So here we are, on the penultimate day of 2019. When this year began, I was not at all optimistic that the state of administrative law would improve with Vavilov’s release. But now I’m writing a third blog post on my gratitude! So never say surprises cannot happen…
14) Most alarming interpretations of Newfoundland Nurses repudiated. The Supreme Court’s decision in Newfoundland Nurses may not have been a model of clarity. But its suggestions that courts should seek to “supplement” an administrator’s reasons, and uphold it if reasons “could be offered” to render it reasonable, were deeply problematic. This understandably left many litigants feeling they had been victims of a bait-and-switch, as they were expected to accept potentially profoundly important decisions in the absence of any evidence that an administrator had properly considered the issue.
15) Benign interpretations of Newfoundland Nurses still stand. Having said that, not every administrative decision requires anything assembling judicial reasons. Driving examiners do not need to write reasons in the way that a criminal court judge would. As Justice Rennie wrote before his appointment to the Federal Court of Appeal, “Newfoundland Nurses allows reviewing courts to connect the dots on the page where the lines, and the direction they are headed, may be readily drawn. Here, there were no dots on the page.” Vavilov recognizes that there must actually be dots on the page.
17) De facto respect can exist in the absence of de jure deference. Expertise no longer a legal basis, in and of itself, for legal deference. This is only logical, given that administrators’ expertise varies widely. And if a legislature wishes to insulate a truly expert decision-maker, it can do so through statutory language (which appears belied by a right of appeal, for instance). Having said that, de facto respect can still occur. For instance, Chief Justice Morawetz of the Ontario Superior Court is likely to receive great respect – one could even say “deference” – when he interprets insolvency law. But for the Court of Appeal to say that it is obliged to defer to him is manifestly a legal mistake. Vavilov does not say this explicitly, but it is certainly implicit.
16) The sky is not falling for the administrative state. In defence of Vavilov’s minority, something was wrong in 1970s labour law as courts would ignore clear statutory language prescribing deference to administrators. One can see why there was a movement to a more hands-off approach. But are we going back? Hardly.The vast majority of decisions post-Vavilov will clearly be reviewed on a reasonableness standard. And most of what the executive branch of government does will justly be functionally unreviewable as it was a matter of discretion, obviousness (and true “administration”), and/or of trifling importance. But this does not mean that courts should be derelict in their duty of interpreting what the law is, in the absence of the legislature seeking to delegate its law-making authority.
18) Understanding of the relationship between courts and legislatures is theoretically sound, but with recognition of institutional realities. Administrators are given their power by legislatures. Judicial review is necessary to ensure that administrators do not exceed their power. But judicial review should also respect legislative intent to delegate implementation authority to administrators. Vavilov recognizes all of this. One could have also argued that this should have cautioned against the court overruling itself regarding the relevance of statutory appeal rights – the concurrence attempted to argue as much. But with respect, the majority should also be commended for recognizing that there are instances where the legislatures could be fairly said to have relied upon the precedent (as appears the case regarding CUPE) but also where the reason the legislature likely did nothing was due to lack of viewing the issue as a priority (which seems more plausible regarding Pezim).
19) Dicey rehabilitated? The minority reasons in Vavilov (which Paul Daly has aptly described as “disguised dissenting”) took several shots at English jurist A.V. Dicey, whose disdain for judges deferring to administrative decision-makers led to aggressive judicial review, particularly of administrative decisions seeking to implement progressive social policy. Dicey’s views can be critiqued – particularly insofar as his writings suggest a skepticism of administrators interpreting laws. But Dicey was also an extraordinary thinker, who understood the need to guard against administrative overreach and protect the rule of law. One hopes that “Diceyan” will not be used as a pejorative, as one judge apparently did in oral argument.
20) Alex Vavilov a Canadian citizen. I mentioned in the first blog post that the citizenship registrar’s determination that Alexander Vavilov was not a Canadian citizen was for all intents and purposes “unreasonable”, even though it was grammatically plausible. In the absence of meaningful judicial review, however, not only would a legally dubious result have been allowed to stand, but Mr. Vavilov would have lost his citizenship. This type of extraordinary consequence should not be allowed to stand due to insufficiently thoughtful administrative action. And the law of judicial review now recognizes that. It’s sometimes worth remembering that administrative law can have such profound stakes.
So that’s that. Wishing all admin law nerds a happy 2020 – where the status quo will hopefully be improved!