“When the facts change, I change my opinion,” John Maynard Keynes once tartly replied to a questioner concerned that the economist had altered his position on a matter of public importance, before adding, witheringly: “What do you do, sir?” How to deal with changed circumstances is the central topic of this paper. When the facts change, should administrative decision-makers change with them?
In section I, I briefly review the development of stare decisis in the common law, before turning in section II to outline the Canadian approach to stare decisis in the administrative context. From there I assess three points at which the status quo comes under pressure, what I call the problems of clarity (section III), consistency (section IV) and coherence (section V). Stare decisis is not at all the judicial straitjacket it is sometimes imagined to be and so the very flexible approach to precedent taken by administrative decision-makers is not only defensible but laudable. Mischief results when judges declare statutory provisions to be ‘clear’, insist on consistency, or orchestrate coherence from on high.
As to clarity, setting a judicial interpretation of a statutory provision in aspic threatens to compromise regulatory flexibility over time. The Canadian approach to stare decisis allows administrative decision-makers to change their positions in accordance with changing circumstances, but if a court carves the only possible, acceptable interpretation into a tablet of stone this flexibility is eliminated as future administrative decision-makers are forever encumbered by the judicial edict.
As to consistency, the administrative-law approach to stare decisis comes under stress where there is a temptation for courts to harmonize inconsistent lines of administrative decisions. However, the rule of law is not a trump card to be played when there is judicial disquiet about inconsistent administrative decision-making. There are inevitably “quantitative” — how much of an inconsistency? — and “temporal” — how far apart in time are the inconsistent decisions? — aspects to the difficult judgement calls on whether intervention would be appropriate to ensure consistency. This is an open invitation to judges to correct administrative decisions they find aberrant but could not qualify as unreasonable.
A final pressure point comes in the form of incoherence: what about an administrative decision that is a reasonable resolution of a particular case but which is reached by flawed logic? If the flawed logic is not sanctioned, it remains on the books and may influence future administrative decision-makers. Deference suggests that reviewing courts should wring their hands — and then wash them: the reasonable decision should be upheld and the flawed logic should be worked out through the administrative process. Administrative decision-makers are no less canny than courts in recognizing problematic decisions and distinguishing them — indeed, they may be more capable of doing so while also respecting the overall fabric of their own regulatory system. Flawed logic alone does not invite judicial intervention.