A Tale of Two Courts: Administrative Law in the SCC and UKSC

Mine this time, following from Professor Macklin’s provocative post last week.

Having tuned in for the oral arguments, I am slightly more optimistic about the Supreme Court of Canada’s endeavour than I was before the hearing. The judges certainly asked pertinent questions over the three days and homed in on the methodology of reasonableness review as a particularly important issue. It is very difficult to predict what will happen next.

Earlier in the week the Supreme Court of Canada heard oral arguments, the United Kingdom Supreme Court listened to the appellants, respondents and one intervener in the Privacy International litigation. I was struck by the contrast between the two hearings. On the first day of the Privacy International hearing, Dinah Rose QC (for the appellants) delivered four hours of oral argument, going through the statutory scheme in painstaking detail before moving on to the relevant case law, sometimes reading whole passages from previous decisions and inviting comment from the judges. Sir James Eadie QC did much the same the following day, before Rose QC replied. Sandwiched between the two was Martin Chamberlain QC, appearing for an intervener. The main feature of the UKSC hearing was the close attention to statute and previously decided cases: textual exegesis was the name of the game.

Things were very different in the Supreme Court of Canada. This, I should make clear, is not a criticism. Different courts and different jurisdictions take different approaches to providing judges with the material necessary to decide cases. To observe that the UKSC and SCC approaches are different is not to say one is better than the other. Besides, there are obvious differences between Privacy International, which turns on a clause in a statute and the Trilogy, which is about the structure of administrative law, viewed through the prism of two difficult cases on immigration and telecommunications regulation.

Nonetheless, a little bit of textual exegesis might have gone a long way in Ottawa. There was little or no detailed discussion of landmark cases like New Brunswick Liquor, Southam and Pushpanathan, never mind lesser-known cases such as United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 SCR 316.* Even Dunsmuir received relatively cursory treatment. What exactly did Justices Dickson, Iacobucci, Bastarache and LeBel say in those cases and in what legal and factual contexts?  And what about Professor Dyzenhaus’s article, “The Politics of Deference”, cited on numerous occasions by the Court in its administrative law cases? What exactly did Professor Dyzenhaus say about “deference as respect”? There were honourable exceptions, of course. Amicus Audrey Boctor’s close reading of the Court’s cases on judicial review of decisions implicating the Charter was especially notable. But as a rule the focus was on the structure of administrative law in the abstract.

This emphasis on higher-level theory rather than granular analysis might also help to explain an unusual aspect of the hearings in Ottawa. Many observers, Professor Macklin included, found it odd that the Court seemed very reluctant to revisit some of its existing jurisprudence even though it had expressly suggested that it might do so. Maybe, however, the Court’s hesitancy was not so odd. First, the Court is a common law court and, as such, one should expect it to gravitate towards an incrementalist approach to changing the law. Second, any court asked to make significant changes to the law is likely to be interested in the consequences of these changes. Close attention to previously decided cases and the concepts found therein might well have provided comfort to members of the Court worried that they were being asked to take a leap in the dark.

Relatedly, it was striking how much the hearings focused on the Court’s jurisprudence. There was hardly any mention of the approaches taken on the Courts of Appeal to, say, the methodology of reasonableness review and the principles of statutory interpretation. There is a significant body of decided cases on these issues. For instance, one of the questions from the bench (I can’t remember who posed it) asked whether it would be reasonable for an administrative tribunal to ignore purpose and context in interpreting a statutory provision. This issue was addressed by the Quebec Court of Appeal in 2015.

Comparative references were few and far between as well, although one must surely take Justice Abella’s point that material from “Anisminic jurisdictions”, such as Australia and England and Wales, is to be approached with caution given the Court’s long-standing hostility to Anisminic and its progeny.

Just as my comments about the contrast between the approaches in Ottawa and London are not meant as a criticism of the Supreme Court of Canada, these comments about the relative lack of doctrinal and comparative detail in the ‘Trilogy’ hearings are not meant as a criticism of the lawyers who made written and oral submissions. Parties and interveners are obviously constrained by word- and time-limits and did their level best to put relevant information before the Court. I enjoyed watching the skilled advocacy on display (especially when this blog got a mention, albeit a critical one, from Professor Jutras). And I am certainly not suggesting that the insights provided by participants were irrelevant, simply that they could have been supplemented by close scrutiny of previously decided Canadian cases and (perhaps) comparative material.

My point, I suppose, is much the same as the one I made before the hearing: as the Court is not a Royal Commission, its adjudicative processes might not be suited to the task it set for itself. Making changes that will bring coherence and stability to Canadian administrative law would require sustained focus on issues of doctrine, viewed from theoretical, historical and comparative perspectives. Even three days, assisted by the country’s ablest administrative lawyers, are unlikely to be enough. But perhaps the Court will surprise us; the fact that the judges were asking astute questions certainly gives some cause for optimism.

* I mention this case because it contains a sustained discussion of an issue the Court struggled with at the hearings, namely whether a reviewing court should ‘benchmark’ an administrative interpretation of law against its own interpretation arrived at by using the principles of statutory interpretation

This content has been updated on December 20, 2018 at 13:04.