{"id":2834,"date":"2018-06-17T04:39:52","date_gmt":"2018-06-17T04:39:52","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=2834"},"modified":"2018-10-12T17:10:23","modified_gmt":"2018-10-12T17:10:23","slug":"is-deference-possible-here-the-groia-decision-and-disguised-correctness","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/is-deference-possible-here-the-groia-decision-and-disguised-correctness\/","title":{"rendered":"Is Deference Possible Here? The Groia Decision and Disguised Correctness"},"content":{"rendered":"

In\u00a0Groia v Law Society of Upper Canada<\/em>, 2018 SCC 27<\/a>, decided last week, the Supreme Court of Canada once again fractured over the approach to take to the judicial review of an administrative decision \u2015 and, once again, the majority chose correctness review disguised as reasonableness as its methodology. The substantive issue in\u00a0Groia<\/em>\u00a0was whether the Law Society was entitled to discipline a lawyer for advocacy that took \u201cthe form of personal attacks, sarcastic outbursts and allegations of professional impropriety, grinding the trial to a near standstill\u201d. [12] I have no articulate views on this, except a general sense that the fewer powers law societies have, and the more circumscribed these powers are,\u00a0the better<\/a>. But I do want to comment on the administrative law aspects of the decision.<\/p>\n

* * *<\/p>\n

As Justice Moldaver, writing for the majority, describes its decision, the Law Society\u2019s<\/p>\n

Appeal Panel grappled with the issue of when in-court incivility amounts to professional misconduct under the Law Society\u2019s codes of conduct in force at the relevant time. It reasoned that incivility \u201ccapture[s] a range of unprofessional communications\u201d and ultimately settled on a multifactorial, context-specific approach for assessing a lawyer\u2019s behaviour. [36; references omitted]<\/blockquote>\n

The Panel then applied this test to Mr. Groia\u2019s case. The issue for the Supreme Court is twofold: first, it must review the approach devised by the Panel; second, the Panel\u2019s application of this approach. However, although all distinguish the two questions they must answer, the majority, Justice C\u00f4t\u00e9, who concurs, and Justices Karakatsanis, Gascon, and Rowe, who jointly dissent, all consider that the Panel\u2019s decision on both must be reviewed on the same standard. The majority and the dissent opt for reasonableness, though they apply it differently. Justice C\u00f4t\u00e9 goes for correctness.<\/p>\n

As Justice Moldaver notes, the Supreme Court\u2019s earlier decisions \u201cestablish that law society misconduct findings and sanctions are reviewed for reasonableness\u201d. [43] This is because both the elaboration of the applicable analytical framework and its application \u201cinvolve the interpretation of the Law Society\u2019s home statute\u201d \u2015 or, as in this case, rules enacted under this statute \u2015 \u201cand the exercise of discretion\u201d. [45] While the question of \u201cthe permissible scope of [lawyers\u2019] in-court behaviour is arguably of central importance to the legal system as a whole\u201d, [51] it is not \u201coutside the Law Society\u2019s expertise\u201d. [51] Indeed, \u201cLaw Society disciplinary panels are composed, in part, of other lawyers\u201d. [52] Justice Moldaver also rejects the claim, advanced by a dissenting judge at the Court of Appeal for Ontario and accepted by Justice C\u00f4t\u00e9, that sanctions for lawyers\u2019 behaviour\u00a0in the courtroom<\/em>\u00a0are different in that imposing them risks trenching on judicial independence. In Justice Moldaver\u2019s view, this is simply not so: \u201ca\u00a0trial judge is free to control the conduct in his or her courtroom irrespective of the degree of deference accorded to a law society\u2019s disciplinary decision by a different court\u201d. [55]\n

Having established reasonableness as the standard of review, Justice Moldaver considers the arguments advanced against the framework developed by the Panel in detail. I will not describe his reasons, partly because I have little to say on their substance, and partly because this part of them alone runs for almost 60 paragraphs. What matters for my present purposes is this: on each point and sub-point, after reviewing the Panel\u2019s decision in at most a single paragraph, Justice Moldaver gives extensive explanations of what the Panel\u2019s decision means, and why it is appropriate. Though these explanations are occasionally couched in the language of reasonableness, there is no doubt that Justice Moldaver provides his own views on the approach to judging alleged incivility by lawyers, instead of merely ratifying the Panel\u2019s.<\/p>\n

As for the application of the framework to Mr. Groia\u2019s conduct, Justice Moldaver concludes that the Panel\u2019s\u00a0 decision was unreasonable. In Justice Moldaver\u2019s view \u2015 explained over the course of over 30 paragraphs \u2015, the Panel failed to apply the test it had itself articulated, and to take into account the factors that, on its own stated approach, ought to have mattered. For Justice Moldaver, \u201cthere is only one reasonable outcome in this matter: a finding that Mr. Groia did not engage in professional misconduct on account of incivility\u201d. [125] (Now, here\u2019s a question: would it be good if someone could reverse the Supreme Court\u2019s decisions when they don\u2019t follow the Court\u2019s stated approach?)<\/p>\n

As already noted, Justice C\u00f4t\u00e9 is of the view that the applicable standard of review is correctness, because lawyers\u2019 in-court behaviour must be subject to the ultimate control of the judiciary. She insists that<\/p>\n

An inquiry by a law society into a lawyer\u2019s in-court conduct risks intruding on the judge\u2019s function of managing the trial process and his authority to sanction improper behaviour. It does so by casting a shadow over court proceedings \u2014 in effect, chilling potential speech and advocacy through the threat of ex post punishment, even where the trial judge offered the lawyer no indication that his or her conduct crossed the line. And it permits an administrative body to second-guess the boundaries of permissible advocacy in a courtroom that is ultimately supervised by an independent and impartial judge. [168]<\/blockquote>\n

Justice C\u00f4t\u00e9 agrees with Justice Moldaver on the application of the test for misconduct, and thus concurs in the result.<\/p>\n

The dissenters, by contrast, agree with Justice Moldaver that the standard of review is reasonableness, and also that the Panel\u2019s approach was reasonable. However, they disagree with the way Justice Moldaver applied this standard, accusing him of<\/p>\n

fundamentally misstat[ing] the Appeal Panel\u2019s approach to professional misconduct, and reweigh[ing] the evidence to reach a different result. This is inconsistent with reasonableness review as it substitutes this Court\u2019s judgment for that of the legislature\u2019s chosen decision maker. [177]<\/blockquote>\n

The dissent faults Justice Moldaver with being insufficiently deferential to the Panel. \u201c[D]eference\u201d, they write, \u201crecognizes that delegated authorities will have greater expertise in matters under their scope of authority\u201d, [178] and when the applicable standard of review is reasonableness, it \u201cis not optional\u201d. [179] In particular, \u201cdeference bars a reviewing court from conducting an exacting criticism of a decision in order to reach the result that the decision was unreasonable\u201d, or from \u201csupplement[ing] the decision maker\u2019s reasoning for the purpose of undermining it\u201d. [180]\n

The dissenters \u201cconsider that Justice Moldaver reformulates\u201d [188] the framework articulated by the Panel. As a result, they disagree with Justice Moldaver\u2019s application of this framework too: \u201c[i]t is not a respectful reading of the \u2026 Panel\u2019s reasons to articulate a novel test \u2026 then fault the Panel for failing to apply it\u201d. [199] The Panel\u2019s decision is intelligible and defensible, and this is not a case where only one outcome could be reasonable. Indeed, such cases will be anomalies, because<\/p>\n

[t]he existence of reasonableness review is, rather, premised on the fact that \u201ccertain questions that come before administrative tribunals do not lend themselves to one specific, particular result\u201d. [215, quoting\u00a0Dunsmuir v New-Brunswick<\/em>, 2008 SCC 9, [2008] 1 SCR 190<\/a>\u00a0at [47]]<\/blockquote>\n

The dissent then describes \u2015 at some length, and with limited reference to the Panel\u2019s decision \u2015 what it expects to be the pernicious consequences of the majority\u2019s decision. The majority, the dissent fears, \u201csends the wrong message to those who look to this Court for guidance\u201d. [227]\n

* * *<\/p>\n

Therein, it seems to me, lies the rub. People look to the Supreme Court for guidance \u2015 not for mere affirmation that an administrative decision-maker\u2019s reasons were good enough and that in any event there is no right answer to the question they addressed. The whole point of having what the\u00a0Constitution Act, 1867<\/em>\u00a0foreshadows<\/a>\u00a0as a \u201cgeneral court of appeal for Canada\u201d is that such an institution can explain what the law is. If such a court does not say what the law is, but only indicates that an administrative decision is within the bounds of what the law will tolerate \u2015 without explaining where these bounds actually are \u2015 then it is not doing its job.<\/p>\n

It is no surprise, then, that Justice Moldaver\u2019s reasons show little sign of deference to the Panel. What lawyers across Canada are interested in is what the Supreme Court itself thinks about their standards of conduct \u2015 not in whether it thinks that the opinion of a single provincial disciplinary body on this subject was \u201cwithin a range of possible, acceptable outcomes which are defensible in respect of the facts and law\u201d. [Dunsmuir<\/em>, [47]]\u00a0 Indeed, the dissenters, for all the bitterness with which they chide Justice Moldaver for his failure to defer, and despite their own ostentatious display of deference,\u00a0cannot help but enter the debate with their own comments about the appropriate standards of civility. If the question the Court is deciding is indeed one of central importance to the legal system, as Justice Moldaver concludes (and the dissent specifically agrees with this part of his reasons), this is entirely comprehensible.<\/p>\n

Hence the question that, with apologies to Ronald Dworkin, I ask in this post\u2019s title. Earlier this year, I\u00a0wondered<\/a>\u00a0whether \u201cthe Court is growing disenchanted with deference to administrative decision-makers\u2019 decisions on questions of law\u201d, and perhaps even trying to kill off reasonableness review without telling anyone. The cases decided since then only provide more evidence for the\u00a0proposition<\/a>\u00a0that the default standard of review in Canadian administrative law is disguised correctness, not reasonableness as the Supreme Court would have us believe. But perhaps the Supreme Court has a defence of\u00a0 necessity to the charge of attempted murder. No court in its position could do otherwise.<\/p>\n

Yet even if this be so, the Rule of Law issues I raised\u00a0earlier<\/a>\u00a0do not go away. Law should be clear, and the fact of its change, transparent. The law of judicial review applied by the Supreme Court is opaque and hidden. And there is a further issue to think about: is it permissible for an apex court to apply a different law than the one it instructs other courts to apply, just because of its position within the legal system? It is, to say the least, not obvious that this is so \u2015 which presumably is precisely why the Supreme Court engages in so much obfuscation. Once again, I conclude that it would be better \u2015 more transparent, more conducive to the coherence of our legal system \u2015 for the Supreme Court to (openly and publicly) abandon reasonableness review on questions of law in most or in all cases.<\/p>\n

* * *<\/p>\n

Groia<\/em>\u00a0illustrates a couple of additional problems with reasonableness review, as theorized and practised by the Supreme Court. On a theoretical level, it exposes the deficiencies in the Court\u2019s justifications for deference, which I have already\u00a0discussed<\/a>\u00a0at some length. Justice Moldaver explains that, while of central importance, the issue of lawyers\u2019 behaviour is within the expertise of law society adjudicators. Indeed these adjudicators are themselves lawyers! But what, one would like to ask Justice Moldaver, are judges? Aren\u2019t they lawyers too, and aren\u2019t they, in principle (though, granted, not necessarily in practice) more eminent lawyers than those who sit on law society tribunals? As the dissenting opinion in\u00a0Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd<\/em>, 2016 SCC 47, [2016] 2 SCR 293<\/a>, co-written by Justice Brown \u2015 who joined Justice Moldaver\u2019s majority opinion in Groia \u2015, and joined by Justice Moldaver himself, pointed out, \u201cexpertise is a relative concept. It is not absolute.\u201d [84] Sometimes administrative decision-makers are more expert than courts, which might be at least a practical reason for deference \u2015 though not a legal one, as Mark Mancini\u2019s contribution to the Dunsmuir Decade symposium\u00a0pointed out<\/a>. But this justification is implausible here.<\/p>\n

For their part, the dissenters appeal to a different justification for deference: \u201creasonableness review is premised\u201d on the existence a multiplicity of possible answers to questions to which it applies. Yet, as I noted in the posted linked to in the previous paragraph, deference is the presumptive standard of review for\u00a0any<\/em>\u00a0question concerning the interpretation of administrative decision-maker\u2019s \u201chome statute\u201d, and<\/p>\n

the great variety of statutes setting up administrative tribunals, and indeed of particular provisions within any one of these statutes, makes it unlikely that all of the interpretive questions to which they give rise lack definitive answers. Perhaps the suggestion is that the very legislative choice of setting up administrative tribunals to address these questions means that legislatures think that these questions lack definitive answers, but that too seems implausible.<\/p><\/blockquote>\n

Indeed, the dissent\u2019s reasoning is circular: reasonableness \u201cis premised\u201d on there being multiple possible answers, and since reasonableness applies, it follows that the question under review must have multiple answers.<\/p>\n

The practical concern with reasonableness review that\u00a0Groia<\/em>\u00a0illustrates has to do with the supplementation of an administrative decision-maker\u2019s reasons by a reviewing court. The dissent says that Justice Moldaver is wrong to do this to \u201cundermine\u201d the Panel\u2019s review. Yet one of its author\u2019s, Justice Karakatsanis wrote, and another, Justice Gascon, joined, the majority judgment in\u00a0Edmonton East<\/em>, which did not so much supplement as outright made up the administrative decision in order to uphold it. Both of these positions \u2015 no supplementation to undermine, any amount of supplementation to uphold \u2015 seem consistent with the Supreme Court\u2019s jurisprudence. But they are quite inconsistent with one another.<\/p>\n

A clarification: what I\u2019ve said above primarily concerns the first issue in\u00a0Groia<\/em>, that of the applicable framework. On the second one, the application of that framework, without entering into the substance of the debate between majority and dissent, and subject to my comments regarding the supplementation of reasons, I think that reasonableness is the appropriate standard of review. To me, Justice C\u00f4t\u00e9\u2019s concerns about judicial independence seem misplaced, for the reasons given by Justice Moldaver. Besides, while this case did not turn on a credibility issue, other, similar ones may well do so. How are courts supposed to engage in correctness review on that? It seems to me that the two issues in\u00a0Groia<\/em>should have been addressed on different standards of review. But no opinion takes that approach.<\/p>\n

* * *<\/p>\n

Groia<\/em>\u00a0provides further confirmation, if any were yet needed, that the Canadian law (if it may be called law at all) of judicial review of administrative action is in a dire state. Its theoretical foundations, which have long been weak, are being eroded decision by decision; its practical construction is falling apart.\u00a0Perhaps these concerns are soon bound to be a thing of the past, as the Supreme Court\u2019s coming review of the\u00a0Dunsmuir<\/em>\u00a0framework simplifies what is abstruse, clarifies what is opaque, and cuts through what is impenetrable. Perhaps. But considering the confusion and the acrimony that seem to be the most remarkable features of the Court\u2019s latest administrative law pronouncements, I suggest that you should not hold your breath.<\/p>\n

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

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