Against Balancing and Weighing: Strickland v. Canada (Attorney General), 2015 SCC 37

For some time, I have wanted to write about the prevalent tendency to describe the judicial method in public law cases as one of ‘weighing’ or ‘balancing’ competing interests. It seems to me that reference to weight and balance captures only a part of the judicial task in complex cases. In fact, there is a critical further step. Once the weighing or balancing is completed, the judge must then decide which side to favour. One might call this judicial judgement. Understanding how it is exercised would reveal a lot more than do the metaphors of weight and balance. Indeed, these metaphors — inasmuch as they suggest that judges are engaged in inoffensive, value-neutral, technocratic work — may in fact obscure important parts of the judicial task in public law cases.

Strickland v. Canada (Attorney General), 2015 SCC 37 furnishes a modest example. At issue here (see also Léonid Sirota’s post) was a jurisdictional competition between the provincial superior courts and the federal courts. Federal legislation and guidelines set out the law on child support payments. The six appellants sought to challenge the vires of the guidelines. But where should they go? On the one hand, family law proceedings occur almost exclusively in the provincial superior courts. On the other hand, the regulations were promulgated by the Governor in Council and the Federal Courts Act gives the the Federal Court “exclusive original jurisdiction . . . to . . . grant declaratory relief, against any federal board, commission or other tribunal”. Strickland et al went to the Federal Court, where the judge acknowledged that she had jurisdiction, but exercised her discretion against hearing the proceedings, a decision upheld on appeal.

For the majority of the Supreme Court of Canada, Cromwell J. upheld the application judge’s exercise of discretion. First, despite the clear language of the Federal Courts Act, Cromwell J. pointed to a line of cases in which the Court has accepted that “the provincial superior courts have the authority to consider and rule on the legality of the actions of federal tribunals when doing so is a necessary step in adjudicating claims properly before the superior courts” (at para. 22). While the Federal Court certainly has jurisdiction to determine the validity of federal regulations, a provincial superior court could equally determine the vires of a federal regulation necessary to decide a family law case properly before it.

Second, Cromwell J. endorsed the applications judge’s decision to exercise her discretion not to determine the vires of the regulations. In her view, the provincial superior courts provided an adequate alternative forum in the circumstances. Cromwell J. set out the general principles concerning the considerations to be taken into account in exercising discretion on this basis:

These considerations include the convenience of the alternative remedy; the nature of the error alleged; the nature of the other forum which could deal with the issue, including its remedial capacity; the existence of adequate and effective recourse in the forum in which litigation is already taking place; expeditiousness; the relative expertise of the alternative decision-maker; economical use of judicial resources; and cost…The categories of relevant factors are not closed, as it is for courts to identify and balance the relevant factors in the context of a particular case...The court should consider not only the available alternative, but also the suitability and appropriateness of judicial review in the circumstances…Ultimately, this calls for a type of balance of convenience analysis…This balancing exercise should take account of the purposes and policy considerations underpinning the legislative scheme in issue…The factors to be considered in exercising this discretion cannot be reduced to a checklist or a statement of general rules. All relevant factors, considered in the context of the particular case, should be taken into account (at paras. 42-45, emphases added).

All very well, of course, but this approach gives little guidance to a judge on how to exercise her judgement to hear an application or not. One may contrast Strickland with Canada (Attorney General) v. TeleZone Inc., [2010] 3 SCR 585, where the Court permitted provincial superior courts to determine the validity of federal administrative decisions in the context of otherwise properly pleaded actions against the federal Crown. There, two overriding principles were furnished to courts: first, “access to justice” should be favoured (at para. 18); second, courts were warned not to be deceived by “artful pleading” seeking to undermine the role of the federal courts in policing the legality of federal administrative action (at para. 78). In Strickland, however, one searches in vain for an animating principle or value. Cromwell J. provides a potentially infinite list of factors to take account of in a “balancing exercise”, but there is nothing to guide the judge’s ultimate decision to decide a case one way or the other.

The closest we get to an animating principle or value is in the following passage:

The Guidelines operate and play a central role within a complex area of law, governed by the Divorce Act. Parliament has entrusted, for practical purposes, this entire area of law to the provincial superior courts. Having done so, it would be curious, to say the least, if the legality of a central aspect of that regime were to be finally decided by the federal courts, which, as a result of federal legislation, have virtually no jurisdiction with respect to family law matters. The appellants’ judicial review proceedings are thus deeply inconsistent with fundamental parliamentary choices about where important family law issues will be determined (at para. 51).

But what makes them “deeply inconsistent” rather than, say ‘merely inconsistent’ (and would this make a difference)? What is so “fundamental” about these particular “parliamentary choices”? And if these are just several of the factors to be taken into consideration, why should they be given determinative weight (or what certainly seems like determinative weight)? What seems on first sight to be an animating principle or value turns out to appear suspiciously conclusory on closer inspection. This, I fear, is often the case when judges talk of balancing or weighing lists of factors.


This content has been updated on July 13, 2015 at 12:20.