Striking a Balance between Legal Centralism and Legal Pluralism

Before Christmas, I posted some thoughts on s. 96 of the Constitution Act, 1867 (see e.g. here and here). I have just finished revising my paper, which will appear in an edited collection about which I hope to say more soon. Here is the additional material I inserted in the last section, about how Canadian courts may strike a balance between the legal centralism implied by their exegesis of s. 96 and the legal pluralism that has become increasingly influential in their doctrines of public law.


The contrast between Trial Lawyers Association and Hyrniak suggests an answer: that the section 96 courts – and lawyers more generally – should stand up for the values “fundamental to the legal order as a whole”[1] whilst also appreciating the limitations of traditional lawyerly analysis; establishing the “parameters of legal tolerance”[2] in a way that is respectful of the desirability of legislative and administrative flexibility in meeting new challenges.

Canadian courts’ treatment of privative clauses, which purport to oust judicial review of administrative decisions, is instructive. If such provisions were taken literally they could do grievous violence to the rule of law by sheltering entire areas of administrative decision-making from judicial control. But there are various lawyerly ways of dodging around these clauses: one can say that a privative clause is designed only to protect decisions within a decision-maker’s jurisdiction, not decisions tainted by legal error;[3] or that such provisions unconstitutionally deprive superior courts of one of their “core” competencies, that of performing judicial review of administrative action.[4] Such judicial manoeuvering, however, would run counter to a clearly expressed legislative intent to protect administrative decision-makers from judicial oversight.[5] Accordingly, Canadian courts have consistently treated privative clauses as indicating that a relatively greater degree of deference should be accorded by courts to the decision-maker under review.[6] They have taken statutes seriously, without compromising the “core” function of judicial review or fundamental legal values[7].

Striking an appropriate balance may occasionally mean making hard choices and, in particular, not yielding too easily to the clarion call of policy considerations. For instance, administrative tribunals may be tempted to take a generous view of their power to reconsider their own decisions. Though the scope of reconsideration is limited at common law by a desire to preserve the finality of administrative action,[8] tribunals often have statutory powers that exceed the narrow confines of the common law.[9] It has been suggested by several members of the British Columbia Court of Appeal that an administrative tribunal may, in effect, perform judicial reviews of its own decisions;[10] that is, a party who is displeased with a decision can challenge it on reconsideration within the administrative process rather than seeking judicial review in a superior court of record. This is said to be justified by considerations of access to justice:[11] why force parties down the longer and more expensive route of judicial review when an internal avenue can be created?[12] However valid these policy objectives, however, they would have the unfortunate result of denuding one of the well-established “core” functions of the superior courts. Conducting a judicial review of a judicial review gives rise to serious problems. One is constitutional in nature: judicial functions cannot be hived off from the superior courts and vested in statutory bodies.[13] Another is analytical: the question will no longer be the legality and fairness of the original decision – which is the question a court must ask itself on judicial review – but whether the reconsideration decision was lawful and fair. This inserts a layer of opacity between the reviewing court and the decision affecting a person’s “rights, privileges or interests”.[14] The constitutional and analytical problems are interrelated, for the resultant opacity undermines a reviewing court’s ability to perform its constitutionally guaranteed role of ensuring the decision-maker stayed within the boundaries of legality. In any event, duplicating a “core” function of the superior courts in the administrative process hinders access to justice by adding an additional layer of internal decision-making, after which judicial review will be available anyway.

[1] Peter W. Hogg, “Judicial Review: How Much Do We Need?” (1974), 20 McGill LJ 157 at 175.

[2] J.N. Lyon, “Comment” (1971), 49 Can Bar Rev 365 at 379.

[3] See most famously, Anisminic v. Foreign Compensation Commission, [1969] 2 AC 147; Metropolitan Life Insurance Co. v. International Union of Operating Engineers, [1970] SCR 425.

[4] Crevier v. A.G. (Québec), [1981] 2 SCR 220.

[5] See generally David Dyzenhaus, “Disobeying Parliament: Privative Clauses and the Rule of Law” in Richard W. Baumann and Tsvi Kahana eds., The Least Examined Branch: the Role of Legislatures in the Constitutional State (Cambridge: Cambridge University Press, 2006) at 499.

[6] See e.g. United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction, [1993] 2 SCR 316 at 333.

[7] See generally Paul Daly, A Theory of Deference in Administrative Law (Cambridge: Cambridge University Press, 2012) at 289-293.

[8] See generally Chandler v. Alberta Association of Architects, [1989] 2 SCR 848.

[9] See e.g. An Act Respecting Administrative Justice, CQLR, c J-3, s 154 (Administrative Tribunal of Quebec).

[10] Lysohirka v. British Columbia (Workers’ Compensation Board), 2012 BCCA 457 at para 32, Garson JA; Fraser Health Authority v. Workers’ Compensation Appeal Tribunal, 2014 BCCA 499, at paras 62-63, Newbury JA, dissenting [Fraser].

[11] See generally Access to Justice Committee, Reaching Equal Justice Committee: An Invitation to Envision and Act (Ottawa: Canadian Bar Association, 2013).

[12] Fraser, supra note 108 at para 66, Newbury JA, dissenting.

[13] Chicoutimi, supra note 66; MacMillan, supra note 18.

[14] Cardinal v. Director of Kent Institution, [1985] 2 SCR 643 at para 14.

This content has been updated on March 15, 2016 at 08:14.