{"id":2712,"date":"2018-02-21T19:30:01","date_gmt":"2018-02-21T19:30:01","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=2712"},"modified":"2018-10-12T17:13:07","modified_gmt":"2018-10-12T17:13:07","slug":"rip-reasonableness","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/rip-reasonableness\/","title":{"rendered":"RIP Reasonableness"},"content":{"rendered":"
\u00a0The Supreme Court recently issued its decision in Quebec (Commission des normes, de l\u2019\u00e9quit\u00e9, de la sant\u00e9 et de la s\u00e9curit\u00e9 du travail) v Caron<\/em>, 2018 SCC 3<\/a>, which may, or may not, be another sign that the Court\u2019s love affair with deference to administrative decision-makers is coming to an end \u2015 in practice if not yet in theory. I address the majority\u2019s approach to deference in this post. Time permitting, I will, in a subsequent one, argue that if Justice Abella\u2019s opinion is anything to go by, any hopes \u2015 or fears \u2015 that the end of deference would mean a return to judicial enforcement of the actual law are unwarranted.<\/div>\n
\n

Caron<\/em> concerns the relationship between Qu\u00e9bec\u2019s workers\u2019 compensation statute and its anti-discrimination law, colloquially known as the\u00a0Qu\u00e9bec Charter<\/em>\u00a0(and, I suspect, the relationship between similar statutes in other Canadian jurisdictions too, since this legislation tends to be fairly similar). The question was whether, in the context of an injured employee\u2019s endeavour to return to work, the the duty to accommodate, long understood to be part of anti-discrimination law in the employment context, imposed obligations on an employer beyond those created by the workers\u2019 compensation scheme. The administrative tribunal responsible for the application of the workers\u2019 compensation legislation decided that it did not. The majority of the Supreme Court (as well as the courts below) disagreed.<\/p>\n

When courts review a decision made by an administrative tribunal, they must begin by determining the \u201cstandard of review\u201d. As Justice Stratas put it in his pr\u00e9cis<\/em> of Canadian administrative law<\/a>, \u201chow \u2018fussy\u2019 should the court be\u201d? (33) Should the court insist that the tribunal\u2019s decision be correct, or is it enough for the decision to be reasonable? Justice Abella, writing for a five-judge majority, is confident that \u201c[t]his case is in classic reasonableness territory\u201d because the tribunal \u201cis interpreting the scope and application of its home statute\u201d. [4] Classic, because under the framework articulated in\u00a0Dunsmuir v New Brunswick<\/em>, 2008 SCC 9, [2008] 1 SCR 190<\/a>, judges are indeed generally required to defer administrative decision-makers interpreting their enabling legislation. However, the concurring opinion, written by Justice Rowe (with the agreement of Justice C\u00f4t\u00e9) disagrees, endorsing the Qu\u00e9bec Court of Appeal\u2019s view that the issue of whether the tribunal had to apply the Qu\u00e9bec Charter<\/em> both goes to the determining the bounds of the tribunal\u2019s jurisdiction and is of central importance to the legal system as a whole \u2015 both factors which Dunsmuir<\/em> said triggered correctness review.<\/p>\n

I have no firm opinion on which of these views is right under the current law. Suffice it to say that Justice Abella\u2019s is at least plausible. After all, Dunsmuir<\/em> said courts should defer to a tribunal\u2019s interpretation not only of its \u201chome\u201d statute, but also to that of \u201cstatutes closely connected to its function, with which it will have particular familiarity\u201d. [54] Arguably, the Qu\u00e9bec Charter<\/em>\u2018s anti-discrimination provisions are \u201cclosely connected\u201d to the function of a workers\u2019 compensation tribunal. It is too bad, however, that Justice Abella neither acknowledges nor engages with the concurrence\u2019s view.<\/p>\n

Be that as it may, the disagreement between majority and concurrence turns out to be quite irrelevant. Having declared in favour of reasonableness, Justice Abella never once shows a sign of actually deferring to the tribunal\u2019s reasoning. Of course, even on a reasonableness standard, courts will sometimes overturn tribunals\u2019 decisions. However, as defined in Dunsmuir<\/em> \u2015 which Justice Abella doesn\u2019t actually cite \u2015<\/p>\n

reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. \u2026\u00a0Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of decision makers. [47], [49]<\/blockquote>\n

There is no \u201cdue consideration\u201d, or any consideration, of the tribunal\u2019s determination in Justice Abella\u2019s reasons. She is uninterested in whether it justified its decision in a transparent and intelligible way. In fact, she does not even bother summarizing the tribunal\u2019s opinion, as Justice Rowe does (and as is customary), let alone paying it any attention. Justice Abella proceeds with her own analysis of the applicable law, and never pauses to show why the tribunal\u2019s different conclusion was not just mistaken but unreasonable. There is, in reality, no difference between the pretended \u201creasonableness\u201d analysis like Justice Abella\u2019s and avowedly non-deferential review like that undertaken by Justice Rowe. Justice Stratas calls this sort of thing \u201cdisguised correctness review\u201d, but calling the disguise in this case flimsy is already giving it too much credit.<\/p>\n

Now, one might ask just what proper reasonableness review, as described in Dunsmuir<\/em>, would have involved in Caron<\/em>. The administrative tribunal\u2019s reasons<\/a> on the point in issue (at [61]-[91]) are fastidious, but they consist in an analysis of the relevant judicial decisions. In effect, the tribunal functions as a lower court, and not as a specialized, expert decision-maker bringing a unique policy-informed perspective or \u201cfield sensitivity\u201d to the issue before it. Even if one accepts that such factors can justify judicial deference to tribunals, it is not obvious why the Supreme Court would or should defer to a decision where they are absent.<\/p>\n

So Justice Abella could<\/em> have said that no deference is due when a tribunal\u2019s expertise is not in play. Such a position would be defensible. Indeed, it would arguably be more consistent with the original Dunsmuir<\/em> framework, which as I see was intended to be a flexible one, than the Supreme Court\u2019s post-Dunsmuir<\/em> decisions that elevated deference into dogma, notably\u00a0Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd<\/em>, 2016 SCC 47, [2016] 2 SCR 293<\/a>. In that case, the majority attributed expertise and pretended to defer to reasons not actually given by a tribunal that hadn\u2019t even addressed the issue that the Supreme Court was deciding. I described<\/a> that process as a judge \u201cplaying chess with herself, and contriving to have one side deliberately lose to the other\u201d. But, as with\u00a0Edmonton East<\/em>, it seems to me that a position cannot be defensible unless it is actually defended. Justice Abella, to repeat, could have defended the position I have just outlined \u2015 but she doesn\u2019t, and we are left to wonder why exactly she approached Caron<\/em> as she did (and not as she said she did).<\/p>\n

Unexplained departures from previous pronouncements on standard of review are becoming a trend in the Supreme Court\u2019s administrative law jurisprudence. This trend previously manifested itself in\u00a0Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations)<\/em>, 2017 SCC 54\u00a0<\/a>\u00a0and\u00a0Association of Justice Counsel v. Canada (Attorney General)<\/em>, 2017 SCC 55<\/a>. As I noted here<\/a>, in neither of these cases did the Court adopt the approach to judicial review which its precedents seemed to dictate \u2015 an approach that called for deference to adjudicative or discretionary administrative decisions involving the Canadian Charter of Rights and Freedoms<\/em>. The Court simply undertook its own constitutional analysis, without explaining whether the previous framework was still good law, and if not, why, or to what extent.<\/p>\n

This trend, if that\u2019s what it is, is disturbing. As I wrote in my comment on Ktunaxa<\/em> and Justice<\/em> Counsel, I would be very happy to see the Supreme Court nix its deferential review of administrative decisions involving the Charter<\/em>. I am inclined to think that getting rid of deference on most, perhaps on all, questions of law would be a good thing too. But if that\u2019s what the Supreme Court wants to do, it must tell us, instead of saying one thing (or nothing at all) and doing another, which makes it possible for the seemingly disfavoured approaches to be used again, without litigants being able to predict when or why they will be. As I previously argued, the Court\u2019s behaviour is problematic from the standpoint of the Rule of Law, because it makes the law unstable and obscures the fact of legal change, and fails the \u201cjustification, transparency, and intelligibility\u201d test articulated in Dunsmuir<\/em>, by which judicial decisions, no less (and perhaps more) than administrative ones, should be assessed.<\/p>\n

Between Ktunaxa<\/em>, Justice Counsel<\/em>, and now Caron<\/em>, it is tempting to conclude that the Court is growing disenchanted with deference to administrative decision-makers\u2019 decisions on questions of law. Yet perhaps such a conclusion would be premature. We cannot know, with the court systematically failing to explain itself and even individual judges changing tack, unpredictably, from case to case.\u00a0In Caron<\/em>, that the Supreme Court actually engages in correctness review is clear enough, but why it does so, whether it still thinks that there is a place for reasonableness review, and if so, in what circumstances, is anybody\u2019s guess. This uncertainty is problematic. If deference is indeed dead, the Supreme Court should ensure that it stays so, and doesn\u2019t come back to eat the brains of Canadian lawyers and judges.<\/p>\n<\/div>\n

 <\/p>\n

This article was previously published on Double Aspect<\/a>, Professor Sirota’s award-winning blog<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

\u00a0The Supreme Court recently issued its decision in Quebec (Commission des normes, de l\u2019\u00e9quit\u00e9, de la sant\u00e9 et de la s\u00e9curit\u00e9 du travail) v Caron, 2018 SCC 3, which may, or may not, be another sign that the Court\u2019s love affair with deference to administrative decision-makers is coming to an end \u2015 in practice if …<\/p>\n","protected":false},"author":1256,"featured_media":1572,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[35],"tags":[264,255,274,330,329,328,266,202,445,327,416,273],"_links":{"self":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2712"}],"collection":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/users\/1256"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/comments?post=2712"}],"version-history":[{"count":2,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2712\/revisions"}],"predecessor-version":[{"id":2714,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2712\/revisions\/2714"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media\/1572"}],"wp:attachment":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media?parent=2712"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/categories?post=2712"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/tags?post=2712"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}