Ideology and Administrative Law

Now that all the fuss about his past life as a blogger has died down, it is safe to venture a few comments about Justice Russell Brown’s appointment to the Supreme Court. He replaces Rothstein J., who retires today, leaving a very large gap in the Court’s administrative law and economic regulation expertise. Brown J. will have big robes to fill.

Much has been written about Brown J.’s conservative tendencies, based on blogposts and comments he wrote while a professor at the University of Alberta. And maybe, because this is what ‘conservative’ roughly means in this context, he will raise a scholarly voice in favour of parliamentary sovereignty and against judicial enforcement of Charter rights. Time will tell. For the moment, the online evidence suggests that conservatism is a reasonable hypothesis.

But there is another side to this particular ‘conservative’ coin. Those who favour parliamentary sovereignty often march under a Diceyan banner, a flag of hostility to the administrative state. In the ‘struggle for deference‘, they fight on the side of the courts, not administrative decision-makers.

All of which leads to an interesting paradox. Those would defer to Parliament would not defer to the executive. When the ratio of Charter cases to administrative-law challenges is low, there is a significant cost to appointing conservatives. To be sure, there may be benefits in excess of the costs, for Charter cases tend to have much more political salience than plain-vanilla judicial reviews, but the choice is nonetheless intriguing.

Whenever journalists asked me about Marc Nadon and Robert Mainville, two judges who found themselves in the spotlight when the government proposed to move them from the Federal Court of Appeal, I invariably pointed to the Georgia Strait case, in which Mainville J.A., with Nadon J.A. concurring, refused to defer to a ministerial interpretation of law. Being ‘conservative’ — assuming Mainville J.A. and Nadon J.A. can fairly be so labelled — may lead judges to be interventionist on questions of executive power. I don’t think Georgia Strait made it into the acres of newsprint produced by the Nadon and Mainville affairs. Perhaps I didn’t explain it well enough…

What about Brown J.? Again, assuming he can fairly be labelled a ‘conservative’, there is some indication that he will take up arms on the Diceyan side. I base this on a curious passage from University of Calgary v JR, 2015 ABCA 118, where he wrote the reasons of the Alberta Court of Appeal on an issue of solicitor-client privilege:

[21]           The difficulty for the Commissioner is that, unlike McLean (which dealt with a statutory delegate’s interpretation of limitation periods contained in its home statute), the matter of solicitor-client privilege engages the division described by the Supreme Court in McLean (at para 30) between a “lawyer’s question” and a “bureaucrat’s question”. The question of what principles of interpretation to apply to deciding whether statutory language authorizes infringement of solicitor-client privilege is a question of law, upon which the Commissioner has no special expertise. Indeed, neither the Commissioner nor her delegate need have any legal training…

Curious because Brown J. seems to have misunderstood McLean v. British Columbia (Securities Commission), [2013] 3 SCR 895. It is true that Moldaver J. referred to a distinction between a “lawyer’s question” and a “bureaucrat’s question” but he actually dismissed the distinction as archaic. In response to McLean’s argument that interpretation of a limitations period was a matter for the courts, he said her “argument presupposes a neat division between what one might call a ‘lawyer’s question’ and a ‘bureaucrat’s question'” (at para. 30) and strongly rejected it: “While such a view may have carried some weight in the past, that is no longer the case” (at para. 31, emphases added).

Once Brown J.A.’s decision to fasten on the concept of a “lawyer’s question” is understood in context, it indicates caution about deferring to administrative decision-makers and a traditionalist’s preference for distinguishing between questions of law — which must always be resolved by the courts — and the more interstitial matters of humdrum day-to-day regulation that can safely be left to the members of the administrative state. Making this curious passage worthy of comment is that there was no need for Brown J.A. to mention the concept at all because there was a prior decision of the Alberta Court of Appeal that established correctness as the standard of review for questions of privilege.

It will be interesting to observe Brown J.’s administrative-law jurisprudence on the Supreme Court of Canada. If he is as ‘conservative’ as his critics think, his ‘conservatism’ may lead him to take a hard line on the scope of executive power. You heard it here first!

This content has been updated on August 31, 2015 at 18:07.