Audrey Macklin on the Supreme Court of Canada’s Administrative Law ‘Trilogy’

This is a guest post from Professor Audrey Macklin

I represented the intervener Canadian Association of Refugee Lawyers (CARL) before the Court in Vavilov.  I will not rehearse the contents of the factum or my oral argument. Suffice to say that that, as a colleague remarked to me, the Court appeared “completely nonplussed” by my oral submissions.

Truth be told, sitting in court over three days and listening to the Court’s comments and questions did cause me to rethink CARL’s position. Not because I think our position was wrong normatively or jurisprudentially, but because I grew increasingly discouraged by the interaction between the Court and the procession of parties and interveners who came before it. I am now less optimistic about what this Court (perhaps any court) can do with the hot mess that standard of review has become.  I have taught administrative law for over 25 years, and standard of review doctrine has never been easy, transparent or free from contradiction. But in the last few years, it has become unteachable. I fear the Court will not be able to devise a methodology that enables them to communicate a coherent methodology for operationalizing deference in the interpretation of law that looks meaningfully different from the existing technique of statutory interpretation.

I used to think that the doctrine was salvageable, but now I am doubtful. Maybe it’s time to abandon standard of review. Canadian judges who have internalized the norms animating deference don’t need standard of review.  Canadian judges who have not internalized them will not be restrained by standard of review. On the other side, many administrative decision makers are indeed experts at what they do.  But deeming all administrative decision makers as experts will not make the remainder into experts.  Canadian jurisprudence has been distorted by wishful thinking about judges and about administrative actors.

Were I to intervene anew, I would advance a more radical proposal, though not because it would be practical in the sense of finding a warm reception from the court.  During the hearing, some judges repeatedly bridled at the notion of turning their back on any significant chunk of the past twenty years of jurisprudence, despite the incontrovertible evidence that the jurisprudence had led to unmanageable disorder.  We all understand that the Rule of Law places a value on maintaining stability in the legal order, and judicial resistance to sudden or dramatic change is an institutionally rational type of conservatism.  The problem is that the jurisprudence to which the judges cling is itself destabilizing.  Something has to give, and I worry that the Court may be flattered into believing that tinkering will do.  It won’t.

So, when I say that a more radical change would be practical, I only mean that it could be operationalized by judges and lawyers as they are, in light of administrative decisions makers as they are. It would do no worse (and possibly better) a job of enabling deference where it is warranted, and intervention where it is not.

My proposal (inspired in part by Sheila Wildeman’s incisive analysis) is that we stop arguing about standard of review, and argue instead about the techniques of statutory interpretation.   But wait, you say, doesn’t that just mean all- correctness-all-the-time?  Or maybe all-reasonableness-all-the-time?  No.  Correctness and reasonableness don’t have a free-standing meaning outside the encrusted Canadian architecture of standard of review.

One of the interveners advanced the argument that we don’t need a standard of review analysis, and that other common law jurisdictions apart from the US (eg. UK, Australia, NZ) got along quite well without one. Well, one of the judges retorted, that’s because they persist in a classically Diceyan view of the rule of law that regards administrative tribunals as truly inferior in all respects. The insinuation behind this remark is that these benighted commonwealth judges are trapped in some nineteenth century intellectual dungeon.  That is simply wrong.  It is also a peculiarly parochial projection of Canadian doctrinal categories onto the world.

In fact, judges from other jurisdictions are indeed capable of recognizing and factoring into statutory interpretation an appreciation of the broader purposes, policy objectives, operational realities and normative pluralism of the modern administrative state. Especially when decision makers and counsel explain it to them. Judgments from other common law jurisdictions can manifest the type of ‘respectful attention’ to administrative decision-makers’ statutory interpretation that Canadian judges would call deference.  By the same token, there are enough Canadian judgments that show a failure to do so even under the rubric of deference.

Consider these two familiar Canadian judgments:

In Alberta Teachers, s. 50(5) of the statute provided that an inquiry must be completed within 90 days of a complaint being received unless the Commissioner notified the parties that she was extending the time period and provided an anticipated date for completing the inquiry. I think it is safe to say that a plain reading of the statute would suggest that notice should be provided before the 90 days expire, as opposed to the 22 months that actually passed before notice was provided. After all, what’s the point of notifying someone that an inquiry won’t be completed in 90 days, after the 90 days have passed? And yet, the Supreme Court accepted that the operational realities of the Commission defeated the attempt to legislate speed, and that compelling notice prior to 90 days would be pointless because the Commissioner would not be able to accurately predict the anticipated date of completion.  It would generate more paper without conveying more meaningful information. Besides, the Commission remained in contact with the parties throughout the process, so that they were not left in the dark.  These are valid policy considerations and they are capable of justifying the interpretation that the Court endorsed as reasonable, though the arguments on the other side are certainly plausible. My point here is not to endorse or condemn the Court’s result, but to commend the Court for taking all the arguments – including contingent arguments about efficiency, resources, and operational realities – seriously.

Contrast this to Mowat, where the issue was the reasonableness of the Canadian Human Rights Tribunal’s interpretation of ‘expenses’ to include legal costs.  Here, the Court regarded access to justice considerations that supported inclusion of legal costs as a mere policy concern – a preference for what the law ought to say rather than what it actually said.  (That the Court’s own statutory interpretation was deeply flawed in various ways is also relevant, but I won’t pursue that here).  My point is that the operational considerations that influenced the Court in Alberta Information and Privacy Commissioner were no more or no less ‘policy’ considerations than access to justice for victims of discrimination.  Access to justice should have been on the table in Mowat, just as operational efficiency was on the table in Alberta Information and Privacy Commissioners. A sophisticated and genuinely modern approach to statutory interpretation would take access to justice seriously as a factor in respectful statutory interpretation — whatever the ultimate result — rather than dismissively disregard it as extrinsic to the enterprise of making sense of the statute in context.  In a similar vein, the idea of gatekeeping consideration of Charter principles or international law by requiring a prior determination of ‘ambiguity’ in the statute evinces a formalist and vacuous classification scheme that impoverishes statutory interpretation.  It is dumb in the same way that figuring out the ‘correct’ answer and then measuring the decision maker’s decision against it is dumb.

As these two cases show, sometimes, the Court seems able to approach statutory interpretation with great sensitivity and nuance in relation to the range of normative, policy, operational and other considerations.  Other times, it doesn’t.  It is not always the case that a broad-minded approach will or should favour the outcome of the decision-maker (and thus appear deferential).  Consider that the common law has historically taken the interests of property, contract and liberty seriously in statutory interpretation, such that presumption against their infringement operates as one (of many) tools of statutory interpretation.  Surely a modern court can recognize other important interests (or impacts) as well.  Should the denial of citizenship matter in a way that advertising revenue from a Super Bowl broadcast might not?  These are all matters about which reasonable people (and lawyers, and judges) may disagree as they undertake statutory interpretation.  The point of renovating doctrine is not to eliminate disagreement, but to direct it onto terrain where the disagreement about what matters can be had openly.

It is useful to recall the potted genealogy of judicial review of statutory interpretation that got us to this place:  Retrograde judges used ‘ordinary’ tools of statutory interpretation to thwart labour and social legislation in the late nineteenth and twentieth century.  Legislators responded with privative clauses, but courts circumvented them and continued to subvert the goals of these statutory regimes.  Eventually, Chief Justice Dickson in CUPE tried to rein in the courts by explicitly making the case for curial deference.  And since then, we have been wrestling with when and how to defer.  It hasn’t worked, and this is not for lack of effort by courts, lawyers and sympathetic academics, and I count myself in this last category.  So maybe it is worth going back to the first misstep, which was the (mis)use of statutory interpretation to undermine legislation and the decision makers implementing it.

Forget about standard of review and argue directly about what ought to count in statutory interpretation, why it ought to count, and how it ought to count.  Is this a perfect solution?  No. Is it comprehensive? No – at least not yet. For example, one would still need to figure out what to do about privative clauses and statutory appeals, and how to approach questions of fact, mixed law and fact, or discretion.

Does forgetting about standard of review signify that there is only one correct answer? No, but it does convey that courts will designate one answer among a range of options as the ‘best’ interpretation under the circumstances.  That does not pre-empt administrative decision makers from participation.  A genuinely modern and sophisticated approach will make administrative actors partners in identifying and using the tools that enable selection of the best interpretation.

This is not the only way to address the current morass, and it was not my original preference. But sometimes, it’s not about finding a perfect solution to a problem (because some problems cannot be solved), but about choosing a better set of problems. I am (somewhat reluctantly) tilting toward the view that arguing about the tools of statutory interpretation (and what they produce) might generate a better, more tractable set of problems than the problems the Court has created by arguing about the choice and application of standard of review.

This content has been updated on December 14, 2018 at 15:59.