For today’s Vavilov at 5 entry, I am delighted to present a post from my friend and public law expert Professor Leonid Sirota. Leonid is the founder of the Double Aspect blog which is a top spot for analysis of Canadian law (and other jurisdictions as well). I was happy to join the blog several years back.
Leonid presents a skeptical take on Vavilov, and it is worth a read.
**I am going to postpone my “Administrative Law Wrapped” feature for 2024 until the 29th of December. There are still a few Vavilov at 5 posts that I will share, some of which may extend until the new year. Thank you to all contributors and to everyone who has offered thoughts about the symposium.**
A little less than seven years ago, I suggested to Professor Paul Daly that we organise a blogging symposium on the occasion of the then-upcoming 10th anniversary of the Supreme Court’s Dunsmuir decision. Canadian administrative law felt at a crossroads, the early promise of Dunsmuir’s simplification of the standard of review analysis squandered, and it was a good moment to take stock before the inevitable happened and the Supreme Court re-wrote the law of judicial review… again.
The result of that rewriting, Vavilov, means that this symposium comes at a more cheerful time for administrative lawyers, or at least so it seems. Half-way through the usual life-cycle of frameworks of analysis in Canadian administrative law, the mood―as reflected in this newsletter’s invaluable survey of developments―seems generally happier. The courts mostly know what they are doing, the Supreme Court isn’t contradicting itself as much (except when it comes to administrative applications of the Charter), and optimists would even be forgiven for thinking that the revolution in administrative law scheduled for about five years from now might be cancelled due to lack of interest.
But I, for one, still want a revolution. With the US Supreme Court’s decision in Loper Bright Enterprises v Raimondo, Canada’s approach to judicial review of administrative interpretations of law is well and truly exceptional in the common law world―and exceptionally bad. In this post, I briefly explain how courts in other common law jurisdictions approach judicial review, and why Canada needs more world, instead of the other way around as the tattered Canadian piety has it. For some readers, this will be well-trodden ground, and they may safely skip this post. But it will, I suspect, be new territory to others. Let them follow me to the sunny uplands where the courts take their constitutional responsibilities seriously.
It is worth noting that, before 1945, the same faith in the administrative state and the same hostility to judicial interference with its operation that long animated Canadian administrative law theory ― and, as Professor Mancini and I have shown, the Supreme Court’s jurisprudence in the period between CUPE and Vavilov ― was very much present in the United Kingdom. But something then changed. In his recent book Freedom under Private Law, Allan Beever identifies Lord Denning’s “Freedom under the Law” lecture series as the inflexion point, His Lordship having charted a new role for the judiciary, not as an adversary of the administrative state but as its partner in protecting the rights of the citizen.
Professor Beever sees this as a capitulation rather than a victory for the rule of law, and I think he is right. But that is a story for another time. The new settlement, however deep its flaws, was still an improvement over a status quo where legislators and scholars sought to minimize or indeed exclude judicial review of the administration altogether. So, over the following decades, UK courts came to the view encapsulated in Lord Pearce’s words in the famous (or notorious, if you ask orthodox administrative lawyers in Canada) decision in Anisminic v Foreign Compensation Commission:
[T]ribunals must … confine themselves within the powers specially committed to them on a true construction of the relevant Acts of Parliament. It would lead to an absurd situation if a tribunal, having been given a circumscribed area of inquiry, carved out from the general jurisdiction of the courts, were entitled … to extend that area by misconstruing the limits of its mandate to inquire and decide as set out in the Act of Parliament.
Or, even more famously, Lord Diplock’s words in the “GCHQ Case”, Council of Civil Service Unions v Minister for the Civil Service, which summed up the law as it developed from Anisminic:
[T]he decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.
The law in New Zealand and Australia is to the same effect. Despite a handful of outlier decisions where courts abdicate their duty to engage with difficult questions (typically having to do with economic regulation), it is broadly understood in our fellow Commonwealth jurisdictions that the meaning of legislation, and hence whether an official or a tribunal has complied with a statute, is ― constitutionally ― something the courts are responsible for ascertaining, and not the executive. And, it is worth pointing out, this is politically uncontroversial. If anything, politically progressive lawyers and scholars are even more supportive of vigorous judicial supervision of the administrative state than those more conservatively inclined.
Loper Bright means the legal position, if not the political one, is now much the same in the United States. Writing for the majority, Chief Justice Roberts endorses “the unremarkable, yet elemental proposition reflected by judicial practice dating back to Marbury [v Madison]” ― and exactly parallel to that outlined by Lord Diplock ― “that courts decide legal questions by applying their own judgment”, including in cases “involving ambiguous laws—and set aside any [administrative] action inconsistent with the law as they interpret it”. In the first instance this is how the Chief Justice interprets the Administrative Procedure Act, but as the reference to Marbury makes clear, this interpretation is supported by constitutional principles ― the same constitutional principles that UK, New Zealand, and Australian courts apply. These principles are, above all, the rule of law and the separation of powers, but also, as Anisminic in particular makes clear, democracy.
The rule of law requires, at a minimum, that the law be public and predictably applied, which is why it is important that legislation be interpreted by disinterested adjudicators rather than policy-makers with a regulatory agenda, and it must interpreted in accordance with standard rules and principles (above all, those that emphasize the primacy of enacted text over unenacted purpose) and not the peculiar logic of a particular tribunal. (The rule of law arguably also means that discretionary power itself should not exist, which is why Professor Beever sees the Denning-inspired administrative law settlement, which accommodates administrative discretion, as a capitulation. But, again, that is a story for another day.)
The separation of powers means, among other things, that the application of the law must be distinguished from its making and interpretation. The separation of interpretation from making and application is all the more important in a Westminster-type constitution where the other two functions are in the same hands. It is what protects such a constitution from devolving into arbitrary and absolute government.
Finally, democracy should mean that ― subject to constitutional limits ― the laws enacted by elected legislatures prevail over executive policy. This is the underlying point of the clamping down on prerogative law-making in the Case of Proclamations and on prerogative dispensations from the law in the Bill of Rights 1688. Courts should certainly not presume that Parliament casually gives back to the executive the power to override its will merely by setting up an administrative tribunal. As Lord Wilberforce noted in Anisminic ― in the face of a privative clause ― “What would be the purpose of defining by statute the limit of a tribunal's powers if, by means of a clause inserted in the instrument of definition, those limits could safely be passed?”
I know of no reason why these principles would not apply in Canada. There is nothing requiring it in either the Constitution Act, 1867 or the Constitution Act, 1982. There is no indication in the Supreme Court’s jurisprudence on unwritten principles that suggests that the rule of law or the separation of powers are less demanding here than in the United Kingdom, or that, again within constitutional confines, our legislation is somehow less binding on the executive. Yet even judges such as Justices Côté and Rowe, who will wax eloquent about the importance of preserving our constitutional heritage in the face of a claim for compensation by a man deprived of his livelihood by unconstitutional retroactive legislation, accept the pretense, at least, of prohibiting judges from interpreting legislation on their own, and requiring them merely to double-check the work of the executive in doing so.
To be sure, despite enshrining such constitutional absurdities in law, Vavilov is an improvement over what preceded it. It even allows for the possibility that a statute may have a correct interpretation that administrative decision-makers are required to adopt, whether or not they find it convenient ― imagine that! But that does not make it right or constitutionally sound. If it takes another administrative law upheaval, five years from now or, preferably, sooner ― for Canada to join the rest of the common law world in adopting an approach to judicial review that respects the constitutional principles and traditions to which we purport to adhere, that will be well worth it.