{"id":3158,"date":"2019-05-22T15:21:46","date_gmt":"2019-05-22T15:21:46","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=3158"},"modified":"2019-05-22T15:21:48","modified_gmt":"2019-05-22T15:21:48","slug":"deference-to-administrators-must-be-legislated-not-assumed","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/deference-to-administrators-must-be-legislated-not-assumed\/","title":{"rendered":"Deference to Administrators Must be Legislated not Assumed"},"content":{"rendered":"\n

Earlier\nthis month, Mark Mancini wrote two very thoughtful blog posts on the Double Aspect blog<\/a>,\nattempting to bring administrative law back to first principles. These\nintriguing posts are worthy of commentary. I will respond to Mancini\u2019s two\nposts today, and follow up next week with an addendum in light of the Supreme\nCourt of Canada\u2019s recent decision in Canada v Chhina<\/em><\/a>.<\/p>\n\n\n\n

Historical Justifications for Deference<\/strong><\/h4>\n\n\n\n

Much\nof modern Canadian administrative law concerns the question of \u201cstandard of\nreview\u201d: how much, if any, deference, an administrator should be given in\ninterpreting the law. Mancini goes into a deep dive into the history of how we\ngot here: a lamentation of courts being an (alleged) impediment to the\nrealization of government policy goals. Mancini labels these critiques, leveled\nprimarily from the 1930s through 1970s, as \u201cProgressive\u201d, referring to the New\nDeal-era term. <\/p>\n\n\n\n

I\nhave perhaps more sympathy than Mancini with respect to such scholars \u2013 to say\nnothing of democratically elected legislators \u2013 being exasperated by\nquestionable judicial interpretations of statutes. The \u201cLochner <\/em>era\u201d in American constitutional history is rightly\ncriticized, in my opinion, for judicial overreach. Even in Canada, courts were\ninfamous for interpreting labour legislation in particular, seeming to stretch\nthe definition of a decision made \u201cwithout jurisdiction\u201d.<\/p>\n\n\n\n

But Mancini astutely notes that, regardless of historical context, the administrative state is vastly different in the modern era. While labour regulation was the Progressives\u2019 quintessential point of reference, the modern administrative state addresses matters including revocation of citizenship, entitlement to refugee status, eligibility for social support, determinations of detention standards, and many others. Administrative decision-makers frequently have no legal training. It seems problematic to base the modern law of judicial review in concerns about 1970s judicial overreach in the labour law context. <\/p>\n\n\n\n

Mancini cites three reasons cited by modern and historic defenders of deference. The first is expertise. Expertise may sometimes be a policy<\/em><\/strong> reason to defer to a decision-maker. But as Mancini and others have noted, it is frequently not present (Vavilov <\/em>is a great example). Expertise seems uncompelling as a stand-alone legal <\/em><\/strong>reason for deference. It remains the legislature\u2019s decision to prescribe deference in a particular statute as a matter of policy \u2013 not the purview of the courts to declare it to be so in all contexts.<\/p>\n\n\n\n

The second alleged justification for deference is efficiency. Mancini shows that this is frequently not present in administrative decision-makers. I take his examples of poorly functioning administrators. A comprehensive analysis would arguably be necessary to determine whether, in the aggregate, administrators are more efficient than courts. To be sure, courts are hardly paradigms of efficiency. Nonetheless, even if administrators make decisions more efficiently than courts, this cuts both ways. Why? Because a court reaching a determinative interpretation of a statute allows administrators to make subsequent decisions more efficiently, not needing to re-interpret the law from a blank slate. It also allows parties to order their affairs more predictably, lessening the need to resort to the administrator in the first place.<\/p>\n\n\n\n

The third alleged reason for deference is independence. Mancini doubts the presence of independence as an empirical fact in many administrators. I suspect this is very administrator-specific, but Mancini points out enough instances of an obvious lack of independence so as to cast doubt on the wisdom of using independence as a stand-alone reason for deference. (In any event, there are circumstances where a lack of independence can raise procedural fairness concerns, causing one to wonder what role independence should play in the substantive review analysis.)<\/p>\n\n\n\n

Ultimately, Mancini builds a strong case undermining the policy reasons for deference to administrators, both historically and contemporarily. I do regret the emphasis on the term \u201cProgressive\u201d as the purported justification for deference, as this implies the political left should be inclined to support deference to administrators while the political right should not. From an institutional design perspective, we wish to remove such political considerations. And to be sure, Mancini is clear he is referring to the \u201cProgressive\u201d movement of a particular era. In any event, as I argue below, deference can be an impediment to the realization of small-p progressive results.<\/p>\n\n\n\n

When to Defer: Beyond Standard of Review<\/strong><\/h4>\n\n\n\n

The\nquestion of when to defer and when not to, as a matter of political theory, is\ndebatable. It seems as though factors in favour of deference may be present in\nthe case of many administrators\u2019 decisions, but not others. But from a legal\nperspective, Mancini convincingly notes that determining how much deference is\ndue in each case is a time-consuming and usually unwarranted exercise. A \u201crule\u201d\nrather than a \u201cstandard\u201d appears appropriate given the ubiquity of judicial\nreview.<\/p>\n\n\n\n

In\nthe face of this, Mancini proposes that questions of law be reviewed on a\ncorrectness standard, unless particular legislation indicates that\ndeference is warranted<\/em><\/strong>. A statute would typically suggest that\ncorrectness should not be applied through a privative clause.<\/p>\n\n\n\n

I find this proposal attractive for numerous reasons. First, the statute gives the administrator its power. The courts \u2013 tasked with statutory interpretation in our system of governance \u2013 should determine that an administrator stays within its bounds in this area. As Justice Rowe wittily noted last year in West Fraser<\/em><\/a>, working day-to-day with a statute\u2019s subject matter does not bestow expertise in statutory interpretation, which is a question of legal analysis. Second, correctness review has the advantage ensuring of consistent interpretations of law, allowing parties to order their affairs. Third, and most importantly, such an approach respects legislative intent, which courts are constitutionally obliged to respect and is inherently statute-specific. As I noted when discussing the 1979 CUPE <\/em>case on Double Aspect in December<\/a>, the language of \u201cstandard of review\u201d is found in neither common law legal tradition nor most statutory texts. It has caused mischief in Canada. Simply asking whether a statute calls for deference is a straight-up task in statutory interpretation for which courts are eminently qualified.<\/p>\n\n\n\n

If\na legislature wishes to insulate an administrator\u2019s decision from judicial review,\nit is welcome to do so within constitutional constraints. This will necessitate\na body of law determining whether deference is called for by any particular\nstatute. But it will probably not be complicated in the vast majority of cases,\nwith the presence or absence of a privative clause likely being determinative\nof the matter. If deference is appropriate, an administrator\u2019s decision should\nbe upheld unless indefensible. In very rare cases, the rule of law may mandate\nthat courts intervene despite a privative clause if the administrator has come\nto an indefensible interpretation of the statute. But this is the only real\ncircumstance that the rule of law and parliamentary supremacy come into tension\n\u2013 and it is rare. (This puts aside the question of whether certain matters such\nas constitutional interpretation ipso\nfacto <\/em>call for no deference. Another possible instance of this, identified\nby my soon-to-be colleagues at Robson Hall, Amar Khoday and Gerald Heckman, is\nthe interpretation of\ninternational human rights law<\/a>.)<\/p>\n\n\n\n

It\nmay seem that a \u201ccorrectness unless the statute says otherwise\u201d standard of\nreview excessively complicates what could be a simple analysis through a single\nstandard of reasonableness. Courts will likely need to interpret each statute\nto determine whether deference is due. But courts find themselves practically\ninterpreting each statute in any event to determine whether particular\ninterpretations are reasonable. The fact is that each statute is unique and\noperates in different circumstances. Having a system of administrative law that\nrecognizes as much appears eminently reasonable. <\/p>\n\n\n\n

Of course, none of this prevents common sense \u201cdeference\u201d in circumstances where an administrator truly is expert. But this is not deference that is due de jure<\/em>. For statutes such as the Criminal Code<\/em>, the Class Proceedings Act<\/em>, or the Income Tax Act<\/em>, appellate courts do not defer to \u201cexpert\u201d Provincial Court, Superior Court, or Tax Court judges who may know more about the area. Although consideration of those judges\u2019 \u201cexpertise\u201d may rightly caution an appellate judge against coming to a contrary interpretation of the statute, this is not deference that is due as a matter of law but rather as a matter of common sense. To quote Justice Scalia<\/a>:<\/p>\n\n\n\n

If I had been sitting on the Supreme Court when Learned Hand was still alive, it would similarly have been, as a practical matter, desirable for me to accept his views in all of his cases under review, on the basis that he is a lot wiser than I, and more likely to get it right. But that would hardly have been theoretically valid. Even if Hand would have been de facto<\/em> superior, I would have been ex officio<\/em> so. So also with judicial acceptance of the agencies\u2019 views.<\/p><\/blockquote>\n\n\n\n

I\nbelieve Justice Scalia overstated the matter. Legislatures have the right to\npromulgate the law and I fail to see why, in principle, they cannot use their\njudgment to delegate law-making or law-applying authority to expert\nadministrators. But the legislature actually has to use said judgment to give\nsaid administrators such power. It ought not to be assumed.<\/p>\n\n\n\n

Concluding Thoughts<\/strong><\/h4>\n\n\n\n

Mark\nMancini\u2019s recent thoughtful contributions to the discussion surrounding\nstandard of review should be welcomed. His suggestion for a new rule to govern\nthis area, even if not one typically proposed, is principled. While some\npolitical connotations surrounding the debate are unfortunate, we can see that\nthese issues of administrative law and standard of review affect such vast\nareas of legal practice and the role of government that attempts to boldly\ndepart from legal tradition should be treated with caution.<\/p>\n","protected":false},"excerpt":{"rendered":"

Earlier this month, Mark Mancini wrote two very thoughtful blog posts on the Double Aspect blog, attempting to bring administrative law back to first principles. These intriguing posts are worthy of commentary. I will respond to Mancini\u2019s two posts today, and follow up next week with an addendum in light of the Supreme Court of …<\/p>\n","protected":false},"author":133,"featured_media":3163,"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":[36,34],"tags":[264,274,265,328,511,416,273,64],"_links":{"self":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3158"}],"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\/133"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/comments?post=3158"}],"version-history":[{"count":3,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3158\/revisions"}],"predecessor-version":[{"id":3161,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3158\/revisions\/3161"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media\/3163"}],"wp:attachment":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media?parent=3158"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/categories?post=3158"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/tags?post=3158"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}