The “Common Objective” of Courts and Administrators: Correctly Applying the Principles of Statutory Interpretation?

How should we describe what administrative decision-makers do when they interpret statutory provisions? In my view, they are making/interpreting/doing “law”, even if it is infused with policy considerations in a way that the judicial function is (arguably) not.

Does it follow that they should perform this “law” function in the same way that courts do? My view, defended at some length in “Unreasonable Interpretations of Law“, is that they are not obliged to do so, that they may take less formal approaches, and that courts should not insist that administrators master the intricacies of expressio unius est exclusio alterius or noscitur a sociis.

I fear, however, that my view is out of favour on Canada’s appellate courts. Consider this passage from British Columbia Hydro and Power Authority v. Workers’ Compensation Board of British Columbia, 2014 BCCA 353:

[45]        A reasonable decision must be both factually and legally defensible. Where the legal issue under examination is one of statutory interpretation, the common objective of both administrative decision makers and courts must be to ascertain the intent of the legislature by applying the “modern principle” of statutory interpretation. This requires an examination of the words of the provision under consideration according to their grammatical and ordinary sense, in their entire context, and in harmony with the scheme and object of the Act. The fact that the choice between reasonable interpretations falls to the administrative decision maker does not absolve it from following this cardinal principle…(Emphasis added)

The reference to the appropriate use of the principles of statutory interpretation as the “common objective” of both administrators and courts is revealing. I suspect many lawyers and judges instinctively feel that as soon as one is in the realm of statutory interpretation, lawyerly methods should be privileged. The B.C. Court of Appeal’s language reflects this intuition. Its wording is stark: where there is a statutory text, the decision-maker has to think like a lawyer — even if, as is often the case — she has no legal training.

This sits uneasily with the Supreme Court of Canada’s recent tendency to validate non-formal administrative understandings of legal concepts. In Nor-man, an arbitrator’s nuanced treatment of estoppel in the labour relations context was upheld approvingly. And think of the repeated references in Dore to Charter “values” — as opposed to Charter “rights” — in an apparent attempt to move administrative decision-makers away from formalistic application of the proportionality test to a more subtle consideration of how to achieve statutory objectives without imperiling fundamental freedoms.

But if the “common objective” of courts and administrative decision-makers in Charter cases is not the proper application of the proportionality test, why should the “common objective” in matters of statutory text be the proper application of the principles of statutory interpretation? To be provocative: why does the rule against tautology get more protection in Canadian law than the right of freedom of expression?

Ironically, the Court of Appeal in the instant case was able to strike the decision down as unreasonable without applying the principles of statutory interpretation in a particularly rigorous way: the Review Officer had failed altogether to consider pertinent statutory provisions relating to the reporting of accidents. Here, a company that acted in essence as a rescuer at an accident scene was held subject to a reporting requirement. Yet common sense and a cursory review of the statute would suggest caution in extending an obligation to report accidents to rescuers rather than employers. There was no need for an in-depth application of the principles of statutory interpretation.

This content has been updated on September 24, 2014 at 21:12.