Empirical Studies of Deference in Administrative Law

There are some recent empirical studies of deference in administrative law that may be of interest to readers, some on Canada and one on England and Wales.

In “Quantifying Dunsmuir: An Empirical Analysis of the Supreme Court of Canada’s Jurisprudence on Standard of Review” (2016) 66 UTLJ 555, Robert Danay tests the hypothesis (advanced by Gerald Heckman, David Mullan and yours truly) that the Dunsmuir framework would lead to more intrusive review. Analysing the Supreme Court of Canada’s case law, Danay confidently concludes that the Dunsmuir sceptics were wrong:

In this empirical study, the author assesses an argument advanced by several scholars that the framework for the selection of standards of review articulated by the Supreme Court of Canada in Dunsmuir v New Brunswick leads to less deference being shown by judges to administrative decision makers than the prior pragmatic and functional approach. An examination of the Court’s voting record in 177 cases dating back to Pushpanathan v Canada suggests that, to the contrary, members of the Court have shown greater deference to administrative decision makers in the years since Dunsmuir was decided than they did under the prior framework. For example, the rate at which the correctness standard was selected after a standard of review analysis was undertaken decreased from 43 per cent before Dunsmuir to 17 per cent in subsequent years. The rate at which members of the Court voted to overturn administrative decisions after identifying the applicable standard decreased from 38 per cent before Dunsmuir to 23 per cent thereafter. While a multiple regression analysis to control for confounding factors was not undertaken, these changes appear to flow from a change in the Court’s approach rather than from factors such as changes in the composition in the Court or changes in the kinds of cases that were heard after Dunsmuir. The author suggests, however, that this shift in approach is not necessarily inherent to the Dunsmuir framework itself and that there are signs that the Court may have already begun to adopt a somewhat less deferential posture.

In our defence, the importance of a couple of important refinements to the Dunsmuir framework — in Alberta Teachers and Newfoundland Nurses — mostly post-dated our articles going to press, but I’m happy to accept that the arc of Supreme Court of Canada jurisprudence bends towards deference (at least on outcomes). The overwhelming signal — if one ignores the noise — from Canada’s apex court is that deference should usually be accorded and that when reasonableness is the standard of review, decisions should generally be upheld notwithstanding errors or omissions in the decision-maker’s reasoning process.

Danay’s analysis is supplemented, and overwhelmingly confirmed, by a three-part series published in the Canadian Journal of Administrative Law & Practice: “How Has Dunsmuir Worked”, by William Lahey, Diana Ginn, David Constantine and Nicholas Hooper. The first article in the series focuses on the federal courts, the second on the BC courts and the third on Nova Scotia, Alberta, Quebec and Ontario. Overall, the authors find, a deferential standard is now applied in about 78% of Canadian administrative law cases (compared to 70% in the pre-Dunsmuir era) and that decisions are upheld 71% of the time (compared to 66% of the time previously). Of particular interest, given the complaint one occasionally hears about the federal courts being too deferential to the government, is that the federal courts are actually more likely than the provincial courts to apply the correctness standard and more likely to quash administrative decisions than their provincial counterparts (66% versus 76%).

While on the subject of empirical studies of administrative law, the latest edition of the Cambridge Law Journal features a fascinating article entitled “From Wednesbury Unreasonableness to Accountability for Reasonableness“, by Daniel Wang (2017) 76 CLJ 642. This extract from the introduction nicely sums up Wang’s careful, incisive analysis:

The English case law on health care rationing can be divided into two stages. This reflects the move from the courts’ very deferential “Wednesbury” approach in the first stage to the heightened scrutiny of rationing decisions in the second. The case law developed during the second stage offers a counter-example to a common perception among public law and human rights scholars that English courts are generally deferential to administrative decisions that involve discretionary allocative choice and are wary of interfering in issues of socio-economic policies. ⁴ This case law actually shows a judiciary that, although still sensitive to the financial and distributive issues facing policymakers, is not easily impressed by their constitutional authority and expertise, and that is willing to scrutinise procedural fairness, policy considerations and scientific evidence of rationing decisions.

It has been suggested in the medical law literature that this move from a very deferential approach to a heightened scrutiny of rationing decisions is the result of the increasing explicitness of rationing in the NHS. It is, according to this argument, the awareness of the existence, scope and processes of rationing that led to the heightened judicial control. ⁵ Indeed, the change in the courts’ approach to the judicial review of rationing decisions was concomitant to a move towards explicit rationing in the NHS. However, correlation is not causation and a more comprehensive analysis of the case law and of the process towards explicit rationing in the NHS, as proposed in this article, shows a more complex relationship between courts and rationing in England. It also shows that the more explicit rationing in the NHS cannot adequately explain the courts’ increasingly heightened scrutiny and that it is rather the latter that helps to explain the former.

Litigation and the rigorous judicial scrutiny of rationing decisions are certainly part of a context in which rationing has become more explicit, but courts have also contributed to creating this same context by making rationing more visible to the public (“explicit about what”) and by requiring primary decision-makers to provide clear and better reasons for denying the funding of a treatment and to decide through more transparent procedures (“explicit about why and how”). The mutually reflexive relation between how courts decide claims related to the public funding of health treatments and the way in which health care is rationed in the NHS makes the case of England relevant for the social rights literature trying to understand the roles courts can play in health policies.

Wang is careful not to mistake correlation for causation, but he at least establishes a plausible hypothesis that changes in English administrative law, coupled with changes in relation to the operation of the National Health Service, have influenced the approach to resource allocation in the public healthcare sector.

This content has been updated on January 4, 2018 at 16:12.