Canadian Administrative Law for Americans
This week I was invited to do a Faculty workshop at Penn State Law on my paper “The Vavilov Framework and the Future of Canadian Administrative Law“. Having written the paper for a Canadian audience who knew most or all of the backstory to Vavilov, I had to give some thought to setting the scene for international readers coming cold to the Supreme Court of Canada’s new judicial review framework.
In particular, just as the UK and the USA are, famously, two countries divided by a common language so too are the USA and Canada two countries divided by a common term, “deference”. Chevron deference is hugely legally and politically controversial and reasons for decision play a much less prominent role than they do in Canadian administrative law.
An important set of institutional and cultural differences help to explain divergences in the understanding of “deference”.
First, the USA has a presidential system, whereas Canada has a Westminster-style fused executive-legislature characterized by high levels of party discipline. Even in a minority Parliament, a Canadian government can typically count on the support of its party members and thus cobble together relatively stable coalitions for legislative proposals. Whereas, in the USA divided government may prevent the executive from achieving its policy goals through legislation (driving it to achieve those goals through regulation and other executive action instead), a Canadian government can typically get its legislative programme through. Deference is key for American administrations faced with a hostile Congress. But Canadian governments could get along without deference. This does not mean deference is irrelevant in the Canadian context but it helps to explain why the political stakes are generally lower.
Second, there is no obvious Canadian equivalent to the Administrative Procedure Act. The APA represents a ‘big bang’ in American administrative law. All debate and discussion now revolves around its provisions for rule-making, adjudication and judicial review. By contrast, although there are of course a variety of Canadian statutes at the federal and provincial level setting down general and particular requirements for rule-making, adjudication and judicial review, none of these has anything like the gravitational force of the APA. Whereas the USA has a ‘superstatute’, Canada is still firmly in the common law tradition of incremental evolution by the judiciary of controls on public administration. In this tradition, there is a notable distinction between appeals, which are always creatures of statute, and judicial review, which is part of the supervisory jurisdiction of the common law courts. In Vavilov, the appeal/review distinction was, of course, very important.
Third, Canadian administrative law forms a unitary national system. The federal and provincial levels of government are mostly free to construct administrative decision-making processes as they see fit. But the controls on public administration are developed by the courts, ultimately overseen by the Supreme Court of Canada. Because the unitary system applies from coast to coast and because there is no equivalent of the APA, the role of the courts in developing the common law of judicial review of administrative action is relatively uncontroversial. Whereas the legitimacy of “administrative common law” is a hotly-debated question in the USA, Canadian courts face no similar challenges to their legitimacy (beyond the standard debates common to all common law countries about whether the judges are encroaching too far on the territory of the political branches of govenrment).
First, most of the major Canadian administrative law cases have been about adjudication, not rule-making. New Brunswick Liquor, Southam, Puspanathan, Dr. Q., Ryan, Dunsmuir, Newfoundland Nurses and Vavilov — the standard of review landmarks — were all adjudications. Even the prominent rule-making cases, Catalyst Paper, Katz, Trinity Western University and Bell Canada/NFL have involved general rules which were carefully targeted at a small group of individuals or companies. By contrast, major American administrative law cases — Chevron, Mead, Massachussets v EPA, King v Burwell — have involved rules, not adjudications. What this means is that Canadian administrative law has mostly been developed in cases where there were reasons for decision grappling with the specifics of the matter under review. Of course, the American cases have also had reasons of a sort but they are necessarily more general in nature. This helps to explain, I think, why some American deference-sceptics see Chevron deference as a thumb on the scales in favour of the government: a government’s interpretation might get deference independent of the reasons underpinning the interpretation.
Second, because in Canada the executive and legislature are fused, governments can pursue their major policy objectives through legislation. Administrative law cases tend, therefore, to have relatively low political salience. But in the USA, divided government and Congressional gridlock mean that presidents often use administrative action to advance their policy goals. Thus national questions relating to immigration, healthcare and climate have been litigated in high-profile cases. Canada has its share of high-profile public law litigation but it occurs mainly in the field of constitutional law. This is not to suggest that Canadian administrative law cases are unimportant, just that their political salience is low relative to the American equivalents and to constitutional challenges to the regulatory authority of federal and provincial legislatures. The stakes being lower, the boundaries of deference are less hotly contested — not uncontested but less hotly contested: it is difficult to see the US Supreme Court constructing a similar coalition to the one which produced the majority in Vavilov.
Third, the Canadian judiciary does not map onto partisan lines in the same way that the American judiciary does. I would not go so far as to say that the Canadian judiciary is not ideological but once appointed judges demonstrate a high degree of independence from the politicians who appointed them. There is also a broad consensus in the areas of constitutional and statutory interpretation, with no equivalents to the fierce American debates about originalism versus living constitutionalism and textualism versus purposivism. The result is that in Canada the constitutional status of the administrative state is not as contested (if, indeed, it is contested at all) as it is on the other side of the border and that debates about the appropriate method of statutory interpretation do not bleed into debates about administrative law (as they have in the USA). Again, this lowers the stakes: even though there are fiery concurring reasons in Vavilov, there is a surprising degree of common ground between the majority and minority judges and it is also possible that there will be further convergence in the years ahead.
I am sure there are other relevant differences between American and Canadian administrative law, but these seem to me to be the most important. Americans embarking on a journey through Vavilov would do well to bear these institutional and cultural differences in mind. Many thanks to Daniel Walters for organizing, to my old friend Steve Ross for suggesting me as a speaker and to attendees from Canada, the USA and Australia for contributing to a lively and enlightening discussion.
This content has been updated on May 1, 2020 at 21:06.