HomeCommentaryNot Just A Pillowfight: How the SCC Has Muddied the Standard of Review

Not Just A Pillowfight: How the SCC Has Muddied the Standard of Review

Recently, Justice David Stratas of the Federal Court of Appeal released an extremely helpful summary of almost every aspect of administrative law in Canada. Administrative law students, practitioners, and academics would be well-served to carefully read the document. But Justice Stratas’ piece is far from merely descriptive—in it, he provides a number of recommendations for a return to sound and principled doctrine in administrative law. His recommendations are welcome on the thorny issue of determining the appropriate standard of review. He is providing leadership in administrative law where the Supreme Court has provided nothing but confusion.

In this short piece, I will first review Justice Stratas’ contribution on the issue of standard of review in light of the Court’s holding in Dunsmuir. Then, I will demonstrate (using Justice Stratas’ critiques) that the Court got it wrong in its recent decision in Edmonton East, and goes some way toward overturning Dunsmuir. Finally, I will attempt to outline a path forward on the issue of standard of review, again relying on Justice Stratas’s apt suggestions.

The overall point: statutes mean something. Courts on judicial review should interpret the constating statute to determine the legislature’s intent. It should not ignore clear legislative signals by sacrificing those signals at the altar of idealized “expertise,” which may not be demonstrated on the facts of a case. The effect of Edmonton East does so. It should not be followed.

 

JUSTICE STRATAS AND DUNSMUIR

Before turning to the standard of review, it is important to set out the context of Justice Stratas’s project. In the preamble, Justice Stratas reiterates the point he made in a previous article:

Our administrative law is a never-ending construction site where one crew builds structures and then a later crew tears them down to build anew, seemingly without an overall plan. Roughly forty years ago, the Supreme Court told us to categorize decisions as judicial, quasi-judicial, or administrative. Then, largely comprised of different members, the Court told us to follow a “pragmatic and functional” test. Then, with further changes in its composition, it added another category of review, reasonableness, to joint patent unreasonableness and correctness. Then, with more turnover of judges, it told us to follow the principles and methodology in Dunsmuir. Now it appears that we may be on the brink of another revision: as we shall see, the Supreme Court-mysteriously—is often not deciding cases in accordance with the principles in Dunsmuir and other cases decided under it.

In light of this laughable-if-not-true situation, Justice Stratas decries the lack of academic and judicial engagement with the fundamental tenets of administrative law doctrine. In his view, the lack of doctrinal analysis means that the legitimate expectations of litigants are thrown to the winds and that the law changes based on the rolling, political tide of Supreme Court appointments. As an aid in the search for doctrine, he presents his annotated bible of administrative law.

One of the areas where he provides his most engaging criticism is in the determination of the appropriate standard of review. He indicates that the Dunsmuir approach to that issue may be under significant stress, particularly because of the Supreme Court’s recent puzzling ruling in Edmonton East.  As a refresher, Dunsmuir held that certain presumptions will point to the applicable standard of review; the level of deference afforded to statutory administrative decision-makers. Specifically, the deferential review of reasonableness will follow where an administrative decision-maker interprets its own home statute. This introduction of presumptions was designed to improve upon the highly flexible and unpredictable “pragmatic and functional approach” which only consisted of a list of contextual factors. Dunsmuir also offered certain narrow categories of correctness review— constitutional questions and true questions of jurisdiction. It should be noted that the Court has, slowly but surely, narrowed both of these categories into nothingness (see Doré, where the Court decided that the constitutional determinations of administrative decision-makers are entitled to deference).

Categories alone would be insufficient to account for the varied nature of administrative decision-makers. The overall goal of judicial review is to discern legislative intent: see CUPE at para 149. What that requires is a review of the actual statute which vests the decision-maker with powers. As Justice Stratas notes in his piece, administrative decision-makers come in all shapes and sizes. What is required is a contextual approach, which focuses on the expertise of the administrative decision-maker and the statute in which it operates, in order to discern legislative intent. As Justice Stratas convincingly argues, administrative decision-makers are not monolithic; a categorical approach would be fine if they were (70). But that is not reality. And so, Dunsmuir concluded that the analysis “must be contextual” (para 64).

As part of the contextual approach, Dunsmuir and its progeny insist that the presumptive categorization can be rebutted by a consideration of other factors; where those factors point to a differing legislative intent, that intent should be dispositive. Obviously, clear legislative language is such a factor and can rebut the presumption of expertise. So, where a statute provides that an administrative decision is reviewable “as if it were a judgment of the Federal Court,” the Federal Court of Appeal is entitled to review that decision on a correctness standard, even if the decision-maker was originally interpreting its home statute: see Tervita at para 36. The Supreme Court has also relied on broader instances of legislative language, such as concurrent jurisdiction on questions of law, to apply a correctness standard: see Rogers. As Justice Stratas notes, this is consistent with the “hierarchy of law,” which provides that statutes are determinative of the standard of review, subject only to successful constitutional attack (11). Where a statute says correctness, the standard of review should be correctness. Seems simple enough.

 

HOW THE SUPREME COURT GOT IT WRONG IN EDMONTON EAST

In Edmonton East, Justice Stratas correctly notes that the Court complicates matters, and turns Dunsmuir’s rebuttable home statute presumption into an irrebuttable assumption of expertise (68). The case concerned whether a municipal Assessment Review Board could increase the value of a property assessment where a taxpayer had actually applied for a decrease. The Board determined that an increase in the assessment was justified. For a majority of five, Justice Karakatsanis decided that the appropriate standard of review was reasonableness. She noted that the presumption of home statute interpretation applied; and because the legislature intended to vest this particular Board with powers because of its expertise, that intent should be respected (see paras 22 and 33). In particular, Justice Karakatsanis disregarded the fact that the Board had a statutory right of appeal. She distinguished this right of appeal from that in Tervita by holding that the provision was not “unusually worded.” (para 34). More importantly, Justice Karakatsanis tossed cold water on Dunsmuir’s contextual approach, noting that such an approach could lead to endless and expensive litigation (para 35). This is troubling. Distinguishing significant precedent such as Dunsmuir and Tervita on such narrow grounds risks doing violence to predictability in administrative law, proving Justice Stratas’ core thesis. What’s more, while the Court soothingly tells us that it is not revisiting Dunsmuir (para 20), it does the opposite by effectively making a normally rebuttable presumption irrebuttable. This is not an honest way of dealing with precedent.

The minority, penned by Justices Brown and Côté, had the better view. They found that the statutory right of appeal was dispositive, meaning that the Board’s decision was subject to correctness review. The minority persuasively reasoned that “…an administrative decision maker is not entitled to blanket deference in all matters simply because it is an expert in some matters. An administrative decision maker is entitled to deference on the basis of expertise only if the question before it falls within the scope of its expertise, whether specific or institutional” (para 83). Clearly, the minority took more seriously the legislative language, à la Justice Stratas.

It is true that, in the Court’s pragmatic and functional case law, statutory rights of appeal were not dispositive (see Pezim and Southam on this point), and Dunsmuir largely confirmed that idea. Those cases concerned particularly expert tribunals, (the British Columbia Securities Commission and the Competition Tribunal, the latter of which is composed primarily of judges). Arguably, deference arose squarely in those cases because of the niche expertise of both tribunals, and the largely regulatory flavour of their jurisdiction. But this specified expertise cannot be imputed to all sorts of administrative decision-makers, and so the precedential value of Pezim and Southam is limited.  Post-Dunsmuir, the Court has routinely looked to the Dunsmuir contextual factors (including rights of appeal) to determine whether a presumption of expertise is rebutted: again, see Tervita, Rogers, and McLean.  The point is that the presumption of expertise should be rebuttable with clear legislative intent in the form of statutory language. In some cases, a statutory right of appeal could do the trick. To the extent Edmonton East fortifies the presumption, as Justice Stratas argues, it is unlikely to be followed (71).

 

THE WAY FORWARD: FORGET THE NAME GAME

It should be said that some leading commentators have heartily criticized the majority’s reasons along these lines: see Sirota and Daly (Sirota aptly calls Edmonton East “post-truth jurisprudence”). Sirota raises the prospect of simply ridding ourselves of deference; on questions of law, correctness should apply. This suggestion has the benefit of clarity. But barring constitutional objection, there still might be good practical reasons to defer to proven, demonstrated expertise on questions of law—where the constating statute says so. For his part, Justice Stratas notes that a leading cause of endless litigation is not a contextual approach, which correctly accounts for the variability of administrative decision-makers, but rather “doctrinal and conceptual inconsistency and uncertainty.” As he correctly argues, “Contextual approaches—fact-based approaches guided by loose factors—actually settle the law very well” (70). Deference can work, so long as it arises on the interpretation of the statute. It doesn’t work if a court assumes its existence in every case.

It seems to me that Justice Stratas’ criticism of the Court’s approach (which is particularly apt because, as Daly notes, the Court had undergone a shift in personnel since its last decision on this issue) puts our task into stark relief. What is required is an honest approach from the Supreme Court, not a wink-wink, nudge-nudge methodology which throws increasing-doubt on Dunsmuir.

Unfortunately, there is little reason to believe that we will get such an honest assessment from the Supreme Court. After all, Justice Abella (who often writes opinions on the subject of administrative law) recently referred the standard of review debate as a mere “pillowfight.” Justice Abella has also led the way on the erroneous “assumption” of expertise theory (see, again, Doré). If we take Justice Stratas at his word, Justice Abella’s summary dismissal of the importance of the standard of review debate is downright disturbing. It is important that we honestly assess this issue because it involves an appraisal of the relationship between the courts and the state; in a constitutional democracy, that relationship is fundamental (28).

Justice Stratas’ way out of the mess is an extension of the Federal Court of Appeal’s standard of review methodology. He argues that the dichotomy on which Dunsmuir is based (between reasonableness and correctness) is bunk. Instead, our concern should be whether the decision falls within a range of acceptable outcomes. Sometimes, this will mean that a decision will admit of only one correct (reasonable) answer. But, in Justice Stratas’ view, we must move away from rigid categories of review. This is not dissimilar to the approach advocated for by Justice Abella in Wilson. There, at para 33, Justice Abella reasons in obiter that one standard which provides for the mandate of only one reasonable outcome would safeguard the rule of law values undergirding judicial review.

I must admit that I am partial to the status quo. I like to call a spade a spade. Correctness means the tribunal’s answer must be correct.  That seems clear to me. The effect of the “only one reasonable answer” framework is the same. So why not just call it what it is? A mushy standard might make it easier for courts to grant deference when only one correct answer is warranted or vice-versa.

Regardless, this whole “number of standards debate” seems to miss the point if we will only insist on one correct answer in some circumstances. We should be less concerned with labels. What matters are the circumstances under which courts will be less deferential ie) when will only one answer be “reasonable?” This is what strictly separates Justice Abella from Justice Stratas. Justice Abella in Wilson provides that only one reasonable answer will be acceptable in “rare” circumstances (para 35). Justice Stratas indicates, in the spirit of this article, that legislative words matter and that there are many contextual factors which might provide that a presumption of deferential review (or reasonableness, whatever we want to call it), is rebutted, and a narrower margin must be accepted: for example, “statutory recipes that must be followed,” statutory purposes, settled case law, discretionary decisions, and importantly, clear statutory language. On this last front, Justice Stratas predicts that going-forward, a “full right of appeal from an administrative decision-maker will mean Housen review, not Dunsmuir review” (71). In other words, what is currently known as correctness review (or in the alternative approach, the “only reasonable answer”) will apply on a statutory right of appeal. This is the right approach—it takes legislative words seriously. Justice Abella, on the other hand, seems much less willing to ever find that correctness review would apply. Such an approach simply ignores legislative words.

With these thoughts in mind, what the Court should do is affirm the basic soundness of Dunsmuir’s contextual factors (as Justice Stratas suggests). They provide sound guideposts as to when the presumption of deference can be rebutted. Narrowing those factors should not accompany a putative move to one standard of review. At the end of the day, the name we give to the standard of review does not matter.

Justice Stratas’ compilation of administrative law doctrine is useful from the perspective of knowing what the law actually is. But it also presents a challenge to those of us interested in administrative law: urge the Supreme Court to take a principled approach to administrative law which is clear and honest and which takes legislative words seriously. Justice Stratas should be celebrated for his contribution to this herculean-intellectual effort.