Institutional and Interpretive Pluralism in Canadian Law
Another volley of thoughts on section 96….In previous posts I set out the Supreme Court’s view of the importance of the “core” jurisdiction of the superior courts but then noted the need to make some qualifications to this view. In this post, I set out some serious qualifications that the Supreme Court’s own jurisprudence has imposed over the years: for all the veneration of “core” superior court competence as a “pillar” of the constitutional order, there is a significant degree of institutional and interpretive pluralism in the Canadian legal system.
These light tones of contrast are the product of a judicially created constitutional climate of institutional pluralism. By this I mean simply that Canadian courts recognize that pure trial-type procedures are not always necessary to the administration of justice. Institutional pluralism is nothing new in the common law tradition, where diverse forms of dispute resolution procedure have long existed. The question is how it can be compatible with the central role given to the superior courts by the Constitution Act, 1867: “Section 96 may be given a reasonable application in relation to the provincial need to be able to create new regulatory and social welfare jurisdictions but it cannot be read out of the constitution”. Yet the development of a constitutional climate favourable to legislative and administrative experimentation, a climate shaped in part by the judicial exegesis of section 96, began some time ago.
Even the Privy Council – so often a convenient scapegoat of Canadian commentators on constitutional affairs – appreciated the desirability of reading section 96 so as to permit provincial innovation in dispute resolution, thereby opening up a space for institutional pluralism. When presented with the occasion to opine on the compatibility of administrative tribunals with section 96 in Labour Relations Board of Saskatchewan v. John East Iron Works, their Lordships were unequivocal: the Board’s functions represented a “striking departure from the traditional conception of a court” and were designed instead to give effect to the “new conception of industrial relations”, something that could only be achieved by technocrats familiar with the domain and qualified to “bring an experience and knowledge acquired extra-judicially to the solution of their problems”. Accordingly, the “subject-matter” of the Board’s industrial relations jurisdiction was “such as profoundly to distinguish” it from a section 96 court. Finally, any “alleged judicial function” had to be considered “in relation to its other duties”. The upshot was to give legislatures greater scope to address “problems of a modern nature requiring governmental intervention of a continuous and specialized character”.
Several decades later, Dickson J. exhaustively reviewed the section 96 jurisprudence and formulated a three-stage test for determining the limits of institutional pluralism in Canadian constitutional law. First, the court must ask “whether the power or jurisdiction” conferred on the body in question “conforms to the power or jurisdiction” of the section 96 courts “at the time of Confederation”. Second, the court must determine whether the “nature of the question” to be decided is “judicial” in the particular “institutional setting”, whether, in other words, it is required to apply “a recognized body of rules in a manner consistent with fairness and impartiality…” or rather to make a policy determination “involving competing views of the collective good of the community as a whole”. Third, the court must assess the “tribunal’s function as a whole in order to appraise the impugned function in its entire institutional context”, an assessment weighted towards a conclusion of validity, for a finding of unconstitutionality will only issue where the “adjudicative function is a sole or central function of the tribunal”.
Although this institutionally sensitive test did not save the Residential Tenancy Commission, it gives significant scope to legislatures to design institutions that, viewed in the round, do not encroach too far on the territory of the section 96 courts:
[T]he recent course of decision, especially in the Supreme Court of Canada, indicates that a pragmatic approach has taken over, and that provincial administrative agencies will be judged not only by what they do (even if it is analogous to jurisdiction exercised by a superior court at confederation or later) but as well by how they do it (that is, by a procedure unlike that of a court in the strict sense) and by the purpose to be served (for example, the administration of a social insurance scheme as in workmen’s compensation, rather than the determination of individual liability).
In addition, Canadian courts have given a “somewhat narrow definition” of the protections of the Charter of Rights and Freedoms that might fetter the implementation of regulatory policy by administrative decision-makers. For instance, search and seizure powers that are rigorously scrutinized when police officers apply them against individuals are subject to much more relaxed oversight when employed to enforce regulatory requirements; and the courts have been very reluctant to characterize regulatory penalties “primarily intended to maintain compliance or to regulate conduct within a limited sphere of activity” as penal provisions attracting the full range of procedural protections associated with criminal offences.
To this must be added the principle that, on procedural matters, administrative tribunals are “masters in their own house”. Such procedural flexibility is a central part of Quebec’s Loi sur la justice administrative, which requires the administration to conduct itself « suivant des règles simples, souples et sans formalisme et avec respect, prudence et célérité ». Were administrative hearings to adopt the trappings of courts the efficiency gains sought to be achieved by the legislature would be compromised. Canadian courts have in addition adopted a deferential posture in respect of administrators’ procedural policy choices. While the courts retain the final word on whether administrative procedures comply with the duty of fairness, they must “take into account and respect the choices of procedure made by the agency itself”: “The determination of the scope and content of a duty to act fairly is circumstance-specific, and may well depend on factors within the expertise and knowledge of the tribunal, including the nature of the statutory scheme and the expectations and practices of the [relevant] constituencies”.
Indeed, “a degree of deference to an administrator’s procedural choice may be particularly important when the procedural model of the agency under review differs significantly from the judicial model with which courts are most familiar”. It is fair to say, then, that the section 96 jurisprudence has permitted legislatures to carve out spaces to be occupied by alternative decision-making structures to the superior courts. Furthermore, the “[c]onsiderable deference” envisaged by Canadian administrative law jurisprudence allows those responsible for operating these novel decision-making structures additional scope to design their procedures to render decisions “fairly, justly and in an orderly and timely way”.
In combination, these developments have created a climate of institutional pluralism, in which legislatures are free to depart from the “core” of section 96 and to experiment with alternative forms of decision-making structure. Quebec’s Tribunal administratif du Québec, which sits in de novo review of decisions made by government departments and other bodies somewhat like a French-Canadian Conseil d’État, is one example. Ontario’s new ‘tribunal clusters’, designed “to ensure that adjudicative tribunals are accountable, transparent and efficient in their operations while remaining independent in their decision-making” are another. And British Columbia’s Civil Dispute Resolution Tribunal, with its heavy emphasis on the use of technology to resolve litigation, is perhaps Canada’s most striking example to date. An approach to the interpretation of section 96 that is sensitive to institutional pluralism and the desirability of legislative creativity in institutional design, has permitted the development of these innovative bodies.
Moreover, though it has occasionally been insisted that the resolution of “pure question[s] of law” is a matter for the superior courts alone, a “duty” that they cannot “abdicate” to administrative tribunals, Canadian courts’ policy of deference on interpretive matters is now well established: “the courts do not have a monopoly on deciding all questions of law”. On matters within the “specialized jurisdiction” of an administrative tribunal, courts must “give due consideration to the determinations of decision makers”, intervening only where the decision-maker’s interpretation “cannot be rationally supported by the relevant legislation”. There is “a margin of appreciation within the range of acceptable and rational solutions”. Indeed, the decision-maker “holds the interpretative upper hand: under reasonableness review, we defer to any reasonable interpretation adopted by an administrative decision maker, even if other reasonable interpretations may exist”. The effect is to carve out an interpretive “space” for administrative decision-makers, one in which they are free to adopt their own interpretation – which may be different to the interpretation a court would have preferred – by having regard to policy or other considerations.
This interpretive space has also recently been afforded to arbitrators’ interpretations of contractual provisions. In Sattva Capital Corp. v. Creston Moly Corp., Rothstein J. expressly borrowed from the Supreme Court of Canada’s administrative law jurisprudence to justify a deferential approach on questions of mixed fact and law. Both involve review of non-judicial decision-makers by generalist courts who are relatively less expert: “where parties choose their own decision-maker, it may be presumed that such decision-makers are chosen either based on their expertise in the area which is the subject of dispute or are otherwise qualified in a manner that is acceptable to the parties”. Rothstein J. upheld as reasonable the arbitrator’s interpretation of a clause concerning the date at which the payment of a finder’s fee ought to be calculated.
Over the years – and, as I will intimate in my next post, occasionally still today – the “core” of superior court jurisdiction has been invoked to defeat novel attempts to create innovative decision-making institutions or to cabin the interpretive space of non-judicial decision-makers, but the constitutional climate that permits institutional and interpretive pluralism to flourish is now relatively stable.
 See generally Harry Arthurs, Without the Law: Administrative Justice and Legal Pluralism in Nineteenth Century England (University of Toronto Press, Toronto, 1985).
 Gerald E. LeDain, “Sir Lyman Duff and the Constitution” (1974), 12 Osgoode Hall L.J. 261, at p. 332.
 See e.g. W.P.M. Kennedy, “The British North America Act: Past and Future” (1937), 15 Canadian Bar Review 428, at p. 429; F.R. Scott, “The Privy Council and Minority Rights” (1930), 37 Queen’s Quarterly 677; Raphael Tuck, “Canada and the Judicial Committee of the Privy Council” (1941-1942), 4 University of Toronto Law Journal 33.
  A.C. 134 (P.C.).
  A.C. 134 (P.C.), at p. 149.
  A.C. 134, (P.C.) at p. 150.
  A.C. 134, (P.C.) at p. 151.
  A.C. 134, (P.C.) at p. 151.
  A.C. 134 (P.C.), at p. 151.
 Morris C. Shumiatcher, “Section 96 of the British North America Act Re-examined” (1949), 27 Canadian Bar Review 131, at p. 131.
 Re Residential Tenancies Act, 1979,  1 S.C.R. 714. Private dispute resolution procedures agreed to by the parties are not subject to this test.
  1 S.C.R. 714, at p. 734.
  1 S.C.R. 714, at pp. 734-735.
  1 S.C.R. 714, at p. 735.
  1 S.C.R. 714, at p. 736. See also Tomko v. Labour Relations Board (Nova Scotia) et al.,  1 S.C.R. 112.
 See also Séminaire de Chicoutimi v. La Cité de Chicoutimi,  S.C.R. 681 (Quebec Provincial Court); Attorney General of Quebec et al v. Farrah,  2 S.C.R. 638 (Quebec Transport Tribunal).
 Bora Laskin, The British Tradition in Canadian Law (London, Stevens & Sons, 1969), at p. 112.
 R. v. Wigglesworth,  2 S.C.R. 541, at p. 558, per Wilson J. (referring to s. 11 of the Charter)
 These protections are set out in s. 8 of the Charter. See generally Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission),  1 S.C.R. 425 and, in particular, La Forest J. at p. 507: “there can only be a relatively low expectation of privacy in respect of premises or documents that are used or produced in the course of activities which, though lawful, are subject to state regulation as a matter of course. In a society in which the need for effective regulation of certain spheres of private activity is recognized and acted upon, state inspection of premises and documents is a routine and expected feature of participation in such activity”.
 Guindon v. Canada, 2015 SCC 41, at para. 45.
 These protections are set out in s. 11 of the Charter. See generally Martineau v. M.N.R.,  3 S.C.R. 737.
 Prassad v. Canada (Minister of Employment and Immigration),  1 S.C.R. 560, at pp. 568-569, per Sopinka J.
 C.Q.L.R. c J-3, art. 4(1).
 See generally Knight v. Indian Head School Division No. 19,  1 S.C.R. 653.
 Baker v. Canada (Minister of Citizenship and Immigration),  2 S.C.R. 817, at para. 27, per L’Heureux-Dubé J.
 Council of Canadians with Disabilities v. VIA Rail Canada Inc.,  1 S.C.R. 650, at para. 231.
 Re:Sound v. Fitness Industry Council of Canada,  2 F.C.R. 170 (F.C.A.), at para. 42, per Evans J.A.
 Council of Canadians with Disabilities v. VIA Rail Canada Inc.,  1 S.C.R. 650, at para. 231.
 Maritime Broadcasting System Limited v. Canadian Media Guild (2014), 373 D.L.R. (4th) 167 (F.C.A.), at para. 63, per Stratas J.A. See generally Roderick A. Macdonald, “A Theory of Procedural Fairness” (1981) 1 Windsor Yearbook of Access to Justice 3.
 Adjudicative Tribunals Accountability, Governance and Appointments Act, S.O. 2009, c. 33, Sch. 5, s. 1. See generally Lorne Sossin and Jamie Baxter, “Ontario’s Administrative Tribunal Clusters: A Glass Half-Full or Half-Empty for Administrative Justice?” (2012), 12 Oxford University Commonwealth Law Journal 157.
 R. v. Ontario Labour Relations Board, ex parte Ontario Food Terminal Board (1963), 38 D.L.R. (2d) 530 (Ont. C.A.), at p. xxx, per Laidlaw J.A.
 Canada (Attorney General) v. Mossop,  1 S.C.R. 554, at p. xxx, per La Forest J.
 See generally John M. Evans, “Triumph of Reasonableness: But How Much Does It Really Matter?” (2014), 27 Canadian Journal of Administrative Law & Practice 101.
 Thomas J. Cromwell, “Appellate Review: Policy and Pragmatism”, in 2006 Isaac Pitblado Lectures, Appellate Courts: Policy, Law and Practice, V-1, at p. V-12.
 C.U.P.E. v. N.B. Liquor Corporation,  2 S.C.R. 227, at p. 236, per Dickson J.
 Dunsmuir v. New Brunswick,  1 S.C.R. 190, at para. 49, per Bastarache and LeBel JJ.
 C.U.P.E. v. N.B. Liquor Corporation,  2 S.C.R. 227, at p. 237, per Dickson J.
 Dunsmuir v. New Brunswick,  1 S.C.R. 190, at para. 47, per Bastarache and LeBel JJ.
 McLean v. British Columbia (Securities Commission),  3 S.C.R. 895, at para. 40, per Moldaver J. Emphasis original.
 Peter Strauss, ““Deference” Is Too Confusing—Let’s Call Them “Chevron Space” and “Skidmore Weight”” (2012), 112 Columbia Law Review 1143.
 See generally Paul Daly, A Theory of Deference in Administrative Law: Basis, Application and Scope (Cambridge University Press, Cambridge, 2012).
  2 S.C.R. 633.
  2 S.C.R. 633, at para. 105.
 Gilles Pépin, Les tribunaux administratifs et la Constitution : Étude des articles 96 à 101 de l’A.A.N.B. (Les Presses de l’Université de Montréal, Montreal, 1969) and John Willis, “Section 96 of the British North America Act” (1940), 18 Canadian Bar Review 517 provide early accounts. See also David Mullan, “The Uncertain Constitutional Position of Canada’s Administrative Appeal Tribunals” (1982) 14 Ottawa Law Review 239.
This content has been updated on November 18, 2015 at 21:19.