The Scope and Meaning of Reasonableness Review After Vavilov

At first glance, administrative law in Canada, where courts regularly defer to administrative decision-makers’ interpretations of law and judicial review of administrative action is organised around the concept of reasonableness, is very different to administrative law in England, where courts do not defer to administrative interpretations of law and prefer to conceive of the justification for judicial oversight of administrative action in terms of grounds of review and jurisdictional error. One might think, based on this first glance, that the differences must be attributable to deep-seated disagreement about the nature of judicial power and the appropriate allocation of interpretive authority between the branches of government. One might even suspect that such disagreement must rest on long-settled historical foundations. I will argue, however, that the difference between Canadian and English administrative law is best explained by relatively recent accidents of history. Indeed, I will suggest, a prolonged period of divergence may be coming to an end, with the Transatlantic rise of reasonableness review ushering in a new era of convergence. I will develop this argument by tracing the pattern of divergence and convergence in Canadian and English administrative law from the 1970s to the present day. From the common starting point identified in Part I, the two jurisdictions diverged dramatically between the 1970s and 2000s, as I will explain in Part II. Since then, the administrative law of the two jurisdiction has converged to some extent, as outlined in Part III. One of the implications of my argument is, as I discuss in Part IV, is that further convergence in the future is possible. Moreover, a corollary of this argument is that there is room for fruitful comparisons of English and Canadian administrative law. My message, to those who fear – for whatever reason – that “there be dragons”, is that they can safely venture forward in an Anglo-Canadian comparative administrative law endeavour. A reader interested in undertaking comparative analysis might well conclude that the nature of judicial power, the appropriate allocation of interpretive authority and long-settled historical foundations are substantially similar in both jurisdictions.

Considerable scholarly and judicial attention has been devoted to the selection of the standard of review in Canadian administrative law. Through generational analysis of the developments and challenges in administrative law, and a comparison of the different standards of review, the article examines the place of Canada (Minister of Citizenship and Immigration) v. Vavilov in the jurisprudential landscape. The article suggests that Vavilov now serves as the new Baker v. Canada (Minister of Citizenship and Immigration), providing practical guidance and a stable framework by simplifying the selection of the standard of review process but requires further refinement by attending to transparency and justification regarding the reweighing of factors and the use of Charter values. Ultimately, this article proposes that Baker and Vavilov together could inform the next generational shift in administrative law: the formal recognition of a general duty to provide reasons.

This paper explores standard of review in Canadian administrative law. Part I reviews the organizing principles distilled by the Supreme Court of Canada. Part II examines some of the recent cases that have plagued and perplexed practitioners in this field. Part III considers how our understanding of legislative supremacy and the rule of law – the seemingly omnipresent source of tension in this area of law – has matured over time. Part IV explores how a contextual standard of review for reasonableness could operate in a principled yet practical way.

Dunsmuir v. New Brunswick, 2008 SCC 9, set out to bring a greater degree of clarity to the law surrounding substantive judicial review than had previously been the case. However, the innovations made in Dunsmuir have not been successful in achieving this objective.That administrative action be "lawful, reasonable, and procedurally fair" is a cardinal gospel principle, stricto sensu. Dunsmuir v. New Brunswick, was in this sense a capstone case in Canadian administrative law, an epochal harbinger. It developed from infancy days of the pre-existing Diceyan formalistic era, underscoring formal trifurcation of powers between the judiciary, legislature and executive, to evolve into the teen-hood of 'pragmatic and functional era'. This focused at contextualized meshing of regulation, policy objectives and practicalities. This graduated into a youthful stage during 2002 to 2008, (affectionately referred to as the dysfunctional period) characterized by weariness and frustration to finally culminate into a mature adulthood, fondly called the categorical approach era. The four-factor approach, not been entirely jettisoned though, was marginalized in favor of a categorical approach. This paper situates Dunsmuir into a historical continuum in Part-I and II to assess the degree of possible clarity afforded to the law surrounding substantive judicial review than had previously been the case. This assesses the impact of standard of review on a range of administrative decisions indicating a perceptible shift from correctness to reasonableness in areas, hitherto not accorded deferential treatment by the Supreme Court. Part III focuses on failure of Supreme Court to apply the reasonableness standard in a consistent and principled fashion, notwithstanding the promise of "principled framework that is more coherent and workable." Part IV, underscores that the "innovations made in Dunsmuir has not been successful in achieving this objective of clarity on law surrounding substantive judicial review than before" and that Court's post-Dunsmuir approach to reasonableness review is both disappointing and confusing. I have argued that this shortcomings can be remedied by articulating a contextual approach on the lines of reasoning in Baker v Canada (Minister of Citizenship and Immigration), contextualizing the values of "justifiability, transparency and intelligibility" through judicial review in a particular administrative context.

Foreword vii Acknowledgments ix Contributors xi David Mullan: In Appreciation 1 GRANT HUSCROFT AND MICHAEL TAGGART Academe and the Courts: Professor Mullan's Contribution 9 BEVERLEY MCLACHLIN Learning Administrative Law from David Mullan: An Appreciation of Evans, Janisch, Mullan and Risk, Administrative Law: Cases, Text, and Materials 30 H. WADE MACLAUCHLAN and PHILIP BRYDEN The Uneasy Relationship between Independence and Appointments in Canadian Administrative Law 50 LORNE SOSSIN Where Do Tribunals Fit into the Australian System of Administration and Adjudication? 81 ROBIN CREYKE Administrative Law Developments in New Zealand as Seen through Immigration Law 125 K.J. KEITH Process and Substance in Judicial Review 162 PAUL CRAIG A 'Mullanian' Approach to the Doctrine of Legitimate Expectations: Real Questions and Promising Answers 185 GENEVIEVE CARTIER Roadblocks, Restraint, and Remedies: The Idea of Progress in Administrative Law 211 JANET MCLEAN The Codification of Administrative Law in Quebec 240 DENIS LEMIEUX Globalization, 'Local' Foreign Policy, and Administrative Law 259 MICHAEL TAGGART Judicial Review from CUPE to CUPE: Less Is Not Always More 296 GRANT HUSCROFT From Despair to Deference: Same Difference? 327 HUGH CORDER The Importance of Being Contextual: Deference South of the Border 351 ALFRED C. AMAN, JR. Principle and Pragmatism: Administrative Agencies' Jurisdiction over Constitutional Issues 377 JOHN M. EVANS 'Common Public Law in the Age of Legislation': David Mullan and the Unwritten Constitution 421 MARK WALTERS David Mullan's Theory of the Rule of (Common) Law 448 DAVID DYZENHAUS The Writings of David Mullan 485

Looking at Swiss administrative law from a Quebec perspective, this paper outlines some aspects of the Swiss system that provide useful models or references for the discussion and resolution of current issues in Canadian and Quebec administrative law. These issues are identified as (1) the proliferation of independent administrative agencies, and the means to control or at least systematize the growth of such structures ; (2) the desirability and feasibility of enacting general standards of procedure for administrative action ; (3) the simplification of remedies in the field of judicial review of administrative action ; (4) the desirability and feasibility of allocating judicial review powers to a specialized court, either within or outside the Superior Court ; and (5) the desirability and form of a procedure allowing for political intervention in the decision-making process of independent agencies. In the light of these issues, the paper describes the allocation of review functions between administrative and judicial bodies in Swiss federal law. The structure and activity of the Swiss Federal Court (Tribunal fédéral), and especially of the division of the Court that deals with most administrative law cases, are outlined in some more detail. A short historical sketch leads to a discussion of the corresponding features of the law in some of the cantons, and to consideration of the special position given to social security matters in the general scheme of administrative law. The paper then focusses on administrative action itself, commenting on the most significant provisions in the Federal Administrative Procedure Act (Loi fédérale sur la procédure administrative) of 1968. Special attention is paid to the process of review within the administration, up to the level of the federal cabinet (Conseil fédéral). Corresponding provisions in the law of some of the cantons are also briefly discussed. The description of the federal review process is then completed by an outline of the procedure for judicial review of administrative action by the Federal Court (Recours de droit administrative). Finally, notice is again taken of the special position of social security as regards administrative procedure. The paper draws attention, in its concluding part, to the most interesting insights provided by Swiss law into the current problems of Canadian and Quebec administrative law. The growth of administrative tribunals has been brought under control by structural arrangements, especially in the field of social security. The introduction of general standards of procedure has brought greater uniformity and clarity, has emphasized the unity of administrative process including the review phase before administrative or judicial authorities, and has strenghtened the rule of law over government action. The existence of a single procedure to invoke judicial review eases access to the court. While in many cases review by the court is excluded, these exclusions have to be specific, and leave full opportunity for review within the administration, with adequate safeguards provided by the Administrative Procedure Act. Specialization occurs within the Federal Court, and does not involve a rigid separation between judges applying administrative law and judges applying other branches of the law, as in France or Germany. Finally, ultimate political control over certain types of decisions is admitted as a part of life in Swiss federal law, but is at the same time subjected to a quasi-judicial procedure which makes it an acknowledged source of administrative justice.

Although the Supreme Court of Canada’s seminal decision in Dunsmuir v. New Brunswick has now been cited more than 10,000 times by Canadian courts and administrative tribunals, many of its key features remain obscure. In this article, the author analyzes recent cases decided under the Dunsmuir framework with a view to determining where Canadian courts might usefully go next. The author’s argument is that the two important principles said to underlie the Dunsmuir framework—the rule of law and democracy—can provide guidance to courts in simplifying and clarifying judicial review of administrative action. In Part I, the author explains how the relationship between Dunsmuir’s categorical approach and the contextual approach that it replaced is uncertain and causes significant confusion, and explores the potential utility of the two underlying principles in simplifying the law. The application of the reasonableness standard of review is the focus of Part II, in which the author criticizes the general approach to reasonableness review in Canada, but suggests that the rule of law and democracy may assist in clarifying the law, by setting the boundaries of the “range” of reasonable outcomes and structuring the analytical framework for identifying unreasonable administrative decisions. Finally, the author draws the strands of Parts I and II together by arguing for the adoption of a unified, context-sensitive reasonableness standard, underpinned by the rule of law and democracy, with the aim of providing clarity and simplicity to Canadian administrative law in a manner faithful to the Supreme Court of Canada’s decision in Dunsmuir.

The first half of my “year in review” paper covers the Supreme Court’s much-anticipated trilogy of decisions on the standard of review of administrative action (Part I); some of the key points at issue in the trilogy which have been addressed recently by Canadian courts (Part II); and the Court’s 2019 administrative law jurisprudence, such as it is (Part III). The remaining Parts of my paper focus on first-instance and appellate jurisprudence (and occasional political controversies) relating to three broad themes: the role of the Federal Courts (Part IV), the role of the superior courts (Part V) and the role of administrative tribunals, with a particular emphasis on independence (Part VI). Briefly, the major themes are, first, that the Trilogy threatens to underwhelm, especially in light of the last year of Supreme Court of Canada administrative law jurisprudence, which has been characterized by a tendency to overlook points of general importance raised by public law litigation. Second, although standard of review continues to dominant Canadian discussions about administrative law, there are important issues relating to the role of the federal courts, the superior courts and administrative tribunals which are likely to occupy the Supreme Court of Canada and the country’s administrative law community in the coming years.

The adoption of human rights instruments in common law jurisdictions has important implications for the judicial review of administrative decisions. When the exercise of an administrative discretion affects a right protected by a human rights instrument, courts in most jurisdictions adopt a form of reasonableness review that is more stringent and structured than traditional (or Wednesbury) reasonableness – usually one that adopts a ‘proportionality’ assessment. The author considers the way in which the law on this point has evolved in one common law jurisdiction – Canada. He argues that Canadian courts remain ambivalent about the use of proportionality in the administrative law context, an ambivalence rooted in an artificial distinction drawn between constitutional law and administrative law. The author argues that once this bifurcation is rejected, and a unity of public law acknowledged, proportionality may be seen as a general common law principle that, pursuant to the theory of ‘deference as respect’ developed by David Dyzenhaus, ought to be available in the judicial review of all important rights, interests or values, whether protected explicitly by written human rights instrument or not.

The doctrine of judicial deference to administrative decision-makers is central to Canadian administrative law. One could almost say that administrative law in Canada is the law of judicial deference. However, in order to properly understand judicial deference in Canada, it is necessary to step back and place it in context. The first point is that “deference” has always played a role in administrative law in one way or another. However, what makes deference now so important is that it has become a specific analytical doctrine through which courts interpret statutes when faced with applications for judicial review. Such a method of statutory interpretation purports to systematize judicial control. However, if such a juridification has helped solve problems on the short term, it raises new questions while at the same time illustrating the judicial origins of Canadian administrative law.

This review essay challenges the supposition that its origin in English common law assures the unified character of Canadian administrative law. Contrary to the usual suppositions, differences of language - French and English - and legal tradition - common law and civil law - generate distinct cultures of administrative law. Scholars have, however, given little consideration to the extent to which linguistic, political, and other differences have produced distinct, coexisting bodies of administrative law in Canada. Since the political and cultural boundaries of Canadian administrative law appear permanent, the precondition to benefiting from the possibilities for fruitful cross-fertilization is surely greater recognition of the lines that do persist, in law and in fact.

“When the facts change, I change my opinion,” John Maynard Keynes once tartly replied to a questioner concerned that the economist had altered his position on a matter of public importance, before adding, witheringly: “What do you do, sir?” How to deal with changed circumstances is the central topic of this paper. When the facts change, should administrative decision-makers change with them? In section I, I briefly review the development of stare decisis in the common law, before turning in section II to outline the Canadian approach to stare decisis in the administrative context. From there I assess three points at which the status quo comes under pressure, what I call the problems of clarity (section III), consistency (section IV) and coherence (section V). Stare decisis is not at all the judicial straitjacket it is sometimes imagined to be and so the very flexible approach to precedent taken by administrative decision-makers is not only defensible but laudable. Mischief results when judges declare statutory provisions to be ‘clear’, insist on consistency, or orchestrate coherence from on high. As to clarity, setting a judicial interpretation of a statutory provision in aspic threatens to compromise regulatory flexibility over time. The Canadian approach to stare decisis allows administrative decision-makers to change their positions in accordance with changing circumstances, but if a court carves the only possible, acceptable interpretation into a tablet of stone this flexibility is eliminated as future administrative decision-makers are forever encumbered by the judicial edict.As to consistency, the administrative-law approach to stare decisis comes under stress where there is a temptation for courts to harmonize inconsistent lines of administrative decisions. However, the rule of law is not a trump card to be played when there is judicial disquiet about inconsistent administrative decision-making. There are inevitably “quantitative” -- how much of an inconsistency? -- and “temporal” -- how far apart in time are the inconsistent decisions? -- aspects to the difficult judgement calls on whether intervention would be appropriate to ensure consistency. This is an open invitation to judges to correct administrative decisions they find aberrant but could not qualify as unreasonable.A final pressure point comes in the form of incoherence: what about an administrative decision that is a reasonable resolution of a particular case but which is reached by flawed logic? If the flawed logic is not sanctioned, it remains on the books and may influence future administrative decision-makers. Deference suggests that reviewing courts should wring their hands -- and then wash them: the reasonable decision should be upheld and the flawed logic should be worked out through the administrative process. Administrative decision-makers are no less canny than courts in recognizing problematic decisions and distinguishing them -- indeed, they may be more capable of doing so while also respecting the overall fabric of their own regulatory system. Flawed logic alone does not invite judicial intervention.

Prolegomenon to an Intellectual History of Administrative Law in the Twentieth Century: The Case of John Willis and Canadian Administrative Law

Over the past ten years, Dunsmuir v New Brunswick has become a focal point in scholarly and judicial discourse regarding the law of judicial review. But, despite its influential status, the author argues that the reasoning in Dunsmuir cannot be easily reconciled with paradigmatic cases in Canadian administrative law, which regard transparency, fairness, and reasoned justification as essential rule-of-law safeguards against arbitrary governmental action. By juxtaposing Dunsmuir with a principled understanding of these paradigmatic cases, the author concludes that the reasoning in Dunsmuir serves to undermine, rather than reinforce, the fundamental principles which might otherwise ensure the legitimacy of administrative law.

From Rawls to Habermas: Towards A Theory of Grounded Impartiality in Canadian Administrative Law