Fusing Procedural and Substantive Review in Canada
This is the last extract from my forthcoming article, “Canada’s Bi-Polar Administrative Law: Time for Fusion“. I detail how procedural and substantive review might be fused and, in particular, why traditionalists should not flinch. Download the paper here.
It is now necessary to consider how the two poles might be fused. One possibility is simply to accord weight to administrative decision-makers’ determinations, as Evans J.A. suggested in Re: Sound v. Fitness Industry Council of Canada:
In short, whether an agency’s procedural arrangements, general or specific, comply with the duty of fairness is for a reviewing court to decide on the correctness standard, but in making that determination it must be respectful of the agency’s choices. It is thus appropriate for a reviewing court to give weight to the manner in which an agency has sought to balance maximum participation on the one hand, and efficient and effective decision-making on the other. In recognition of the agency’s expertise, a degree of deference to an administrator’s procedural choice may be particularly important when the procedural model of the agency under review differs significantly from the judicial model with which courts are most familiar.
It is unclear that this would actually represent a change to existing practice, for it is perfectly possible for courts to give weight to the procedural choices of a decision-maker while retaining the final word on fairness for themselves. Indeed, Evans J.A.’s proposal might be seen as rejecting fusion, as it would continue to treat substantive review and procedural review distinctly. Integrating procedural review into the substantive review framework altogether is the only option for fusion. Moreover, to employ ‘weight’ as a standard of review distinct from reasonableness and correctness would go against the grain of recent jurisprudence.
Bich J.A.’s deferential approach would apply only in limited circumstances: « la norme de la décision correcte s’appliquera lorsqu’est en jeu, directement, le respect des règles de justice naturelle ». In one set of cases, procedural fairness will be directly implicated. In another set, the home statute will be directly implicated. Deciding which case belongs to which set would likely prove a tricky task. And, as I have argued, compelling reasons for deference on questions of procedural fairness will exist in cases other than those involving the interpretation of a provision located in the decision-maker’s home statute.
Recognizing that deference will be appropriate on a wide range of questions of procedural fairness opens up the possibility of a complete fusion of substantive review and procedural review under the Dunsmuir framework for judicial review of administrative action. In situations where a decision relates to the interpretation of a decision-maker’s home statute or statutes closely connected to its function, with which it will have particular familiarity; raises issues of fact, discretion or policy; or involves inextricably intertwined legal and factual issues, deference on questions of procedural fairness will be as appropriate as deference on substantive issues. As Stratas J.A. put it in Maritime Broadcasting, the procedural fairness claims were evaluated “under the umbrella of legislation empowering the Board to consider its own procedures based on its appreciation of the particular circumstances of cases and to vary or depart from those procedures when it considers it appropriate” and thus their resolution was entitled to deference.
Traditionalists can take comfort in the availability of correctness review in some circumstances. In the post-Dunsmuir framework, procedural fairness questions may be reviewable on a standard of correctness either because they are ‘true’ questions of jurisdiction or vires going to whether a decision-maker’s “statutory grant of power gave it the authority to decide the matter” or, more commonly, because they are questions of general law of central importance to the legal system due to their “precedential value” beyond the confines of a “specific regulatory regime”. For example, interpretation of a framework statute such as the Federal Courts Act or the Statutory Powers Procedure Act would fall into the latter category and be reviewable on a correctness standard, as might issues relating to the application of the duty of fairness to administrative, commercial or legislative decisions.
Traditionalists might recoil on the basis that procedural rights should not be left at the mercy of administrative decision-makers; this would be at odds with the dignitary interests of individuals and thus undermine the rule of law. Moreover, in many situations giving rise to procedural fairness claims – especially those concerning the scope of the duty of fairness – no contemporaneous explanation is given by the decision-maker. This is an unpromising basis for deference, which would undermine the dignitary interests of individuals who come into contact with administrative decision-makers and thereby undermine the rule of law.
Traditionalists should not recoil. Reasoned decisions are required to allow reviewing courts to exercise their constitutionally guaranteed function of judicial review. Without a reasoned decision, there can be no deference, for there is nothing to defer to: “Courts give no deference to decision-makers when the issue is whether the duty of fairness applies in given administrative and legal contexts”, which would doubtless continue to be the case either because no reasoned decision has been given or because the question at issue falls into one of the correctness categories. As Professor Mullan cautioned in a commentary on McCaffrey, it is important to have regard to “the nature of the decision-maker, including its capacities for making procedural judgments (particularly in comparison with the courts’ own expertise in such matters) and the seriousness with which it has dealt with the procedural question under review”. Accordingly, where a decision-maker denies a procedural claim, or protests the application of the duty of fairness to some or all of its activities, by furnishing a reasoned decision based on statutory provisions or context with which it is familiar, it is hard to see why deference should be refused.
Once given, a decision falling into one of the reasonableness categories can be reviewed deferentially. Here too there are safeguards. The Court has emphasized that a deferential standard of review permits judicial intervention where the administrative decision does not bear the hallmarks of “justification, intelligibility and transparency” or falls outside the “range” of acceptable outcomes. These criteria hold administrative decision-makers to a high standard and ensure respect for the rule of law. In the particular context of procedural fairness, administrative decision-makers’ room for manoeuvre may accordingly be somewhat limited:
Given the well-defined legal standards set by the existing case law on procedural fairness, the range of acceptable and defensible options or margin of appreciation open to the administrative decision-maker often will be constrained. There will be cases, however, where the nature of the matter and the circumstances before the administrative decision-maker should prompt the reviewing court to give the decision-maker a wider margin of appreciation.
There is nothing to fear from the fusion of substantive review and procedural review in the post-Dunsmuir framework.
 2014 FCA 48, at para. 42.
 See above, II.B.
My own view is that two standards of review are insufficient (see A Theory of Deference in Administrative Law: Basis, Application and Scope (Cambridge University Press, Cambridge, 2012), chapter 4) and that the attraction of adding others often overwhelms judges (“Dunsmuir’s Flaws Exposed: Recent Decisions on Standard of Review”(2012), 58 McGill Law Journal 483, “The Scope and Meaning of Reasonableness Review” (2015), 52 Alberta Law Review (forthcoming)). “Weight” could be accommodated as a distinct standard of review, but this would only be possible after a fusion of substantive review and procedural review.
Au dragon forge, at para. 31. Emphasis added.
 Again, my own view is that the Dunsmuir framework is badly flawed (“The Unfortunate Triumph of Form over Substance in Canadian Administrative Law”(2012), 50 Osgoode Hall Law Journal 317). My argument here is that whatever framework for substantive review is in place should be applied – warts and all – to procedural review.
 Smith v. Alliance Pipeline,  SCC 7,  1 S.C.R. 160, at para. 26.
 2014 FCA 59, at para. 63.
 Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, at para. 61.
 Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, at para. 60.
 See e.g. Knight, at p. 670.
 See e.g. Irving Shipbuilding.
 See e.g. Attorney General of Canada v. Inuit Tapirisat of Canada,  2 S.C.R. 735.
 It would also be relatively unusual for a decision-maker to give a reasoned explanation as to why a promise to follow a particular procedure was not sufficiently “clear, unambiguous and unqualified” (Mavi, at para. 68) to ground a legitimate expectation.
 See e.g. Komolafe v. Canada (Citizenship and Immigration), 2013 FC 431; Leahy v. Canada (Citizenship and Immigration), 2012 FCA 227; Wall v. Independent Police Review Director, 2013 ONSC 3312.
 There are cases in which the Court has deferred in the absence of contemporaneous reasons. See e.g. Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61,  3 S.C.R. 654, at paras. 53-56. Even at its most expansive, however, the practice of deferring in such situations was premised on the authority of the decision-maker to interpret the relevant provisions authoritatively, the consistency of the interpretation with the principles of statutory interpretation and the inefficiency of remitting the matter for further reasons. McLean v. British Columbia (Securities Commission), 2013 SCC 67, at paras. 71-72. For criticism, see Paul Daly, “The Scope and Meaning of Reasonableness Review” (2015), 52(3) Alberta Law Review (forthcoming); Lemus v. Canada (Citizenship and Immigration), 2014 FCA 114.
 Sound v. Fitness Industry Council of Canada, 2014 FCA 48, at para. 35.
David J. Mullan, “Developments in Administrative Law: the 1983-84 Term” (1985) 7 S.C.L.R. (2d) 1, at p. 19.
Dunsmuir at para. 47.
 Maritime Broadasting, at para. 58.
This content has been updated on September 2, 2014 at 11:24.