On August 30, 2018, Advocates for the Rule of Law brought a motion for intervention at the Supreme Court of Canada in three appeals: Minister of Citizenship and Immigration v Vavilov,[i] Bell Canada v. Canada (Attorney General),[ii] and National Football League v. Canada (Attorney General).[iii] In a rare move, the Court’s judgment granting leave to appeal elaborated as follows:
The Court is of the view that these appeals provide an opportunity to consider the nature and scope of judicial review of administrative action, as addressed in Dunsmuir v. New Brunswick … and subsequent cases. To that end, the appellant and respondent are invited to devote a substantial part of their written and oral submissions on the appeal to the question of standard of review.
If, as it has suggested it may, the Court reconsiders the Dunsmuir framework, the results of these appeals will have profound and lasting consequences for the rule of law in Canada. The “standard of review analysis” that the Court endorsed a decade ago in Dunsmuir governs the extent to which courts may interfere with decisions made by government officials. Such decisions come in myriad forms, from ministerial directives to refugee claim determinations and tax assessments. They touch the lives of every Canadian.
ARL is committed to the principle that the power of the state must only be exercised in accordance with the law. Accordingly, ARL has an interest in preserving the power of courts to ensure that any particular administrative decision maker only ever acts in accordance with the will of the legislature that created it. By seeking to intervene in these appeals, ARL hopes to assist the Court in fashioning a principled framework for judicial review that guarantees proper respect for the distinct roles of administrators and courts, and the legislature’s role in determining the balance between them.
What is the “standard of review” — and why does it matter?
The standard of review describes the extent to which a court will defer to a decision rendered by an administrator or an administrative body. Under the Dunsmuir framework, a decision that attracts judicial deference is reviewed on a standard of “reasonableness” — that is, the court will overturn or vary the decision only if it was unreasonable, that is, not “defensible in respect of the facts and the law”.[iv] Where judicial deference is not appropriate, the court reviews the administrative decision on a standard of “correctness”, and the court will overturn or vary the decision to the extent it is incorrect, that is, not the decision the court would have made in the first instance.
Dunsmuir was supposed to simplify the common law of judicial review. The “standard of review analysis” endorsed by the majority replaced the former “pragmatic and functional” approach to determining the standard of review, which was considered to be too complex and thus unpredictable. By clarifying the role of precedent in the analysis, introducing presumptive “categories” of decisions that would (or would not) usually attract deference, and reducing the number of available standards of review from three to two, the Dunsmuir Court’s stated aim was to make life easier for litigants and lower courts.[v]
By most accounts, it failed.[vi] The decade since Dunsmuir has been marked by jurisprudential drift, doctrinal inconsistency, and both academic and judicial controversy.[vii] The Vavilov, Bell Canada, and National Football League appeals will provide an opportunity to strip the law down to its essentials and return to what the standard of review is meant to accomplish — ensuring that administrative decision makers are able to exercise the discretion that the legislature has granted to them, within the limits of the authority that the legislature has conferred on them. So ARL hopes, anyway.
Spies and the Super Bowl
Each of the appeals arises on interesting facts. In Vavilov, the Registrar of Citizenship determined that the Canadian-born son of Russian spies was not a Canadian citizen. The child was born in Canada, before he, his parents, and his brother moved to the United States, all under assumed identities. (If this sounds like the plot of a TV show, that’s because it is; the Vavilovs were part of the undercover Russian spy ring that inspired FX’s The Americans.) The Federal Court of Appeal decision overturned the Registrar’s decision, on a standard of reasonableness, but held that there was only one reasonable interpretation of the Citizenship Act available to the Registrar. The federal government is appealing that judgment to the Supreme Court of Canada.
Bell Canada and National Football League are both about the Super Bowl. In 2016, the Canadian Radio-television and Telecommunications Commission decided to prohibit “simultaneous substitution” during the Canadian broadcast of the Super Bowl. “Simultaneous substitution” describes the practice whereby Canadian broadcasters obtain and rebroadcast American television programming in Canada, but replace U.S. advertisements with Canadian ones. Why? Because, unless they can sell Canadian advertisements for the Super Bowl, Canadian broadcasters (here, Bell) will not profit from the sale of advertisements during the Super Bowl — the right to broadcast which they have purchased from the NFL. Both Bell and the NFL appealed the CRTC’s decision to the Federal Court of Appeal. They argued that the Broadcasting Act did not give the CRTC jurisdiction to prohibit simultaneous substitution. The Federal Court of Appeal disagreed; it held that the CRTC’s interpretation of the Broadcasting Act (its “home” statute) was reasonable. Bell and the NFL are each appealing that judgment to the Supreme Court of Canada.
The children of Russian spies and Super Bowl advertisements are undoubtedly an odd pairing. Still, these are the facts on which the Court may undertake the most dramatic reshaping of Canadian administrative law since Dunsmuir in 2008.
ARL’s proposed submissions: Why legislative intent matters in administrative law
If the Court grants ARL’s motion for intervention, ARL will make two submissions on the appeals. First, we will argue that, in most circumstances, and contrary to the Court’s pronouncements, judicial review of administrative action does not create tension between legislative supremacy and the rule of law; rather, judicial review is the means by which courts give effect to the legislature’s intent — and thus uphold the rule of law. Second, we will submit that, because the standard of review must ultimately be governed by legislative intent, a reviewing court cannot determine the degree of deference to be accorded to an administrative decision without interpreting the decision maker’s “home” statute.
You can read our Memorandum of Argument, which outlines these proposed submissions in detail, here. The following is a brief summary.
- Legislative supremacy and the rule of law are not in tension
The standard of review framework has come to be applied in a manner that assumes a tension, or at least a clear distinction, between legislative supremacy and the rule of law.[viii] In seeking to refine (and simplify) the standard of review analysis, the Supreme Court of Canada has come to neglect both principles by adopting a nearly irrefutable presumption of deference for an administrative decision maker’s interpretation of its “home” statute.[ix] In theory, this presumption is supposed to protect legislative supremacy; it assumes that, since the legislature has delegated certain decision making to an administrative decision maker, it must have intended for that decision maker, and not a reviewing court, to have the last word on the matter that the legislature has delegated. Yet, the effect of the presumption has been paradoxical. It has resulted in the decision makers nearly always having the last word, notwithstanding any indications that the legislature intended otherwise.[x] Legislative supremacy thus justifies deference, whether the legislature intended deference or not. The rule of law, meanwhile, has been left to do little other than justify the existence of judicial review itself.
ARL intends to argue that, in all but exceptional circumstances, not only are the rule of law and legislative supremacy not in tension, but they are actually mutually reinforcing. In judicial review — including in determining whether and to what extent to accord deference to an administrative decision maker — there is a direct connection between legislative supremacy (“what did the legislature intend?”) and the rule of law (“is the administrative decision at issue consistent with the legislature’s intent?”). The rule of law requires courts to determine whether and to what extent the legislature intended courts to defer to administrative decision makers on questions of law. Respect for legislative supremacy is, in this regard, an aspect of the rule of law.
Unless the legislature has sought to shield a decision maker from judicial oversight — either entirely, through means of a privative clause, or with respect to a legal question on which the rule of law requires uniformity, as with one of the “correctness categories” identified in Dunsmuir[xi] — the rule of law requires respect for legislative supremacy in the context of judicial review of administrative action. To uphold the rule of law, courts must ensure that a statutory delegate has acted within its mandate, as the legislature has defined it. And, to do so, courts must consider the actual expression of the legislature’s intentions in creating and delineating the scope of a decision maker’s authority, so that the court may determine the appropriate level of deference to apply. This, ARL will submit, must be the principled starting point of the standard of review analysis, as the Court recognized in Dunsmuir itself.[xii]
- The rule of law requires reviewing courts to interpret legislation
Judges cannot assess the legality of administrative decisions without first understanding the scope of the authority that the legislature intended to delegate. This obliges courts to engage in at least limited interpretation of the decision maker’s “home” statute. In Dusmuir, Justices Bastarache and LeBel recognized that “legislative supremacy is assured because determining the applicable standard of review is accomplished by establishing legislative intent”.[xiii] Yet, in more recent judgments, the Court has all but erased the need for establishing legislative intent in determining the standard of review. In Edmonton East, for example, the Court not only failed to present the standard of review analysis as a means to discern and give effect to legislative intent, but it also held that a statutory appeal provision — which one would think would be an obvious indicator of legislative intent — was insufficient to justify even a contextual analysis of the legislative scheme.[xiv]
Even so, the Court has never quite dispensed with the underlying importance of legislative intent, discernible through statutory interpretation, altogether. The Edmonton East majority itself acknowledged that “the legislature can specify the standard of review” and confirmed that “clear legislative guidance on the standard of review” must bind a reviewing court.[xv]
The appropriate path forward, ARL will suggest, is for the Court to endorse the established tools of statutory interpretation — i.e., the text and context of the decision maker’s enabling statute — as a universal means of determining whether the question at issue on judicial review is one on which the legislature intended deference, and, if so, how much deference is due. ARL will canvass legislative signals that may indicate that more or less deference is warranted in respect of a particular statutory provision, and explain how such signals may be discerned and applied by the courts. Finally, ARL will show that, by using these signals, reviewing courts can apply a predictable and consistent standard of review analysis that is rooted in the search for legislative intent.
ARL intends to draw on its experience as an exponent of rule of law principles to propose a principled approach to the standard of review analysis, one that will advance both legislative supremacy and the rule of law in the judicial review of administrative action. This approach, ARL will argue, should integrate statutory interpretation into the curial oversight of administrative action, to better ensure that public authorities do not overreach their lawful powers.
Dozens of organizations have sought leave to intervene in these appeals. ARL hopes that the Court will see ours as a distinctive and useful contribution to its consideration of this fundamentally important issue in Canadian law. We expect the Court to decide which interveners to allow in the coming weeks, and we will provide an update once it does. The appeals are scheduled to be heard in Ottawa on December 4, 5, and 6, 2018.
Adam Goldenberg is an appellate litigator at McCarthy Tétrault LLP who is representing ARL in these appeals. Adam would like to thank Jacob Klugsberg, an Articling student at McCarthy Tétrault LLP, for his assistance in preparing this article.
[i] S.C.C. File Number 37748; Citizenship and Immigration v. Vavilov, 2017 FCA 132.
[ii] S.C.C. File Number 37896; Bell Canada v. Canada (Attorney General), 2017 FCA 249.
[iii] S.C.C. File Number 37896; National Football League v. Canada (Attorney General), 2017 FCA 249.
[iv] Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 74.
[v] Dunsmuir, at paras. 43, 47, and 62-63.
[vi] See, M. Bastarache, “Dunsmuir 10 Years Later” (March 9, 2018), Administrative Law Matters Blog; D. Stratas, “A Decade of Dunsmuir: Please No More”, (March 8, 2018), Administrative Law Matters Blog.
[vii] See D. Stratas, “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency” (2016), 42 Queen’s L.J. 27, at p. 27.
[viii] See, Dunsmuir, at para. 27; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, at para. 22; Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, at para. 30, per Abella J.
[ix] Edmonton East, at para. 22; Alberta Teachers’ Association v. Alberta (Information & Privacy Commissioner), 2011 SCC 61, at para. 89.
[x] Alberta Teachers’ Association, at para. 94, per Cromwell J; Edmonton East, at para. 82, per Côte and Brown JJ.
[xi] Dunsmuir, at paras. 58-61; see Ready v. Saskatoon Regional Health Authority, 2017 SKCA 20, at paras. 63, 108-19, and 116; Loewen v. Manitoba Teachers’ Society, 2015 MBCA 13, 380 D.L.R. (4th) 654, at paras. 46, 48 and 69; see also P. Daly, “The Scope and Meaning of Reasonableness Review” (2014), 52 Alta. L. Rev. 799, at p. 809.
[xii] Dunsmuir, at paras. 29 and 30.
[xiii] Dunsmuir, at para. 30.
[xiv] Edmonton East, at para. 34.
[xv] Edmonton East, at para. 35.