“Clear Enough”

Some thoughts on statutory interpretation.

As I finish my graduate studies at  Chicago, it struck me that a major theme of legal design is the degree of perfection (if any) we should expect from legal rules. Drafted legal rules—whether by the legislature or judiciary—will always be over and underbroad, because rules of general application cannot foresee every idiosyncratic individual application. In such a case, the extent to which a perfect rule can be created is dependent on the extent to which we balance the error rate of application with the ease of administrability of a straightforward rule. Here, we will never come to a perfect balance, but we can try to come to something that is defensible and workable.

The same sort of consideration applies in the field of statutory interpretation. The most important issue in statutory interpretation is the clarity exercise—how clear is clear enough? Finding that a statutory text is clear on its face leads to a number of important consequences. For one, the Supreme Court has said that where text is “precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process” as opposed to purpose (Canada Trustco, at para 10). Additionally, the use of Charter values in statutory interpretation to gap-fill only arises where there is ambiguity in the ordinary textual meaning (BellExpressVu, at para 28). And, as Gib Van Ert points out, the Federal Court of Appeal seems to be adopting a similar rule in the context of international law.

Some may object at the outset to a consideration of “clarity” as a means of discerning legislative intent on a particular subject. This line of opposition is deeply rooted in the idea of legal realism, with its skepticism of judicial modes of reasoning and the rejection of abstract legal thought as a means to come to clear answers on the law. Representative works in this regard include John Willis’ “Statutory Interpretation in a Nutshell,” where he argues that, in modern legislation which uses wide language (often to delegate authority to others), literal interpretation does no good, essentially because the language is broad and unclear. And he notes that even if interpretation could be  clear or plain on its face, there are differences between judges as to what “plain” constitutes (see 10 and 11). Additionally, Karl Llewellyn’s classic article on the “dueling canons of interpretation” sheds doubt on the use of the canons of statutory interpretation to come to any clear meaning that is not inspired by motivated reasoning. Underlying each of these important critiques is a belief in the relativism and contingency of language. Clarity, on this account, is probably a fool’s errand, in part because ascribing an intent to the legislature is difficult with open-textured language, and in part because language itself is inherently unclear. If this is true, it will be the rare case indeed where a court should be convinced that a text is clear.

While this might sound good to a lawyer’s ear—especially a lawyer that is paid money to exploit ambiguities—it does not comport with the way we use language in the majority of cases. And this is where the example of crafting legal rules comes into handy. One might wish to craft a legal rule to cover all of the interstitial, idiosyncratic applications—ones that are weird or abnormal. But then we create a rule that might work well in the individual case, and not in the general run of cases. Instead, we should craft legal rules based on the 98% of cases, not the 2%: see Richard Epstein’s Simple Rules for a Complex World on this score. In the realm of statutory interpretation, this means that we should start with the going-in, commonsense presumption that language is generally clear in the majority of circumstances, after a bit of listening and synthesis. People transact in the English language everyday with no major kerfluffles, and even conduct complex business and legal dealings without requiring a court to opine on the language they are using. This underlying mass of cases never makes it to court precisely because English works. The problem with statutory interpretation cases, then, is the major selection effect they present. The cases that make it to court, where the rules are developed, are the cases that are most bizarre or that raise the most technical questions. Those are not the cases on which we should base rules of general application. Instead, the rule should simply be that English works in most circumstances, as evidenced by the fact that each of us can generally communicate—with only small hiccups—in the day-to-day world.

If that is the rule adopted, and if legal language is really no different in kind (only in degree of specificity and technicality), then a court should not be exacting in its determination of the clarity of a statutory provision. That is, if language generally works on first impression, then there is no need for a court to adopt a presumption that it doesn’t work, and hence that something greater than “clear enough” is required to definitively elucidate the meaning of a text. We should merely assume that language probably works, that legislatures know language, and that courts have the tools to discern that language. While we should not assume that language is perfect, we should at least assume that it is workable in an ordinary meaning sense.

This approach also has the benefit of commonsense. Perfection is not of this world.  The legal realists put way too high a standard on the clarity of language, to something approaching perfect linguistic clarity rather than semantic workability. We should not craft legal rules around the fact that, in some far-off circumstances, we can imagine language not working.

What does this mean in operation? The American debate over Chevron deference supplies a good example. Chevron holds that where Congress has spoken to the precise question at issue, courts should not afford deference to an agency’s interpretation of law. This is Chevron Step One. If Congress has not spoken clearly, the court moves to Chevron Step Two, where it will defer to the interpretation and uphold it if it constitutes a reasonable interpretation of law. In a recent case, Justice Gorsuch concliuded at Chevron Step One that the text was “clear enough,” so that deference should not be afforded. The clear enough formulation is reminiscent of Justice Kavanaugh’s article, where he explains the various divisions among judges about clarity:

I tend to be a judge who finds clarity more readily than some of my colleagues but perhaps a little less readily than others. In practice, I probably apply something approaching a 65-35 rule. In other words, if the interpretation is at least 65-35 clear, then I will call it clear and reject reliance on ambiguity-dependent canons. I think a few of my colleagues apply more of a 90-10 rule, at least in certain cases. Only if the proffered interpretation is at least 90-10 clear will they call it clear. By contrast, I have other colleagues who appear to apply a 55-45 rule. If the statute is at least 55-45 clear, that’s good enough to call it clear.

Kavanaugh’s approach is probably closer to the right one, if we accept the general proposition that language will be workable in the majority of cases. If there is no reason to doubt language, then clarity will be easier to come by. It is only if we go in assuming the case of unworkability that clarity becomes a fool’s errand. But from a perspective of legal design, this is not desirable.

Law has a reputation for being a highly technical field, with a laser focus on commas, semicolons, and correcting the passive voice. But at the level of designing legal rules, including rules governing language, the best we can hope for is workability, not technical precision. This is because designing rules involves tradeoffs between incentives, administrability, and fit. And because humans are not perfect, we cannot design rules at this level of abstraction that are perfect. As a result, in the language context, the best we can and should do is workability in the general run of cases.

Abellian “Law”

It is with an utter lack of surprise that I yet again fill the virtual pages of Double Aspect with thoughts on another of Justice Abella’s comments on the nature of judging. Both Leonid and I have continuously written about how Justice Abella frequently displays a judicial arrogance  that is inconsistent with the role of a judge in a constitutional democracy, both descriptively and normatively. I hesitate to write yet again on the same subject.

But I am moved to do so by the utter lack of accuracy in Justice Abella’s recent speech at Fordham University, where she described a bastardized version of the Canadian approach to constitutional and statutory interpretation. Here are the comments in a release from Fordham:

“Our judges don’t draw lines over whether to follow a linguistic word approach or an intentionalist approach,” she said. “We just look at how we think this provision should be interpreted in light of all the things you worry about: what did the legislature mean, what do the words say, what was the purpose of the statute, all of that.”

Justice Abella discussed the importance of the Edwards v Canada case, more commonly known as the Persons Case, which concluded that women were eligible to sit in the Senate of Canada. In the 1929 decision, Lord Sankey stated that the British North America Act is “a living tree capable of growth and expansion within its natural limits.” Justice Abella spoke about this idea, the living tree doctrine, as a basic guiding principle.

“[The living tree doctrine] is constitutional but it’s also philosophically foundational,” she said. “It’s how we approach not only the constitution but also our statutes. What is the fair, appropriate, and just meaning of the phrase? We read it in the most reasonable way possible.”

I need not repeat yet again, from the constitutional perspective, why Justice Abella’s comments are wrong as a normative matter respecting the living tree.  I want to concentrate on the seemingly more mundane matter of statutory interpretation, and Justice Abella’s statements that we apply a “living tree” methodology in that context. She is flat-out, embarrassingly wrong as a positive law matter; but as a normative matter, the view is dangerous.

On positive law grounds, it is completely untrue that courts in Canada apply a “living tree” approach to the interpretation of statutes as a matter of course. The Supreme Court has held, time and time again, that statutes should given the meaning they had at the time they were adopted. This was the definitive statement of Dickson J in Perka, at 264-265, citing authorities noting that “The words of a statute must be construed as they would have been the day after the statute was passed…” and “Since a statute must be considered in the light of all circumstances existing at the time of its enactment it follows logically that words must be given the meanings they had at the time of enactment, and the courts have so held.”  Most recently, as co-blogger Leonid Sirota stated on Twitter, this was the approach adopted by the Supreme Court in R v DLW  where the Court cited Perka, noting that while broad terms might be afforded a more flexible interpretation, the original meaning governed in that case. Justice Abella dissented. So, contrary to her belief,  the general rule is that the original meaning of a statute applies.

This makes sense. No matter what one thinks the strengths of living constitutionalism are in the constitutional context, the argument loses force in the statutory world.  At a formal level, constitutions are restrictions on the legislature, and one could argue that they are developed by the judicial branch through strong-form judicial review, in Canada. But statutes are clearly the product of the legislative branch (or their delegates). Judges have no warrant–at least since 1688–to legislate. At a functional level, it could be true that Constitutions are not easily amended, and so judges should develop their meaning to new facts. But that same argument is so clearly wrong in the statutory context, where statutes are passed and amended by legislatures all the time.

One might try to steel-man Justice Abella’s comments by relying on the comments in R v DLW and other general interpretive principles. It is true that “dynamic interpretation” is indeed a distinct method of interpretation, recognized in Canada: see Ruth Sullivan on the Construction of Statutes at 175 (2014). While it is true that the Court in R v DLW and other cases have noted that statutory terms can take on a “dynamic meaning,” this is far from the ordinary rule, generally only applicable in defined circumstances given defined statutory language: see Sullivan, at 177. And even if it was, the dynamic approach is not inconsistent with original meaning, and it does not support Justice Abella’s broad misunderstanding of textualism. One can speak of two types of original meaning:

  1. Situations in which statutory terms should be statically applied to the same situations that were in their contemplation at the time of enactment.
  2. Situations in which statutory terms are broad and must be applied to new facts as they arise.

 

Both of these situations are consistent with original meaning. In the first case, both meaning and application are largely frozen at the time of enactment. Sullivan says an interpretation of this sort is justified when “…new facts are functionally equivalent or analogous to facts that were within the ambit of the legislation when it first came into force” (Sullivan, at 179), for example. In the latter case, though, the legislature has spoken more broadly, and this is where a “dynamic” approach enters the fray. But this does not mean that the statute receives a new meaning according to some Abellian idea of an unbridled living tree: it just means that its contours are applied to new facts. We constrain the meaning–the scope of application– using text, context, and purpose. I always use the example of the Kyllo decision in the US, in which the Court endorsed the proposition that the 4th Amendment (protecting against searches and seizures) applied to infrared searches of the home. The scope of the 4th Amendment always protected the home, and it applied to the new facts of infrared searches.

The situation, then, is much more subtle and sophisticated than Justice Abella suggests, and the subtletly does not work in her favour.

Undeterred, she goes on to suggest that courts in Canada take an “anything goes” approach to statutory interpretation, seemingly rejecting textualism. This mistake is even more bizarre, considering the very recent decision in Telus v Wellman, which I wrote about here. Justice Abella, in her Fordham talk, suggests that courts do not draw lines between “textualism” and “intentionalism” in Canada. But she herself attempts to do so (wrongly) in her dissent, at para 107 of the decision:

The debate between those who are “textualists” and those who are “intentionalists” was resolved in Canada in 1998 when this Court decided that “there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. We do not just look at the words.

Not only that, but the majority in decision in Wellman comes down on the side of text over abstract, judicially defined purposes. Justice Abella was in dissent–she did not win the argument, for very good reasons. So, again, Justice Abella finds herself claiming that the law is something when it is not.

Two normative conclusions can be drawn about Justice Abella’s odd talk at Fordham, one about the merits of what she says the law is and one about the role of a judge in Canada. Take the latter first. It would be one thing if what Justice Abella said was an honest, innocent mistake. But I find it that hard to believe in these circumstances. Wellman just happened, and Justice Abella lost the argument she now claims she won. Why a judge in our democracy would say this—especially to an international audience—is unclear. We should expect better

The merits of the suggestion that courts in Canada apply a living tree approach to statutes are also lacking. First, as Craig Forcese said on Twitter, the suggestion would amount to a complete reversal of the ordinary structure of our Constitution. The judicial function is, to state what I thought was the obvious, completely separate from the legislative. Justice Abella seems to have much in common with the old English judge who told an unfortunate lawyer trying to give his best interpretation of the statute: “Do not gloss the statute, for we know better than you, we made it.” We’ve moved far beyond these days, and it is odd for a “progressive” judge like Justice Abella to suggest we go back in that direction. Parliamentary sovereignty should stand for something.

The suggestion that judges should make up statutory meaning as they go along would have positively corrosive effects in many areas of law. Criminal law is an obvious example, but administrative law is another. Judges, rather than Parliament, would be the master of agencies if they could expand or narrow the scope of delegated power exercised by these agencies depending on the judges’ particular worldview. Not only does this stand inconsistently with the Court’s own professed idea of deference, it is dangerous to subvert Parliament’s laws in service of a judge’s ideology.

And this, I suppose, is the point. While I believe that Justice Abella means well, she reveals an unfortunate arrogance that crops up in speech after speech. For one, she claims the law is her opinion when it is not. Then, she takes on the mantle of judging what a statute should mean, given her own impressions of what it requires. It takes someone with much self-confidence to do this. Whether or not we should have confidence in her is quite another matter altogether. A Supreme Court judgeship is not enough, in a democracy, to give its holder the mantle of deciding what laws should mean or which laws should apply. Someone who believes so is better suited to be a politician than a judge.

 

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.

The “Return” of “Textualism” at the SCC[?]

Under the so-called “modern approach” to statutory interpretation, courts are instructed to take into account the text, context, and purpose of a statute. But perhaps because the “text, context, and purpose” recital is so commonplace, other difficult interpretive questions are masked under its patina. For example, which takes priority—text or purpose? The Supreme Court has said that clear text is dominant in the interpretive process (see Placer Dome, at para 21; Canada Trustco, at para 10), but at the same time, the Court has often adverted to the role of purpose in interpretation, to the extent that purpose or policy considerations could override clear text (see the opinion of then-Chief Justice McLachlin in West Fraser Mills, at paras 40, 43). And, even if one could work out what the proper relationship is between text and purpose ,there is no guidance from the Court about what purpose, at what level of abstraction, should be relevant in the analysis. I have written about these issues before.

Luckily, the Supreme Court has provided some guidance to answering these questions in Telus Communications v Wellman, 2019 SCC 19. While the approach advanced in the case is not strictly textualist, it does represent the important idea that text dominates in the interpretive process, and that overall policy goals should not be permitted to override that text. While the Supreme Court is a laggard to these important conclusions (see the opinions of Stratas JA in Williams, Cheema, and Hillier), they come better late than never.

Facts

The case involved an important question of statutory interpretation under Ontario’s Arbitration Act and Consumer Protection Act. Wellman filed a class action against Telus, consisting of both “consumers and non-consumers” [2]. The action alleged that Telus “engaged in an undisclosed practice of ‘rounding up’ calls to the next minute such that customers were overcharged…” [2]. All of the contracts binding the class provided that any claims “arising out of or in relation to the contract, apart from the collection of accounts by Telus, shall be determined through mediation, and failing that, arbitration” [3].

The problem for Wellman et al, though, was that not all of the members of the class were “consumers.” Under the Consumer Protection Act, the arbitration clauses in the contracts are invalid, because “it would otherwise prevent class members who qualify as ‘consumers’ from commencing or joining a class action of the kind commenced by Mr. Wellman” [4]. The Consumer Protection Act “shields consumers from a stay of proceedings under the Arbitration Act” [4]. Telus conceded this point as regards the consumers. But there were non-consumer, business customers included in the class. The core question was whether they could escape the effect of a stay sought by Telus.

Wellman said that, under the Arbitration Act, s.7(5), the court had discretion to refuse Telus’ request for a stay against the business customers, so that the business customers could continue in the class. Section 7(5) says the following:

7 (5) The court may stay the proceeding with respect to the matters dealt with in the arbitration agreement and allow it to continue with respect to other matters if it finds that,

(a) the agreement deals with only some of the matters in respect of which the proceeding was commenced; and

(b) it is reasonable to separate the matters dealt with in the agreement from the other matters.

Telus, though, fundamentally disputed this claim, arguing that under other provisions of the Arbitration Act, exceptions are set out that are exhaustive of all the legislative exceptions in the Arbitration Act scheme. Accordingly, to Telus, the Consumer Protection Act does not apply to the business consumers, and instead, the business claims should be stayed under the Arbitration Act [7].

Analysis in the Case

Moldaver J wrote for the majority, accepting Telus’ argument. After citing the general modern approach to statutory interpretation of text, context, and purpose, he first grounded his view of the statute in its purpose. One of the principles of the Arbitration Act, appearing in the legislative history, was the need to ensure that parties “abide by their agreements,” and that the law was designed to enshrine this idea [50]. Subsequent cases in courts across the country, to Moldaver J, accepted this idea [54].

Turning to the text, specifically s.7(1) of the Arbitration Act, Moldaver J wrote that it established a general rule: “where a party to an arbitration agreement commences a proceeding in respect of a matter dealt with in the agreement….the court “shall,” on the motion of another party to the agreement, stay the court proceeding in favour of arbitration” [63]. This is, obviously, a mandatory statutory rule. Wellman, though, argued that s.7(5) excerpted above is an “independent, standalone” exception to s.7(1) [74]. This provision, which permits a “partial stay”—meaning that the court has a discretion to stay some of the claims for arbitration—is available if certain statutory preconditions are met and if the court exercises its discretion in favour of the stay. Wellman argued that s.7(5) could be read so that the court “may refuse to stay” the business customers’ claims. But Moldaver J rejected this proposition, focusing on the text of s.7(5) in its statutory context. The text of s.7(5) says nothing about a court “refusing to grant a stay,” and to him: “…where the legislature intended to authorize the court to refuse a stay, it did so through the words ‘may refuse to stay’” [73]. Those words did not appear in s.7(5). And, with this text and context in mind, Moldaver J turned to purpose: allowing Wellman’s argument would “reduce the degree of certainty and predictability associated with arbitration agreements,” permitting the business customers to escape the effect of a stay [76].

Wellman also relied on certain policy considerations to support his preferred interpretation of the text [77]. One of these was a general principle of “access to justice,” which “[removes] barriers to seeking relief in court” [77]. But there were two problems with importing this idea as a decisive principle for the case: (1) a rarefied idea of access to justice should not “be permitted to distort the actual words of the statute, read harmoniously with the scheme of the statute, its object, and the intention of the legislature, so as to make the provision say something it does not…the responsibility for setting policy in a parliamentary democracy rests with the legislature, not the courts…[i]t is not the role of this Court to re-write legislation [79]; and (2) the Ontario regime pursues access to justice by “shielding consumers from potentially harsh results of enforcing arbitration agreements…” by exempting consumers “and only consumers” from “otherwise freely negotiated agreements” [80]. This is in conjunction with the Arbitration Act’s pursuit of the overall principle that parties should abide by their agreements. Access to justice, as a general idea, should not “be permitted to overwhelm the other important objectives pursued by the Arbitration Act…” [83].

While I do not have space to recount the minority opinion of Abella and Karakatsanis JJ, I want to note a particularly fiery charge that they chose to level at Moldaver J: “The majority’s approach, with respect, in effect represents the return of textualism. The words have been permitted to dominate and extinguish the contextual policy objectives of both the Arbitration Act and the Class Proceedings Act [citations omitted]…” [109]. To the minority, the “overall purpose” of the Arbitration Act “was to promote access to justice” [137].

Evaluation

I want to say three things about this case. First, the minority’s charge of “textualism” against Moldaver J is inaccurate and sloppy; (2) Moldaver J’s approach, while not textualism, represents a defensible “textually constrained purposivism,” that guards against a court aggrandizing to itself the power to “read-in” language to a statute; (3) both of the opinions show why relying on legislative history is such a fraught enterprise.

Consider first the minority’s textualism charge. I can only imagine that Abella and Karakatsanis JJ were trying to make a rhetorical point, because I cannot believe that they—learned judges of our Supreme Court—could so misunderstand an entire school of interpretive thought. Textualism is directly opposite to “purposivism,” which is primarily concerned with the ends a statute pursues. To the textualist, purpose is encompassed in the means the statute pursues. It is not concerned with an overall statement of purpose, per se: consider Scalia J’s opinion in MCI and WVUH v Casey, and also Judge Easterbrook’s article, “Statutes’ Domains.”

But Moldaver J’s opinion does not just focus on means. It considers the ends of the Arbitration Act, including the overall “purpose” of respecting the agreement reached by parties in their contracts. Moldaver J’s approach is much more realistic than the minority’s approach, which chooses the “access to justice” purpose as the “overall purpose”—with no justification other than, apparently, judicial fiat. Moldaver J’s approach recognizes that there are other purposes of the statute at play. This is not textualism.

That said, Moldaver J’s approach does recognize that purposes do not exist in the abstract. They must be tied to statutory means. What is relevant is not the court’s appreciation of what access to justice means, but what the legislature thinks it means, and the words the legislature used to represent that idea. And that legislative instantiation is existent in the Arbitration Act and Consumer Protection Act, working in pari materia. As Moldaver J noted, the Ontario regime is focused on permitting access to justice for “consumers,” by allowing them to pursue claims in court. When we are talking about business customers, though, the legislation does not speak in abstract terms about access to justice writ large–the Arbitration Act has defined means to grant a partial stay, not means to refuse to grant a stay. It pursues the goal with limited means, in conjunction with other fairly discernible statutory purposes. Abella and Karakatsanis JJ—poets, apparently—say that “a provision must be assessed in all its textures — language, purpose, effect — to prevent the suffocation of its meaning by a technical literal reading of the words” [130]. But here, poetry suffocated prose, because the language of the statute works in symbiosis with purpose. Purpose does not override text. And in this respect, to my knowledge, it is not hornbook law that the Canadian approach is “intentionalist,” as Abella and Karakatsanis JJ say [107], understood in the sense that intentions should override text. Intentionalism would mean taking a psychologist’s armchair and determining what a legislator meant to say; not what was said.

This makes sense from a democratic perspective. Legislators, in their heads, may think of purposes when they enact laws. These purposes may range from “the public good,” on one hand, to minute, technical considerations on the other. Because a court cannot discern which purpose ended up becoming law, we have to think about what the best evidence of the law could be in the circumstances. Usually, text is that best evidence. While it is not always definitive and clear—because language is not always definitive and clear—it is better than unexpressed intentions or abstract, tangential purposes.

I want to raise a final note about the use of legislative history. Both sides of the case relied on different aspects of the legislative history to support their particular interpretation. Because various statements existing in the legislative history are not ranked by importance, it is difficult for any court or observer to put more or less weight on various statements. So, like Judge Leventhal once said, legislative history is like looking over a crowd and picking out your friends. A judge predisposed to one interpretation will use legislative history to support his own view of the matter. If we are going to allow legislative history to be a valid part of statutory interpretation, it should only be relied on with severe caution, as an afterthought, and with the idea that its probative value is exceedingly low.

Notwithstanding the quibble about legislative history, Moldaver J’s opinion is worthy of note because it finally recognizes that judges, under the guise of judicially divined “purposes,” cannot override a contextual interpretation of the text. The text is what the legislature enacted. It should govern.

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.

Romancing the Law

An ode to formalism and reflections on Runnymede’s Law and Freedom Conference

I had the pleasure of attending last weekend’s Runnymede Society conference in Toronto. As always, the conference was a welcome opportunity to meet with old friends and new, and to reflect on a number of pertinent issues in Canadian law.

Perhaps because of my own research interests in the last year, I was particularly interested in a theme that seemed to run throughout the conference: the degree of confidence that each of us has in law, particularly the statutory law. Justice Stratas’ talk with Asher Honickman highlighted that there are many in the legal community that, if not giving up on law, are questioning its relevance in a society that is now defined by greater calls for context, nuance, individualized application, and discretion.  The virtues of rules—the creation of economies of scale, the structuring of norms and expectations according to positive orders, the costs saved at the ex post application stage—are apparently counterweighed by the potential for overbroad application, rank injustice, and otherwise discriminatory treatment.

The degree to which we are worried about these vices, or encouraged by these virtues, is probably a function of our belief in legislatures and their work product. Even if legislatures do not get things “right,” there are good reasons to believe that what the legislature does is owed a wide degree of respect–because of the value of legislative compromises, the “finely-wrought” legislative procedure, and the representative nature of the legislature . Nowadays, though, a commitment to the law passed by the legislature is labelled pejoratively as “formalist.” In administrative law, offshoots of this belief are characterized, dismissively and without analysis, as “Diceyan” or an unwelcome throwback to the days of “ultra vires” (take a look at the oral argument in the Bell/NFL & Vavilov cases for many examples of this).  In statutory interpretation, a belief that text in its context will generally contain answers is dismissed as a belief in “the plain meaning rule,” mere “textualism”–notwithstanding the important distinction between these two methods. In constitutional law, a focus on constitutional text is “originalism.” None of these are arguments, but they have since infiltrated the orthodoxy of the academy.

The consequences of this argument-by-label should not be understated. Take the case of statutory interpretation. The Supreme Court of Canada tells us that we should interpret statutes purposively, but at the same time, that the text will play a dominant role in the process when it is clear (Canada Trustco, at para 10). This implies that purposes, while helpful to the interpretive process, should not dominate where the text is clearly pointing in another direction.

But a focus on statutory text—especially the contention that text can ever be clear—is often derided as inconsistent with the contingent and “ambiguous” nature of language. So the argument goes, text can never truly be “clear,” and so textualism falls away. But whether the text of a statute will contain answers to an interpretive difficulty is, in part, a function of the judge’s belief in the coherence and determinacy of law—in other words, her appreciation of the point at which “law runs out”. A judge inclined to believe that the tools of statutory interpretation can be used to come to a defensible answer on a matter will commit herself to that task, and will probably not consider legislative language “ambiguous” in its purposive context. For her, law will maybe never run out, or if it does, it will only do so in the extreme case of true ambiguity, where no discernible meaning cognizable to human understanding could be appreciated. A judge less committed to the determinacy of law will be more willing to introduce extraneous materials—legislative history, Charter values—in order to come to a meaning that makes sense to her. For her, the law may “run out” quite early. The risk here, of course, is the enlargement of the scope for judicial discretion. For those who believe in the general soundness of statutory law, this creates the potential for conflict with the generally-elected representative body.

This is not a hypothetical problem. In the United States, Chevron administrative law deference rests on the judge’s appreciation of statutory language. At step 1, courts are asked to apply the ordinary tools of statutory interpretation to determine if Congress spoke clearly on a particular matter. If so, that meaning binds the agency. If not, at step 2, if there is ambiguity in a statute, courts defer to a reasonable agency interpretation. As Justice Scalia said, a judge committed to the text at step 1 will rarely need to move to step 2. In this way, there would be less scope for agencies to exercise virtually unreviewable discretion. Those who believe that law runs out earlier will, ceterus paribus, be more willing to allow multiple decision-makers to come to very different decisions on a matter so long as those decisions are roughly justified by a statute.

The various points on the spectrum of “giving up on law” will be the product of many factors, including factors particular to cases before courts. But at some level, a belief that text can, or should, contain answers seems to undergird the entire process of determining the meaning of a statute. I think there are good reasons to hold the belief that what the legislature produces is generally sound for reasons that are particular to the legislative process and the law in question. To my mind, judges should be wary of letting text “run out,” in part because of what replaces it; more abstract, generally less clear “second-tier” sources of legislative meaning (Note: sometimes text will be truly unclear, and a statutory purpose can be clearly gleaned from the text. Our law sees no problem with this, and neither do I).

This is not to presuppose that legislatures always make sense in their enactments. The process of making law is not designed to be a perfect application of human rationality or even of expertise. Legislatures sometimes don’t make sense. But there are good reasons to respect the legislative process. Importantly, seemingly non-sensical legislative compromises, run through readings in Parliament and the committee process, are sometimes the product of concessions to minority groups, represented through their Members of Parliament. These legislative compromises are sometimes essential, and should be respected even if they do not make sense. Judge Easterbrook puts it well: “If this [an outcome of statutory interpretation] is unprincipled, it is the way of compromise. Law is a vector rather than an arrow. Especially when you see the hand of interest groups.”

If the legislative process is imperfect, so is the process of statutory interpretation. Statutory interpretation will not always yield easy answers, or even the ex ante “correct” answer. The tools of statutory interpretation are often contradictory, some say outmoded, and sometimes unwieldly. But as Judge Posner said in his book Reflections on Judging, the tools of statutory interpretation are designed to impose meaning. Used authentically and faithfully, with a concomitant belief in the legitimacy of the law passed by the legislature, they help courts come to a defensible conclusion on the meaning of a provision; one that is consonant with the universe of laws in the statute book, with the particular statute’s larger purposes, and the immediate context of a statute.

It worries me that some no longer belief in this process—in the formal quality of law as law, in the idea that when the legislature speaks, it does so for a reason. Similarly, I worry that the invitation for judges to rely on values and principles extraneous to a statute—for example, Charter values, legislative history, etc—to impose a meaning on a statute is based on wrongheaded idea that judicial discretion is somehow absolutely better than legislative power. I, for one, think that we should expect judges in a constitutional democracy to believe in the law passed by the legislature. This is not judicial acquiescence, but there is perhaps a value to formalism. Parliament, to be sure, does not always get everything right. But there is a benefit to formalism: the way in which Parliament passes laws is subject to a formal process, interposed with legislative study. The way we elect our leaders and the way Parliament operates is, in a way, formal. The law it creates should be owed respect by those sworn to uphold it.

The debate over rules versus standards or discretion is one that is rife throughout history. But presupposing the debate, I always thought, was a belief in law itself. For those of us at Runnymede this weekend, we were invited to question whether that belief exists any longer.

Statutory Interpretation in Admin Law and the Supreme Court’s Trilogy

Over on Professor Daly’s blog Administrative Law Matters, Professor Audrey Macklin wrote what I would characterize as a confessional: an admission that the law of judicial review in Canada may be beyond repair. What Prof. Macklin proposes, in light of this realization, is a renewed focus on the principles of statutory interpretation, rather than a myopic focus on standard of review categories—a parochical Canadian invention. Prof. Macklin specifically argues that our disagreements should focus on “what ought to count in statutory interpretation, why it ought to count, and how it ought to count.” For Professor Macklin, external considerations such as access to justice and international law should inform statutory interpretation.

I agree with Professor Macklin—to an extent. I see Macklin as making two claims: (1) the rules of statutory interpretation should be used to replace the rigid categories of standard of review and (2) that the rules of statutory interpretation can be massaged to take account of “normative, policy, operational, and other considerations.” The first contention, I think, is desirable. The second, I worry, will lead to more uncertainty, asking judicial review courts to do more than they are designed to do.

Let’s take (1) first. On this front, Professor Macklin finds agreement with many existing allies. Advocates for the Rule of Law, in its submissions before the Court in Vavilov and Bell/NFL, basically made this very point. With submissions expertly argued by Adam Goldenberg, ARL asserted that the Court, in its attempts to simplify the standard of review, had actually made things worse. Instead, ARL argued that the “established tools of statutory interpretation” should be used in a three-step framework to determine the level of deference. First, courts should look to judicial constating legislation to determine the level of deference; explicit direction that exists, for example, in the Federal Courts Act (which, it should be said, was ignored by the Court in Khosa). Second, the decision-maker’s home statute may contain explicit or implicit legislative direction on the standard of review. A statutory provision allowing a decision-maker to grant licences “in the public interest,” if supported by relevant context and purpose, should allow more deference. Finally, courts should look to the specific textual provision under which the decision-maker made her decision. If not contradicted by context, (say, a statutory right of appeal), broad language in this respect should also mean deference.

This strikes me as a good way to proceed. I make similar arguments in a paper to be released in the Western Journal of Legal Studies in January, “Two Myths of Administrative Law.” There, I assert that toying around with presumptions, categories, and even standard of review labels (reasonableness and correctness), should not be the sum of Canadian administrative law. These legal devices should be scrapped, the focus should be on the principles of statutory interpretation, and signals of deference—for example, expertise—should only come into consideration where they exist in statutory text, context, and purpose. I don’t see Professor Macklin as disagreeing with any of this.

At the same time, Professor Macklin takes a first crack at defining the work the principles of statutory interpretation could do in judicial review. She claims that so-called “operational considerations” that influenced the Supreme Court in Alberta Teachers—such as efficiency—also mean that courts should take into account principles of access to justice and international law in statutory interpretation. To Professor Macklin, courts should take “all the arguments” seriously in a given case.

This, I think, is where Professor Macklin’s proposal introduces more uncertainty than it actually solves, and runs afoul of the very basis of the law of judicial review. Her extension seems to extend the task of statutory interpretation beyond its traditional realm of discovering the meaning of the legislature. Instead, she would make statutory interpretation a normative exercise, one that seeks to render an interpretation that best accords with any number of “external” considerations.

But if we are starting from scratch in developing doctrine for the law of judicial review, we should do so in light of that very fact: it is the law of judicial review with which we are concerned. Judicial review is not a free-standing inquiry into the legality of particular government decisions. When governments delegate away power to make decisions, it does so on a narrow basis—to decide which of Party A and B receives Licence X; to decide whether A’s zoning application is legal. This is the run-of-the-mill judicial review case. When courts review these decisions, they are usually bound to the record the decision-maker considered on review. The courts do not move beyond that record, which maps onto the scope of delegative power afforded to the decision-maker. As a result, and by design, the ancient writ of certiorari and the modern act of judicial review are first and foremost designed to “ensure the legality of state decision-making” (Wall, at para 13). Courts are equipped to make those decisions by rules of the record that mandate the production of all information considered by the decision-maker under its statutory mandate. In this respect, judicial review proceedings are designed to be quick and cost-effective.

There are two upshots of this ordering. First are the considerations that should inform the exercise of judicial review. In the Two Myths paper, I argue that such external considerations lack the imprimatur of legislative approval. In other words, they do not exist in the world with which judicial review is concerned. If judicial review is considered primarily with the supervision of state actors—what I call its “policing function”—then it must hew closely to the four corners of a statute. Anything beyond that is a concern for legislative actors, who are legitimately empowered to address broad, systemic concerns such as access to justice because of their particular institutional competencies. Any other positive policy entitlements—a right to access to justice, considerations of normative justice—are second to the immediate statutory context of a decision-maker’s decision in judicial review. That is not to say that these considerations are irrelevant. But they are distinctly second to the goal of a quick determination of legality “on the record.”

But there is a bigger practical concern here, beyond the issue of separation of powers. To my mind, Macklin asks judicial review courts to do more than they are designed to do, from a perspective of information. By using the principles of statutory interpretation to gaze beyond the four corners of a statute and into other complex, external considerations, judicial review becomes more of a legislative act rather than a pure adjudicative one. In this sense, the benefit of the principles of statutory interpretation—that they, as Macklin notes, put us on the same terrain—is lost. For example, what does a presumption in favour of access to justice mean in the context of particular cases? In absence of real information on what would facilitate access to justice in the context of a defined legislative scheme, how do courts make informed decisions on the matter? Even if they could, doesn’t this complicate the narrow and efficient basis of judicial review?

It is no answer to these problems to say, as Macklin does, that courts are informed by policy considerations when they rely, for example, on presumptions in favour of contract or liberty. These presumptions are of a different sort than the type advocated for by Macklin, at least in the context of access to justice. Most notably, they are negative in nature. But there are particular issues that distinguish these traditional presumptions from the sort of rule Macklin seeks to formulate. For example, in terms of contract, the presumption is justified as a policy matter from the perspective of information. Courts, for good reason, assume that parties enter bargains on the basis of mutual gains, which in turn enable social welfare gains. Courts (and legislatures) lack the information necessary to overturn the parties’ agreement and instead impose their own understanding of what would be an efficient outcome; transaction costs of doing so are high because the court lacks information. Macklin’s presumption (in favour of access to justice) is of a different sort; it asks judicial review courts to consider or act in areas where there is a distinct informational deficiency, at least in the context of particular judicial review cases.

The problem of information is not a practical concern that exists in the ether. It is directly related to the roles of various players in our democratic structure. Courts on judicial review are empowered to redress public law grievances caused by organs of the state; no more or less. As a result, they are given the information required to do so on the basis of the record. The realm of legislative action, on the other hand, is broader—and so legislatures are empowered with more information and more resources. None of this is a coincidence.

People might use a laundry list of adjectives to describe my preferred approach: “cramped,” “formalistic,” “Diceyan.” None of this, of course, is an answer. The bottom line: the law of judicial review, and the principles of statutory interpretation, cannot encompass all, or even most, of what we consider good and virtuous in the world. They can only accomplish their narrow but infinitely important goal. Any renovation to the law of judicial review that uses the principles of statutory interpretation cannot forget this.

It’s a Dog!

The majority’s pro-regulatory beliefs help make West Fraser a dog of a decision

In previous posts, I have summarized the Supreme Court’s decision in West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, upholding 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 penalty imposed on such an owner under a statutory provision authorizing penalties against employers who do not comply with regulations, and discussed some of the administrative law issues to which this decision gives rise. As previously noted, however, West Fraser is interesting not just for what it can tell us about the finer points of judicial review, but also for what it implicitly says about the Supreme Court’s relationship to the administrative state.

In its overall orientation as well as in some details, the majority opinion, written by Chief Justice McLachlin with the agreement of five colleagues, is reminiscent of R v Comeau, 2018 SCC 15 (further confirmation, perhaps, of the Chief Justice’s likely authorship of that ostensibly per curiam decision). It’s not just that the deferential approach to judicial review is, in practice, in Canada, almost necessarily a pro-regulatory position, though that’s part of the story. It’s also that, on the Chief Justice’s view of statutory interpretation, a statute’s pro-regulatory purpose is to be amplified, while whatever constraints on its pro-regulatory orientation the statute might contain are to be played down. And, most fundamentally, the Chief Justice tells us that regulation is good, and the more of it there is, the better.

As discussed in more detail in my previous posts, the Chief Justice’s approach to both issues in West Fraser is deferential ― or so the Chief Justice says. In reality, I have argued, she engages in disguised correctness review and agrees with the administrative decision-maker. But, in principle at least, it’s the deferential approach that’s binding on future courts. Conceptually, deference might be neutral as between pro- and anti-regulatory outlooks. In the United States, famously, Chevron USA v Natural Resources Defense Council, 467 US 837 (1984), which required a deferential approach to administrative interpretations of legislation, arose out of efforts at deregulation by the Reagan administration. Even so, it seems likely that administrative decisions that reduce the scope or onerousness of regulation are less likely to be challenged, so that in practice a deferential court will be a pro-regulatory court even if it has no particular desire to be one. And, of course, the prospects of serious regulatory roll-back in Canada seem rather remote.

But there is more. Whatever abstract theory might suggest, Canadian deference theorists are unabashedly in the pro-regulatory camp. David Dyzenhaus’s famous chapter on “The Politics of Deference: Judicial Review and Democracy”, from which the Supreme Court in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, plucked the phrase “deference as respect”, [48] urged the courts to defer to administrative decision ― because its author thought that administrative regulation was normatively desirable, notably in that it advances the cause of equality. (Professor Dyzenhaus went so far as to argue that non-deferential review of the decisions of human rights tribunals by independent courts was a “setback[] to the constitutional commitment to equality between Canadians”, (297) as if the courts were not ultimately responsible for upholding this constitutional commitment.) But for Professor Dyzenhaus, deference was a one-way ratchet: if, peradventure, “judges find themselves confronted with administrative determinations of law that flow from” deregulatory impulses, “they should not be embarrassed to ask how those determinations advance the cause of equality” (306) ― and  so to intervene if they do not. Much more recently, in her contribution to the “Dunsmuir Decade” symposium, Kate Glover proposed a novel theory according to which judicial deference to administrative decision-makers is now a constitutional requirement. Professor Glover did so in an attempt to prepare the administrative state’s defences against a (purely hypothetical, as she rightly notes) siege by deregulating anti-administrativists. This should, I think, be a warning to anyone who hopes that deferential courts would in fact be neutral as between more regulation or less.

Statutory interpretation, no less than (rhetorical) deference, is marshalled in support of regulatory expansion by the Chief Justice. She stresses that the Workers Compensation Act, the statute at issue, “is meant to promote workplace safety in the broadest sense”, [18] and discounts the more specific purpose statements that seem to suggest that this purpose is not to be pursued by whatever means necessary. Focusing on them is “formalistic” and “inconsistent with a purposive interpretation of the scheme”. [18] (To be honest, I don’t know what “formalistic” is supposed to mean here. But it’s bad, bad, bad.) When it comes to the issue of whether the statute authorized the imposition of penalties seemingly reserved for “employers” on firms that were, in the context of the events in relation to which the penalty was being imposed, “owners” but not “employers”, the Chief Justice once again favours an interpretation “more supportive of the goal of promoting safety and the overall operation of the scheme”. [38] This interpretation, as I argued in my last post, is strained to the point of rendering the statutory language meaningless. However, what mattered to the Chief Justice is that reading the statute to mean what it said “would undermine [its] goals”, while the strained interpretation “would further the goals of the statute and the scheme built upon it”. [40] In short the statutory purpose, understood in the most pro-regulatory way possible, must be given effect ― other purposes and text itself be damned.

Now, in fairness, to the Chief Justice, she arguably is dealing with a real interpretive difficulty. Probably all, certainly most statutes involve compromises between a number of values or purposes. The Workers Compensation Act promotes workplace safety, of course, but it also accommodates a measure of free enterprise. It could, after all, have imposed  even more invasive regulation that might have done even more for workplace safety ― but the legislature chose to only go so far towards that purpose, because going further might have undermined other purposes that it also valued. Or, to take another example, human rights legislation doubtless aims at achieving equality in society ― but the limits on its scope, for example the fact that it is typically not applicable to personal, non-economic relationships, suggests that it respects a measure of personal liberty ― implicitly anyway. The problem, though, is that if the legislature enacts a provision that specifies the purpose of a statute, it is likely to present  some, perhaps just one, of the values that the statute actually accommodates, as the purpose it seeks to realize, and omit the others. This might be done for political reasons ― it might not look good to tell workers, or voters, “we’re protecting you, but only some, since protecting you more would actually put a bunch of you out of work”. Perhaps more forgivably, this might also be because, relatively to the previous state of the law, the statute does move things in the direction of more protection, so characterizing that as its main purpose is not unfair. But, either way, the legislature is misleading those who read and try to understand the statute ― above all the courts ― by giving them a distorted view of its objectives.

What are the courts to do when the legislature does this? I think they should do what Justice Côté did in West Fraser ― read the whole statute and give effect to its terms, not letting the (one-sided) purpose section override the substantive provisions. By choosing to focus on the purpose indication (and to read it selectively to emphasize its pro-regulatory aspects), the Chief Justice once again implicitly privileges regulation. For the same political reasons I refer to above, it seems likely that the legislatures will systematically overstate the significance of their regulatory purposes, and understate whatever countervailing values might also be animating them. So, a judge who overvalues statutory statements of purpose at the expense  of the text will tend to produce pro-regulatory outcomes even  without setting out to do so. But I doubt that the Chief Justice is such a judge.

In fact, her reasons in West Fraser suggest that the Chief Justice’s basic disposition is in favour of regulation ― the more of it the better. She is comfortable with a legislative mandate to an administrative agency “to enact whatever regulations it deemed necessary to accomplish its goals of workplace health and safety”, [10] going so far as to characterize this as an “unrestricted delegation of power”. [11] Though admittedly it is unlikely that the Chief Justice means this adjective literally, it is remarkable that she appears untroubled by the idea of an unrestricted regulatory mission. Later, when discussing the issue of the penalty, the Chief Justice writes that “[t]he general scheme of the [Workers Compensation Act] is to hold both owners and employers responsible in an overlapping and cooperative way for ensuring worksite safety” [43] by way of justifying holding the ones responsible for violations of obligations the statute only seems to impose on the others. As in the area of what used to be known as division of powers, “cooperation” comes to mean the accumulation of regulatory mandates ― and is seen as a good thing. The Chief Justice’s shows her attitude towards such mandates most clearly when she makes a point of observing that the regulation challenged in West Fraser was adopted

in response to a concern in the province about the growing rate of workplace fatalities in the forestry sector … provid[ing] a clear illustration of why a legislature chooses to delegate regulation-making authority to expert bodies — so that gaps can be addressed efficiently. [20]

It is important that something be done about social problems, and whatever is done about them by regulators ― presumed,  conclusively, to be experts ― must therefore be good. There is only a step, if that, from here to what Sir Humphrey Appleby described as “the politician’s logic”, and what later became known as “the politician’s syllogism“. Something must be done; this is something; therefore this must be done. The Chief Justice has, on the occasion of her already-happened-but-still-impending retirement, and indeed before, been much praised for her statecraft. In West Fraser, she reminds one of The Right Honourable Jim Hacker, MP.

Of course, by criticizing the Chief Justice’s pro-regulatory views ― and those of the other judges in the West Fraser majority ― I do not mean that judges ought to become the flag-carriers of deregulation. They should be neutral and, within constitutional bounds, give effect to the legislation that Mr. Hacker’s colleagues, in their wisdom, enact. Much of this legislation will delegate considerable regulatory powers to administrative agencies. That’s too bad, so far as I am concerned, but this a policy view, not a constitutional argument. However, judges should not, in the name of doing something, be trying to give the regulators freer rein than legislators intended. In Yes, Prime Minister, just before Sir Humphrey formulates the politician’s syllogism, his mentor, the wily Sir Arnold Robinson, exposes its logic by proposing a different one with the same logical structure: “all cats have four legs; my dog has four legs…” “Therefore,” concludes Sir Humphrey, “my dog is a cat.” Well no. And so West Fraser is a dog of a decision.

 

Looking past Dunsmuir: Beginning Afresh

Imagining stable and generally acceptable administrative law doctrine

The Hon. Justice David W. Stratas,
Federal Court of Appeal

The views expressed in this post are the author’s own and are offered for education and discussion purposes only.

Introduction

In my first article for the Dunsmuir Decade series, “A Decade of Dunsmuir: Please No More,” I suggested that Dunsmuir should no longer be followed. But what should take its place?

To some extent, I have already explored this: D. Stratas, “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency,” (2016), 42 Queen’s L.J. 27 (available online here).

To create a reliable, stable law of substantive review, we need to: (i) identify settled doctrine and well-accepted principles; (ii) deduce the operational rules from them, and (iii) take into account relevant, widely accepted judicial policies. 

Identification of settled doctrine and well-accepted principles

This step builds the solid and stable foundation upon which one can deduce operational rules to regulate this area of law.

As explained in my first article, operational rules developed in this way have every prospect of widespread acceptance, permanence and consistency of application. On the other hand, operational rules constructed out of judges’ personal views and say-so are not likely to survive the next set of judges on the court.

For too long in this area of law, judges have set out operational rules based on their own personal views of the proper relationship between the judiciary and administrative decision-makers and their own freestanding opinions—not well-settled doctrine and well-accepted principles of a longstanding and durable nature.

As we shall see, the settled doctrine and well-accepted principles that underlay this area of law aren’t just longstanding and durable. They are fundamental constitutional principles as well.  This adds force to the operational rules logically deduced from them. 

Some doctrine and well-accepted principles

Fortunately, settled doctrine and well-accepted principles are not hard to find. Dunsmuir did some of the work for us (at paras. 27-31).

Dunsmuir told us that two principles lie at the heart of judicial review and animate it: legislative supremacy and the rule of law.

The U.K. Supreme Court recently affirmed this same idea: Michalak v General Medical Council, [2017] UKSC 71; and see commentary here.

Legislative supremacy suggests that laws passed by legislators must be obeyed. The rule of law suggests that administrators must comply with certain time-honoured standards concerning decision-making processes and substantive outcomes.

The principles of legislative supremacy and the rule of law sometimes can pull reviewing courts in different directions: in some cases, the former tells us that legislatively created bodies with legislatively bestowed jurisdiction must be left alone to the extent the legislation provides (e.g., where the legislation contains a privative clause), but the latter tells us that courts can interfere if certain decision-making standards are not met. Sometimes these principles work in harmony (e.g., where the legislation allows for a full right of appeal).

There is a corollary of these two principles. The corollary also has constitutional force. Our law has a fundamental ordering, one so well-accepted that if any judges do not accept it, they ought to quit and run for public office instead. The principle? Unless valid constitutional concerns are present, laws passed by the legislators bind all, including judges: Imperial Tobacco. Judge-made law must work within the parameters supplied by legislation and cannot oust legislation: see the general discussion in D. Stratas, “The Canadian Law of Judicial Review: Some Doctrine and Cases” (October 21, 2017 version) at pp. 9-14 and 77.

Another principle also springs from the principle of legislative supremacy. But for clarity it is best identified as a separate principle. Where the legislator has vested decision-making power in an administrator and judicial review lies to a reviewing court, administrators and reviewing courts have two different, exclusive roles. Administrators are the merits-deciders and reviewing courts are the reviewers: see discussion in cases such as Access Copyright  at paras. 17-20; Bernard at paras. 17-19; Gusto TV at para. 11; Robbins at para. 17; Tsleil-Waututh at paras. 85 and 87. Each, bound by law, must stick to its role.

A fourth principle is the nature of the separation of powers. Like legislative supremacy and the rule of law, this too is a constitutional principle: Judges’ Reference; Babcock at para. 54.

How does separation of powers play out? In our system of government, government decisions can be placed on a spectrum.  At one end are legislators and their decisions to make laws. Then there are decisions by others, sometimes legislative in nature, on truly political matters or tough political questions about who gets what privilege or grant; in consideration here are political determinations and the government’s view, sometimes ideological, of what is best for all. A little further over are decisions, sometimes legislative in nature, on broad policy matters. Even a little further over are decisions on broad policy matters where some of the policies are informed by laws on the books. Further over are decisions based on a mix of policy matters, legal considerations such as the interpretation of legislation and the adjudication of rights and legal entitlements. Even further over are matters even more in the realm of fact-finding and legal adjudication, devoid of policy content. And then there are decisions pretty much indistinguishable from the matters courts typically handle, matters firmly in the realm of fact-finding, ascertainment of the law and application of the law to the facts, with a view to settling rights and legal entitlements without regard to policy considerations. And then, finally, at the other end of the spectrum there are courts adjudicating rights and entitlements.

Logically, at the legislative end of the spectrum, one would expect that courts would be reluctant to interfere. And absent constitutional concerns, they can’t on the grounds of justiciability. But go a little further in and we find administrators whose decisions are justiciable but who decide matters in a way that is quite alien to what courts do. Way at the other end, just before we reach the courts, one would expect that administrators such as these could be policed quite closely by courts; they are deciding matters and deciding in a way that is pretty much indistinguishable from what courts do.

Put bluntly, at one end, the matters being decided are not in the ken of the court or in its wheelhouse. And at the other, they most certainly are. This has obvious relevance to the intensity to which courts should review various administrative decisions. 

Deducing operational rules from the doctrine and principles: an introduction

Before deducing operational rules from the doctrine and principles, we must consider what sort of operational rules we ought to have in this area of law.

The consideration of this, below, draws upon a more complicated and vigorous debate in the United States concerning the desirability of rules, standards and principles to regulate subject-matters: those interested in pursuing this further can begin, e.g., here and here, and this is just the tip of a large iceberg.

For our purposes here and to keep things simple, I will posit that operational rules can come in two types: rigid and tangible rules and looser, more conceptual, flexible rules.

An example of the former is the test for an interlocutory stay or injunction: RJR-Macdonald. There, one must satisfy three rigid, tangible requirements.

An example of the latter is the test in negligence for determining whether a defendant has fallen below the standard of care expected of persons in the defendant’s position. To the extent that definition of the concept is required, the definition develops as cases are decided over time and it is discovered through good common law method. This is not an area where judges are shackled by a multi-branch test with rigid, tangible requirements that must be met. In the end, judges know the concept and they are trusted to apply it to the cases before them.

In the area of standard of review—determining the extent to which reviewing courts should interfere with an administrators’ decision—what’s best?

A scheme where there are a set number of categories—say, just two—with tangible rules about when each applies? And no flexibility within the categories to adjust the intensity of review? Just two intensities of review, and no others?

Or a more flexible, conceptual, non-categorical approach, one where we recognize that there is a spectrum of intensities of review that vary according to the context?

In the area of appellate review under Housen, the binary categories of review (correctness or palpable and overriding error) depending on whether the appellate court is dealing with questions of law, mixed fact and law, or pure fact makes sense because the context is relatively static. But the substantive review of administrators’ decisions must be different. A more flexible, conceptual, non-categorical approach makes sense because, as explained in the discussion of the separation of powers, above, the administrative context varies so sharply.

The contributions to the Dunsmuir Decade series suggest that most of our leaders in administrative law support a greater reliance on context for determining the extent to which reviewing courts should interfere with administrators’ decisions. I have found no wholesale endorsements of the presumptions set out in Dunsmuir. In academic papers, three of our most well-regarded and knowledgeable administrative law scholars agree that a more contextual approach is apt: P. Daly, “Struggling Towards Coherence in Canadian Administrative Law? Recent Cases on Standard of Review and Reasonableness”; L. Sossin, “The Complexity of Coherence: Justice LeBel’s Administrative Law” and G. Heckman, “Substantive Review in Appellate Courts Since Dunsmuir” (2010), 47 Osgoode Hall L.J. 751 at 778-79.

Judicial policies

In designing operational rules to govern this area of law, universally-accepted judicial policies about how legal proceedings should unfold—not the just the say-so’s and on-the-spot opinions of a particular constellation of judges at a particular moment about social and political values—should play a role. Where the doctrine and principles suggest a number of possible operational rules, the one that best advances these policies should be chosen.

The sorts of judicial policies I am thinking about are access to justice, judicial economy and minimization of litigation expense, as explained in leading decisions such as Hryniak, Danyluk and Housen.

And related to this are insights gleaned from a greater appreciation of the nature of administrative law and the values that animate it, values that judges in this area of law need to draw upon in exercising their discretions: see P. Daly, “Administrative Law: A Values-Based Approach” in J. Bell et al (eds.), Public Law Adjudication in Common Law Systems: Process and Substance (Oxford, Hart Publishing, 2015); and see how administrative law values were deployed to shape operational rules in Tsleil-Waututh, Wilson (F.C.A.) at para. 30, and Bernard.

In considering judicial policies, care must be taken not to elevate any one consideration too far and create operational rules that no longer reflect settled doctrine and well-accepted principles.

For example, minimization of litigation expense might cause some impulsively to advocate for operational rules that are hard-and-fast and simple to apply; some contributors to the Dunsmuir Decade series seem all too ready to go there, for the sake of simplicity.

But simple, one-size-fits-all approaches are at odds with the broad and varied nature of administrators, their decisions and their mandates. Nor are they rooted in settled doctrine and well-accepted principles and, thus, they lack persuasive force and permanency.

The result? Injustice is seen, judges start to chafe, they construct ad hoc exceptions upon exceptions to address the injustice, the longed-for simplicity is lost and, ultimately the operational rules, lacking persuasive force and permanency, join the graveyard of failed approaches over the last few decades.

We’ve seen this all-too-many times. The approach Dunsmuir replaced was called “pragmatic and functional.” It was replaced because it turned out to be neither pragmatic nor functional. The desire in Dunsmuir was about greater simplicity. So how did that work out?

Rigid, inflexible rules aimed at simplicity can be a siren song leading to disaster. And do not underestimate for a moment the simplicity that can emerge from clearly stated operational rules of a conceptual nature founded on definite, well-understood, longstanding doctrine and principles. 

Some possible deductions

What can be deduced from all of the foregoing?

1. Let’s begin with the idea that legislatively created bodies with legislatively bestowed jurisdiction must be left alone to the extent the legislation provides. Let’s combine this with the idea that laws passed by legislators bind all, even courts.

This suggests that reviewing courts must take note of what legislators have said in their legislation. In short, legislative interpretation must be a key part of the exercise of judicial review. In terms of when a reviewing court may intervene, what did the legislature intend?  (By the way, Dunsmuir said this at paras. 30-31, but Dunsmuir’s presumptions and contextual factors and cases post-Dunsmuir have largely ignored this.)

We interpret legislation—discover its authentic meaning—by examining its text, context and purpose: Rizzo and Rizzo; Bell ExpressVu; Canada Trustco. The focus is on what the legislators—the people with the exclusive right to make laws under ss. 91 and 92 of the Constitution Act, 1867—enacted, not what we would like to see enacted. We must do this neutrally and dispassionately without injecting into the analysis our own preconceptions about the extent to which courts should interfere with administrators’ decisions, our opinions about what is best for Canadians or our own musings about what we personally think is sensible and practical: Williams at paras. 41-52; Cheema at paras. 76-80.

This is something courts are very experienced in doing.

Implications can follow. While legislative text may permit a full appeal, this does not mean that a reviewing court may interfere whenever it wants. The legislation, properly interpreted, may suggest that restraint by the reviewing court is in fact warranted.

Where a securities commission makes a decision relying upon a complicated, relatively non-legal, policy-based understanding of the securities industry, did the legislature really intend that courts can interfere with the decision whenever they want to? When the legislation says that an administrator operating in a field that is outside of the ken of the courts can grant a licence when “it is of the opinion that it is in the public interest,” isn’t the legislator really saying that it is for the administrator to decide what is in the public interest with a minimum of interference?

2. Next, the rule of law.

Legislative text can bar an appeal or a review, for example by way of a clause called a “privative clause”. But that does not mean that a reviewing court can never interfere. As explained above, as a matter of legislative interpretation, the legislation, properly interpreted, may suggest that interference by the court in limited circumstances is warranted.

And even if the legislation truly bars appeals in all circumstances, the rule of law allows courts to interfere nonetheless: Crevier; Dunsmuir at para. 31.

But rule of law concerns vary in size and shape. Cases show that the courts’ sensitivity to rule of law concerns is accentuated by decisions that have significant impact on the individual. The more drastic the measure upon an individual, the more likely the court will be vigilant and ensure that the administrator has complied with basic and fundamental substantive and procedural standards of decision-making.

All are subject to law. No one can be a law unto themselves. All must be accountable to the public they serve. Accountability is a particularly important concern for administrators who are emanations of executive government, i.e., part of government as a whole.

Thus, administrators cannot be immunized from meaningful review by reviewing courts nor can they conduct themselves in a way that shields their decisions from review: Crevier, above; and see discussion in Tsleil-Waututh. This has implications for the giving of reasons: administrators must explain themselves sufficiently in order to be accountable to the public and they must say enough to make review possible.

3. In developing and identifying operational rules, courts should respect the third principle—that of the separate roles of the administrator as merits-decider and the reviewing court as reviewer. Operational rules cannot place the reviewing court in the position of merits-decider. This must shape some of our operational rules—e.g., rules concerning the admissibility of evidence in reviewing courts and the role that reviewing courts should play in coming up with reasons that the administrator should have given.

4. Let’s recap some of the above. Legislative interpretation is case specific. As mentioned above, the rule of law assumes greater or lesser prominence depending on the nature of the case. Different types of administrators have different types of decisions. And administrators occupy different positions in the spectrum of administrative decision-makers, at one end completely different from courts and what they do and at the other end virtually the same.

This suggests that the extent to which a court can interfere with an administrative decision must be a qualitative, conceptual assessment that results in a sliding scale.

It follows from the foregoing that the determination of the extent to which reviewing courts should interfere with an administrators’ decision—the intensity of review—is like a dimmer switch, not an on-off switch. Slotting cases into rigid single-standard categories like correctness and reasonableness is inapt.

A few words about a longstanding, uniquely Canadian predilection

For decades now, Canada has dealt with the intensity of review by constructing artificial categories of review and forcing judges to ram their cases into them. We also seem to venerate a superstructure of arcane rules decreeing what goes into what category. Chaos and constant revision is the result.

So we’ve suffered through categorizations into jurisdictional error and non-jurisdictional error, legislative, administrative, quasi-judicial and judicial decisions, categories of correctness, reasonableness and patent unreasonableness and, now, categories of correctness and reasonableness.

Consider for a moment what’s more likely to be true: as a result of Dunsmuir, Canada has found the magic elixir, the idea of two inflexible, single-standard categories of review, and everyone else in the world is silly not to do the same, or Canada is an outlier that stubbornly clings to an idea that everyone else has rejected for good reason?

And what’s the point of all the gymnastics and the spilling of so much ink on whether the standard of review is correctness or reasonableness—and then just doing correctness anyway?

And, with apologies to the majority in Edmonton East, what is wrong with contextual approaches anyway? What I advocate (see below) is not unlike the contextual approach of Baker for determining the level of procedural fairness owed. And Baker has brought relative calm to the law of procedural fairness. A contextual approach can do so here as well. The test for negligence is a contextual approach and no one is calling that law a never-ending construction site; it is reasonably settled in 99.9% of the cases it regulates. Over time, case-by-case, the common law gives a good measure of certainty and predictability.

Some suggested operational rules

From the foregoing, I suggest the following operational rules for this area of law. They are supported by settled doctrine, well-accepted principle and judicial policy. Because of that, if they are adopted, have every chance of widespread acceptance and permanence.

1. The intensity of review must be on a sliding scale that varies according to the terms of the legislation, the breadth of the discretion granted, the prominence of rule of law considerations (including the drastic nature of the decision upon the individual), the nature of the decision-maker and the nature of the decision. Administrators have varying margins of appreciation or ranges of what is acceptable depending on these circumstances.

Avoid rigid tests on this. Let reviewing courts stir all these factors into a pot and decide on the intensity, allowing them to express it in general but still helpful terms. Examples: Farwaha; Boogaard; Mills; Re:Sound; Delios; Abraham; Almon Equipment; Erasmo; Walchuk; Emerson Milling; and see P. Daly, “Struggling Towards Coherence in Canadian Administrative Law? Recent Cases on Standard of Review and Reasonableness” and D. Stratas, “The Canadian Law of Judicial Review: Some Doctrine and Cases” (October 21, 2017 version) at pp. 57-73. Of these, perhaps Boogaard contains the most comprehensive analysis and weighing of factors that can affect the intensity of review.

Indeed, some of these bear a remarkable resemblance to cases in other Westminster jurisdictions whose law is not as chaotic as ours: see, e.g., Wolf v Minister of Immigration, [2004] NZAR 414 (N.Z.H.C.); AI (Somalia) (“the lawfulness of the exercise of powers by a body that is unusually constituted must be judged against its nature and functions, powers and duties and environment in relation to those of other bodies”); Rotherham Metropolitan Borough Council v Secretary of State for Business Innovation and Skills, [2015] UKSC 6; R. v. Secretary of State for the Home Department, [2014] UKSC 60. This suggests that the Canadian cases, above, are on to something useful.

And let’s be honest: cases decided under the reasonableness standard do exhibit variable intensities of review. We see fussy review, not-so-fussy review, and correctness review.  This operational rule reflects what judges, cognizant of the relevant factors, are inclined to do anyway.

Under the approach I suggest, the strong, judge-made presumption of reasonableness adopted by the majority in Edmonton East would disappear, with legislative interpretation playing a greater role in the analysis amongst other factors.

Overall, this would result in more correctness review. Legislative regimes where there is no privative clause (often with a full right of appeal) and other legislative indicators of correctness review will often lead to correctness review; on the other hand, the assignment of power to administrators in specialized areas to grant to withhold licences or approvals based on public interest criteria will often lead to a more deferential review. A good discussion of this is here. The dissenters in Edmonton East are far closer to the approach I suggest.

A return to the old, discarded approach of correctness review for “jurisdictional questions,” recently advocated by a minority of the Supreme Court in Guérin, should be rejected for all the good reasons offered both long ago (see N.B. Liquor at p. 233) and recently (Halifax); and see the compelling majority reasons of the U.S. Supreme Court in Arlington.

“Correctness review for jurisdictional questions” is an example of the siren song of simplicity I spoke of above, one that leads to unprincipled word games and arbitrariness. Under my suggested approach, matters that the Guérin minority considers to be “jurisdictional” and that the administrator “must get right” are going to be matters of legislative interpretation that admit of few interpretive options, i.e., matters on which there the administrator will have little or no margin of appreciation. The Guérin minority could easily live with the operational rule I propose here; and it would be better and offer more permanence because it is based on settled doctrine and well-accepted principles.

2. Make more tangible and rigorous the assessment whether a decision passes muster under deferential standards of review. Identify specific circumstances that can take a decision outside the range of acceptability and defensibility. The cases cited under point 1, above, all do this. Examples include: disobedience with constraining legislation such as legislative recipes that must be followed (Almon Equipment and Emerson Milling); disobedience with mandatory principles such as procedural fairness, constitutional standards, other fundamental standards such as the need for reconciliation with Indigenous peoples and First Nations (Canadian Human Rights Commission); disobedience with court cases that are directly on point and cannot be distinguished on the facts or policy (Abraham; Emerson Milling). For a good approach to deferential review of administrators’ legislative interpretations, see Allen. For more, see D. Stratas, “The Canadian Law of Judicial Review: Some Doctrine and Cases” (October 21, 2017 version) at pp. 57-63.

Certain indicia or badges of reasonableness and unreasonableness can be identified from the case law. These can provide reviewing courts with useful illustrations: Delios at para. 27; Farwaha at para. 100; Re:Sound at paras. 59-61; Boogaard at para. 81; Forest Ethics at para. 69; and for a more complete list of badges, see D. Stratas, “The Canadian Law of Judicial Review: Some Doctrine and Cases” (October 21, 2017 version) at pp. 63-66.  This promotes certainty which facilitates access to justice by fostering predictability of result.

3. End de novo appeals to appellate courts. Judicial economy, access to justice and minimization of expense require this. Absent legal error, first instance reviewing courts deserve deference to their heavily fact-based assessments of the intensity of review. In other words, repeal Agraira and import Housen to govern appellate review.

4. Reviewing courts must stick to their role and not delve in the merits. Their job is to ensure that administrators required by legislators to grapple with a problem have in fact grappled with it. They are not to do the administrator’s job. Therefore, it is no part of the reviewing court’s function to redraft, correct or supplement administrators’ reasons for decision. Neither is it their role to detect error on the administrator’s part and then cooper up the outcome reached by the administrator—an outcome that an administrator might not have reached had it known of its error.

5. A corollary of the relative roles of reviewing courts and administrators is that administrators’ reasons must be sufficient to permit review and to fulfil their obligations of public accountability. A standard similar to that proposed in earlier, lower-court cases on adequacy of administrators’ reasons is designed to meet those objectives and, thus, is more doctrinally sound. Note that these cases sit comfortably with this recent U.K. Supreme Court decision on point.

6. The evidentiary and procedural law of judicial review must reflect the contrasting roles of reviewing courts as reviewers and administrators as merits-deciders. To a large extent, this is happening in the Federal Court of Appeal: see Access Copyright at paras. 17-20, Bernard at paras. 17-19, Gusto TV at para. 11, Robbins at para. 17, Tsleil-Waututh at paras. 85 and 87; and see cases from other jurisdictions referred to in these cases.

7. Judicial economy and efficiency require reviewing courts to take more seriously their remedial discretion. Although a decision is liable to be set aside and sent back for redetermination, that needn’t happen: MiningWatch Canada; Mobil Oil. Circumstances may suggest otherwise. Would any purpose be served in sending the matter back? Realistically speaking, is there only one correct or acceptable result and so there is no point in sending it back? Does chronic or severe maladministration by the administrator mean that the matter should not be sent back but rather should be determined, exceptionally, by the reviewing court? Are there important practical reasons why it should not be sent back? If it is sent back, can the reviewing court, while respectful of the administrator as the merits-decider, still offer guidance by giving fulsome reasons or imposing terms. See generally D. Stratas, “The Canadian Law of Judicial Review: Some Doctrine and Cases” (October 21, 2017 version) at pp. 102-109.

Deduced logically from settled doctrine and well-accepted principle and leavened by contemporary judicial policy, these operational rules will have real staying-power. They give us the best chance of finally ending the tumult and chaos that has afflicted this area of law for decades.

Personal comments

I am one of the last contributors to the Dunsmuir Decade series. On behalf of all of the contributors and on behalf of the administrative law community I would like to offer my personal congratulations and thanks to Professor Daly and Professor Sirota.

I congratulate them both for organizing and carrying out this Dunsmuir Decade series. Collectively, the articles are most illuminating. They have assisted the Bar, academia and the judiciary in understanding the latest issues in the law of substantive review of administrators’ decisions. We are all better for this.

Their blogs, Administrative Law Matters and Double Aspect, are such a service to the legal community. They keep us acquainted with important and interesting developments in administrative law and more generally in public law. To get such prompt insights on the latest legal developments from two cutting-edge experts is a real privilege. Even when we disagree with them, they cause us to reflect, question our preconceived notions, and think about what is correct. Because of the generous work of Professor Daly and Professor Sirota, often many of us end up in a better place in our own work.

Congratulations and thanks!

A View from South of the Border

Dunsmuir, Chevron, and what Canadians and Americans can learn from each other about judicial deference and interventionism

Jeffrey Pojanowski, University of Notre Dame

First, I would like to thank Leonid and Paul for inviting me to contribute to this symposium. Reading up on Dunsmuir and its legacy has expanded my horizons on administrative law and introduced me to great Canadian legal scholarship. My sense is that Canadian administrative law scholars are engaged in important conversations with their counterparts in Australia, New Zealand, and the U.K., whereas U.S. scholars, per usual, are doing their own thing. For reasons I discuss below, that separation may make some sense. But I am also convinced that further conversation between these wings of Anglo-American public law is important, for we are all struggling with the tension between the supremacy of law and the need for sound, politically responsive policy in a complex world. To keep within the space allotted, I will focus on only one of the many comparative angles, namely the extent of correctness review in our two systems. (On the U.S. end, I will only be discussing federal administrative law, not the law governing review of agency action in state governments.)

Dunsmuir, especially as interpreted in Edmonton East, indicates a broad presumption against review for correctness. The exception for general legal questions of substantial importance is narrow, deference on Charter interpretations has taken a bite out of the exception for constitutional questions, and jurisdictional review is withering away. As indicated by the 5-4 vote in Edmonton East, however, this broad presumption of reasonableness is controversial, and there is some indication that a return to contextual factors will defeat a strong, rule-like presumption of reasonableness review.

In the United States, standards of review are (sometimes nominally) governed by a statute, the Administrative Procedure Act (“APA”), which separates questions of law, fact, and policy. As a result, unlike Dunsmuir’s transubstantive reach, we have three separate doctrinal hooks for review, though there is some overlap. For findings of fact, the “substantial evidence” standard is similar to the jury review standard, though with a mood that is a little more searching. On questions of policy, the “arbitrary and capricious” standard of reasonableness governs and, while it has its complexities, there is little doctrinal support for anything like correctness review. Thus, on questions of fact and policy, the U.S. tracks Canada in eschewing correctness review.

Judges and scholars in the U.S., however, are obsessed with judicial review of legal questions. Here, the landmark case is Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Chevron offers a deceptively simple test. First, courts ask, using the ordinary tools of statutory interpretation, whether the legislation speaks clearly to the question at hand. If so, that interpretation governs. If the question is unclear, the court then asks whether the agency’s interpretation is reasonable. If it is, that interpretation stands, even if it were not the one the court would have adopted under de novo review. Looming large above this two-step doctrine is the “step zero” question: when does Chevron apply, as opposed to a less-deferential standard of review? Even the most zealous judicial advocates of Chevron deference agree that an eligible interpretation must represent the agency’s authoritative judgment over a statute it administers. Without further qualifications, this strong Chevron approach would look much like the presumption of reasonableness review in Edmonton East.

Yet it is not that simple. In United States v. Mead Corp., 533 U.S. 218 (2001), the Supreme Court rejected a broad Chevron rule in favor of a standard. Even when an agency administers a statute, the Court will look for contextual factors to suggest an exercised delegation of interpretive authority from Congress to the agency. Most prominently, Mead links implied delegation to an agency’s power to make policy through reasonably formal measures, such as legislative rulemaking and procedure-heavy adjudication. Agencies that have those powers and use them have a much stronger chance of receiving Chevron deference on an interpretation than those that lack them or do not use them. In subsequent cases, most notably the healthcare case King v. Burwell, the Court has also indicated that on some legal questions of major importance, it would be implausible to infer that Congress intended deference, even if the agency administers the statute and uses formal procedures. Thus, unlike Dunsmuir, Mead carves out for non-deferential review some legal questions that reside under the aegis of agency’s statute.

Therefore, in the U.S. a rough contextualism reigns supreme, with defeasible rules of thumb about when one can imply a delegation of interpretive authority from Congress to the agency. As in Canada, there is substantial (though not unanimous) dissatisfaction with the doctrine from opposite ends of the spectrum. Those who complain about the unpredictability of the doctrine post-Mead would warn a Canadian pushing for contextualism to be careful about what you wish for. On the other side, a more legalist strain has attacked the legitimacy of any legal deference, claiming that it flouts the APA, abdicates judicial duty, or unfairly biases adjudication in favor of the government. Like Alberta is to Canada, this latter chorus is not the dominant voice in American jurisprudence, but it represents the most sustained attack on deference in a long while.

Arguments about deference touch on deep questions of jurisprudence that transcend national boundaries. But it is also possible to ask mid-level questions about whether, given a set of assumptions or features of a legal system, deference on questions of law makes sense. If a legal community has a uniform approach to statutory interpretation, correctness review might be easier to manage; similarly, deciding when an interpretation is beyond the realm of reason is more tractable if judges carry roughly the same measure. In the United States, there can be sharp disagreements among textualists and purposivists about what counts as a good argument, and thus what makes an interpretation “clear” or “unreasonable.” If the Interpretation Act and Elmer Driedger-style-purposivism lead to interpretive practice as uniform in action as it appears on the books, this suggests that, ceteris parabis, Canadian judges could feel more comfortable than their U.S. counterparts in patrolling agency interpretations of law.

But not all else is equal. If the ordinary science of statutory interpretation in Canada is broadly purposive, that could strengthen the case against correctness review on legal questions. As a legal realist would be quick to point out, picking a statute’s purpose, selecting the level of generality at which to describe the purpose, and making the consequentialist judgment about which interpretation promotes that purpose can be a deeply political and policy-laden endeavor, one that looks a lot more like making law than finding it. On those premises, the standard justifications for Chevron ring true; compared to courts, agencies have superior technical expertise and are more accountable to the political branches. Judicial review of law and policy blur in a way less amenable to the distinctly judicial craft.

In systems like the U.S. where interpretive formalism has much greater purchase, a root-and-branch defense of correctness review could have more stable ground. Where inputs like text, structure, and linguistic canons offer substantial guidance, a formalist judge could contend that resolving a disputed question of interpretation can be separated from the consequent policy implications. (She would be wrong if interpretive formalism is illusory, but she would be right on her own premises.) As I have argued, it is therefore telling that Chevron’s most prominent critics today are neoclassical formalists who resist strongly purposive and dynamic approaches to interpretation. This is not to say such formalists maintain that the law never “runs out” on judicial review. There will be questions, like whether an agency’s regulation is “in the public interest,” that are in fact not questions of interpretation amenable to the formalist toolkit, but rather placeholders for delegated policymaking and its accompanying reasonableness review. But for the formalist, the line between law and policy is sharper, or at least legal disagreement crosses into policy choice much further down the line than the standard interpretive legal realist story suggests. If so (a big if!), that would muddy the policy-based case for broad deference on questions of law.

This critique of reasonableness review on law is not the only one available, but it is the one underwriting deference skepticism in the U.S. today. A Canadian deference skeptic who also rejects interpretive formalism would have to pursue other avenues and explain why judicial policy balancing is superior to its agency counterpart. And, as American scholars like Cass Sunstein and Adrian Vermeule have both argued, that is a challenging task. On the other hand, American jurists and scholars who defend Mead’s contextualism and reject interpretive formalism might look northward to bolster their position by reading the burgeoning Canadian literature criticizing Edmonton East. And, thanks to the internet, such exchange does not require a passport, let alone a drive to the Peace Bridge crossing.