Nothing Really Matters? Andrew Green on Judicial Reforms to Administrative Law
I should flag a very fun/interesting/depressing paper by Professor Andrew Green (University of Toronto), “How Important are the Groundbreaking Cases in Administrative Law?“:
The story of Canadian administrative law could seen as a move towards deference driven by some fundamental decisions of the Supreme Court of Canada. Debates about this move centre around the proper role for reviewing courts as well as the politics lying behind administrative law decisions. Most recently, the 2019 Supreme Court decision in Vavilov raised concerns that it licenses judges to undertake more intrusive review. Key to this story is the assumption that these groundbreaking decisions of the Supreme Court influence how lower court judges decide challenges in the administrative law context. Prior empirical studies have found that the 2008 Supreme Court Dunsmuir decision increased the use of the reasonableness standard of review as well as the rate at which judges affirmed administrative decisions. However, it can be difficult to empirically account for the variety of contexts and decision-makers involved. This paper uses decisions of the Federal Court to examine whether Dunsmuir and Vavilov changed how judges decide. It finds that while the use of reasonableness has dramatically increased, the rate at which judges affirm administrative decisions has not changed over time. This paper discusses these results and what they imply about the influence of these groundbreaking Supreme Court decisions.
I have no doubt that Professor Green’s basic thesis is correct, at least in Federal Court. I would be interested to see figures for other jurisdictions but, again, I would not be surprised if they have not changed greatly since Vavilov. The popularity of administrative tribunal best practices — point-first writing, issues-based analysis, plain-language drafting, active adjudication — that produce reasoned, justified decisions owes its ascendence to committed members of the administrative justice community and long pre-dates Vavilov and Dunsmuir. So it would be no surprise to learn that administrative tribunal decisions are being upheld more or less at the same rate regardless of the intricacies of administrative law doctrine. Professor Green’s datasets are well chosen, as the effects of Supreme Court revamps are likely to be most obvious shortly after the decisions are released: over time, decision-makers will adapt to the ‘new normal’ in order to ensure that their decisions are upheld.
Where Vavilov seems to have been most keenly felt — and I would be very interested in seeing someone crunch the numbers on this — is in respect of decision-makers who were used to deference but not used to producing reasoned decisions: front-line decision-makers, ministers, interest arbitrators and high-volume adjudicators have all felt the judicial lash subsequent to Vavilov. True, the Federal Court deals with front-line decision-makers when reviewing visa decisions, so one would expect the statistics to reflect a change. However, for one thing Federal Court caselaw pre-Vavilov already demanded a degree of responsiveness on the part of visa decision-makers and, for another thing, Professor Green’s statistics do not capture cases settled without a hearing on the merits.
Another area in which Vavilov made significant changes was in respect of statutory appeals. Appeals do not make up a large part of the Federal Court’s jurisdiction, so it would be interesting to see a similar study in a jurisdiction (like Alberta or Ontario) with a significant number of appeals from regulators.
In part, though, the goal of Vavilov was to clarify and simplify the law for judges and lawyers, not to change the outcomes in cases. Vavilov was prompted by criticism of the confused state of the law, not by concern that there was too much or too little deference (though those arguments were certainly made in some quarters). On this, I suspect Vavilov has been a success. An interesting study candidate would be leave rates in Quebec, where there are no appeals as of right from the superior court to the Court of Appeal. My sense, and anecdotal evidence, is that leave rates have gone down. My hypothesis: the clarity of the Vavilov framework means there are fewer important questions relating to judicial methodology that require appellate intervention. Similarly, the Supreme Court of Canada is hearing much fewer administrative law cases than it did pre-Vavilov. Perhaps this reflects a desire not to tweak a new framework but it is also plausible that it is harder for appellants to identify a question of national importance justifying Supreme Court intervention now that the framework for judicial review is largely settled. Notably, every post-Vavilov Supreme Court administrative law case, with the exception of the appeal in Mason, has had a constitutional aspect: they are not the pure administrative law appeals of yesteryear.
For my part, I find I have much more time since Vavilov to spend on matters other than judicial review. It is no accident that my scholarship has taken something of an institutional turn: recent papers on AI in government, guidelines, fundamental rights in public administration, state-owned enterprises and administrative tribunals might never have seen the light of day had I been concentrating my efforts on the incoherence of the law of judicial review!
In any event, Professor Green’s paper is well worth reading.
This content has been updated on August 14, 2023 at 10:21.