Thinking about the Upcoming Trilogy: West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22
David Mullan was (unsurprisingly) quite right: the Supreme Court of Canada’s decision in West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22 seems to shed some light on how the Court is likely to approach the trilogy of cases in which it will revisit the standard of review analysis. There is a useful summary, with comments from me and Adam Goldenberg, in the Lawyers’ Daily.
There were two issues for the Court to resolve, both arising out of the death of a tree faller on a property owned by West Fraser Mills. First, whether the BC Workers’ Compensation Board had the authority to promulgate a regulation imposing workplace safety obligations on any “owner of a forestry operation” given its power to “make regulations the Board considers necessary or advisable in relation to occupational health and safety and occupational environment”. Second, whether the Workers’ Compensation Appeal Tribunal (to which the company had appealed) was entitled to impose an administrative monetary penalty on West Fraser Mills, in the exercise of its power to penalize any “employer”, notwithstanding the absence of employment relationship between the company and the deceased tree faller.
The Court produced four opinions, finding 8-1 for the Board (on the merits, but not on the appropriate analytical framework) on the first issue and 6-3 for the Board on the second issue (without notable disagreement on the analytical framework). On the merits, I found the majority’s reasons, written by McLachlin CJ persuasive on the first issue, but less so on the second.
The interest of the case for administrative lawyers does not lie there though. Rather, it lies in the disagreement on the appropriate analytical framework for reviewing regulations, which produced, on the first issue, four separate opinions engaging with the Court’s recent (and not always readily reconcilable) decisions in Catalyst Paper, Katz (noted here), Canadian National (noted here) and Green (noted here). Particularly significant, in my view, are three fault lines the disagreement reveals, fault lines that may prove very important in the upcoming trilogy.
First, the role of reasons. Applying reasonableness review to regulations can be difficult, because there are often no reasons to review. Consider the ambiguity in the following passage penned by McLachlin CJ: “The question before us is whether s. 26.2(1) of the Regulation represents a reasonable exercise of the Board’s delegated regulatory authority. Is s. 26.2(1) of the Regulation within the ambit of s. 225 of the Act?” (at para. 10). The first sentence points towards reasonableness review, but the second — within the ambit — suggests correctness review, with the McLachlin CJ setting out the (“very broad”) boundaries, or “ambit” of the Board’s authority.
Indeed, much of the analysis that follows — nominally reasonableness review — involves McLachlin CJ setting out her view of the optimal interpretation of s. 225 (see paras. 13-18). As she put it, “Determining whether the regulation at issue represents a reasonable exercise of the delegated power is, at its core, an exercise in statutory interpretation, considering not only the text of the laws, but also their purpose and the context” (at para. 12, emphasis added; cf the subtly different approach taken in Green).
But then, how could it be otherwise? On some occasions, bodies adopting regulations might give reasons, or reasons might be revealed by the record: this was the case in Catalyst Paper ( 1 SCR 5, at paras. 29 and 33) and in the Ontario part of the Trinity Western litigation (see here). Here, however, the Board gave no reasons for adopting the regulations. As Côté J asked: “If a court does not know the reasons justifying a decision or an exercise of jurisdiction, how can it afford any deference?” (at para. 69).
This is an important issue, not confined to review of regulations. Non-adjudicative decision-makers do not always give reasons. Even adjudicative decision-makers do not invariably do so. Moreover, both non-adjudicative and adjudicative decision-makers sometimes give reasons that are deficient in that they do not explain and justify the decision reached. Determining how to address these situations will be a key challenge for the Court in the upcoming trilogy.
Second, the relative advantages of categories versus context and form versus substance. On the first issue, Côté J was quite clear that it was “jurisdictional in nature: whether the Board has the authority to adopt a regulation of this nature at all” and not a challenge to the merits, such that there was “only one answer: either the Board acted within its powers, or it did not” (at para. 56, emphasis original). Cases involving “whether a regulator had the authority to adopt a particular regulation” are quite different from those involving “challenges to the substance or merits of an impugned regulation” (at para. 64).
Not only did Côté J draw this clear distinction between jurisdiction and merits, she also noted “an important distinction between actions taken by a regulator in an adjudicative capacity and actions taken by a regulator in a legislative capacity” (at para. 57), thus setting out two categorical/formal distinctions, between jurisdiction and merits on the one hand and between legislative action and adjudicative action on the other hand.
For his part, Rowe J took the view that an inquiry relating to the validity of a regulation invariably has “two steps”, the first a jurisdictional inquiry, the second “a substantive inquiry into the exercise of the grant of authority”, both involving statutory interpretation, “the first focusing more on the grant of regulation-making authority, the second having regard more generally to the scheme and objects of the statute” (at para. 127). Interestingly, and reflecting my observations above about applying reasonableness review where there are no reasons to review, Rowe J concluded that “in effect” this was how the majority analyzed the validity of the regulation (at para. 128).
Despite their formal/categorical orientation, both Côté and Rowe JJ were also influenced by a substantive consideration, that of expertise (or the absence thereof). Rowe J put the point forcefully, taking particular issue with the majority’s reliance on regulatory expertise as a substantive/contextual rationale for deference to the Board:
I would agree that “working day to day” with an administrative scheme can build “expertise” and “field sensitivity” to policy issues and to the weighing of factors to be taken into account in making discretionary decisions. But how does “working day to day” give greater insight into statutory interpretation, including the scope of jurisdiction, which is a matter of legal analysis? The answer is that it does not. This is one of the myths of expertise that now exist in administrative law (at para. 129. See also paras. 58-59 (Côté J)).
Côté J also grappled with democratic accountability as a substantive consideration, though primarily as an analytical tool to distinguish the present case from Catalyst Paper and Green (at paras. 65-66).
The approach of Rowe and Côté JJ is thus distinct from the “contextual assessment” preferred by the majority (at para. 8 and see paras. 9 and 19-21 for a consideration of expertise and statutory language).
Intriguingly, Brown J ended up somewhere between the majority and his fellow dissenters. Whilst he also perceived a clear distinction between jurisdiction and merits (at paras. 114 and 117-119), he conceded “that the distinction between matters of statutory interpretation which implicate truly jurisdictional questions and those going solely to a statutory delegate’s application of its enabling statute will be, at best, elusive” (at para. 124). Indeed, in his view, “binary standards of review” might not be suited to judicial review of administrative action:
[M]ore flexibility — that is, something focussing more closely on intensity of review, rather than binary categories — might better account for the unavoidably varying contextual considerations that arise in judicial review of administrative decisions. Such contextual considerations could include the breadth of discretion contained in the statutory grant, the nature of the decision, the nature of the decision maker, and the stakes for the affected parties (at para. 124).
It is not clear whether Brown J thought this approach would be workable in the present case (though I assume not) but it certainly reveals a preference for contextual/substantive analysis, at least where appropriate.
Accordingly, we can anticipate that the fault line between the formal/categorical and substantive/contextual will be very significant in the upcoming trilogy.
Third, the importance of fidelity to precedent. In the past, the Court has sometimes ignored or liberally interpreted relevant precedents: I have instances like this one and this one in mind (and see more generally here). Here, however, the dissenters made a concentrated effort to demonstrate that their preferred approaches are consistent with binding authority: see especially Côté J’s analysis at paras. 61-68 and Brown J at paras. 115-116.
In one sense, this is not a surprise, because the authorities here, especially United Taxi Driver’s Fellowship of Southern Alberta v. Calgary (City),  1 S.C.R. 485, supported the dissenters’ preferred formal/categorical approach, which has not been true of other recent cases in which the dissenters joined forces, such as Quebec (Attorney General) v. Guérin, 2017 SCC 42 (noted here).
In another sense, however, fidelity to precedent on the part of those members of the Court who are (it seems) the least happy with the post-Dunsmuir jurisprudence (see also Brown and Côté JJ’s joint dissent in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47 (noted here)) suggests that the upcoming trilogy will feature a significant degree of continuity with the Dunsmuir era. Either way, the degree of fidelity to precedent will play an important role in determining the outcome of the trilogy.
Quite how the fault lines will shift in the coming months — and where Martin J, the newest member of the Court, finds herself in relation to them — is unclear, but they will greatly influence the future development of Canadian administrative law.
This content has been updated on May 21, 2018 at 12:44.