The Hazards of Rebottling Old Wine: Dane Developments Ltd. v. British Columbia (Forests, Lands and Natural Resource Operations), 2015 BCSC 1663

We all know the famous observations of legal historians about the influence of procedure on the development of the the common law. Maine’s remark about substantive law being “gradually secreted in the interstices of procedure” and Maitland’s quip about the buried forms of action that “still rule us from their graves” remind us that procedural changes can have important substantive consequences.

It might be time for Canadian administrative lawyers to dust down their history books. Several areas of procedural administrative law — or “adjectival” law, as Professor Mullan described it in (2012) 26 CJALP 87 — have recently or soon will occupy the Supreme Court of Canada: tribunal standing, superior court jurisdiction over federal prisons, and tribunals’ ability to reconsider their own decisions. Another is the content of the record on judicial review, a matter considered most recently in Dane Developments Ltd. v. British Columbia (Forests, Lands and Natural Resource Operations), 2015 BCSC 1663.

All of these cases have been provoked by changes in the substantive law of judicial review, which has increased in breadth and depth in recent decades, in breadth because it applies to a wider range of decisions and in depth because it is applied with increasing intensity. So lawyers argue that the adjectival law should change to keep in step with the substantive law: tribunals should have increased scope to defend their decisions; superior court jurisdiction over federal prisons should be extended; tribunals’ reconsideration powers should mirror the more extensive jurisdiction of reviewing courts; and parties should be permitted to present more extensive affidavit evidence on judicial review.

But these arguments may overlook the relationship between procedure and substance in the common law. If the adjectival law changes, even simply to keep it in step with the breadth and depth of judicial review, the substantive law is likely to mutate further in the future. I say “likely” because cause and effect can never be traced with scientific precision; my point is that advocates of change should bear a heavy burden of persuasion because of the history of how adjectival changes have influenced the substantive law. And administrative law aficionados certainly know that, historically, changes in the adjectival law of judicial review have been closely related to developments in the substantive law.

Accordingly, it is plausible to say that permitting tribunals “to offer interpretations of their reasons or conclusions and to make arguments implicit within their original reasons” (Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, at para. 69) will expand the range of arguments that might be made in defence of administrative decisions on judicial review, making them harder to attack. Similarly, a more permissive approach to the content of the record on judicial review may change the nature of the reviewing court’s role. In Dane Developments, Bracken J. refused to admit evidence that “could only be relevant if the Court were to embark upon a reweighing of the evidence, the exact exercise that the authorities prohibit on a judicial review” (at para. 58). But if such evidence could be tendered, courts would feel pressure to perform just such an exercise.

Slightly different concerns arise in the area of federal prisons and reconsideration authority. Wider scope for habeas corpus review conducted by superior courts  on the application of federal inmates risks expanding superior court jurisdiction over the internal management of federal prisons, a matter within the exclusive jurisdiction of the federal courts. Meanwhile, expansion of reconsideration authority raises a fundamental constitutional concern about the ability of statutory bodies to conduct judicial review proceedings.

All of which leads me to suggest that changes in the adjectival law should be made incrementally, not on the basis of reasoning from first principles, and with respect for constitutional limitations. So I am somewhat skeptical of the Supreme Court of Canada’s recent reconfiguration of tribunal standing; happy that courts have generally proceeded incrementally in expanding the content of the record; intrigued by whether the constitutional imperative of habeas corpus outweighs the impact on the Federal Courts Act of expanded superior court jurisdiction over federal prisons; and hopeful that the Supreme Court of Canada does not increase the scope of tribunals’ reconsideration authority. If time allows this Fall — unfortunately, it may not — I will return to the issue of the hazards of rebottling old wine.


This content has been updated on October 4, 2015 at 15:11.