Administrative “Determinations of Law” and the Limits of Legal Pluralism after Vavilov

Abstract

As the doctrine of judicial review has matured, Canadian courts have become increasingly attuned to the role that administrative agencies play in maintaining the rule of law. The courts have recognized that in order for administrative agencies to function effectively, they must have some freedom to interpret their statutes. Accommodation of nonjudicial interpretations of law, however, has limits. While the courts have often addressed jurisdictional limits in Diceyan terms, they have also addressed the structural limitations that flow from the nature of delegated discretion. These limitations make it impossible for administrative agencies to make determinations of law as courts do. Most agencies do not have the power to create binding policy or otherwise resolve ambiguities in their enabling statute. Rule of law concerns may arise from the resulting uncertainty as much as from questions of vires. Administrative agencies are unable to settle constitutional questions, questions of central importance to the legal system, or jurisdictional disputes between agencies. Settling ambiguity in existing law is a function that only the courts can perform. Nonetheless, the legitimacy of law-making by nonjudicial institutions within their limits has long been recognized in the common law world. This article describes the development of legal pluralism regarding the sources of law in Canadian jurisprudence. The article then examines the extent to which Vavilov’s new framework for reasonableness review articulates how nonjudicial decision-makers might manifest the rule of law within a “culture of justification.”