Tuesday, 10 July 2012

A Theoretical Book but a Practical Approach

Over the next couple of weeks, I am going to blog occasionally about my new book, A Theory of Deference in Administrative Law:Basis, Application and Scope. For my first post, I thought I would start with something that does not really appear in the book at all: a brief overview of the approach I urge. Despite the daunting title, what I actually propose is, in my view, quite simple. I have drawn on Canadian cases to provide examples, solely because they feature in an article I am currently revising, which will shortly appear in the McGill Law Journal; I hope to post it on SSRN by the end of this week. In principle, this approach is applicable in any common law jurisdiction where there is judicial review of administrative action.

Calibrating the appropriate standard of review is a tricky task for administrative lawyers: one with which practitioners and judges in England (and Wales) (super-, sub- and plain-vanilla-Wednesbury), Canada (standard of review analysis) and the United States (Chevron or Skidmore deference) are faced from time to time. In chapters 2, 3 and 4 of A Theory of Deference in Administrative Law, I outline a comprehensive approach to standard of review analysis, which I will sketch in this post.

I say that the reviewing court should first assess the extent of the grant or delegation of authority to the decision-maker.  Cromwell J. captured the essence of this notion in his concurring reasons in Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61:
The respondent’s position in this case is that s. 50(5) of the Personal Information Protection Act, S.A. 2003, c. P-6.5, is a provision the Commissioner was obliged to interpret correctly. While the fact that this provision is in the Commissioner’s “home” statute suggests caution in accepting that characterization of the provision, this alone does not relieve the reviewing court of examining the provision and the other relevant factors to determine the legislature’s intent in relation to it.
When this is done, my view is that the legislature did not intend to authorize judicial review for correctness of the Commissioner’s interpretation of s. 50(5). The power to extend time is granted in broad terms in the context of a detailed and highly specialized statutory scheme which it is the Commissioner’s duty to administer and under which he is required to exercise many broadly granted discretions. The respondent’s contention that s. 50(5) is a provision whose interpretation is reviewable on a correctness standard should be rejected because, having regard to the nature of the statutory scheme, the nature of the Commissioner’s broadly conferred duties to administer that highly specialized scheme, and the nature of the provision in issue, it was the legislature’s intent to leave to the Commissioner the question of whether s. 50(5) allowed him to extend the time limit after the 90 days had expired. I therefore agree with my colleague’s conclusion that the applicable standard of review is reasonableness (at paras. 100-101).
Subsequently, the reviewing court should examine the statute to ascertain the reasons motivating the legislature’s decision to vest power in the decision-maker in question.  It should pose and answer the following questions: is the decision-maker an expert body; was the decision at issue complex in nature; is the decision-maker more democratically legitimate than the reviewing court; and was the decision-maker able to benefit from flexible procedures to allow it to permit greater participation than a legislature or a court?  These are “practical justifications” both for the legislature’s decision to grant authority to the decision-maker and for the reviewing court to be deferential.  If an interpretation of the statute discloses that these practical justifications could plausibly be said to have motivated the legislature’s decision to grant authority, they ought to be taken into account by the reviewing court.

Both the extent of the grant of authority and the influence of the practical justifications will vary from case to case.  They carry weight; none of them is dispositive of the issue of the appropriate standard of review. The practical benefit of conducting this exercise is that the reviewing court will be in a position to assess the appropriate degree of deference to accord to the decision under review.

This is not a complicated exercise, especially in an adversarial setting.  A skilled advocate should be able to state his or her case on the first stage of the standard of review analysis in a few pages of their factum.  A reviewing court that understands its task should not need more than five or six paragraphs to justify its conclusion on the appropriate standard of review in a justifiable, intelligible and transparent manner.

I go on to argue that reviewing courts should recognize three standards of review.  Correctness, I hope, we can all agree on.  I also argue that there should be a standard of reasonableness and a standard of manifest unreasonableness.

But the formal labels for these standards are not critical.  What is vitally important is the substance of these standards.  I argue that where the standard of review is reasonableness or manifest unreasonableness, the applicant bears an onus.  The appropriate approach, when determining whether a decision or interpretation is unreasonable, is to place an onus on the applicant to demonstrate some shortcoming on the part of the decision-maker.  Perhaps the decision was illogical, strained the statutory text to breaking point, or imposed disproportionately onerous obligations.  However, if the onus has been satisfied, the burden – in a figurative sense – shifts from the applicant to the respondent. Only if the decision-maker can adduce cogent reasoning and evidence in support of its position should the decision be upheld.  

The difference between reasonableness and manifest unreasonableness lies in the means of discharge of the “burden of justification”.  Where reasonableness is the standard, the decision-maker must adduce cogent reasons or reasoning and/or sufficient evidence to explain the apparent shortcoming; if they can do so, the decision stands; if not, the decision falls.  Thus in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, the Tribunal’s argument that the purposes of the statutory scheme in promoting access to human rights adjudication should have prevailed against the argument that the Tribunal’s position did violence to the text of the statute.

Where manifest unreasonableness is the standard, the decision-maker must only point to some relevant reasoning or evidence which explains the apparent shortcoming.   Thus in another recent case, Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, although the applicant could demonstrate inequity and disproportionality on the part of the municipality (in that the applicant was not shouldering a fair burden of municipal taxes), there was relevant reasoning, in the municipality’s strategy to gradually even out the share of the tax burden, to explain this apparent shortcoming and justify the decision.

Again, this is not a complicated exercise in an adversarial setting.  Laying out the competing considerations as to the merits of a decision should be meat and drink to public law litigators. 

So there it is! 300 pages summarized in 3 pages.