Issue #23: Administrative Law Wrapped, 2021
The year that was in administrative law, and what we can expect in 2022
2021 was an interesting year in administrative law in Canada. Below, I set out what I think are the most important administrative law cases of 2021.
These are cases that: (1) clarify the state of the doctrine post-Vavilov; (2) opine on important principles of administrative law.
I present the cases in no particular order:
1) Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157 (Stratas JA)
I reviewed Alexion in Issue #3. This was a decision of the Patented Medicine Prices Review Board, which decided that a drug was priced excessively under the Patent Act, s.85.
I chose this case for a number of reasons.
Alexion is case-in-point of Vavilov’s central idea: the statute is the “biggest constraint of all” in administrative decision-making (Alexion, at paras 27, 42). This was a basic but increasingly necessary reminder. In an era when administrative law (and the administrative justice system) is asked to promote all sorts of lofty substantive ends, it is refreshing to hear the reality, traditional as it is—statutes are important, and they not only enable decision-makers, but they limit them as well (an old idea, one endorsed by the SCC, see e.g. UES Local 298 v Bibeault, [1988] 2 SCR 1048 at para 117).
Alexion confirms a very desirable part of Vavilov: boilerplate language from administrators will be prolematic. Specifically, reasons must be directed to the legal and factual constraints bearing on the decision. In many cases—as in Alexion—the reasons must take into account the relevant aspects of the text, context, and purpose of the statute. And here, that was the very issue, leading to the third point…
Where a decision-maker misapprehends the statutory purpose, and if the misapprehension is material, the decision will be unreasonable. That happened here. The Board thought the relevant purpose of the statutory provision here was one of “reasonableness,” rather than “excessive” pricing (Alexion, at paras 51-52). As it turns out, this error has been repeated a number of times in post-Vavilov cases. And it is a very important error for courts and administrators to avoid, at least in my view: I wrote a paper on the subject here.
2) Portnov v Canada (Attorney General), 2021 FCA 171 (Stratas JA)
I reviewed Portnov in Issue #7. This was a decision of the federal Governor in Council to extend a regulation under the Freezing Assets of Corrupt Foreign Officials Act to former Ukrainian officials.
I chose this case for two reasons:
This case “overrules from below” the Supreme Court’s approach to review of regulations under Katz Group Canada Inc v Ontario, 2013 SCC 64. That decision introduced a “hyperdeferential” approach that eschewed review of the substance of regulations. Stratas JA here reasoned that Vavilov, as a “sweeping and comprehensive” approach to review (Portnov, at para 25), should overtake Katz. This is an important conclusion for many other areas of the law of judicial review: it means that we must start with Vavilov to see how areas that may not have been mentioned in Vavilov are treated.
This “it wasn’t mentioned in Vavilov” line turns out to be important. In Ecology Action Centre v Canada (Environment and Climate Change), 2021 FC 1367, Justice Bell cast doubt on Portnov because Vavilov didn’t mention Katz.
I don’t buy it. Again, the question is if the general approach in Vavilov applies to some area of subordinate decision-making, not whether it is expressly listed in the case. And as Paul Daly notes, the same legal and factual constraints listed in Vavilov (such as the governing statute) are directly applicable to the world of regulations. And this really matters: it opens up, to some extent the black-box of Cabinet decision-making, and it arguably opens different avenues for challenging regulations (though, in many cases, there will still be meaningful deference for regulations because of the particular way Vavilov’s legal and factual constraints will work in this context).
Portnov contains a very handy description of the “central questions” category in Vavilov: “This question does not transcend the Act, nor does it smack of any constitutional or quasi-constitutional principle” [17]. All of the questions recognized by the SCC in this category have arguably met each of the branches of the sentence in para 17 of Portnov (Portnov, at para 13). This is very useful post-Vavilov for advocates.
3) Northern Regional Health Authority v Horrocks, 2021 SCC 42 (Brown J for the majority)
I reviewed Horrocks in Issue #15.
This case is important, in part, because it affirmed the appellate standard of judicial review—ie) the standard of review applied when an appellate court hears a case that originated as an application for judicial review. This is governed by Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, which held that an appeal court must “step into the shoes” of the reviewing court and determine whether the reviewing court chose the correct standard of review and applied it correctly (though Horrocks draws an exception for where a judicial review court acts as a first-instance decisionmaker). It’s a complete re-do.
As I said in Issue #15, I am unhappy with this result, in part because the Court only justified its decision with respect to stare decisis. And on principle, I never understood why the appellate court should completely re-do the analysis—it is only reviewing the lower court’s decision. The Federal Court of Appeal shares my skepticism, maintaining that appellants bear a “strong tactical burden to show on appeal that the Federal Court’s reasoning is flawed” (Bank of Montreal v Canada (Attorney General), 2021 FCA 189 at para 4).
Horrocks is also important on a more theoretical point: its vision of “legislative intent” requires, for concurrency to be found between a labour arbitrator and a human rights tribunal, “clearly expressed legislative intent” (Horrocks, at para 5). I think this holding dovetails quite well with Vavilov’s conception of legislative intent, which is in part based on the text of the statute: for example, statutory rights of appeal indicate a particular standard of review. And the case illustrates the same point I made regarding Alexion: courts must take a close look at the statute enabling a legislature to determine its limits, and the words of the statute will be important.
Reference re Code of Civil Procedure (Que), art. 35, 2021 SCC 27 (Côté and Martin JJ for the majority)
I reviewed the Court of Quebec Reference in Issue#1.
The facts and setup of this case are a bit unique, and its general precedential value is likely limited. But since it is a decision of the Supreme Court, and it does opine on central values in administrative law, I think it is an important case.
For one, the case introduces a new “multi-factored” test for “…a transfer to a court with provincially appointed judges has an impact on the general private law jurisdiction of the superior courts…” [144]. The Court seems to suggest that this is an adaptation of the core test [145]. But as Daly notes, this test could plausibly apply in cases beyond “courts” to other administrative decision-makers.
And the Court arguably doubles down on the idea of the Rule of Law as a central organizing principle of the administrative state, a topic I explore in a recent paper.
Cases To Watch in 2022:
Entertainment Software Association, 2020 FCA 100 (on appeal to the Supreme Court of Canada, oral hearing scheduled for Jan 18, 2022): This, I think, will be an important case. I blogged about it here. It will deal with issues of statutory interpretation and international law in administrative decision-making.
Abrametz v Law Society of Saskatchewan, 2020 SKCA 81 (on appeal to the Supreme Court of Canada, judgment reserved): This case concerns the test for “inordinate delay” in administrative proceedings. It turns out this is important, given the now-regular and systemic delays in many parts of the administrative justice system (see the Ontario Human Rights Tribunal).
Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72, (leave granted to the Supreme Court of Canada): this case concerns the constitutionality of the Safe Third Country Agreement, but it also contains important implications for how administrative conduct can be challenged under statutory regimes. The Federal Court of Appeal pointed out the importance of preventing “immunization” of such conduct through the assertion of privileges, broad privative clauses, etc (paras 101 et seq). These are welcome comments and I hope the Supreme Court picks up on them, though they have already been endorsed in one way or another time and again.
The Teksavvy Saga (on appeal to the Federal Court of Appeal): This year, the CRTC reversed a final rates order it made in 2019. This alone raises legal questions about a decision-maker changing its mind. But there is a salacious element. Teksavvy appealed this decision, alleging that CRTC Chair Ian Scott held a number of ex parte meetings with telecom lobbyists, including with the Chief Operating Officer of Bell at D’arcy McGee’s in Ottawa. Teksavvy says this meeting occurred one week after the CRTC “opened an active file to hear Bell’s application to reverse the 2019 Final Rates Order.”
If this is true, it is highly disturbing. It raises clear questions about bias and capture.
Merry Christmas to all! Thank you for subscribing and supporting the newsletter. See you in 2022.