Stare Decisis in Administrative Law

Here is a problem for deferential approaches to judicial review: 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: indeed, failing to follow a previous decision might be a basis for judicial sanction.

Interpretation and Context

Here is a great passage from an Australia case (Mainteck Services v. Stein Heurtey) on contractual interpretation:

What is the legal meaning of a promise to sell "my Dürer drawing", if the vendor's wife owns a Dürer drawing which is on display in their home, and the vendor keeps another secretly in his study? What is the meaning of a gift "to my niece Eliza Woodhouse during her life" in a will, if the testator had no such niece, but a grandniece of that name, and another grandniece, who was illegitimate, who lived with him: cf In re Fish; Ingham v Rayner [1894] 2 Ch 83? What is the meaning of cl 7 of the Wild Dog Destruction Regulation 1999, which provided "The Wild Dog Destruction Regulation 1994 is repealed"? Contracts, wills and statutes are very different legal texts, to the process of ascertaining whose legal meaning different rules apply, yet all are based on language, and language is unavoidably contextual. If I may repeat what I wrote of the uncertain meaning of the Wild Dog Destruction Regulation in Resolving Conflicts of Laws (Federation Press 2011), p 13, "The meaning of even the seemingly clearest legal text can be unclear, hence the importance of attending to context in the first instance."

In a similar vein, Morissette J.A. recently wrote:

[9]           En ce sens, parler en matière de révision judiciaire d’une « erreur déraisonnable » risque de créer une fâcheuse confusion des genres. Il ne peut pas y avoir plusieurs réponses à la question 2 + 2 = ? Il n’y en a qu’une seule, toutes les autres sont erronées, aucune d’entre elles n’est « raisonnable » et qualifier les unes ou les autres de « déraisonnables » n’ajoute strictement rien à la compréhension des choses. Mais en matière d’interprétation juridique et de révision judiciaire, on est loin de l’arithmétique élémentaire. Et en l’absence d’une décision ou d’une interprétation déraisonnable, la réponse à privilégier est celle donnée par le tribunal administratif que le législateur a désigné comme le décideur dont ce genre de litige est la spécialité – ici, le TAQ.

Frères Maristes (Iberville) c. Laval (Ville de), 2014 QCCA 1176.

Interpretation is not arithmetic and much will turn on context. In administrative law, context will often be best appreciated by an administrative decision-maker, the body designated by the legislature to undertake that interpretive task.

Won't Someone Please Think of the Civil Servants: John Doe v. Ontario (Finance), 2014 SCC 36

By now, it is a familiar story. The standard of review is reasonableness. An exhaustive review of the relevant statutory language and factual matrices follows. And then there is a brief conclusion: the decision is reasonable or unreasonable.

How (Not) to Conduct Deferential Review: Dionne v. Commission scolaire des Patriotes, 2014 SCC 33

The province of Quebec allows pregnant workers to exercise a right of withdrawal from dangerous work environments. At issue in Dionne v. Commission scolaire des Patriotes, 2014 SCC 33 was a supply teacher's thwarted effort to exercise her right of withdrawal. A unanimous Supreme Court of Canada quashed the decision of the Commission des lésions professionnelles and held that teacher was entitled to withdraw.

Although it may seem unusual to treat schools as dangerous workplaces, it is common and accepted practice in Quebec for pregnant teachers to withdraw from the workplace because of the risk of contracting harmful diseases from their students. Reading between the lines of the present case, the school board and the CLP apparently took umbrage at the teacher's temerity in claiming her statutory rights, evidence perhaps of a disconnect between law-in-the-books and law-in-practice and lingering discomfort amongst employers about assertive employees.

Be that as it may, the most interesting aspect of the case, from an administrative-law point of view, lies in the differing approaches to the task of judicial review taken by the appellate judges involved. In my view, the Quebec Court of Appeal's stance was more appropriate than that of the Supreme Court of Canada. And of the Quebec Court of Appeal judges, the dissenting reasons of Dalphond J.A. are preferable to the majority reasons of Wagner J.A. (who is now a member of the Supreme Court, though obviously he did not sit on this appeal).

Sunstein on Breyer on Reasoned Decision-making

Cass Sunstein has a nice short essay on Justice Breyer in a forthcoming issue of the Harvard Law Review, "From Technocrat to Democrat":

There is an epistemic argument for judicial deference to the decisions of administrative agencies and legislatures: courts do not have easy access to relevant information, and they should defer to those who do. People who are steeped in technical issues, and alert to the importance of those issues, might well be inclined to embrace judicial modesty. In administrative law, then-Professor Stephen Breyer pioneered the view that judge-made doctrines reflect unarticulated assumptions about regulatory policy, and he urged that such doctrines could not be evaluated without a sense of the underlying substance and the likely human consequences. In light of the complexity of the substance, Breyer argued for a degree of modesty. On the Supreme Court, Justice Breyer has often embraced judicial modesty as well, emphasizing the importance and relevance of complex judgments of fact (sometimes with the aid of what we might call "the Breyer Appendix"). The principal qualification is his insistence on reasoned decision making, which he appears to regard as a quid pro quo for deference, as an aspect of the rule of law, and as an indispensable check on arbitrariness.

Reasoned decision-making as a condition precedent to deference is an increasingly attractive proposition in Canada, where affidavits and agency litigating positions can be used to place a decision-maker's thumb on the interpretive scales. 

To borrow from Sunstein:

The most important point here is that an agency may not defend its policy simply by asserting its preference. It has to offer reasons. To be sure, there is a risk that a judicial demand for reasoned decision making will serve, in practice, as a judicial demand for reasons with which judges agree...Nonetheless, a requirement of reason-giving can be seen as an effort to ensure that technical expertise is in fact being applied...

As Sunstein suggests, the presence of a reasoned decision may be a good proxy for the application of administrative expertise. It is interesting that the recent decline in importance of relative expertise in Canadian doctrine has coincided with the decline in importance of reasoned decision-making.

Three Strange Things about Martin v. Alberta (Workers’ Compensation Board), 2014 SCC 25

Martin v. Alberta (Workers’ Compensation Board), 2014 SCC 25 does little or nothing in the way of doctrinal development, and so should not be expected to have a lasting impact on the law. Three aspects of this Supreme Court of Canada decision are nonetheless worth highlighting in an effort to explain why Martin is best confined to its special facts.

Who Decides Here? Deference on Ministerial Interpretations of Law (Again)

I was rather optimistic in thinking that the question of deference to ministerial interpretations of law had been settled by the Supreme Court of Canada in Agraira (see my post here).

Two stern responses arrived last week from the Federal Court of Appeal, the body which deals more than any other with judicial review of ministerial decision-making. Most notably, Canada (Citizenship and Immigration) v. Kandola, 2014 FCA 8, but also Canada (Citoyenneté et Immigration) c. Dufour, 2014 CAF 81.

The "Range" of Reasonable Outcomes: a Spectrum or an Accordion?

My post welcoming Evans J.A.'s recent suggestion that weight could be accorded to administrative determinations of procedural fairness questions has provoked some debate, some in the comments section of that post, some on Twitter and some in emails to me. Another Federal Court of Appeal decision is therefore timely: Canada (Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56.

Move Along, Nothing to See Here: Orthodoxy and Procedural Fairness

A vigorous debate erupted in the comments to a recent post on deference on questions of procedural fairness. Recently, doctrinal orthodoxy has been challenged by several Canadian judges (a challenge based on Canadian developments but which ought also to be on the radar of those overseas) who have contended that procedural questions can no longer be said to fall exclusively in the province of the judiciary.

And What if the Nadon Reference Never Happened? A (Fanciful) Thought Experiment

As you probably know by now, the Supreme Court of Canada ruled on Friday that federal court judges are not eligible for appointment to its three 'Quebec seats': Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21. Although retrospective legislation was introduced after the appointment of Justice Marc Nadon to the Court, the legislation was ultra vires Parliament. It was a change to the "composition" of the Court, something that can now be effected only by a constitutional amendment pursuant to Part V of the Constitution Act, 1982.

Regular readers will not have been as surprised as some. The Court's analytical framework mapped my submissions to the Senate Committee on Legal and Constitutional Affairs. There, I hedged my bets on the constitutional question, but I identified strong textual, purposive and intentionalist grounds for the Court's conclusion. Much more could have been said by the Court in support of its decision on the constitutional question but it was unquestionably on solid ground. On the interpretive issue, opinion has long been closely divided. Again, there was ample support for the Court's preferred view.

On one of the Sunday talk shows, a spokesman for the federal government raised the possibility that Justice Nadon might be appointed by some other means. As I (and others) explained to the Globe and Mail, there is very little chance of that happening. I submitted an explanatory op-ed which is more expansive, but I have no idea when or where it will appear.

A more interesting question to ponder is what would have happened had the initial challenge to Justice Nadon's appointment proceeded through Federal Court. For want of expertise I park the question of whether Rocco Galati would have been successful in his claim that solicitor-client privilege was waived by the selective publication of positive opinions on the legality of the appointment. It seems to me a solid tactical reason for the course taken, as does the need for a relatively swift resolution of a controversy that has left the Supreme Court a judge short during two terms.

I noted at the outset that Galati's challenge had significant merit. Galati had standing, the issue was justiciable and he had a strong argument on the interpretation of section 6 of the Supreme Court Act.

What was less clear, as Finn Makela noted in a comment, was whether the reviewing court would have to defer to the federal government.

There would have been strong arguments for deference. Though hedged in by statute, the power to name Supreme Court judges is plainly a discretionary one and may be based in part on broad considerations of policy, factors which trigger deference in the Court's current analytical framework.  Moreover, even though the government did not necessarily set out its interpretation of the Supreme Court Act, its preferred view was "implied" in its conclusion that Justice Nadon was eligible; and a court may have had to defer to the interpretation advanced in litigation in response to Galati's challenge.

As against this, the case might have been one which fell in the narrow category of "constitutional" questions reserved to the courts. As we now know, the "composition" of the Supreme Court of Canada is protected from "substantive change" (para. 105). Galati would have argued that what is impermissible by legislation is also impermissible by executive action. I agree, but the 'correctness' categories are narrow enough that the courts might nonetheless have felt bound to defer to the federal government's interpretation, especially since this sort of problem has never really been authoritatively resolved in Canada.

If deference were due, the federal government should in my view have won the case. On my view, recently set out in "Unreasonable Interpretations of Law", Galati would have had to identify a fatal flaw in the reasoning advanced by the federal government. This would have been very difficult. The expert opinion published in support of the appointment was unreasonable because it ignored section 6 of the Supreme Court Act, which was the key provision, but the federal government's ultimate litigating position advanced a plausible interpretation of the relevant statutory provisions. It is easy to disagree with the federal government's position but difficult to say that it was unreasonable. (I digress to say that I completely disagree with deferring in this sort of situation, but that is an argument for another day!).

Granted, Canadian courts have not adopted the view I set out in "Unreasonable Interpretations of Law". They have tended to defer less on questions of statutory interpretation. Nonetheless, even supporters of the Court's decision on Friday acknowledge that the interpretive question was "close", surely close enough that deference to the federal government would have tipped the scales decisively in favour of Justice Nadon.

Of course, this thought experiment is fanciful. The federal government really had no option but to refer the matter to the Supreme Court of Canada for authoritative resolution. I think it did the right thing in doing so. The thought experiment is nonetheless interesting. And in light of the result a deferential approach could well have given, it provides food for thought about the appropriateness of deference, especially on questions that touch fundamental constitutional values.

Deference on all Types of Procedural Fairness Question? Maritime Broadcasting System Ltd. v. Canadian Media Guild, 2014 FCA 59

In Maritime Broadcasting System Ltd. v. Canadian Media Guild, 2014 FCA 59, Stratas J.A. added his voice to the chorus of judges urging deference on questions of procedural fairness. A choir composed of Bich J.A., Evans J.A. and Stratas J.A. cannot be drowned out by assertions of the orthodoxy that 'correctness is the standard of review for procedural fairness questions'. The Supreme Court of Canada is going to have to address this question sooner rather than later.

Time to Double Down on Dunsmuir?

The Supreme Court of Canada released a fascinating administrative law decision this morning: McLean v. British Columbia (Securities Commission), 2013 SCC 67. The majority reasons were written by Moldaver J.; Karakatsanis J. wrote a set of concurring reasons.

Deference Denied on Questions of Procedural Fairness: Osborn v. The Parole Board, [2013] UKSC 61

Traditionally courts have seen themselves as the guardians of fair procedures. The substance of administrative decisions is for the decision-makers: they are the ones entrusted by the legislature with making decisions, and they have the expertise to do so.

Courts have been much less deferential in addressing the processes by which those decisions are reached. When it comes to the fairness of procedures, administrative decision-makers have to get it right. If they do not, courts stand ready to correct them.

Formalism and Deference: a Striking Contrast

I have posted previously about the Irish courts' preference for a narrow approach to judicial review of administrative action. Another recent example is Walsh v. Revington, [2013] IEHC 408. This time, the judgment is useful as a means of throwing into contrast formal and deferential approaches to judicial review. A Canadian court, I suspect, would have come to a different conclusion.

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.

The Ever-Growing Administrative State

In his dissent in Arlington v. FCC (noted here), Chief Justice Roberts decried the rise and rise of the administrative state. This criticism nourished an op-ed in the Washington Post by George Washington University Law School's Jonathan Turley. Here is a taste:

The rise of the fourth branch has been at the expense of Congress’s lawmaking authority. In fact, the vast majority of “laws” governing the United States are not passed by Congress but are issued as regulations, crafted largely by thousands of unnamed, unreachable bureaucrats. One study found that in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.

This rulemaking comes with little accountability. It’s often impossible to know, absent a major scandal, whom to blame for rules that are abusive or nonsensical. Of course, agencies owe their creation and underlying legal authority to Congress, and Congress holds the purse strings. But Capitol Hill’s relatively small staff is incapable of exerting oversight on more than a small percentage of agency actions. And the threat of cutting funds is a blunt instrument to control a massive administrative state — like running a locomotive with an on/off switch.

The autonomy was magnified when the Supreme Court ruled in 1984 that agencies are entitled to heavy deference in their interpretations of laws. The court went even further this past week, ruling that agencies should get the same heavy deference in determining their own jurisdictions — a power that was previously believed to rest with Congress. In his dissent in Arlington v. FCC, Chief Justice John Roberts warned: “It would be a bit much to describe the result as ‘the very definition of tyranny,’ but the danger posed by the growing power of the administrative state cannot be dismissed.”

I think the concern about deference is misplaced. Properly construed, even deferential judicial review gives effect to important public law values, such as the rule of law and good administration.

It is undoubtedly the case, however, that the willingness of the U.S. courts to hide behind doctrines of justiciability (political questions, standing, etc) to avoid interfering with a wide range of policy choices made by administrative agencies means that judicial oversight is less rigorous than it might otherwise be. This, I think, has knock-on consequences for the administrative state. If courts are not ensuring respect for public law values, the legitimacy of the administrative state is reduced. That is not to say that judicial review is the only, or even necessarily the best, means of legitimacy. Indeed, for a host of practical reasons, large swathes of administrative action will inevitably never be subject to judicial oversight. Nevertheless, for the judiciary to remove itself from large areas of administrative decision-making is decidedly unhelpful.

But that is really a side-bar. The administrative state is here to stay. The issue then becomes how to ensure that it acts with rationality, fairness and respect for democracy. All branches of government, civil society organizations, ordinary citizens and government employees can play a constructive role. Legislative and executive oversight is important, as is oversight within and across agencies. Civil society organizations often have the resources and expertise to engage productively with the "fourth branch". Ordinary citizens interact with administrative decision-makers, but can also give feedback to elected officials, administrators and their fellow citizens. And government employees, on the front lines, bear a special responsibility to ensure that administrative decisions are taken in a rational and fair way which respects the mandate of the decision-maker and the interests of those affected.

Turley's conclusion is, accordingly, unduly dark:

In the new regulatory age, presidents and Congress can still change the government’s priorities, but the agencies effectively run the show based on their interpretations and discretion. The rise of this fourth branch represents perhaps the single greatest change in our system of government since the founding. We cannot long protect liberty if our leaders continue to act like mere bystanders to the work of government.

The tenor of Heather Gerken's comment, made in the context of a recent short article on federalism (The Federalis(m) Society), is more appropriate:

So, too, if you worry about the growth of the Fourth Branch shouldn’t you be thinking creatively about the ways that states can play the same role inside federal administration as they now play outside of it? Think of it as the administrative safeguards of federalism. If you care about state power, it is far better to have the administrative safeguards of federalism in play as the federal empire expands. You can, of course, continue to insist that the federal empire ought to be radically trimmed. Good luck with that.

More can always be done. But supposing that we ever teeter on the brink of disaster with only politicians to haul us back from the edge greatly oversimplifies matters.

UPDATE: a reader suggests that this complaint is reminiscent of Lord Hewart's tirade against the growing administrative state in The New Despotism. Indeed it is! Colin Scott made a similar point on Twitter. I have to say, though, I find that The New Despotism reads reasonably well to the modern eye. Much of Lord Hewart's ire was directed towards attempts to shelter the administrative state from judicial review, by means of ouster clauses, conclusive evidence clauses and the like. Modern judicial review doctrine (elsewhere than in the United States, that is) evidences a very skeptical attitude to attempts to oust judicial control. The administrative state will not be rolled back, but its operation can be improved and, in part, improvement can be achieved by the tools of administrative law.

Deference on Jurisdictional Questions: the SCOTUS Weighs In

Should courts defer to administrative decision-makers' interpretations of the limits of their own statutory authority? The Supreme Court of the United States finally answered that question in the affirmative today, in City of Arlington v. Federal Communications Commission. I think the majority is absolutely right, as I explain below. Indeed, Scalia J.'s majority opinion is must-read material for lawyers and law students interested in the concept of "jurisdictional error".

Hate Speech at the Supreme Court of Canada

In an important decision yesterday in Saskatchewan (Human Rights Commission) v. Whatcott,

2013 SCC 11, the Supreme Court of Canada upheld against constitutional challenge s. 14 of the Saskatchewan Human Rights Code (albeit with slight modifications). 

The legislation provides for private parties to make complaints to a human rights tribunal; s. 14 allows the tribunal to sanction hate speech. In the present case, Whatcott had distributed various anti-gay flyers. Four complaints were made. The tribunal found against Whatcott and ordered him to pay nearly $20,000 in compensation.

I will leave the finer points of the freedom of expression analysis to others, but it is important to highlight the permissible limits of hate speech defined by the Court:

[59] In light of these three principles, where the term “hatred” is used in the context of a prohibition of expression in human rights legislation, it should be applied objectively to determine whether a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination.

This is the test to be applied by human rights tribunals in assessing whether expression should be characterized as hate speech.

Once it had been established that s. 14 was constitutional, attention turned to whether the tribunal's conclusion was reasonable as a matter of administrative law:

[168]                      In this case, the decision was well within the expertise of the Tribunal, interpreting its home statute and applying it to the facts before it. The decision followed the Taylor precedent and otherwise did not involve questions of law that are of central importance to the legal system outside its expertise.  The standard of review must be reasonableness.

Not, let it be noted, whether the tribunal's conclusion was proportionate or correct. The choice of standard of review is hardly unprecedented: the Court has often reverted to an administrative law analysis in such circumstances; and in its most recent pronouncement on the question, it urged deference to decision-makers even where Charter rights have been infringed.

On the facts, the Court upheld the tribunal's conclusion as to two of the flyers, but struck down as unreasonable the conclusion about the other two.

As to the first two flyers, Rothstein J. concluded:

[192] In the instant case, Flyers D and E expressly call for discriminatory treatment of those of same-sex orientation.  Flyer D urges that the rights of homosexuals and lesbians should be reduced by stating:  “We also believe that for sodomites and lesbians who want to remain in their lifestyle and proselytize vulnerable young people that civil law should discriminate against them” (emphasis added).  Flyer E urges: “Our acceptance of homosexuality and our toleration of its promotion in our school system will lead to the early death and morbidity of many children” (emphasis added).  Mr. Whatcott therefore combined expression exposing homosexuals to hatred with expression promoting their discriminatory treatment.  In my view, it was not unreasonable for the Tribunal to conclude that this expression was more likely than not to expose homosexuals to hatred. 

But the tribunal erred in its application of the correct legal test to the two other flyers. Its conclusion was accordingly unreasonable:

[194] However, in my view, the Tribunal’s decision with respect to Flyers F and G was unreasonable. The Tribunal erred by failing to apply s. 14(1)(b) in accordance with the Taylor directive (requiring feelings of an ardent and extreme nature so as to constitute hatred), or in accordance with the interpretation of s. 14(1)(b) prescribed in Bell (essentially reading out the words “ridicules, belittles or otherwise affronts the dignity”). By failing to apply the proper legal test to the facts before it, the Tribunal’s determination that those flyers contravened s. 14(1)(b) was unreasonable and cannot be upheld.

Add this to your list of indicia of unreasonableness: failure to apply the correct legal test.

I wonder though whether Rothstein J.'s conclusion is just a little too quick. A classic error of law of course justifies the intervention of a reviewing court.  But the Canadian courts have long since ceased to be classicists in this regard.

When we are in the domain of reasonableness review, an error of law does not automatically justify intervention by a reviewing court. If the divergence of views between the tribunal and the reviewing court can be explained by -- for example -- reference to the tribunal's statutory purposes, or the underlying values of its statutory scheme, then a properly deferential court should keep its hands off.

It seems to me that the Court cannot have its cake and eat it. If it truly wants to be deferential even when Charter rights have been infringed, it has to give tribunals a margin of appreciation. Here, the Court decided for itself what the appropriate legal test was and insisted on a strict application of it in the context of the facts of the case.

For those of us who think that the Court was wrong in the first place to advocate a deferential approach in fundamental rights cases, Whatcott is good news. It is evidence that, in the application of the reasonableness test, the Court will not be deferential in practice, whatever about its rhetoric.

Judicial Deference to Academic Judgement

I am naturally all in favour of caps being doffed to academics. But should the preferences of my ego be translated into judicial review doctrine? Two recent decisions from either side of the Atlantic demonstrate the favoured judicial approaches to review of academic decisions and some of the potential pitfalls. 

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).