Wednesday 5 March 2014

Deference, Weight and Procedural Fairness

In both Canada and the United States, considerable jurisprudential effort has been expended on identifying "standards of review" of administrative action. Standards of review refer to the tests applied to determine whether a court should strike down administrative decisions.

Most of the time, when administrative lawyers speak of "deference" they have in mind a standard of review which either gives weight to the conclusions of the administrative decision-maker (epistemic deference) or carves out a space for the administrative decision-maker which a reviewing court will not enter unless the decision is, for example, "unreasonable", or "patently unreasonable", or "so unreasonable that no reasonable person would have reached it" (doctrinal deference). And of course where the standard is correctness, no deference is due and the reviewing court can substitute its judgement for that of the administrative decision-maker.*

Recently, in Re: Sound v. Fitness Industry Council of Canada, 2014 FCA 48, Evans J.A. wrote of the importance of giving weight (epistemic deference) to procedural choices made by administrative decision-makers:
[42]         In short, whether an agency’s procedural arrangements, general or specific, comply with the duty of fairness is for a reviewing court to decide on the correctness standard, but in making that determination it must be respectful of the agency’s choices. It is thus appropriate for a reviewing court to give weight to the manner in which an agency has sought to balance maximum participation on the one hand, and efficient and effective decision-making on the other. In recognition of the agency’s expertise, a degree of deference to an administrator’s procedural choice may be particularly important when the procedural model of the agency under review differs significantly from the judicial model with which courts are most familiar.
Evans J.A.'s formulation is especially useful because it reminds us that the choice of standards of review is not exhausted by a binary one between correctness and reasonableness. Moreover, epistemic deference is much closer to David Dyzenhaus's "deference as respect", a label which is often used without proper understanding of the underlying concept. And Evans J.A. is not the first Canadian appellate judge to recognize the value of epistemic deference. Recall the 2001 formulation of Lambert J.A. in Northwood v. Forest Practices Board, 2001 BCCA 141:
[36]   [T]he standard called “correctness” cannot be a rigid one...Indeed judges often feel that they are not right or wrong, correct or incorrect, in a particular case.  Rather, they form opinions.  Almost all arguments about statutory interpretation in this Court, and indeed arguments about many other questions, consist of reasoned thinking supporting one view or the other.  In the end, the judges tend not to say that one argument is correct and the other incorrect.  They say that they adopt, accept, or prefer one argument to the other and give their opinions accordingly.  So, in the end, it is possible to give one argument greater weight than another in deciding which to prefer.  If an argument is made that deference on the interpretation of the statute should be given to those who are experts in its functioning, that does not mean that the standard of “correctness” is being abandoned.  What it means is that deference is being given through acceptance of one of the arguments, which, in turn, may decide the balance between the competing arguments, in relation to applying the standard of “correctness”.  In such a situation, neither of the competing arguments need be categorized as “wrong”, but only one of them is preferred.  That one, but not the other one, then meets the standard of “correctness”.  And that argument may be supported by, among other points, a degree of deference to the opinion of the tribunal whose jurisdiction is in issue.
On this approach, the reviewing court retains the final word, but will be influenced by the weight it gives to the views of the administrative decision-maker. Epistemic deference need not be limited to the task of judicial review; it may be the most appropriate means of conducting internal appellate review.

It is notable that Evans J.A. made his comments in the context of procedural fairness (and concluded that procedural fairness was breached in the instant case). The giving of "weight" to administrative decision-makers may calm the fears of those who are anxious that deference to procedural determinations will undermine procedural fairness.

* Some radicals might say that correctness can never truly be the standard of review because the interpretive context is always shaped by the initial conclusions of the administrative decision-maker, such that is impossible for a reviewing court to substitute judgement entirely. This may be true, though its importance lies in the realm of practice rather than that of doctrine.


  1. This is why I believe thinking of procedural fairness as reviewed on the standard of correctness is unhelpful. It is properly not part of a standard of review discussion, and while in most cases functionally similar to correctness, the deference element which is part of the 5th Baker factor shows how in many cases it is not.

    The OCA had the right approach in Ontario Provincial Police v. MacDonald, 2009 ONCA 805:

    [37] In my view, it was unnecessary for the Divisional Court to even address the issue of standard of review because procedural fairness does not require an assessment of the appropriate standard of review. The proper approach is to ask whether the requirements of procedural fairness and natural justice in the particular circumstances have been met: Forestall v. Toronto Services Board 2007 CanLII 31785 (ON SCDC), (2007), 228 O.A.C. 202 (Div. Ct.) at para. 38.

  2. I don't think that the sort of epistemic deference Evans JA talks about here can actually be accomodated in a correctness standard. It is difficult to understand how a judge can respectfully take into account a decisionmaker's choice of procedure in determining what is fair if "fairness" as a standard is one which is determined solely by the court. And this is ultimately what is at stake with standards of review; whether the anchor for what is legally required in the circumstances is the court's interpretation of the legal test (correctness) or the decisionmaker's interpretation (reasonableness). If the court's interpretation is what matters, then the decisionmaker's reasoning does not matter.

    In the case you linked to a couple of days ago on twitter - Marine Broadcasting System Ltd - Stratas JA pointed out this incoherence in Evans JA's reasoning, and I essentially agree with him. That case is particularly interesting because Stratas JA basically ignored the text of Dunsmuir and fudged it to say what he wanted it to say. Seems like a direct challenge to Dunsmuir/Khosa/Newfoundland Nurses, and one the SCC will have to take up soon. I think this is heading towards one sliding scale of deference calibration for admin law review. Wouldn't be surprised to see "correctness" and "reasonableness" terminology discarded within 10 or 15 years (and I think it'd be a positive step).

  3. On the contrary, he quoted from Dunsmuir - rather extensively in fact. So how can you say he ignored the text of Dunsmuir? And fudged it? As he suggests, paras. 53-54 of the case strongly support his position. It may be a challenge to Khosa, but as Evans JA notes in Re:Sound, Khosa wrongly said that Dunsmuir proposed correctness standard for procedural matters when it did no such thing. Nlfd Nurses? It said nothing about procedural fairness. And as for fudging to get a result, what do you say about all the jurisprudence he cites? Looks like a fair call to me...

  4. Re the OCA position... The court is just imposing its own view of the matter. It's somewhat disingenuous to say it is not choosing a standard of review. Courts imposing their own standard is called correctness review.

  5. I think Stratas JA's interpretation of Dunsmuir is... selective. He applies the standard of review the SCC finds in a reasonableness context to the procedural fairness context without any real justification. The fairness discussion in Dunsmuir centres around Knight and its application to public employees (it also discusses Baker). Dunsmuir limits the scope of procedural fairness from the status quo in Knight and Baker, but does not talk at all about the content of the doctrine or the standard of review to be applied. I think the better interpretation is that Dunsmuir intended to leave the standard of review alone. That is the sense in which I mean Stratas JA 'fudged' Dunsmuir - he suggests that the substantive review standard developed in the case clearly applies in a procedural context when it is in fact far from clear. It is certainly one available interpretation, but that intepretation requires a bit of fudging.

    Newfoundland Nurses is relevant for its treatment of reasons. Reasonableness post-Baker (confirmed by Dunsmuir) relies heavily on Dyzenhaus' deference as respect concept. The core of this concept is respectful attention to the reasons offered by a decisionmaker for their decision. Newfoundland Nurses explicitly states that the quality of reasons is of no concern in procedural review. If this is the case, the modern Canadian reasonableness analysis is impossible.

    To be clear, I support the direction Stratas JA is trying to take the law. I think Newfoundland Nurses is dead wrong on the role of reasons in procedural fairness. But that IS the SCC jurisprudence. Marine Broadcasting System Ltd is, if not a direct challenge, a very obvious shot across the SCC's bow. I hope they take up the challenge and develop a more coherent procedural fairness doctrine, because it really needs to happen.

  6. That clarifies things a bit. Thanks. I think the root of our disagreement is your comment that Stratas JA takes the “substantive standard” and imports it into procedural matters.

    I see how he is reading Dunsmuir. The court first talks with respect to the history of judicial review in Canada – all questions, procedural and substantive. Then it talks about the tension between the rule of law and Parliamentary supremacy that underlies all of judicial review in Canada (procedural and substantive). Then it talks about “standard of review.” In this regard it does not restrict its discussion to substantive matters. Finally, it discusses the issue whether procedural fairness obligations apply to employment agreements in the public sector - public/private distinction. So his use of the SCC’s comments on standard of review seem not to be a “fudge” but can be seen as a plausible interpretation of the decision.

    Do you see subtext in the reasons? (1) The distinction between “procedure” and “substance” is artificial. Both involve the same task (discerning the facts, discerning the law and applying the law to the facts), both might involve policy, expertise or specialization and both can be important to the affected individual. (2) And the idea of flexible ranges of reasonableness (as acknowledged in McLean) can make reasonableness review smack of correctness, so why speak of these as two standards (as you suggest).

    A “shot across the bow” of the SCC? About ten SCC cases are discussed (fairly I think) without any criticism so I do not see the shot. It’s more like “holding a mirror up to the SCC” for it to see what it has decided.

  7. To the extent that reviewing courts are not showing some deference to procedural determinations, they need to step into the present. Given Dunsmuir and Doré, it’s now nonsensical to suggest that administrative decision-makers can be entrusted with interpreting their home statutes and our Charter rights, but not the ability to decide, e.g., whether to grant an adjournment or hold an oral hearing. For the same reason, the OCA’s approach in MacDonald is, at least based on the quote above, antiquated.

    To the extent that reviewing courts are, however, properly showing some deference to procedural determinations, then we need a doctrinal revision making explicit what we’ve known for a long time: such questions are not actually subject to correctness review but something much more deferential. Evans J.A.’s decision is helpful in explicitly affirming the need for deference. However, it is unhelpful in recognizing a mid-ground between correctness and reasonableness. Do we really need another standard of review, let alone another futile word game to play about its application?

    Stratas J.A.’s recent decision ( is welcomed. It’s a needed, if not overdue, call within the judiciary for greater clarity from the SCC. His integrity is laudable. However, I also agree with Mr. Clark that Stratas J.A.’s use of Dunsmuir is selective. Dunsmuir can’t seriously be taken as a decision intended to overrule the Court’s previous jurisprudence on procedural fairness. It certainly takes us there in spirit and, to be clear, Stratas J.A. is pushing the law where it needs to go. But did the decision in Dunsmuir itself – which has been applied literally thousands of times over the last six years, never once with Stratas J.A.’s current suggestion – take us there? I think not. Nevertheless, we’re better for having Stratas J.A.’s decision, and it’s clear that Stratas J.A. is simply doing his best with the tools at his disposal. His approach is not unlike Canada v. Craig, 2011 FCA 22, another notable defiance of SCC precedent for which the Court criticized Stratas J.A. and his colleagues but ultimately, as one hopes happens here, the Court affirmed.