from judicial scrutiny. Here, we have a deep disagreement about the very nature of the Parliamentary system, one which foreshadows the more specific administrative law problems.

Further, the problems that the Court has to face are broad, and that state of affairs lowers the probability of any workable agreement. The problems range from how courts should select the standard of review (the status of the presumption of reasonableness; the status of the jurisdictional questions category; the role of constitutional questions) to how the courts should apply the standard of review (what is the role of the principles of statutory interpretation?; should courts supplement reasons?). There is no reason to think the Court will create a precedent on any one of these issues, let alone all of them. Yet each of them is vitally important and deeply contested.

The factional stasis at the Supreme Court is a real shame, because now more than ever there is an academic and judicial movement that has converged on the idea that at least some reform of the law of judicial review, even at the margins, is highly desirable. Very few people are happy with judicial review in Canada. This is an important opportunity to fundamentally question the foundations of judicial review in Canada, to create a workable framework that deals with the developing Canadian administrative state.

So, if I had my way, I would take the opportunity and start from scratch. I once believed, naively, that the Dunsmuir framework was workable. A lot of people think, with good reason, that only the extensions on Dunsmuir that have caused the most academic consternation—the presumption of deference introduced in Alberta Teachers and entrenched in Edmonton East; the completely unjustified “supplementation of reasons” doctrine that the Court created out of whole cloth in Newfoundland Nurses. Of course, these doctrinal innovations have made the law unworkable. But Dunsmuir itself is a problem because it creates a sort of centrifugal force with which the Court must contend. Its categories and factors will remain, even if Edmonton East, Newfoundland Nurses, and Alberta Teachers are expressly overturned. The categories and factors are intractable precisely because there is no sense of the relationship between them on first impression. They are not necessarily connected to what I have before called the fundamental premise of administrative law: its statutory character. It would be better for the long-run doctrinal clarity of the standard of review framework if the Court began its analysis from this fundamental premise, while critically questioning whether these categories and factors are necessary at all.

But because the Court cannot even find agreement on more mundane points, it pains me to predict that Dunsmuir will remain largely unscathed. That prospect disappoints me given the opportunity the Court has created for itself. But if nothing else, administrative law scholars will have another decade of work.

Bell/NFL: The Second Dunsmuir Redux Case

Two weeks ago, I summarized and analyzed the arguments in Vavilov, one of the Dunsmuir redux cases that will be heard at the Supreme Court in December. I’ll now do the same for the second case, Bell/NFL, which similarly focuses on an important conceptual difficulty in the law of judicial review: the presence and implications of a category of “jurisdictional questions.”

This case concerned an interpretation of the Canadian Radio-television and Telecommunications Commission [CRTC] of its own statute and regulations. The Appellants, Bell and NFL, claim that the interpretation raises a jurisdictional issue; the Respondent government resists this claim, arguing that the concept of jurisdictional questions inviting a different standard of review should be jettisoned. For reasons I’ve explained before, I do not think jurisdiction is a helpful category in the law of judicial review. All administrative law is confined to statute, and so whether an issue is “jurisdictional” or not is simply a function of an enabling statute.

The interpretive difficulty

The interpretive difficulty in Bell/NFL centres around the broadcast of the Super Bowl in Canada. For many years, the Super Bowl had been broadcast in Canada under the “simultaneous substitution regime,” set out in the regulations [Sim Sub Regulations] under the Broadcasting Act. Under the simultaneous substitution regime, a Canadian television station is required (unless the CRTC determines otherwise) to substitute a Canadian feed for a non-Canadian programming service—the result being that Canadians watching the Super Bowl see Canadian commercials whether they watch the Super Bowl on a Canadian or American channel (see Sim Sub Regulations, s.4(1))). The CRTC, under the Sim Sub Regulations, can apply an exception to the simultaneous substitution requirements if the “deletion and substitution are not in the public interest” (s. 4(3)). The CRTC can make this decision under s.18(3) of the Broadcasting Act, which allows it to make any decision “within its jurisdiction” if it is satisfied it is the public interest.

In this case, after consultations, the CRTC decided that the simultaneous substitution of Canadian content would no longer be in the public interest.  The key provision is s.9(1)(h) of the Broadcasting Act, under which the CRTC is entitled to require a licensee to “carry…programming services specified by the Commission.” Under this provision, the CRTC decided that it had jurisdiction under s.9(1)(h) to apply the exception to the simultaneous substitution regime in the public interest.

At the Federal Court of Appeal (a direct statutory appeal), Bell and the NFL argued that the CRTC “only has jurisdiction to make orders and regulations regarding programming services and does not have jurisdiction to single out an individual ‘program’” [15]. While the Broadcasting Act does not define programming services, the appellants argued that other provisions in the statute used the term “programming services” to refer to television channels. So, since the Super Bowl is a single show, the CRTC did not have “jurisdiction” under s.9(1)(h) to make the order it did.

The Federal Court of Appeal decided otherwise. First, the Court concluded that the standard of review is reasonableness, but rejected the “margin of appreciation approach” that the Court adopted in Vavilov [9].  It ultimately decided that the term “programming services” is contextual in nature; it could mean a single “program” (ie) the Super Bowl in certain circumstances [19]. A number of factors supported this conclusion: (1) previous interpretations of the CRTC held that the term was contextual [16]; the Sim Sub Regulations adopted the definition of “programming services” under the Broadcasting Distribution Regulations, which defined a “programming service” to mean a singular program [17]; while the legislative history demonstrated that “programming services” was used in reference to television channels, it was not determinative, and there was no evidence that the legislature intended to exclude a singular program from the term “programming services.” All of this meant that the CRTC’s decision was reasonable.

While there were other issues in this case, this core issue is the one that is most relevant to current debates in administrative law and judicial review.

The Parties’ Submissions on Standard of Review

Bell and NFL filed a factum each before the Supreme Court; Bell’s focused on the standard of review, while the NFL’s focused on the application of the standard of review to the issues in the case.

Bell’s factum reads as an attack on the administrative state. In the opening paragraphs of the factum, Bell notes that s. 9(1)(h) is juxtaposed with s.26(2) of the Broadcasting Act, which gives the power to Cabinet to require the broadcast of “any program.” This, to Bell, was the only provision of the statute that permitted the targeting of an individual program. This made sense—the Cabinet is “a democratically accountable body” [5]. And Bell does not pull punches, calling the CRTC’s exercise of power “Orwellian,” “conferring upon itself the ability to dictate the particular television programs that broadcasters distribute…” [5].

This assault on administrative power informs Bell’s standard of review proposal. To Bell, it is “inconceivable” that Parliament would have wanted the CRTC to have the last word on its own “jurisdiction” on this matter. To prevent this reality, Bell argues that a separate category of “jurisdictional questions” inviting correctness review is required. At risk are three principles: legislative supremacy, the separation of powers, and the rule of law [paras 42, 45, and 63-69]. When the fundamental question concerned “executive accountability to legal authority,” it would undermine the intent of the legislature to allow its creation to run beyond its statutory limits; the separation of powers is at risk if the executive could “decide for itself what powers were delegated to it by the legislature” [47]; and if the CRTC could single out a program when the statute expressly left that task to Parliament, the rule of law is impacted [69].

Without correctness review on “jurisdictional questions,” Bell alleges that we have an administrative state untethered to statute, making law as it goes along. And for Bell, even if the presumption of reasonableness was applicable, other statutory signals rebutted the presumption, including a statutory right of appeal [87-88].

The government, in its submissions, reiterated the focus on a general standard of deference for all administrative decision-makers that it set out in its Vavilov submissions and that I addressed in my previous post. It argues that the category of jurisdictional questions should be eliminated [34], and that the mere fact of delegation creates a presumption of deference [48]. To the government, there should be no search for other implicit signals of legislative intent to rebut this presumption.

Analysis

The Bell/NFL case gives the Supreme Court an opportunity to review its approach to that unicorn of judicial review, “jurisdictional questions.” In a forthcoming paper entitled “Two Myths of Administrative Law,” one of the myths I tackle is the idea of jurisdictional questions. In my view, both Bell and the government get this issue wrong. A category of jurisdictional questions (but not necessarily the concept of “jurisdiction”) is not helpful to the task of determining the standard of review; but neither is an always-applicable presumption of deference, which the government seems to believe necessarily follows from the rejection of the category of jurisdictional questions.

Starting at the beginning, Dunsmuir defined a true question of jurisdiction as one that concerned the decision-maker’s authority to make the inquiry in the first place [59]. This is, to be clear, is a very narrow sort of jurisdiction that can be distinguished from a pre-CUPE notion of jurisdiction. Under pre-CUPE law, every decision of an administrative decision-maker that runs afoul of its statutory boundaries could be considered as beyond its jurisdiction. Dunsmuir rejected this broad notion of jurisdiction.

But the Court has struggled with this conceptually difficult category. In subsequent cases, it has rolled back its application. In Halifax, it did away with the notion of “preliminary” or “entry” jurisdictional questions. In Alberta Teachers, a majority of the Court remarked that the category served little purpose. In CHRC, it reaffirmed the idea that a category of jurisdictional questions is unhelpful. Some spirited dissenters argue that the category is necessary, as Bell argues, to ensure that administrative decision-makers stay within their lawful boundaries (see also dissents in Guerin and CHRC).

I can understand the worry of the Court’s dissenters and Bell about the need to keep the administrative state in check. The real question is if meaningful checks and balances can be applied to a decision-maker by a judicial review court in absence of this category. To my mind, the answer is yes—but not under the current presumption of reasonableness, nor the extended version sought by the government in this litigation.

How is this so? In CHRC, the majority cited the City of Arlington case at the Supreme Court of the United States, per Scalia J. In that decision, a majority of the United States’ apex court rejected the idea that jurisdictional questions deserve a special, more intensive review than other questions of law. At the root of the argument for the category of jurisdictional questions, Scalia J reasons, is a misapprehension of the notion of “jurisdiction” in administrative law. For example, in Canada, s.96 courts have “inherent jurisdiction” that is constitutionally significant. This power to hear and decide cases is fundamentally different from the idea of administrative law jurisdiction—the jurisdiction of s.96 courts is constitutionally entrenched, whereas the jurisdiction of administrative decision-makers is defined by their statutes. This fundamental concept was described by the Court in Ocean Port, at para 23, with respect to independence. Constitutional guarantees of independence do not transfer over to an administrative decision-maker, even if they are requirements in the context of superior courts. While we would jealously guard constitutional independence, independence in the administrative context is completely different—it can be traded away.

The same is true of “jurisdiction.” In administrative law, the idea of “jurisdiction” is purely statutory. The power of a tribunal to hear and decide cases is circumscribed by statute, unlike in the s.96 context; so are the remedies that the decision-maker can grant, and whether a particular claimant can even have standing to challenge a particular decision. Whether the tribunal can act at all on a particular matter is a matter of statute. At the most extreme end, whether we have an administrative state to even review is a matter of statute. In a sense, everything and nothing is jurisdictional (Nolan, at para 33) because a decision-maker has no independent reserve of powers on which to rely outside the statute.

If one supports the idea that the level of deference owed to a decision-maker is a function of statute (which the Supreme Court does), then there is no reason to apply a different standard of review over questions going to the tribunal’s power to hear and decide cases, as opposed to its power, say, to grant a certain remedy. If a tribunal hears a case it is not statutorily empowered to hear, it is as much an affront to legislative supremacy and the rule of law as if the tribunal granted non-pecuniary damages when its enabling statute gave it no authority to do so. Both are instances in which the decision-maker has assumed power it has not been specifically assigned—and at heart, this is Bell’s fundamental concern with the CRTC’s action here. Nothing turns on the label of “jurisdiction.”

While the Court’s invocation of City of Arlington in CHRC supports the government, the Court doesn’t cite City of Arlington for its other, parallel proposition; that it is the job of courts to intensively police the boundaries of the administrative state, no matter the standard of review. For Scalia J, every case turns on the vigorous enforcement of statutory boundaries, not the artificial imposition of a particular category. And this is where Bell’s submissions are preferable to the government’s.  Under the government’s formulation of deference without an investigation of statutory signals, it is possible that a decision-maker could have (essentially) the last word on its statutory boundaries. This is not only problematic when we speak of the decision-maker’s power to hear and decide cases; it is a problem in every permutation of decision-making that could abridge the enabling statute. A judicial review court must review, and in our system of laws, this means determining whether there is any daylight between potentially correct interpretations of statutory language and what the decision-maker did in a particular case.

This case provides an example of how this could work in practice. In any given case, there should be two inquiries: (1) is the decision barred by the text, context, and purpose of the statute? (2) is the process of reasoning sound with respect to these principles of statutory interpretation?

On the first question, whether the term “programming services” can refer to the Super Bowl is a question of law. That means that a court reviews the text, context, and purpose of the statute—and the “open-textured” language therein—to determine the level of deference owed and whether the substantive result is legal. Here, the text is undefined in the statute, and is reasonably open-textured, meaning it could support more than one option. Sometimes, the tools of statutory interpretation require this result—there may be more than one answer. The context supports the CRTC’s interpretation and the breadth of options; the definition of programming services in the Sim Sub Regulations supports the CRTC’s decision. While I am alive to the concern that the Cabinet may have the power under s.26(2) to specify particular programs, that power seems to be of a different nature—based on the “urgency” of the program specified.  And even though a statutory right of appeal is present in the legislative context, that does not change the legality of the CRTC’s reasoning on the specific interpretive difficulty. Finally, the CRTC’s decision does not run counter to any of the Broadcasting Act’s purposes.

If I had my druthers, this is how we would deal with questions of law. There would be no presumption of “reasonableness.” Any deference is inherent in the language, the context, and the purpose of the statute. Here, the CRTC’s decision is not reasonable, or correct, but legal—it is supported by the tools of statutory interpretation and its process of reasoning is adequate (this point was not central). Nothing more or less.

Jurisdictional metaphysics, while interesting, is the province of lawyers. Bell/NFL provides an opportunity for the Court to get out of the game.

CHRC: The Presumption of Reasonableness and the Rule of Law

Worries about the upcoming review of Dunsmuir

The Supreme Court of Canada released a number of decisions in the last few months on standard of review. Many of these decisions are probably noise rather than signal, in the language of Professor Daly. One, however, sheds some light on an important issue before the SCC’s revisit of Dunsmuir: CHRC v Canada (Attorney General), 2018 SCC 31 [CHRC]. What is the role of legislative context in rebutting the presumption of reasonableness?

CHRC says there is no role. This is inconsistent with the Court’s own cases, and doctrinally, it subverts the role of courts in seeking legislative intent to determine the standard of review. This is another milestone in the Court’s tortured administrative law jurisprudence, and it brings no hope for the upcoming review of Dunsmuir.

***

CHRC involved two human rights complaints before the Canadian Human Rights Tribunal [CHRT]. These complaints centred around the Department of Indian and Northern Affairs’ previous practice of “enfranchisement.” Under this practice, the government stripped individuals of their Indian Act status and denied the children of these people from registering as status Indians—for example, a child born to a status Indian mother who married a non-status man. In response to this discriminatory policy, Parliament enacted remedial provisions which enabled persons affected by the policy to re-register under the Indian Act.  Further reforms granted registration eligibility to children affected by the enfranchisement policy.

The two complaints were centred around the amended registration provisions in the Indian Act, which need not be exhaustively described—in essence, the claimants argued that the remedial provisions were insufficient because they permitted continued discrimination on the basis of enumerated grounds [1].  The claimants framed their challenge under s.5 of the Canadian Human Rights Act [CHRA], and alleged that the Department of Indian and Northern Affairs Canada engaged in a discriminatory practice in the provision of services.

Both complaints were dismissed on the basis that the claimants’ challenges were legislative challenges to the status registration requirements under the Indian Act. The CHRA confers remedial authority to the CHRT to render conflicting legislation inoperable, but a remedy could only be granted in circumstances where a discriminatory practice has first been established [56]. But the CHRT concluded that “legislation per se” was not a discriminatory practice in the provision of services, and for that reason, the complainants’ cases could not constitute a discriminatory practice.

***

The Supreme Court majority decision was written by Justice Gascon. To the majority, the CHRT was “called upon to characterize the complaints before it and ascertain whether a discriminatory practice had been made out under the CHRA” [30]. As a result, the Court reasoned that this was an issue of home statute interpretation inviting the presumptive standard of reasonableness.

The majority next considered whether the presumption was rebutted, concluding that the case did not fall into any of the categories for correctness review established in Dunsmuir. It then turned to the so-called “contextual approach” to determine whether it rebutted the presumption of reasonableness review. That “approach” was essentially a carry-over from the pragmatic and functional era, consisting of four factors which could indicate a different standard of review than the one indicated by the presumption: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue; (4) the expertise of the tribunal.

The majority noted that a presumption of reasonableness is designed to “prevent litigants from undertaking a full standard of review analysis in every case” [45]. Context, then, should play a “subordinate role”, and should be “applied sparingly” [46]. Putting context in its place, to the majority, would forego the uncertainty and debate over the standard of review.

The majority emphatically disagreed with the opinion written in CHRC by Cote and Rowe JJ, which noted that correctness would apply wherever the “contextual factors listed in Dunsmuir point towards correctness as the appropriate standard” [73]. Instead, the majority noted that where the presumption of reasonableness applies, an adoption of a contextual approach would “undermine the certainty this Court has sought to establish in the past decade” [47]. The majority concluded that “…dissatisfaction with the current state of the law is no reason to ignore our precedents following Dunsmuir” [47]. On the facts, the majority nonetheless applied the contextual analysis and concluded that the presumption of reasonableness was not rebutted.

In a concurring opinion, Rowe and Cote JJ disagreed with the majority’s obiter comments on the contextual approach. They reasoned that the approach to standard of review set out in Dunsmuir is “manifestly contextual in nature” [78]. To Rowe and Cote JJ, a contextual analysis must be undertaken where the categories inviting correctness review do not apply.  On the facts of the case, Rowe and Cote JJ would have found the presumption of reasonableness rebutted because of an absence of a privative clause and the potential for conflicting lines of authority because the CHRT does not interpret the CHRA in a discrete administrative regime [90]. Brown J concurred on similar grounds.

***

In my view, the two concurrences clearly had the better of the argument here. First, the majority’s approach continues a hard-line approach to the presumption of reasonableness that is inconsistent with Dunsmuir and post-Dunsmuir cases. Second, a presumption of reasonableness that is never rebutted is contrary to the concept of judicial review.

It is unusual—in the strongest sense of the term—that the majority rooted its endorsement of the presumption of reasonableness in terms of precedent. It noted, for example, that resort to the contextual approach would “undermine the certainty this Court has sought to establish in the past decade.” This is an unexpected remark. The Court has done much in the last decade on administrative law, but establishing certainty is not on the list. Putting aside all of the other issues—which are many—the problem of context provides a good example of the Court’s odd inability to apply its own precedents.

Legislative context is integral to determining the standard of review because legislatures, not courts, can set the standard of review. Dunsmuir recognized this when it held that “[T]he analysis must be contextual” [64].  This is about as clear as it gets for the Supreme Court in administrative law.  As Justice Bastarache, one of the authors of Dunsmuir said in the recent Dunsmuir Decade series, none of the categories inviting a particular standard of review—including the presumption of reasonableness—were meant to be set in stone. Dunsmuir only said that deference would “usually result” when a decision-maker interprets its home statute [54].

And this is how the Court applied the presumption of reasonableness in subsequent cases. There are a number of cases in which the Court looked to context to determine whether the presumption was rebutted; by my count, at least the following: Entertainment Software Association v SOCAN, 2012 SCC 34; Rogers v SOCAN, 2012 SCC 35; Marine Services International v Ryan Estate, 2013 SCC 44; McLean v British Columbia (Securities Commission), 2013 SCC 67; Tervita Corp v Canada (Commissioner of Competition), 2015 SCC 3; Mouvement Iaique Quebecois v Saguenay, 2015 SCC 16; CBC v SODRAC, 2015 SCC 57; Edmonton (City) v Edmonton East (Capilano) Shopping Centres, 2016 SCC 47 (though noting Justice Karakatsanis’ skeptical remarks regarding the contextual approach); Barreau de Quebec v Quebec (Attorney General), 2017 SCC 56; Williams Lake Indian Band v Canada (AANDC), 2018 SCC 4; Groia v Law Society of Upper Canada, 2018 SCC 27.

I repeat these cases for dramatic effect. It is an example of the Supreme Court saying one thing and doing another—something some judges of the court recognized was a risk in administrative law in Kanthasamy [112]. In CHRC, there is no explanation for why context should be abandoned, especially in light of all of these precedents and Dunsmuir’s clear, unequivocal statement.  Shouldn’t certainty be one of the underlying goals of doctrinal reform, particularly in this troubled area? Changing approaches year-to-year does not provide any guidance to courts and litigants.

Quite aside from the lack of consistency in the Court’s standard of review framework, a presumption-only approach also frustrates the search for legislative intent. “Legislative context” as Justice Brown noted in CHRC is really just a proxy for determining legislative intent. When one speaks of “legislative context,” one means statutory indicators that set the standard of review implicitly: statutory rights of appeal, signs of concurrent jurisdiction, privative clauses, statutory indications of purpose, and the like. Or, perhaps there is explicit legislative guidance on the standard of review. It was always understood that these signs of legislative intent should bind courts; this is just an implication of the hierarchy of laws, under which courts must respect law absent constitutional objection.

The presumption-only approach in CHRC raises profound challenges to the task of courts on judicial review to determine legislative intent. The challenge can be framed in the classic “rules vs standards” debate in law and economics terms. The “rules versus standards” debate probably impacts every area of law, because laws and doctrine can be framed as either hard-and-fast “rules” or flexible “standards.” Rules have certain benefits—cost savings are achieved because the rule applies to the mass of legal situations, and there is no need to conduct a case-by-case investigation. But rules can be overbroad—if they are not appropriately tailored, they can apply in situations where the underlying justifications for the rule do not exist.

The presumption of home statute interpretation can be viewed as an overbroad rule, because on the happening of a certain event (home statute interpretation), the content of the law is defined (deference). It is rooted in the justifications of expertise and legislative intent.  But because the CHRC approach tells lower courts not to look to context, we simply never know if the legislature intended a standard of review other than the one indicated by the presumption. The presumption could apply in cases where the legislature did not intend reasonableness, even though the Dunsmuir factors (which could be understood as standards) implicitly set a different standard of review.

Not to put the point too strongly, but if this is the case, what is the point of a standard of review analysis? Couldn’t we create some sort of computer program in which cases are filed and the standard of review is selected by the computer? The point of the Dunsmuir factors is individual tailoring—they are designed to be applied by courts in cases where a statutory indication of legislative intent is evident. This requires some human appreciation of what an enabling statute implicitly sets the standard of review to be. But if judges simply say “reasonableness” all the time, the role of courts on judicial review is reduced to rote copying of a paragraph saying that deference applies, even where it should not.

This goes to the point of judicial review. The role of the courts on judicial review, as noted in Bibeault, is so important that it is given constitutional protection [126]. That role, rooted in the Rule of Law, is to authentically determine what the legislature intended the standard of review to be. When the Court binds itself to its own presumption–simply an evidentiary device–it subordinates its constitutional role to the police the boundaries of the administrative state.

The systemic costs of the CHRC approach are  exacted in the Rule of Law and against the constitutional role of the Court. As Leonid once wrote, judicial review can be understood as a cost-benefit analysis. While the costs saved through the presumption may be high, the potential costs of imposing the wrong standard of review could lead to more administrative decisions being upheld than what the legislature intended. The effect is case-by-case, an administrative state turned loose, increasingly unmoored by law. CHRC sanctions this unleashing of the administrative state.

This is not to say that the reasonableness review urged by CHRC is inconsistent with the Rule of Law (though I think there is a case to be made on that front). But expanding the class of cases in which reasonableness should and does apply, when that expansion is not mandated by law, presents a serious challenge to the Rule of Law and the role of courts in enforcing it.

CHRC worries me on this front. It demonstrates that the Court is not looking to the underlying constitutional precepts of judicial review. It does not seem to have seriously considered the costs to its approach. Nor is it even attempting to distinguish its own precedents in creating its new approach. Observers should worry about where the Court’s mind is going in advance of its planned review of Dunsmuir.

Jiggery-Pokery

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

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

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

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

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

For his part, David Mullan noted that

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Did Dunsmuir Simplify the Standard of Review?

An empirical assessment

Robert Danay, Justice Canada and UBC

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

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

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

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

Methodology

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

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

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

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

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

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

Danay1

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

Danay2

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

Conclusion: Vindication for Madam Justice Abella?

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

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



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

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

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

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

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

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