It may be the Supreme Court’s biggest failure of the past dozen years – an entire area of law that the court has left mired in confusion, in the nearly universal view of the Canadian legal community.
On Thursday, the Supreme Court has a chance to settle the chaotic state of administrative law – the rules which ordinary Canadians can use to hold government agencies to account in the courts. It is a field that has an enormous impact on people’s lives, despite having a low public profile.
At least one legal observer thinks the Supreme Court will fail once more to find a simple, clear answer to the confusion.
“There is no Holy Grail to the interpretation of statutes,” University of Moncton law professor Nicolas Lambert said in an e-mail, referring to the wide variety of laws that govern decision-makers. “Trying to squeeze all these problems into a legal test – something Canadian lawyers love to do – is like a child trying to force a square onto a circle, or every other shape for that matter.”
Canada has hundreds of administrative tribunals and government officials with the authority to make decisions affecting people’s lives – everything from whether refugee claimants can stay to whether a landlord may evict a tenant to whether a prisoner can be released from solitary confinement.
When the affected individuals appeal those decisions to the courts, the question is how much respect, or deference, should judges show to those decision-makers. That is the question at the heart of administrative law – and at the core of three cases on which the court rules on Thursday.
The three cases reflect the variety of legal problems that reach government decision-makers. In one, Alexander Vavilov, a Canadian-born son of the real-life Russian spies who inspired the television series The Americans, challenged a decision of the Registrar of Citizenship to deny him citizenship. The registrar ruled that the offspring of diplomatic or consular officials or other representatives of a foreign government do not qualify under federal law.
The other two cases involve the National Football League and Bell Media, which challenged a 2017 ruling by the Canadian Radio-television and Telecommunications Commission that permitted Canadians to see U.S. commercials on U.S. TV channels during the Super Bowl.
The last time the Supreme Court tried to write one simple set of instructions in this field was 2008, in a trilogy of cases known as Dunsmuir. (David Dunsmuir was a New Brunswick employee fighting his dismissal. An adjudicator overturned the dismissal, but the Supreme Court said the adjudicator misunderstood the relevant law.) The presumption the court insisted on – replacing a more complex approach – was that judges should defer to the expert decision-makers, as long as those decision-makers acted reasonably.
And how did that turn out?
In uncertainty and a quiet judicial rebellion, according to Paul Daly, who holds the University Research Chair in Administrative Law and Governance at the University of Ottawa. “On a number of occasions over the last decade the court has said one thing in one case and then soon after said the exact opposite in another," he said in an e-mail. "And repeatedly the court has instructed lower courts to defer to administrative decision-makers but has failed to follow its own advice in its own decisions.”
The result: “Some lower court judges have been in open revolt against the Supreme Court.”
Justice David Stratas of the Federal Court of Appeal has been especially outspoken. While he says he is bound by what the Supreme Court wrote in Dunsmuir in 2008, he is blunt about what he sees as its shortcomings.
The standard of reasonableness has become so confused that judges at all levels in administrative cases “do whatever they subjectively feel is best – something that tears at the notion of the rule of law,” he wrote on Prof. Daly’s Administrative Law Matters blog last year.
One problem, legal observers say, is that not all decision-makers are equal. “Deference is also shown to decision-makers with no legal training or special expertise,” University of Manitoba law professor Gerald Heckman said.
“Not all decision-makers deserve deference, or deserve it all the time,” University of Toronto law professor Audrey Macklin added in an e-mail.
But can the Supreme Court rescue administrative law from its state of confusion?
The Globe and Mail asked 10 administrative law specialists to answer that question. Of the seven who responded, four said yes, one said no, and two abstained.
The prevailing view was that a more flexible, nuanced approach may be the answer. “Such an approach should, in my view, allow a reviewing court to pay attention to the actual function of the decision-maker in each case, and the actual words of the statute that gives them their authority, in determining the level of scrutiny that these decisions should receive from courts,” Regina lawyer Lauren Wihak said in an e-mail.
Martin Olszynski, who teaches law at the University of Calgary, said the court needs to “really flesh out the theory underpinning its chosen approach,” while Laverne Jacobs, a law professor at the University of Windsor, predicted "there will be further room for clarification by the court in years to come as the law and society evolves.”
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