On Monday, I began the expansion of my list of twenty important – and positive – lessons from last week’s Vavilov decision. Now, I continue…
8) Access to justice can be facilitated by either reasonableness or correctness review depending on the circumstances. Defenders of reasonableness review frequently defend it on the basis that it facilitates access to justice. This is based on arguments such as not wanting excessive litigation, and believing that justice can be best delivered by expert administrators who are not bound by formal court proceedings. These arguments are compelling, and I have written an entire dissertation generally praising less formal procedures in the civil justice system. But while there are circumstances where this is true, this is not necessarily so. As the Vavilov majority notes, disputes over standard of review – likely to decrease post-Vavilov – impede access to justice. Persisting legal uncertainty in the absence of correctness review can also be an access to justice impediment. Ultimately, though access to justice is very important, it cuts both ways in terms of standard of review. So choosing our framework based on it is ill-advised.
9) CUPE lives to see another day – and it’s probably necessary. Sometimes stare decisis and access to justice mandate following a suboptimal precedent. CUPE v New Brunswick Liquor Corporation is likely an example of that. I have questioned whether the “standard of review” analysis that that case introduced is helpful or even necessary. In my eyes, a simpler and more principled approach would be simply asking whether a particular statute requires deference. What I view as the mischief caused by CUPE led me to lamenting it as one of my five least favourite public law decisions of the past five decades.
Having said that, the standard of review had become so central to forty years of administrative law jurisprudence, with legislatures making institutional design choices in light of it, that overturning it likely would have resulted in confusion, chaos, and litigation that would not at all have facilitated access to justice.
10) Conflation of statutory appeals and judicial reviews is thankfully no more. Another one of my least favourite decisions of the past fifty years wasPezim v British Columbia (Superintendent of Brokers). It is thankfully no more as the majority explicitly stated that statutory appeals on questions of law are to be reviewed on a correctness standard. This is to be praised due to its respect of statutory intent, which Pezim unfortunately departed from. Pezim’s rationale was that administrators have expertise.While this may well exist in practice, it is for the legislature to declare that as a legal reason for deference. And it is hard to accept such expertise as a theoretical justification to give the expert the final say on a question of law when the legislature, which gave the expert its power, thought the opposite.
11) Doré appears on its last legs. The assertion that constitutional questions continue to attract correctness review appears, on its face, to destroy another of my least favourite decisions of the past half-century, Doré v Barreau du Quebec. Admittedly, the majority was clear to emphasize that the status of Doré should be addressed on another day. However, the writing appears on the wall and one wonders what will happen when Doré’s author, Justice Abella, retires in eighteen months.
12) Disputes within a decision-maker: While the Vavilov majority was clear to note that disputes between decision-makers require correctness review to prevent parties being obliged to comply with contradictory orders, this does not necessarily apply to disputes of a law’s meaning within a decision-maker. I have been skeptical of this before. Nonetheless, the majority persuaded me that, if this is a consequence of the legislature’s design choice, it must be tolerated to a certain degree. There will likely be a point, as the majority acknowledges, where the rule of law requires a court’s intervention, such as if disagreement among a decision-maker has gone or for too long, or if a minority appears to be unable to accept that its view on the meaning of the law has not won out. But any prescription regarding how long that time is to be, or how rare a differing opinion is to be before it can be considered unreasonable, is going to seem arbitrary. The majority agreed that one’s fate depending on the particular administrator that one ends up before would be antithetical to the rule of law. But this ultimately appears an instance where reasonableness review may simply need to be applied robustly in cases where institutional design choices are posing problems for the rule of law.
13) We have guidance on how reasonableness is to be applied. For all the battles over what the standard of review is to be, we have received limited guidance, especially at the Supreme Court level, on how reasonableness is to be applied. This led to considerable criticism that judges have engaged in “disguised correctness” review when they have encountered a decision they do not like. This has now changed, with extensive guidance that should prove helpful to lower courts and administrative law teachers like me. And we’ve already witnessed what appears to be a fair application of it in Canada Post. With respect, the dissent in Canada Post and concurrence in Vavilov frequently seem to fall into “disguised correctness”.
We’re mostly there. The final seven lessons will come shortly. In the meantime, enjoy the final days of 2019…