Threats to Stare Decisis: The Clarity Problem

This is the second post excerpting from my paper on stare decisis in Canadian administrative law for the Canadian Institute for the Administration of Justice’s 2015 National Roundtable on Administrative Law (Moncton, Friday, May 22): Consistency in Tribunal Decision-Making. You can read the first post here.


Canadian courts have recently embraced the view that, sometimes, a statutory provision has one ‘clear’ meaning which a reviewing court must insist upon.[1] Put another way, the range of reasonable outcomes will be so restrained that only one possible, acceptable interpretation exists.[2] This puts strain on the administrative-law approach to stare decisis.

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: “if a court has merely upheld an earlier tribunal interpretation of the provision as reasonable, the tribunal need not follow that interpretation if it prefers another interpretation that is also reasonable”.[3] Yet 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.[4]

Accordingly, the ‘clear’ meaning of a statutory provision, once announced by a court, would be invariable over time. The phrase “professors of the university”, which may have meant tenured and tenure-track faculty members a decade ago, would continue to mean tenured and tenure-track faculty members decades later, even if full-time faculty become grossly outnumbered by adjunct professors and sessional lecturers – until such time as a court saw fit to revise the initial interpretation. But judicial revision of ‘clear’ interpretations seems most unlikely, for reasons of substance and procedure.

Substantively, Canadian courts do not give administrative decision-makers much room for manoeuvre when interpreting judicial precedents.[5] Procedurally, any judicial review proceedings brought to enforce an updated understanding of the ‘clear’ interpretation at issue would be conducted on a deferential standard, in which case there would be a heavy burden on any applicant arguing that the context had changed so much as to render the initial judicial edict unreasonable. Sure, a court tasked with interpreting the phrase “professors of the university” at two different points in time could rely on changes in context to justify a different interpretation, but administrative law erects substantive and procedural barriers in front of this route.

There is another problem with the embrace of ‘clarity’. Reams of decided cases contain interpretations of law given by Canadian courts on a standard of correctness. Nowadays, however, with the “black hole” of the presumption of deferential review for interpretations of decision-makers’ home states sucking the light from the correctness categories,[6] reasonableness is almost always the standard of review. But ‘correct’ is not a synonym for ‘clear’. A court applying the principles of statutory interpretation will identify the ‘best’ interpretation of a provision, but not necessarily the ‘only’ possible interpretation.

The Americans have had this problem. In National Cable & Telecommunications Assn. v. Brand X Internet Services,[7] a majority of the Supreme Court of the United States concluded that a “prior judicial construction of a statute trumps an agency construction otherwise entitled to…deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute”.[8] But as Scalia J. pointed out several years later, this approach creates a problem that has yet to receive a convincing answer:

In cases decided pre-Brand X, the Court had no inkling that it must utter the magic words “ambiguous” or “unambiguous” in order to (poof !) expand or abridge executive power, and (poof !) enable or disable administrative contradiction of the Supreme Court. Indeed, the Court was unaware of even the utility (much less the necessity) of making the ambiguous/nonambiguous determination in cases decided pre-Chevron, before that opinion made the so-called “Step 1” determination of ambiguity vel non a customary (though hardly mandatory) part of judicial review analysis.   For many of those earlier cases, therefore, it will be incredibly difficult to determine whether the decision purported to be giving meaning to an ambiguous, or rather an unambiguous, statute.[9]

This is yet another reason that Canadian courts should shut their ears to the plaintive cries of the clarity sirens and concentrate on their role of reviewing for reasonableness (and occasionally correctness) on a case-by-case basis.[10] A judicial conclusion that a particular decision was reasonable or unreasonable does not fit an administrative decision-maker with concrete shoes, but rather leaves them greater liberty in the future. Even the conclusion that, on the facts of a particular case, there was only one possible, acceptable outcome, leaves an administrative decision-maker relatively unencumbered.

[1] See variously, British Columbia Hydro and Power Authority v. Workers’ Compensation Board of British Columbia, 2014 BCCA 353; Ontario (Alcohol and Gaming Commission of Ontario) v. 751809 Ontario Inc. (Famous Flesh Gordon’s), 2013 ONCA 157; Qin v. Canada (Citizenship and Immigration) (2013), 451 NR 336; Small v. New Brunswick Liquor Corporation (2012), 390 NBR (2d) 203, but see also Frères Maristes (Iberville) c. Laval (Ville de), 2014 QCCA 1176, at para. 9:

En ce sens, parler en matière de révision judiciaire d’une « erreur déraisonnable » risque de créer une fâcheuse confusion des genres. Il ne peut pas y avoir plusieurs réponses à la question 2 + 2 = ? Il n’y en a qu’une seule, toutes les autres sont erronées, aucune d’entre elles n’est « raisonnable » et qualifier les unes ou les autres de « déraisonnables » n’ajoute strictement rien à la compréhension des choses. Mais en matière d’interprétation juridique et de révision judiciaire, on est loin de l’arithmétique élémentaire. Et en l’absence d’une décision ou d’une interprétation déraisonnable, la réponse à privilégier est celle donnée par le tribunal administratif que le législateur a désigné comme le décideur dont ce genre de litige est la spécialité…

[2] McLean v. British Columbia (Securities Commission), [2013] 3 S.C.R. 895, at para. 38.

[3] Sara Blake, Administrative Law in Canada, 5d ed (Markham: LexisNexis, 2011), pp. 140-141. See e.g. Dominion Stores Ltd. v. Retail, Wholesale and Department Store Union (1981), 128 D.L.R. (3d) 262 (Ont. C.A.).

[4] See, by analogy, Régie des rentes du Québec v. Canada Bread Company Ltd., [2013] 3 S.C.R. 125.

[5] See e.g. Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), [2012] 2 S.C.R. 345, at para. 37: “Because the Board’s finding of unfairness was based on what was, in my respectful view, a misapplication of the CCH factors, its outcome was rendered unreasonable”.

[6] Paul Daly, “Unreasonable Interpretations of Law” (2014), 66 S.C.L.R. (2d) 233.

[7] 545 U. S. 967 (2005).

[8] Ibid., at p. 982 (emphasis added).

[9] United States v. Home Concrete & Supply, LLC, 132 S. Ct. 1836, at pp. 1846-1847 (2012).

[10] See also Paul Daly, “Unreasonable Interpretations of Law” (2014), 66 S.C.L.R. (2d) 233.

This content has been updated on May 11, 2015 at 12:40.