Affidavits on Judicial Review: What’s New is Old
I have been known to complain about courts and administrators supplementing the administrative record after a decision has been made. In a case last year, a Canadian appellate court deferred to an interpretation of law offered in an affidavit. I was reminded at the Public Law Conference that the use of affidavits to bolster the record is not a new phenomenon.
In a fascinating paper, Philip Murray explained that affidavits were allowable to explain the background to the sparse reasons for decision offered by inferior tribunals in previous centuries. Errors in summary convictions were relatively easily discerned, because these “were recorded with a lot of factual detail, producing so-called ‘speaking records’ which disclosed most of the facts and legal reasoning that grounded the…conviction, and thus nearly all possible errors that a justice of the peace might commit”.
By contrast, their “administrative orders were much sparser in detail, disclosing far fewer errors on their face”, such that “applicants for certiorari had to go beyond the record, introducing affidavit evidence to flesh out the details of the case and show how the decision that was reached was affected by some error of law”. But in order to avoid the administrative chaos that would result from de novo review of administrative orders, affidavit evidence was limited, “admissible…only in circumstances were the error of law that was alleged to have been committed related to [the] jurisdiction of the decision-maker”.
So it is that the “doctrinal distinction” between jurisdictional and non-jurisdictional error came about because of a “procedural rule” designed as a “control device for limiting the reviewability of administrative decisions” (on which point Philip disagrees with Amnon Rubinstein, Jurisdiction and Illegality):
The procedural rule that affidavits could only be introduced where a jurisdictional error of law was alleged, it will be recalled, was the product of a compromise: a compromise between the desirability of reviewing administrative decisions and preventing an abundance of challenges to such decisions leading to administrative chaos. We have seen that the affidavit rule developed as a control device, allowing certiorari in those cases where it was considered completely necessary (that is, where decisions were made without jurisdiction), while preventing certiorari from being too widely available. In light of this history, we should not be surprised to find a limited conception of jurisdiction being applied consistently through the nineteenth century. Once we change our way of seeing the affidavit rule, viewing it as a way of limiting review rather than, like Rubinstein, seeing it as a way of facilitating review, the history revealed by the case law makes a lot more sense.
Changes in the structure of the state, however, put significant pressure on this approach: “as the twentieth century progressed, the size of the welfare state increased to such an extent that the limited form of review enshrined by this conception of jurisdiction became untenable: the control device invented to limit review started to be thought of as too controlling…Increases as to the number of administrative decisions and their invasiveness necessitated more judicial review”. And the rise of declaratory relief, which made it “crucial…for errors of law to be labelled as jurisdictional” (for otherwise, there would be nothing to declare…), increased the pressure on the “coherence of the concept of jurisdiction”. The concept was initially designed to limit review, but it had been turned into a vehicle for increasing review, an unsatisfactory state of affairs which led to well-known incoherence in the jurisprudence.
In light of renewed historical understanding, Philip suggested that the distinction between jurisdictional and non-jurisdictional error could perhaps be revived. There were shudders from Canadian and Australian participants! Frissons from the dominions notwithstanding, in light of the U.K. Supreme Court’s resort in R (Cart) v. Upper Tribunal, 2011 UKSC 28 to “raw pragmatism” in sorting out its relationship with that jurisdiction’s new tribunal structure, arguments based in principle have a renewed attraction. Review of jurisdictional error, leaving non-jurisdictional matters to the determination of the tribunals, is more principled than the conclusion in Cart, which Lord Brown put in typically trenchant terms, at para. 100: “The rule of law is weakened, not strengthened, if a disproportionate part of the courts’ resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff”. This “actively demands that judicial review not be brought, and that ultra vires decision[s] continue to have a factual and legal existence, for purely pragmatic considerations”.
Mind you, as soon as one admits — as one surely must — that substantive criteria guide courts in determining whether questions are jurisdictional or non-jurisdictional, “jurisdiction” becomes an empty shell. As Bastarache J. put it in Pushpanathan,  1 SCR 982, at para. 28: “a question which ‘goes to jurisdiction’ is simply descriptive of a provision for which the proper standard of review is correctness, based upon the outcome of the pragmatic and functional analysis”.
The proper role of old concepts in modern law is no new debate, of course. Tort lawyers still argue about whether injuries must be “directly” inflicted in order to impose liability for the tort of battery. This is an old requirement, dating back to the earliest days of the writ of trespass. But whether it makes any sense today to exclude “indirectly” inflicted injuries from the scope of the modern cause of action for battery is a live and hotly debated question. I tend to think that experience and logic suggest that “directness” and “jurisdiction” are unhelpful in today’s world, but others may well disagree. Either way, Philip’s paper is an enlightening treatment of an important subject.
This content has been updated on September 26, 2014 at 10:30.