Category: administrative law

By: Mark Mancini, National Director of the Runnymede Society
For more on this topic, see Mark’s article in issue 43:2 of the Dalhousie Law Journal

Administrative decision-makers, across Canada, deal with issues of deep importance to the individuals who appear before them. Sometimes, they even make decisions that implicate the constitutional rights of individuals. For some time, administrative law scholars have been divided over the framework that courts use to review such decisions. The governing test is set out in Doré, where the Supreme Court noted that decision-makers must, when exercising statutory discretion, balance Charter values with statutory objectives [55], and the question on judicial review is whether the balancing was reasonably proportionate in light of the values and objectives [57]

Enter Vavilov. Vavilov re-jigged the law of substantive review, particularly the standard of review analysis, when courts review administrative decisions that do not implicate constitutional rights. However, in the course of that analysis, the Court made a number of comments that implicate Doré. In short, Vavilov arguably overtakes Doré, and counsels a stricter approach when courts review administrative decisions for their constitutionality.

The purpose of my post is to outline how this is so. I first outline the animating theories of both Doré and Vavilov, focusing on the conflict between these theories when it comes to selecting and applying the standard of review. Secondly, I chart a path forward for an enterprising court that may want to bridge the gap between Doré and Vavilov.

Vavilov and Doré

Vavilov and Doré present two different schools of administrative law thought. On one hand, Vavilov is a rough amalgam between a formalist school, best explained by the work of A.V. Dicey, and a justificatory school, best represented in the work of David Dyzenhaus. On the other hand, Doré is representative of an older school of administrative law thought, a “functionalist” school that focuses on the supposed expertise of administrative decision-makers.

Vavilov presents its amalgam in a few different ways. On the formalist side of the equation, Vavilov defines its standard of review analysis with reference to Dicey’s two conceptual lodestars: parliamentary sovereignty and the Rule of Law. On parliamentary sovereignty, the Court starts its analysis by noting that a presumption of reasonableness review applies because of the legislative choice to delegate in the first place [26], rather than any abstract idea of the “expertise” of decision-makers. The presumption can be rebutted, but the rebuttal must be based in parliamentary sovereignty itself: in the form of a legislated standard of review or a statutory appeal mechanism, signalling the application of the appellate standards of review. Additionally, on the Rule of Law side of the equation, the presumption could be rebutted with reference to the Rule of Law—particularly, the Court was concerned with situations where a litigant challenges a statute under the Constitution, and the need for the correctness standard in such situations [56].

When it comes to selecting the standard of review, then, Vavilov finds itself firmly entrenched in Dicey’s “dead hand.” Parliamentary sovereignty—what the legislature says about the standard of review—generally governs, except where the Rule of Law says otherwise.

When it comes to applying the standard of review of reasonableness, parliamentary sovereignty and the Rule of Law also find harmony. For the Vavilov Court, the enabling statute of the decision-maker is “likely to be the most salient aspect of the legal context relevant to a particular decision” [108]. Decision-makers cannot “disregard or rewrite the law as enacted” [108]. When courts apply the reasonableness standard to an administrative decision, they are enforcing Parliament’s will against the “subordinate law-maker,” as Dicey puts it. As such, they uphold the Rule of Law.

The justificatory side of Vavilov is, in many ways, the centrepiece of the decision. The Court endorses the idea of a “culture of justification” in which reasons “may have implications for [a decision’s] legitimacy” as a matter of law [81]. Courts cannot supplement or supplant reasons; doing so would allow the decision-maker “to abdicate its responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular decision” [96]. Importantly, the statutory language at play will influence whether an interpretation is justified: “[w]hether an interpretation is justified will depend on the context, including the language chosen by the legislature in describing the limits and contours of the decision-maker’s authority” [110].

Here, the full picture of Vavilov comes into view: Dicey’s lodestars and the justificatory school meet. On one hand, parliamentary sovereignty matters because, in the ordinary course, the legislature can circumscribe the “space” in which a decision-maker has to maneuver. When courts apply those legislative limits, they uphold the Rule of Law. And when administrative decision-makers have to justify their decisions, they must do so in relation to statutory limits. Of course, Vavilov also includes other contextual factors in its application of the reasonableness standard [107]. But, as mentioned above, the statute is the most salient aspect of review. The Rule of Law also figures prominently in the selection of the standard of review, particularly on constitutional questions.

On the other hand, Doré presents a much different vision of administrative law. Doré is defined by a functionalist model, under which the expertise of administrative decision-makers is emphasized by courts. Deference, on this account, is justified because the decision-makers carry with them the know-how to deal with questions of law (including constitutional questions) arising in their ambit. Unlike Vavilov, which resiles from expertise as a reason for deference, Doré embraces expertise wholesale in its justification of deference on constitutional questions. Moreover, Doré does not insist on stringent reasoning requirements, as Vavilov does. In TWU, for example, the Court merely required that the Benchers be “alive” to the constitutional issues at play [55-56]. This makes sense: a trust in the expertise of decision-makers requires no demonstration through justification.

Taking Vavilov and Doré together, we see two different views of administrative law and two different potential doctrinal routes. Vavilov’s focus on Dicey’s lodestars, and its insistence on justification, stand apart from Doré’s expertise-driven account of administrative law. Notably, when it comes to the selection of the standard of review, expertise no longer forms a part of the Vavilov puzzle—but, in Doré, it is the very centerpiece of the case. Additionally, the Rule of Law will sometimes insist on a correctness standard when constitutional rights are implicated by a statute. And when it comes to the application of the reasonableness standard, Vavilov imports stringent justificatory standards in relation to the governing statute, whereas Doré (as applied in TWU) is relatively silent on such standards. The question arises: why should these standards—on both selection and application of the reasonableness standard—be different when it is administrative action that implicates constitutional rights?

The Way Forward

There are two potential ways to bridge the notional gap between Vavilov and Doré.

First, one could insist on a correctness standard for all constitutional questions, including those arising in an administrative context. As the Court notes in Vavilov, the implication of a constitutional right by government action “necessitates the application of the correctness standard” [56]. Since expertise is no longer a reason for reflexive deference in the Vavilov context, one wonders why it should be in the Doré context. After all, if a challenge to a law under the Constitution necessitates a correctness standard, what is the principled justification for a different test when the challenge is aimed at an administrative decision?

Secondly, if this first option is undesirable for courts, courts could merge Vavilov’s justificatory standards into Doré. That is, the Court could make abundantly clear that administrative decision-makers must engage with the text of the Constitution, relevant precedents, and the purpose of the rights at play. Such an exhortation would ensure that the culture of justification embraced in Vavilov does not stop at the Constitution’s door.

All in all, one might ask: why does it matter if Vavilov and Doré present different visions of administrative law? Isn’t our law “pluralist” anyways? There are two responses to such an argument. First, where possible, there should be convincing reasons for inconsistency in judicial doctrine, especially in the same legal subject area. People subject to administrative action should, for example, be able to predict ex ante with relative certainty how courts will review their cases. There is no principled reason to subject these litigants to different tests depending on the object of their constitutional challenge. Relatedly, and when it comes to the doctrine itself, there is no reason to limit the Constitution’s protections based on the object of the constitutional challenge. The Rule of Law requires more.