Which Way Forward for Canadian Administrative Law? Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47
Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47 was thought to represent an opportunity for the Supreme Court of Canada to revisit (again!) its standard of review framework.
The underlying question was whether an Assessment Review Board could increase the value of a property assessment where a taxpayer had applied for a decrease in the assessed value. Here, the assessment was almost doubled (from $22m to $41m), an outcome greeted no doubt with consternation by the taxpayer, who may also have legitimately observed that in the common law tradition, the appeal rights of state bodies are often more limited than those of the individuals subject to their authority.
In the Alberta Court of Appeal (see my comment), Slatter J.A. had insisted that a “mechanical and formalistic” approach to judicial review was inappropriate, preferring to identify several contextual factors that justified the application of a correctness standard. In his view, the property assessment could not be increased: “There is no room in the complaint procedure for a municipality to effectively mount a cross-complaint and seek an increase in the assessment” (2015 ABCA 85, at para. 40).
Moreover, there has now been a significant change in the make-up of the Court: of the 9 judges that decided Dunsmuir, only 2 (McLachlin C.J. and Abella J.) remain (although Cromwell J., now replaced by Rowe J., did sit on this case). In these circumstances — an underlying question that touches broader issues of relative powers of the state and individuals; an appellate decision adopting a critical perspective on the Court’s jurisprudence; and a Court with a majority of judges who did not sign off on Dunsmuir — a major reconsideration of administrative law principles was certainly a possibility.
In the end, however, a five-judge majority defended the Dunsmuir framework and in particular the presumption of reasonableness review that has been grafted onto it, against an attack by four dissenters. For Karakatsanis J., who wrote the majority reasons, “the principles in Dunsmuir should provide the foundation for any future direction”, although “any recalibration of our jurisprudence should await full submissions” (at para. 20).
Here, there was no reason not to apply the presumption of reasonableness review, because the Board was interpreting its home statute. Indeed, “recognizing issues arising on statutory appeals as a new category to which the correctness standard applies — as the Court of Appeal did in this case — would go against strong jurisprudence from this Court” (at para. 28).
Karakatsanis J. took a firm line on the primacy of the categorical approach that has emerged post Dunsmuir: “The contextual approach can generate uncertainty and endless litigation concerning the standard of review” (at para. 35).
The dissenters, for whom Brown and Côté JJ. wrote (and included, notably, McLachlin C.J.), were more expansive. Correctness was the appropriate standard based on a contextual approach: “An approach to the standard of review analysis that relies exclusively on categories and eschews any role for context risks introducing the vice of formalism into the law of judicial review…” (at para. 70). In administrative law cases, it is always necessary to ask “what the appropriate standard of review is for this question decided by this decision maker” (at para. 71, emphasis original): “The contextual standard of review analysis ensures that legislative intent is respected and the rule of law is protected when courts review decisions of administrative actors” (at para. 89).
Moreover, “[a]n administrative decision maker is entitled to deference on the basis of expertise only if the question before it falls within the scope of its expertise, whether specific or institutional” (at para. 83). The presumption of reasonableness review for interpretations of a decision-maker’s home statute, however, assumes that expertise is ever present: “in strengthening the presumption by ignoring or explaining away any factors that might rebut it, the majority risks making this presumption irrebuttable” (at para. 82).
Here, “the wording of this statutory appeal clause, in combination with the legislative scheme, points to the conclusion that the legislature intended that a more exacting standard of review be applied to questions appealed to the [courts]” (at para. 73). The statute provided for an appeal with leave, on questions of law or jurisdiction of sufficient importance and with sufficient prospects of success to merit a hearing (at paras. 75-78). In addition, the acompanying remedial powers indicated that the courts were to have the capacity to correct legal or jurisdictional errors (at para. 79) and the legislative scheme was designed to provide unity of interpretation across municipalities (at para. 80). Finally, the Board did not have expertise in statutory interpretation but rather in “complex matters of valuation of property”, a point underscored by form of the statutory appeal clause: “While the Board may have familiarity with the application of the assessment provisions of the Act, the legislature has recognized that the Board’s specialized expertise does not necessarily extend to general questions of law and jurisdiction” (at para. 87).
One interesting feature of the minority reasons is the absence of any detailed discussion of the series of recent cases (noted by the majority at para. 29) in which deferential review has doggedly been applied as a matter of course to statutes featuring appeal clauses. These are inconvenient (and in my view unprincipled) features on the administrative law landscape. This is a problem for those who would like to reform Canadian administrative law. I have much sympathy for the dissenting position in this case. But inconvenient cases cannot be ignored simply because they are inconvenient. It seems to me that the only way to move the law forward within the existing framework without starting again from scratch is to apply reasonableness review across the board, with the important caveat (borne out, I would say, by the decisions on the merits in Kanthasamy and Saguenay) that the range of reasonable outcomes will be narrower in cases featuring an appeal clause.
Obviously the majority and minority groups took different views on the underlying question, the dissenters agreeing with the Alberta Court of Appeal that the authorities may not ask the Board to increase the assessment. The majority preferred the view, however, that the Board’s interpretation was reasonable. But the Board had never given reasons for its interpretation! As Karakatsanis J. explained, “it is hardly surprising the Board did not explain why it was of the view that it could increase the assessment: the Company expressly conceded the point” (at para. 40).
There follows (at paras. 41-61) a detailed discussion of “the reasons which could be offered in support of” the Board’s interpretation (at para. 40, emphasis original). Karakatsanis J. points to multiple features of the elaborate statutory scheme that might be said to support the alternative interpretation and explains how each of them is nonetheless consistent with the Board’s interpretation (if one can call it that), much of which is supported by reference to a decision made by another body that “formerly” had appellate jurisdiction from the Board (at para. 44).
This, frankly, is quite bizarre. Who knows what the Board would have said if these points had been made to it? Indeed, who knows what the Board will say in future cases when these points are made to it? (Question the extent to which it will be bound by the Court’s decision, particularly in light of the comment, at para. 61, that the alternative interpretation would frustrate the purpose of the legislation). In some cases, it might be a waste of resources bemoaned by all parties to remit a matter to the initial decision-maker for it to give a considered view on the matter in dispute. Here, however, I very much doubt that the company whose assessment jumped from $22m to $41m would complain too loudly about having a second chance before the Board. And I doubt that the Board, which participated only as an intervener, would complain too loudly either.
See also Shaun Fluker.
This content has been updated on November 14, 2016 at 11:12.