Deference as respect: Lost in translation? (Mary Liston)

Mary Liston is an Assistant Professor at the Peter A. Allard School of Law, University of British Columbia

What might Canadian administrative law look like if Professor David Dyzenhaus’s chapter “The Politics of Deference: Judicial Review and Democracy,” had better informed the structure and spirit of ‘deference as respect’ in Dunsmuir? For this blog post, I will revisit this constitutive text to query not whether or not current jurisprudence comports with the Dyzenhausian conception of deference as respect and why this matters. To do this, I will track very closely paragraph 48 in the Dunsmuir decision, a paragraph that has achieved iconic status as both the warrant for eliminating the patent unreasonableness standard and the locus classicus for the Court’s understanding of the deference-as-respect principle. From a vantage point twenty years after the chapter’s initial publication, and ten years after Dunsmuir, it is clear that something has been lost in the translation. [Note: Please click on the hyperlink and read this paragraph before proceeding any further!]

The road to hell is paved with …  pre-Southam formalism

Dyzenhaus originally situated the need for a different understanding of deference in the recurring jurisprudential disagreements between democratic positivists and liberal antipositivists. According to Dyzenhaus, democratic positivists identified the legislature as the sole legitimate institutional source of law (albeit on thin democratic grounds). They also viewed the common law as a dog’s breakfast of amorphous values, many of which were highly undemocratic and inegalitarian. Liberal antipositivists, on the other hand, did not strongly separate the common law from its origins in the demos, instead viewing it as an independent, legitimate source of values best identified with individual rights and freedoms. Unlike democratic positivists, liberal antipositivists did not fear the prospect of the common law providing “a resource to judges which they could use to bootstrap themselves to the apex of the legal order” (280). Indeed, antipositivists of a libertarian bent were in fact overtly antagonistic towards the welfare state and its growing administrative branch. Both positions informed Albert Venn Dicey’s model of the rule of law since it united absolute parliamentary sovereignty with the ultimate supremacy of the courts through judicial interpretation. But the Diceyan marriage between democratic positivism and liberal antipositivism floundered on one fundamental tension: the inability to distinguish in a principled and practical way the difference between jurisdictional and non-jurisdictional errors of law in administrative decisions. The bipolar swings from correctness to patent unreasonableness illustrated this unprincipled and arbitrary oscillation.

Certain legal instruments also came to exemplify the debate. The privative clause supported the democratic positivist perspective: judges must defer to legislative command to butt out as well as to legislative intent to delegate law-making and interpretive powers to administrative agencies. Judges responded by deploying common law resources such as the canons of interpretation to obviate parliamentary intent by reading down the plain meaning of privative clauses, thereby restoring their ability to enforce the ultra vires doctrine. A mere two years after Dunsmuir in the Khosa decision, we surprisingly revisited this old pre-Southam tune. How do we solve a problem like the privative clause? In my classroom, we seem to fall into two camps: those siding with Rothstein J that legal matters become easier and more efficient when we simply make the privative clause as a determinative legislative signal for the appropriate standard of review; and, those agreeing with Binnie J’s admonition that judicial-legislative tensions in administrative law—exemplified by the privative clause—may be mitigated, but will never go away. To think otherwise is to engage in “law office metaphysics” (Dunsmuir, ¶122) and mistakenly believe that you can hold a moonbeam in your hand.

What deference as respect meant in its original context

The Dunsmuir majority claims that the move towards a single reasonableness standard neither paves the way for more intrusive review by courts nor does it represent a return to the kind of pre-Southam formalism discussed above. This claim not only adverts to recurring judicial anxieties about being labeled ‘activist,’ but also alerts us to the structural change and continuing tensions wrought by the creation of the reasonableness standard in Southam. Dyzenhausian ‘deference as respect’ pre-dates Southam reasonableness review and this matters.

In paragraph 48, the Dunsmuir majority declared that the ‘pre-modern’ formalist history of administrative law had finally been sidelined and all were united in a common commitment to move forward on new jurisprudential ground. This new ground rejected the fig leaves of legal formalism that denied the reality of judicial power by pretending that judges were in fact only obeying long-term legislative intent by reading down privative clauses, or by acknowledging judicial power but turning a blind eye to its heightened exercise in modern public law, or by waffling on whether judges do or should have independent access to the same set of constitutional values as legislators. The majority confirmed their rejection of the Diceyan conception of the principle of deference as submission to legislative intent. But did they also implicitly reject the liberal antipositivist pole as defined by Dyzenhaus? I suspect not and this is why. Their principle of deference as respect is accompanied by two conditions: 1) it entails respect for the decision-making process of adjudicative bodies with regard to both the facts and the law (later interpreted to include all administrative bodies); and 2) it entails respect for governmental decisions to create administrative bodies with delegated powers. These conditions, however, return us to the very dilemma Dyzenhaus identified in the previous section: according deference to tribunals whose reasoning processes more mirror the courts—a court-centric view—and submission to legislative command. Dyzenhausian deference as respect is grounded in respect for a decision-maker’s reasoning on all pertinent matters—facts, procedure, substantive expertise, home statute, other statutes, common law, constitutional law, standing, remedies, and so on—and not only because of legislative command. It is the whole kit and caboodle, no holds barred, fig leaves removed, the full Monty.

Dyzenhaus’s deference-as-respect principle also has two conditions: the principle is linked to a larger culture of justification and concomitant institutional practice of reason-giving; and, the principle is linked to the value of substantive equality. Dyzenhaus argued that “only this principle,” and its two conditions, can “rearticulate the proper relationship between the legislature, administrative agencies and the courts” (286, emphasis added). On my reading, the Dunsmuir majority partially commits to the first condition, while largely ignores the second. Dunsmuir therefore cannot move us beyond the death grip of Diceyan formalism. So how do these conditions shape the original conception of deference as respect?

[Lack of] attention to the [non-]reasons which were [not] offered

Reasons unite deference as respect, the culture of justification, the separation of powers, and democratic accountability. This is because accountability means “find[ing] the reasons that best justify any decision, whether legislative, administrative or judicial” (Dyzenhaus, 303, emphasis added). This model of deference as a form of accountability actually restructures judicial review, meaning that it is contrary to the proper attitude of the court and an error in the law of judicial review for a reviewing court not to consider a tribunal’s reasoning. Moreover, at no point in Dyzenhaus’s text did he ever contemplate the scenario where no—as opposed to imperfect or even minimal—reasons were given. We can see this more clearly here: “The issue for the court is not then what decision it might have reached had the tribunal not pronounced, but whether the reasons offered by the tribunal justify its decision…whether that reasoning did in fact and also could in principle justify the conclusion reached.” (303-04) And also here where he writes that the decision “should be presumed to be correct [now reasonable] even if its reasons are in some respects defective” (304) so as to avoid courts intervening when they would have come to a different decision. A legal onus therefore rests on a reviewing court to show that the administrative decision is not reasonably supportable and the only way to do this is to consider the decision-maker’s reasons as Gonthier J did in National Corn Growers. To do otherwise risks judging arbitrarily.

Paragraph 48 affirms the Baker quality assurance of non-arbitrariness both in administrative decision-making and at judicial review: respectful attention will be paid to the reasons offered or which could be offered in support of a decision. Subsequent jurisprudence illustrates the partiality of this commitment. Well, we all know where we stand in relation to post-Dunsmuir reason-giving. Recent jurisprudence permits judicial review with boilerplate reasons, ex-post facto reasons, no reasons, and reconstructed reasons given at judicial review. We have moved very far from the robust culture of justification and the central role of reason-giving originally imagined in the Baker decision or even at certain points in Dunsmuir such as in Binnie J’s concurring judgment where he underscores how central “careful consideration” to the decision-maker’s reasons must be in order for a respectful reviewing court to recognize not only the range of permissible considerations but also the proportionate balance struck in the outcome (Dunsmuir, ¶151).

The lack of a consistent methodology for reasonableness review has compounded the pernicious effects of the ratcheted down reasons requirement. Without reasons, how can a reviewing court ensure that the “Rule of Law … [speaks] in several voices so long as the resulting chorus echoes its underlying values of fairness and rationality”? (Honourable Madam Justice B. McLachlin, “The Roles of Administrative Tribunals and Courts in Maintaining the Rule of Law” (1998-1999), 12 C.J.A.L.P. 171 at 175) To my mind, the 2016 Wilson v Atomic Energy of Canada Ltd. decision brings this to a head. It should not be surprising that the adjudicator’s reasons did not appear in the judgment—after all, the adjudicator’s reasons also did not appear in Dunsmuir. Instead, the plurality of voices that we heard were those of a divided court each attempting to control the jurisprudential turf.

Democratic deference as respect

So what of the second condition—the value of substantive equality? According to Dyzenhaus, the culture of justification which informs deference as respect also unites the democratic value of the equality of all citizens with rule of law accountability through reason-giving (302). This is because the state and public actors are “… rightly held to higher moral standards than are private individuals … because the state is obligated to exemplify what it is to treat all citizens as equal” (301). Deference as respect is inherently democratic because the “difference between mere legal subjects and citizens is the democratic right of the latter to require an accounting for acts of public power” (305). In this complex web of public justification, all branches must account for their exercises of power and it is the special role of courts to be the ultimate enforcement mechanism for these justifications. Administrative law procedures, premised on the duty to hear all persons equally, provide the conduit for fair treatment and the provision of quality justifications.

For Dyzenhaus—and this is a position that will not secure universal agreement—a democratic rule of law state exhibits a commitment to substantive equality before the law, and it is precisely this commitment that motivated the creation of the 20th century administrative state as a distinct political project. We inevitably return to the political. In order to meet this second condition, judges cannot ignore the political dimensions and implications of the cases they decide—particularly in the face of significant statutory sea changes such as in the Agraira case. Nor can they sidestep grappling with substance by affirming that many reasonable interpretations happily co-exist. As Dyzenhaus pointed out, the ‘two or more’ reasonable-answer thesis—though eminently plausible—conveniently allows judges to use ambiguity to disguise the substantive choices that they make. Deference as respect requires judges to transparently and intelligibly affirm the values the decision-maker recognizes—such as the value of equality of bargaining power in the labour context or consumer equality in the marketplace—and the reasonable outcomes. It also requires that judges provide their own transparent and intelligible justifications when they disagree with the decision-maker. And when they do this, they will be non-arbitrarily activist.

Deference is dead, long live deference!

Dunsmuir offers the following sedative about reasonableness review.  It will result neither in judicial subservience to decision-makers, nor in blind reverence to administrative interpretations, nor in lip service to deference while engaging in disguised correctness review. But cases like Khosa, Febles, Agraira, Kanthasamy, McLean, Loyola, Doré, Ktunaxa, and Williams Lake have disrupted this soporific state.

Almost one hundred years later after Dicey, we are still attempting to escape him and it has become clear that Dunsmuir has not helped us near enough. We now have a different court with members eager to declare anew the judiciary as the sole guardians of the rule of law, saving us from inconsistent and otherwise unauthorized decisions. Even as Dunsmuir purports to recognize the ability of administrative actors to engage in reasonable and rational decision-making in a plurality of contexts, it affirms supervision still guided by a judicial model of rationality. As Dyzenhaus pointed out 20 years ago, this means that a return to Diceyan type judicial review is an ever present danger. And, it also means that a satisfactory account of judicial review combined with a coherent theory of the politics of deference remains a work in progress.

This content has been updated on February 18, 2018 at 22:05.