Anticipating the Supreme Court of Canada’s Administrative Law Trilogy III: A Cheat Sheet
Bushfires and volcanoes are raging in the Antipodes, the U.S. President is on the verge of impeachment, protesters in Hong Kong, India and Iran have taken to the streets, working-class retirees last week flocked to the polls in northern England to vote for MPs led by an Old Etonian. And now, standard of review has hit the headlines. Given this and the time of year, Yeats seems particularly appropriate:
And what rough beast, its hour come round at last,
Slouches towards Bethlehem to be born?
If you want to dip into any of the issues raised in my previous post, the ultimate cheat sheet is last year’s Administrative Law Matters/Double Aspect blog symposium. All the posts, by some of the country’s most distinguished practitioners, professors and judges (including the authors of the landmark decision in Dunsmuir v New Brunswick) are collected here.
When you read through the trilogy this Thursday, over the weekend and through the holidays, you will probably want to be able to get a handle pretty quickly on how effective the Supreme Court’s attempt to resolve the issues with Canadian administrative law is likely to be.
If so, you would do well to take a look at a Federal Court of Appeal decision from 2011. In Toussaint v. Canada (Attorney General), 2011 FCA 213, Stratas JA identified a number of ambiguities or uncertainties in the Dunsmuir decision:
(a) We are dealing with a Ministerial delegate, not a “tribunal” in any formal sense. In Dunsmuir the Supreme Court used the word “tribunal” on this point. In my view, although it is not perfectly clear, in Dunsmuir the Supreme Court did not intend to restrict this position of deference to interpretations by formal tribunals. Throughout its discussion of the standard of review, the Supreme Court used the terms “tribunal,” “decision maker,” “exercises of public authority,” “administrative bodies,” “adjudicative tribunal,” “adjudicative bodies,” “administrative tribunal,” and “administrative actors”: Dunsmuir, supra at paragraphs 28-29, 31, 33, 41, 47-50, 52, 54-56, and 59. It seems to have used the terms interchangeably and, collectively, they are wide enough to embrace a Ministerial delegate such as the Director.
(b) In a relatively recent decision, albeit before Dunsmuir, the Supreme Court did not defer to the interpretation of a Ministerial delegate who was interpreting a statute closely related to his function: Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57 (CanLII),  2 S.C.R. 706, (a visa officer making an assessment under subparagraph 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I‑2); see also Canada (Minister of Citizenship and Immigration) v. Patel, 2011 FCA 187 (CanLII) and cases cited at paragraph 27 of Patel. This is certainly consistent with how we today approach decisions involving some other Ministerial delegates. For example, in the income tax context, income tax assessors – Ministerial delegates – are very familiar with the Income Tax Act. One might think that the normal administrative law standard of review analysis would apply to appeals of these administrators, with deference to their legal interpretations being the result: see, e.g., Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC),  1 S.C.R. 748 and Dunsmuir, supra at paragraph 54. But it does not. The Tax Court of Canada, sitting in appeal on income tax assessments, and this Court do not defer at all to the statutory interpretations of the Minister’s delegate.
(c) The Supreme Court spoke in Dunsmuir of deference to interpretations of certain types of “statutes.” Did it mean to restrict this principle to “statutes”? There would appear to be no principled basis to do so. Deference probably also applies to interpretations of other types of laws, such as the Order in Council in this case.
(d) The Director’s title seems to suggest that he administers programs such as this, and so he could be considered to be interpreting what Dunsmuir described as a law “closely connected with [his] function,” warranting our deference. But there is no evidence in the record on this one way or the other, nor would one expect there to be such evidence given the narrow nature of a record on judicial review.
(e) The position of deference for administrative interpretations of statutes is said in Dunsmuir to apply only “usually” or “normally.” Does this qualification refer to the situations mentioned in Dunsmuir where the correctness standard applies? Perhaps not, as these situations largely do not involve issues of statutory interpretation. Does this qualification refer to some as yet unidentified situations? We simply do not know.
(f) In this particular case, as we shall see, the Director did not engage in any actual interpretation of the Order in Council. Rather, he simply interpreted and applied an administrative policy made under that Order in Council. Does this mean that the Director’s decision is subject to correctness review? I am not so sure. There are statements in Dunsmuir that suggest that the Director’s failure to interpret the Order in Council may not matter. In two places in Dunsmuir, the Supreme Court suggests that in assessing the substance of decision-making under the reasonableness standard we are to examine the outcome reached by the decision-maker and not necessarily the plausibility of the reasons actually given. At paragraph 47, we are directed to ask ourselves “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” and at paragraph 48 we are told that an administrative decision can be supported on the basis of reasons that “could have be[en] offered” [emphasis added].
(g) I am not alone in my doubts on this issue. Recently, this Court discussed Dunsmuir and the standard of review that should apply to the Governor in Council’s interpretation of a statute. It found the law in this area to be unclear: Global Wireless Management Corp. v. Public Mobile Inc., 2011 FCA 194 (CanLII) at paragraph 35.
In Toussaint, Stratas JA anticipated many of the issues which would cause such strife for Canadian administrative lawyers. If you find yourself asking similar questions in the aftermath of the trilogy, the chances are that the Supreme Court will not have succeeded in bringing clarity, coherence and predictability to Canadian administrative law. Yeats’s ghost will be whispering The Second Coming in your ear.
If not, however, we may be on the cusp of a happier era, maybe one where the sunnier disposition of Keats will remind us to look on the bright side, that “gathering swallows twitter in the skies” to usher in a clear, coherent and predictable standard of review framework.
This content has been updated on December 18, 2019 at 16:01.