The Thin Line between Law and Discretion

A recurring issue in the law of judicial review is the distinction between law and discretion. Where this matters the most is in substantive review: should a similar standard of reasonableness be applied to questions of law and exercises of discretion?

Reasonable Interpretations of Law: Some Thoughts

Not so long ago, I posted on "Deference and Reasonableness". I have also just posted some thoughts on rationality. It is quite timely, then, that I recently came across the reasons of Robertson J.A. in Small v. New Brunswick Liquor Corporation, 2012 NBCA 53, a case decided last summer. They deserve careful reading by anyone interested in reasonableness in administrative law.

Deference on Questions of International Law

The majority of the Federal Court of Appeal in Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324 refused to defer to the immigration authorities' interpretation of Article 1F(b) of the Refugee Convention (as implemented by s. 36 of the Immigration and Refugee Protection Act).

Justice Stratas on Reasonableness and Context

Justice Stratas voiced some interesting thoughts on the meaning of reasonableness and context in Canada (Attorney General) v. Abraham, 2012 FCA 266:

[44]           For example, where the decision-maker is considering a discretionary matter that is based primarily on factual and policy matters having very little legal content, the range of possible, acceptable outcomes open to the decision-maker can be expected to be quite broad. As a practical matter, the breadth of the range in that sort of case means that it will be relatively difficult for a party applying for judicial review of the decision to show that it falls outside of the range.

[45]           In other cases, however, the situation might be different. For example, where the decision-maker is considering a discretionary matter that has greater legal content, the range of possible, acceptable outcomes open to the decision-maker might be narrower. Legal matters, as opposed to factual or policy matters, admit of fewer possible, acceptable outcomes.

Standard of Review in the Copyright Cases

Last week the Supreme Court of Canada released its reasons in a "fivefecta" of copyright cases. Interesting questions were raised. Are additional royalties payable when a video game is downloaded rather than bought over the counter? Is streaming a communication to the public which requires payment to the copyright holder? When a consumer listens to a preview of a song on iTunes, is Apple on the hook for an extra royalty? How much copying can a teacher do to create course materials for students? And is a movie soundtrack to be treated as a whole or a collection of components? Amidst all this, the Court also found time to introduce a new innovation in standard of review.

Human Rights Remedies and Administrative Bodies

Unlike many (perhaps most?) other countries, Canada allows administrative bodies to make non-binding interpretations of constitutional provisions and to grant remedies for human rights violations by state actors.

La cohérence décisionnelle en droit administratif

Je pensais de garder cette décision jusqu’au retour en classe des étudiants du préscolaire à la fin de l’été, mais finalement j’ai conclu que les principes découlant de ladite décision sont trop intéressants pour les cacher plus longtemps. La Cour d’appel y explique très clairement les principes de la révision judiciaire au Québec.

Unanswered Questions post-Dunsmuir

In a recent decision, Justice Stratas of the Federal Court of Appeal raised a host of questions about the applicability of the Supreme Court of Canada's re-shaping of judicial review doctrine to decisions taken by discretionary decision-makers:

[19]           I am inclined to find that the Director is subject to this “normal” or “usual” position of deference to his decision-making. But there exists considerable uncertainty on this, arising from Dunsmuir itself, previous case law, and the unusual circumstances of this case:

(a)        We are dealing with a Ministerial delegate, not a “tribunal” in any formal sense. In Dunsmuir the Supreme Court used the word “tribunal” on this point. In my view, although it is not perfectly clear, in Dunsmuir the Supreme Court did not intend to restrict this position of deference to interpretations by formal tribunals. Throughout its discussion of the standard of review, the Supreme Court used the terms “tribunal,” “decision maker,” “exercises of public authority,” “administrative bodies,” “adjudicative tribunal,” “adjudicative bodies,” “administrative tribunal,” and “administrative actors”: Dunsmuir, supra at paragraphs 28-29, 31, 33, 41, 47-50, 52, 54-56, and 59. It seems to have used the terms interchangeably and, collectively, they are wide enough to embrace a Ministerial delegate such as the Director.

(b)        In a relatively recent decision, albeit before Dunsmuir, the Supreme Court did not defer to the interpretation of a Ministerial delegate who was interpreting a statute closely related to his function: Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57 (CanLII), 2005 SCC 57, [2005] 2 S.C.R. 706, (a visa officer making an assessment under subparagraph 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I‑2); see also Canada (Minister of Citizenship and Immigration) v. Patel, 2011 FCA 187 (CanLII), 2011 FCA 187 and cases cited at paragraph 27 of Patel. This is certainly consistent with how we today approach decisions involving some other Ministerial delegates. For example, in the income tax context, income tax assessors – Ministerial delegates – are very familiar with the Income Tax Act. One might think that the normal administrative law standard of review analysis would apply to appeals of these administrators, with deference to their legal interpretations being the result: see, e.g., Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748 and Dunsmuir, supra at paragraph 54. But it does not. The Tax Court of Canada, sitting in appeal on income tax assessments, and this Court do not defer at all to the statutory interpretations of the Minister’s delegate.

(c)        The Supreme Court spoke in Dunsmuir of deference to interpretations of certain types of “statutes.” Did it mean to restrict this principle to “statutes”? There would appear to be no principled basis to do so. Deference probably also applies to interpretations of other types of laws, such as the Order in Council in this case.

(d)        The Director’s title seems to suggest that he administers programs such as this, and so he could be considered to be interpreting what Dunsmuir described as a law “closely connected with [his] function,” warranting our deference. But there is no evidence in the record on this one way or the other, nor would one expect there to be such evidence given the narrow nature of a record on judicial review.

(e)        The position of deference for administrative interpretations of statutes is said in Dunsmuir to apply only “usually” or “normally.” Does this qualification refer to the situations mentioned in Dunsmuir where the correctness standard applies? Perhaps not, as these situations largely do not involve issues of statutory interpretation. Does this qualification refer to some as yet unidentified situations? We simply do not know.

(f)         In this particular case, as we shall see, the Director did not engage in any actual interpretation of the Order in Council. Rather, he simply interpreted and applied an administrative policy made under that Order in Council. Does this mean that the Director’s decision is subject to correctness review? I am not so sure. There are statements in Dunsmuir that suggest that the Director’s failure to interpret the Order in Council may not matter. In two places in Dunsmuir, the Supreme Court suggests that in assessing the substance of decision-making under the reasonableness standard we are to examine the outcome reached by the decision-maker and not necessarily the plausibility of the reasons actually given. At paragraph 47, we are directed to ask ourselves “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” and at paragraph 48 we are told that an administrative decision can be supported on the basis of reasons that “could [have] be[en] offered” [emphasis added].

(g)        I am not alone in my doubts on this issue. Recently, this Court discussed Dunsmuir and the standard of review that should apply to the Governor in Council’s interpretation of a statute. It found the law in this area to be unclear: Global Wireless Management Corp. v. Public Mobile Inc., 2011 FCA 194 (CanLII), 2011 FCA 194 at paragraph 35.

But the Court does not seem to be interested in resolving these questions. Leave to appeal was refused in that case, the Minister of Fisheries and Oceans has not appealed the decision that his interpretation of the Species at Risk Act was not entitled to deference, and now the Court has refused leave to appeal in the Globalive case.

Perhaps the Court has had enough of administrative law for a while.

When Reasonable Minds Differ

Some philosophical reflections, courtesy of Justice Martineau:

[92]           The legal explanation for allowing two [differing] interpretations of the law, if reasonable, to stand is simply that courts must respect the legislator’s intention that such types of administrative decisions, which are protected by a privative clause, be not reviewed unless the tribunal has acted without or beyond its jurisdiction. This may sound strange to persons who are not familiar with judicial review and its subtleties, and I find it worthwhile to quote what late professor Chaïm Perelman (1912-1984) was writing in a text entitled “What the philosopher may learn from the study of law”, reproduced in annex to his work Justice, published in 1967 (Random House, New York) at page 94:

The diversity of laws is proof of our ignorance of true justice. That which conforms to reason cannot be just here and unjust there, just today and unjust tomorrow, just for one and unjust for another. That which is just in reason should, like that which is true, be so universally. Disagreement is a sign of imperfection, of a lack of rationality.

If two interpretations of the same text are reasonably possible, it is because the law is ambiguous, therefore imperfect. If the law is clear, then at least one of the two interpreters disputes in bad faith. In any case, disagreement is a scandal, due either to the imperfection of the legislator or to the deceptive subtlety of the lawyers. The innate sense of justice, which each equitable judge certainly possesses, should permit the rapid reestablishment of correct order.

[93]           That said, professor Perelman goes on at page 96 to provide a philosophical answer to such apparent injustice or human imperfection by telling this short anecdote:

The Jewish tradition, which never sought to conceive law on a scientific model, offers a significant story in this connection. In the Talmud two schools of biblical interpretation are in constant opposition, the school of Hillel and that of Shammai. Rabbi Abba relates that, bothered by these contradictory interpretations of the sacred texts, Rabbi Samuel addresses himself to heaven in order to know who speaks the truth. A voice from above answers him that these two theses both expressed the word of the Living God. The lesson of this story is clear: Two opposing interpretations can be equally respectable, and it is not necessary to condemn as unreasonable at least one of the interpreters.

In fact, we admit that two reasonable and honest men can disagree on a determined question and thus judge differently. The situation is even considered so normal, both in legislative assemblies and in tribunals that have several judges, that decisions made unanimously are esteemed exceptional; and it is normal, moreover, to provide for procedures permitting the reaching of a decision even when opposing opinions persist.

As a supporter of deference and interpretive pluralism it is nice to see such weighty authority. From my lips to God's ears, I might even mutter...