The Supreme Court of Canada and the Standard of Review: Recent Cases

Fear not, fellow Canadians, I have not forsaken judicial review of administrative action in the Great White North. The difficulty, as I set out in my paper “The Signal and the Noise“, is that most Supreme Court of Canada decisions on administrative law are significant only for the substantive areas of law they address and not for broader issues relating to judicial review of administrative action.

In Tran v. Canada (Public Safety and Emergency Preparedness) 2017 SCC 50, Côté J.’s reasons for a unanimous court did not engage with administrative law issues at all.  It is disappointing that the Supreme Court did not deign to engage with the important questions raised at the Federal Court of Appeal by Gauthier JA (noted here). Canada’s legal community will have to blunder on without any guidance on the importance of reason-giving in front-line decision-making, the role of the principles of statutory interpretation (such as the rule of lenity and Charter values) in determining whether an administrative decision is unreasonable and whether a decision-maker can ignore arguments made by an interested party without breaching its duty of procedural fairness. Unfortunately, the questions raised by Gauthier JA will continue to linger and cause confusion in the Canadian legal community.

Tran was resolved — like many Supreme Court administrative law cases — on what Professor Mullan has memorably described as a “disguised correctness” standard, where the Supreme Court simply conducts its own independent analysis of the statutory provision at issue with little or no regard for the decision-maker’s interpretation. Similarly, in Barreau du Québec v. Quebec (Attorney General) 2017 SCC 56, despite a conflab over the standard of review (see below), one could be forgiven for thinking that there was no administrative decision under review, so scant was the reference made to the reasons given by the Administrative Tribunal of Quebec. One can perhaps understand why the low-level ministerial delegate in Tran was ignored (see also Febles), but the ATQ is a very well-respected administrative tribunal whose decisions are surely worth more than passing references.

Two of the Supreme Court’s recent decisions have moderately interesting aspects. First, in Association of Justice Counsel v. Canada (Attorney General) 2017 SCC 55, Karakatsanis J. did appropriately engage with the reasoning of the labour adjudicator who had decided that it was unreasonable of the employer to unilaterally change the compensation arrangements for public service lawyers working on immigration matters (at paras. 32-38) and, rightly, did not strike the decision down because of some weak reasoning contained in the adjudicator’s decision (at paras. 39-47). However, she could not help herself from correcting the adjudicator’s (admittedly odd) view that the employees’ Charter right to liberty had been infringed by the employer’s chance of policy. This was surely unnecessary to her conclusion that, read in context and attentively, the adjudicator’s decision was reasonable (but understandable given her seat at the apex of the Canadian judicial hierarchy, from whence she and her colleagues can deliver guidance on the meaning of important statutory and constitutional provisions!).

This is of a piece with Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations) 2017 SCC 54, a case that (justly) hit the headlines because of its arresting facts: a First Nation claimed that the development of a ski resort would drive out the Grizzly Bear Spirit which is central to its belief system. That a ministerial decision was at issue did not prevent the majority of the Supreme Court, in reasons by McLachlin CJ and Rowe J, from delivering a detailed set of reasons on the scope of Charter protection for religious belief (at paras. 58-75) with nary a nod to anything the Minister had to say. The incongruity of deciding this matter de novo and then applying reasonableness review to the separate question of the adequacy of the Crown’s consultation with the Ktunaxa Nation (at paras. 82-114) went unremarked.

Second, in Barreau du Québec v. Quebec (Attorney General) 2017 SCC 56, there was a disagreement over the standard of review between Brown J in the majority and the solo dissenter, Côté J. At issue was a question dear to lawyers: how far does the monopoly on legal representation extend? In particular, can non-lawyers in the public service prepare written materials for hearings before the ATQ? Answering this question turned on the interrelationship between the ATQ’s parent statute (the Act respecting administrative justice, CQLR, c. J‑3, s. 102) and the Act respecting the Barreau du Québec, CQLR, c. B‑1, ss. 128(2)(a)(5), 129(b).

One can see why Côté J thought this to be a question which the courts ought to answer, to ensure uniformity and consistency in the rules on permissible advocacy across courts and administrative tribunals, as in Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 (solicitor-client privilege). But I think Brown J had the better of the argument. At issue here was representation before the ATQ, which has special provisions set out in its parent statute relating to audiences before it. It is context-specific, such that the analogy to solicitor-client privilege, which would be undermined if it did not have the same scope in all circumstances, simply does not work.

Moreover, given that the ATQ was interpreting its parent statute and that the general rules concerning legal representation were relevant only incidentally to this interpretive exercise, the case for deferring to the ATQ was overwhelming. Brown J. cited Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2014 SCC 31 in support of a reasonableness standard. He could also have mentioned Bernard v. Canada (Attorney General) [2014] 1 SCR 227 and Canadian Artists’ Representation v. National Gallery of Canada [2014] 2 SCR 197, two cases in which the fact that the decision-maker had to wander away temporarily from interpreting its home statute did not undermine the case for deference.

Beyond these brief remarks, there is not much else to say about the Supreme Court’s recent administrative law adventures.

This content has been updated on November 11, 2017 at 20:06.

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