RYU: How Russian spies and the Super Bowl might have set the stage for major legal reform in Canada

This Tuesday, Wednesday, and Thursday (Dec. 4-6), the Supreme Court of Canada will jointly hear three appeals in administrative law, starting at 9:30 AM on each day. The hearings will be broadcast live here, and will be recorded and posted here. The Supreme Court, in an almost unprecedented move, explicitly suggested that it could be a landmark case that significantly affects the lives of all Canadians.

The Court is of the view that these appeals provide an opportunity to consider the nature and scope of judicial review of administrative action, as addressed in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, and subsequent cases. To that end, the appellant and respondent are invited to devote a substantial part of their written and oral submissions on the appeal to the question of standard of review, and shall be allowed to file and serve a factum on appeal of at most 45 pages.

(Citations: [2017] S.C.C.A. No. 352; [2018] S.C.C.A. No. 9; [2018] S.C.C.A. No. 28) Bell and the NFL are appealing a decision in favour of the Canadian Radio-television and Telecommunications Commission (CRTC). The CRTC has banned the practice of buying live American content (the Super Bowl in this case) and swapping the American commercials with Canadian ones. The Federal Court of Appeal had ruled in favour of the CRTC’s right to make such an order. Alexander Vavilov’s Canadian citizenship was stripped by the Ministry of Citizenship and Immigration, which he successfully appealed to the Federal Court of Appeal. The government appealed to the Supreme Court to uphold its decision to strip Vavilov’s citizenship. Vavilov was born in Canada to Russian spies. Everyone born in Canada is a citizen unless they are born to an “employee in Canada of a foreign government.” The dispute is whether “employee” should only include those who have diplomatic immunity from Canadian laws. More specifically, it will likely be about whether it was a reasonable interpretation of “employee in Canada of a foreign government” to include spies.

The invisible behemoth in Canadian law

In modern times, administrative law has a bigger impact on our everyday lives than perhaps any other area of law, even compared to criminal law. If you drive, work, use electricity, go online, rent a home, buy a home, build a home, or even eat, administrative law affects your life. Administrative law governs any state action that is either not legislative in nature (e.g. ministerial veto of a deportation) or delegated to a government agency. Individuals or corporations mostly interact with elected governments through one of numerous agencies that are tasked with administering laws, many of which we may have never heard of. It includes applications for drivers’ licenses, building permits, passports, refugee claims, agricultural quotas, and other instances where a public decision-maker (other than an actual court) affects individuals’ rights or even potential privileges. It applies to parole boards, landlord and tenant boards, human rights tribunals, food and drug standard-setters, and securities regulators. It even includes the entire area of municipal law, since municipalities are technically agencies of provincial governments. Although it often goes unnoticed, the growing complexity of our state institutions has allowed administrative law to emerge as a legal behemoth. Like it or not, the maintenance of our modern society depends on the administrative state.

Administrative standards of review

Both legislative and administrative decisions are subject to review by the courts. While legislative decisions can only be challenged on constitutional grounds, administrative decisions can be reviewed on any ground that could be appealed from a lower court to an appeal court. However, while appeal courts only show deference to lower courts for their factual findings (and not their legal reasoning), government agencies on judicial review are usually shown more deference. The development of this area of law has long been a battle between those for and those against more deference for administrative decisions by the courts. Approximately once every decade, the Supreme Court produces a landmark case on when and how much deference should be shown by the courts on judicial review. That means we are just about due. The last such case was Dunsmuir v New Brunswick in 2008. It has since remained a landmark case and has been cited in close to 15 000 court judgments and administrative decisions. In that decision, the Supreme Court decided that courts should only overrule “unreasonable” administrative decisions where the decision-making board or tribunal was interpreting the laws that they were created to interpret. For example, Bell’s current appeal was from a judicial review of the CRTC’s interpretation of the Broadcasting Act, the very Act that created the CRTC. Reasonableness was defined as falling “within a range of possible outcomes” and having reasons that meet a certain standard of “justification, transparency, and intelligibility”. This standard contrasts with a standard of correctness, where courts simply make their own decision and then compares it to the administrative decision. Under this standard, the court overturns any decision that does not match what the court itself would have ruled, even if it was based on a reasonable alternative interpretation. The rationales for upholding an “incorrect” but “reasonable” decision are complex and historically disputed, but can be simplified into three main points:

1. Democratic mandate: if a legislature creates an Act and creates an agency to interpret and implement that Act, it can often be assumed that the legislature intended any ambiguities to be resolved by the agency, and it would be undemocratic for the courts to overrule a reasonable decision that the court disagrees with.
2. Specialization: it is generally assumed that boards and tribunals have special expertise on the subject matter of their “home statute” (the Act or regulations that created them), so courts should accordingly defer to their expertise where appropriate.
3. Judicial backlog: judicial review is incredibly time consuming and expensive, so it might be more resource efficient for courts to show some deference to decisions made elsewhere, making applications for judicial review less appealing (no pun intended).

Based on these rationales and through decades of confused lawyers and divided courts, certain exceptions have been established where courts can strict correctness. For example, courts will show no deference for decisions that could have high precedential impact on other areas of law unless the decision-making body has a sufficient level of expertise on the subject. Other times, a standard of correctness is also appropriate for constitutional questions, questions of jurisdiction (very rarely applied, for historical reasons), or where more than one board or tribunal can a particular Act. In addition, Courts have no obligation to show deference with respect to matters of law outside of the “home statute”.

Ripe for reform

It seems that the only legal consensus on standards of review is that there is no consensus. Although we have come a long way from the Dicean view that legal questions must have a single correct answer and that only the courts can determine such answers, there is a ways left to go. Historically, the analysis was based on how strongly the legislature worded a home statute’s privative clause—a section that explicitly says that administrative decisions cannot be reviewed by courts. Then, the focus shifted to the relative expertise between the board or tribunal and the courts on a particular matter. My opinion is that the Dunsmuir judgment merely shifted the focus of the analysis to a single factor. Although it has created a “presumption” that the standard of review is that of reasonableness, a presumption is essentially an exceptionally strong focus on one of multiple factors. For example, as with any interpretation of legislation, the deemed purpose and objectives of the legislation is always a factor. This presumption has strongly placed the focus on whether or not a legal issue is based on factual disagreement or legal disagreement, and whether or not the decision is an interpretation of a decision-maker’s home statute. The strength of that presumption has been contentious. In my view, some Supreme Court judges continued to favour a stronger focus on the relative expertise factor by advocating for a weaker presumption against considering contextual factors. This is how I would characterize Justice Deschamps’s 2011 (concurring) judgments in Alberta v Alberta Teachers' Association and Smith v Alliance Pipeline Ltd, and the 2016 (dissenting) judgment written by Justices Côté and Brown in Edmonton v Edmonton East Shopping Centres Ltd. So, while the Dunsmuir decision in 2008 was meant to clarify and simplify the law, it left the waters almost just as murky as they were before. The Supreme Court itself remained divided on how to apply the new rules they had just created, and even split 5 to 4 on the Dunsmuir decision itself. The effect has been that so much time and money in judicial review proceedings continue to go towards arguing which standard of review should apply, rather than to substantive arguments of whether the government acted unlawfully through one if its agencies.

The Tribunals

The Council of Canadian Administrative Tribunals (CCAT) is part of an extensive list of intervenors for the upcoming appeals. Intervenors are granted the right to give written and oral submissions on the case, and may take a side but do not have to. They point out that the framework from the Dunsmuir decision “emerged spontaneously without input from administrative tribunals”, which the court might have already realized as evidenced by their explicit and near-unprecedented invitation for intervenors’ submissions. I would summarize their written submission as the following three arguments:

1. Deference should be prioritized as a guiding principle, in favour of public confidence in tribunals and efficient specialization.
2. Decisions should be found reasonable unless it can be shown to be unreasonable. At the very least, the boundaries of the “range of possible outcomes” must become more predictable.
3. Courts should exercise special caution when replacing or supplementing the reasons of an administrative decision, because among other things, it undermines public confidence in tribunals and harmfully reduces their decisions to their outcomes.

The CCAT echoed the common criticism that the post-2008 Supreme Court has been using a standard of “disguised correctness” by saying that they are applying the “reasonableness” standard while finding that there was only one reasonable outcome.

What happens next?

Earlier this year in Canada v Canada, the Supreme Court seemed to make the “presumption of reasonableness” almost absolute. Among other things, they expressly said that contextual factors will only be considered in exceptional cases. I see this as paving the road for the “correctness” standard of review to be retired in favour of making “reasonableness” the universal standard, as was suggested by Justice Abella in the 2016 case of Wilson v Atomic Energy of Canada Ltd. It would represent the victorious finale to a long battle for the strongly pro-deference Justice Abella, who is actually the only Supreme Court Justice who has not retired since the Dunsmuir decision a decade ago. Although it would require her to convince the rest of the court, 5 of the 6 judges in that largely pro-deference majority judgment in Canada v Canada are still sitting on the court. The 6th judge was former Chief Justice McLachlin, who I would have considered a swing vote. Since there are 9 judges on the court, 5 judges can always form a majority. Without a more certain standard for the intensity of judicial review, however, even a universal "reasonableness" standard would be at risk of collapsing into “disguised correctness.” The "disguised correctness" criticism has already been at the forefront of the standards of review discussion. I would therefore go further and propose that courts should only overturn administrative decisions on one of three grounds:

1. Objective errors such as going against already settled interpretations
2. Reasons that are inadequate to even determine whether such an error was made
3. Procedural deficiencies (such as unreasonable delay, or failure to provide notice)

Unelected judges must respect legislative intent, and thereby the indirect will of the people, as a fundamental democratic principle. Legislation that has unsettled ambiguity should be seen as showing legislative intent to permit a range of possible interpretations, and legislation that confers discretion as legislative intent to permit outcomes that are neither arbitrary nor contrary to legislation. Hopefully, the Supreme Court will be “reasonable” and come to the same conclusion.