Threats to Stare Decisis: The Consistency 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 and second posts here and here.

* This event will be rescheduled for the Fall.


The administrative-law approach to stare decisis­ comes under stress where there is a temptation for courts to harmonize inconsistent lines of administrative decisions.

Some inconsistencies are worse than others. A “true operational conflict”, where an individual is faced with two conflicting orders from different bodies, can only be resolved by a higher body, usually a reviewing court.[1] But true operational conflict is not a challenge to the subtle application of stare decisis in administrative law. The conflict can be resolved by determining which of the two decisions should prevail, an inquiry which does not invite a reviewing court to answer any question of interpretation de novo: it can remain above the fray by deducing which interpretation should prevail from the relevant statutory provisions.[2]

Pressure is really exerted when two panels or two members of the same decision-making body interpret the law differently, or (to a much lesser extent) when the same legal concept is treated differently in different regulatory settings. Some ‘core’ cases may arise – especially in the former category – in which most lawyers would instinctively agree that judicial intervention would be appropriate. It would surely be reviewable error for a decision-maker to treat two identically situated parties differently. From there, it is a small step to the position that differential treatment by two decision-makers is also reviewable error: for if the decision to grant a permit or issue a benefit depends on which door an individual chooses when she arrives for a hearing, the outcome of the administrative process might as well depend on the flip of a coin.[3]

Even if there is no “true operational conflict” in these situations, there is nonetheless a problem: “it seems incompatible with the rule of law that two contradictory interpretations of the same provision of a public statute, by which citizens order their lives, could both be accepted as reasonable”.[4] Indeed, “a public statute that applies equally to all affected citizens should have a universally accepted interpretation”.[5] It has been said, therefore, that these situations require either judicial intervention, because the inconsistency raises a question of law central to the administration of justice,[6] or strict judicial scrutiny.[7]

This pressure should generally be resisted. It is not for courts to impose consistency from on high, thereby compromising “the decision‑making freedom and independence” of administrative decision-makers; rather, these bodies “have the power to resolve such conflicts themselves”.[8] Administrative decision-makers should be permitted to work inconsistencies pure. It is up to them, “par concertation interne ou autrement, de résoudre la difficulté et de préserver une cohérence suffisante dans ses processus de décision”.[9] The rule of law is not a trump card to be played when there is judicial disquiet about inconsistent administrative decision-making.

To the argument that “persistent discord” between decision-makers on the correct interpretation of a statutory provision requires resort to the superior courts as ‘tie-breakers’,[10] L’Heureux-Dubé J. had a powerful response:

[L]imiting this type of review to serious and unquestionable jurisprudential conflicts would not, by itself, remove all difficulty.  There are undoubtedly clear cases of inconsistency where the dictates of equality and consistency in the application of the law will have full effect.  I am far from certain, however, that only those cases will come before the courts…[I]s the fact that two bodies interpret the same legislative provision differently, but in the particular context of the jurisdiction of each, one in a penal and the other in an administrative matter, a “conflict in decisions”?  What about an isolated decision conflicting with a consistent line of authority?  Must a jurisprudential conflict “continue” before being brought to the attention of the courts?  If so, how is the quantitative and temporal threshold to be determined?[11]

Where administrative decisions are so variable that an applicant for benefits might as well buy a lottery ticket as attend his hearing, the case for judicial intervention is strong. Most of the time, however, courts are several steps removed from the core of the case for judicial review for inconsistency. The further one moves into the penumbra of more doubtful cases, the weaker the argument for intervention, because “it will generally involve the court in making judgments as to whether A’s situation was sufficiently dissimilar to B’s to make their differential treatment justifiable”.[12] 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 is appropriate.[13] This is an open invitation to judges to correct administrative decisions they find aberrant but could not qualify as unreasonable.

Accordingly, it is better to look for objective indicators that judicial intervention is justifiable than to rely on the subjective views of individual judges. Where the legislature has provided for an appeal to the courts,[14] or where the decision-maker itself asks for their help,[15] judicial intervention may be appropriate. For instance, the certified question procedure Parliament has provided in the immigration area is a strong indication that the legislature intended for the Federal Court of Appeal and the Supreme Court of Canada to play an active role in resolving inconsistent interpretations by “providing the definitive answer to a certified question on a point of statutory interpretation”.[16] These provide objective indicators that more readily justify resort to the courts than judicial intuition that a particular conflict must be resolved – though, of course, judges should be careful to guard against setting their interpretations in aspic.

A more moderate judicial response to administrative inconsistency is to restrict the range of reasonable outcomes. For instance, in Altus Group Limited v Calgary (City), the municipality had changed its interpretation of a taxing provision, which prompted the Alberta Court of Appeal to emphasize the need for “coherence” in the context of taxation,[17] thereby reducing the range of reasonable outcomes. In other words, the initial choice not to tax commercial parking spaces could not be reversed lightly. Even here, however, reviewing courts should be cautious. Restricting the range of reasonable outcomes too tightly comes very close to creating substantive legitimate expectations – here, that the taxation by-law would not be modified – which is difficult to reconcile with Canadian abhorrence of fetters on administrative discretion.[18]

[1] British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739, at p. 768.

[2] Ibid.

[3] Not that this would always be unreasonable, as Adrian Vermeule has persuasively argued: “Rationally Arbitrary Decisions (in Administrative Law)”, Harv. L. Sch. Pub. L. & Legal Theory Res. Paper Series (2013).

[4] Abdoulrab v. Ontario (Labour Relations Board), 2009 ONCA 491, at para. 48.

[5] Taub v. Investment Dealers Association of Canada, 2009 ONCA 628, at para. 67.

[6] Canada (Attorney General) v. Mowat, 2009 FCA 309, at para. 47; Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17, at paras. 54-56.

[7] Altus Group Limited v Calgary (City), 2015 ABCA 86, at paras. 31-33.

[8] Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756, at p. 801.

[9] Commission de la santé et de la sécurité du travail c. Société Terminaux Montréal Gateway, 2015 QCCA 542, at para. 28.

[10] Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17, at paras. 54, 55. See also H. Wade McLauchlan, “Some Problems with Judicial Review of Administrative Inconsistency” (1984), 8 Dalhousie L.J. 435, at p. 472: “It is arguable that there is a need for supervisory courts to perform a system-coordinating function in reviewing administrative interpretations of law”.

[11] Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756, at p. 797.

[12] David J. Mullan, “Natural Justice and Fairness – Substantive as well as Procedural Standards for the Review of Administrative Decision-Making?” (1982), 27 McGill L.J. 250, at p. 282.

[13] Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756, at p. 783.

[14] See e.g. Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3.

[15] See e.g. Federal Courts Act, RSC 1985, c F-7, s. 18.3(1): “A federal board, commission or other tribunal may at any stage of its proceedings refer any question or issue of law, of jurisdiction or of practice and procedure to the Federal Court for hearing and determination”. A recent example is Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, [2012] 3 S.C.R. 489.

[16] Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113, at para. 35.

[17] 2015 ABCA 86, at para. 33.

[18] See e.g. Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; Immeubles Jacques Robitaille inc. v. Québec (City), [2014] 1 S.C.R. 784.

This content has been updated on May 19, 2015 at 13:19.