Vavilov and the Culture of Justification in Administrative Law

The term “culture of justification” first appeared in an article by the South African scholar Etienne Mureinek. He described the culture of justification as one “in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command”.[1] Mureinik was writing in the context of his country’s emergence from the apartheid era; his was a South African prescription for South Africa at a particular moment in time. But the term and the “core” idea “that governments should provide substantive justification for all their actions”,[2] have enthusiastically been taken up by scholars of constitutional and administrative law elsewhere in the world.[3] Those scholars who have written extensively about the culture of justification have devoted significant energy to explaining the salutary benefits of the concept – empowering the administrative state[4] and informing the review of the proportionality of legislative interferences with fundamental rights[5] – but not as much to providing a detailed account of what a culture of justification entails. Its status is clear; its characteristics, less so.

The discussion in Vavilov allows us to flesh the culture of justification out further. Prior to Vavilov, the Supreme Court of Canada had said little about the meaning or methodology of reasonableness review. Indeed, its pronouncements on or applications of reasonableness review gave very little guidance to reviewing courts on how to determine whether a given administrative decision was reasonable or unreasonable.[6] Acknowledging that the Supreme Court had, in its previous decisions given “relatively little guidance on how to conduct reasonableness review in practice”,[7] the majority set out to provide such guidance. In the majority’s account, reasonableness review is “a robust form of review”.^[8] Four strands are woven together.

First, justification. The underlying principle is “that the exercise of public power must be justified, intelligible and transparent, not in the abstract, but to the individuals subject to it”.[9] Accordingly, any decision must be “justified in relation to the constellation of law and facts that are relevant to the decision”,[10] not merely one that ‘falls’ within a ‘range’ of possible, acceptable outcomes. The onus is on the applicant for judicial review to satisfy the reviewing court that there are “serious shortcomings” in the decision[11] but the decision-maker nonetheless shoulders a heavier burden than she did prior to Vavilov.[12] As Diner J sagely noted in Ortiz v. Canada (Citizenship and Immigration), whereas under Dunsmuir reviewing courts began with the outcome and then looked back at the reasons, Vavilov instructs them “to start with the reasons, and assess whether they justify the outcome”.[13]

The emphasis on justification in Vavilov is unsurprising, for the most obvious implication of the development of a culture of justification in administrative law is that  administrative “decisions should survive review as long as they are shown by the reasons provided to be justifiable…”[14] Justification is the “motor” of the methodology of the culture of justification.[15] It can drive the imposition of a duty to give reasons[16] but it is also concerned with the adequacy – or substantive reasonableness – of the reasons given in support of a decision.[17]

Second, responsiveness. A decision-maker’s reasons must respond to “the central issues and concerns raised by the parties”.[18] This amounts to an obligation not merely to hear the parties but to demonstrate that they have been listened to: “reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties”.[19] Moreover, in situations where a decision will have “particularly harsh consequences for an affected individual”,[20] a decision-maker comes under a “heightened responsibility…to ensure that their reasons demonstrate that they have considered the consequences of a decision and that those consequences are justified in light of the facts and law”.[21] This places the individual at the centre of the reason-giving process, making the “perspective of the individual or party over whom authority is being exercised” vitally important.[22]

This emphasis on responsiveness echoes the Supreme Court’s insistence in Baker that a decision-maker should be “alert, alive and sensitive” to important considerations raised by an individual.[23] Already in the light of Baker, Mary Liston identified an ethos of justification in Canadian public law,[24] pursuant to which “citizens and residents are democratically and often constitutionally entitled to participate in decisions which affect their rights, interests and privileges”.[25]In a recent book on administrative justice, Zachary Richards suggests that modern trends in public administration have created a new mode of decision-making, which he terms “responsive legality”.[26] Richards does not use, or even refer to, the culture of justification, but his emphasis on the importance of responsiveness meshes very well with the articulation of reasonableness review in Vavilov.

Third, demonstrated expertise. In general, reasons “are the primary mechanism by which administrative decision makers show that their decisions are reasonable”.[27] Only the “demonstrated experience and expertise” of an administrative decision-maker will help to support the conclusion that a given decision was reasonable.[28] Reviewing courts are not to assume that a decision-maker is expert, or indeed that the decision-maker has considered all of the relevant material: its expertise (and its responsiveness and the justification of the decision in question) must be demonstrated.[29] Administrative law is not now (if it ever was) about top-down assertions of authority but about exercises of public power which are justified to those on the receiving end.[30]

Moreover, expertise is to be demonstrated contemporaneously with the issuance of a decision. Reviewing courts are to refrain from bolstering defective administrative decisions with post-hoc reasoning supplied by the decision-maker in an affidavit,[31] clever counsel at the lectern,[32] or by the reviewing court itself.[33] Reviewing courts are not to conduct a “line-by-line treasure hunt for error”,[34] or reweigh evidence considered by the decision-maker,[35] and should read administrative decisions “with sensitivity to the institutional setting and in light of the record”.[36] But a reviewing court should not “fashion its own reasons in order to buttress the administrative decision”.[37] If justification, responsiveness and demonstrated expertise are not present in the reasons given to the affected individual or parties, a court should ordinarily not permit them to be “coopered up” later on,[38] for fear that the reasons will not reflect the exercise of expert judgement by the decision-maker as “a decision-maker might be tempted to take a less rigorous approach to decision-making if it knows it can supplement its reasons later”.[39]

Demonstrated expertise was an important component of the influential explanation of “deference as respect” offered by David Dyzenhaus,[40] one of the earliest adopters and tenacious advocates of the culture of justification.[41] When applying an appropriately deferential approach to judicial review of administrative interpretations of law, the question “for the court is not…what decision it might have reached had the tribunal not pronounced, but whether the reasons offered by the tribunal justify its decision”.[42] Dyzenhaus offered formal and substantive justifications for this approach. The formal justification was that the legislature had chosen the decision-maker, not a court, to resolve the questions at issue. The substantive justification rested on the “considerable expertise” the decision-maker may have developed.[43] But any such expertise had to be demonstrated, as a court should ask whether the reasoning offered by the decision-maker “did in fact and could in principle justify the conclusion reached”.[44] Demonstrated expertise has, as such, roots in the culture of justification.

Fourth, contextualism. Reasonableness is heavily dependent on “contextual constraints”: “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review”.[45] Courts are not to attempt to pigeonhole decisions in particular categories with a view to assessing lawfulness but rather to appreciate decisions in their whole context. Judges should also be “acutely aware” that “‘[a]dministrative justice’ will not always look like ‘judicial justice’”;[46] the context of public administration is often quite different from the context of judicial decision-making. Furthermore, the Supreme Court recognized that there is no bright line between process and substance, acknowledging that whether the duty of fairness requires reasons to be given in a particular case “will impact how a court conducts reasonableness review”.[47]

Again, contextualism features prominently in Dyzenhaus’s scholarship. Already in his explanation of deference of respect, he noted that the approach applied “whether the issue is fact or law (including the tribunal’s powers, other statutes, the common law, and constitutional law)”,[48] eschewing traditional doctrinal boundaries; he has argued in favour of a unified approach to judicial review of administrative action, with the same standards applying in cases involving “rights” and those which do not;[49] he has been sceptical of the monist distinction between incorporated and unincorporated human rights treaties;[50] and has insisted that there is no “hard and fast distinction between process and substance”.[51] The point for Dyzenhaus in his scholarship (sometimes solo, sometimes with others) as much as for the Supreme Court in its explication of reasonableness review in Vavilov is that the analysis is contextual rather than categorical, based on a variety of substantive considerations rather than on a limited number of bright-line distinctions.[52]

Taken together, responsiveness, justification, demonstrated expertise and contextualism provide a relatively detailed picture of the culture of justification.

[1] “A Bridge to Where? Introducing the Interim Bill of Rights” (1994) 10 South African Journal on Human Rights 31, at p. 32.

[2] Moshe Cohen-Eliya and Iddo Porat, “Proportionality and the Culture of Justification” (2011) 59 American Journal of Comparative Law 463, at p. xxx.

[3] See e.g, David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy” in Michael Taggart ed., The Province of Administrative Law (Hart, Oxford, 1997), p. 279; Michael Taggart, “Deference, Proportionality, Wednesbury” [2008] New Zealand Law Review 423; Mark Elliott, “Has the Common Law Duty to Give Reasons Come of Age Yet?” [2011] Public Law 56.

[4] See e.g. David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy” in Michael Taggart ed., The Province of Administrative Law (Hart, Oxford, 1997), p. 279.

[5] See e.g. Moshe Cohen‑Eliya and Iddo Porat. “Proportionality and Justification” (2014) 64 University of Toronto Law Journal 458.

[6] See e.g. Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 at para. 41.

[7] Vavilov, at para. 73.

[8] Vavilov, at para. 13. See the concurring reasons, at para. 294.

[9] Vavilov, at para. 95.

[10] Vavilov, at para. 105.

[11] Vavilov, at para. 100.

[12] As I have remarked:

My view is that the methodology of Vavilovian reasonableness review is inherently deferential. But it is certainly arguable that Vavilov has, in respect of supplementation, responsiveness and justification, set a slightly higher bar for decision-makers than the pre-Vavilov regime.

Paul Daly, “Vavilov Hits the Road (Updated Feb 27)”, Administrative Law Matters (blog), 4 February 2020: <https://pauldaly.openum.ca/blog/2020/02/04/vavilov-hits-the-road/>

[13] 2020 FC 188, at para. 22.

[14] David Dyzenhaus, “Proportionality and Deference in a Culture of Justification”, in Grant Huscroft, Bradley Miller and Grégoire Webber eds., Proportionality and the Rule of Law: Rights, Justification, Reasoning (Cambridge University Press, Cambridge, 2014), p. 234, at p. 255.

[15] Michael Taggart, “Deference, Proportionality, Wednesbury” [2008] New Zealand Law Review 423, at p. 461.

[16] See e.g. Mark Elliott, “Has the Common Law Duty to Give Reasons Come of Age Yet?” [2011] Public Law 56.

[17] See e.g. Leighton McDonald, “Reasons, Reasonableness and Intelligible Justification in Judicial Review” (2015) 37 Sydney Law Review 467.

[18] Vavilov, at para. 127.

[19] Vavilov, at para. 127. Emphasis original.

[20] Vavilov, at para. 133.

[21] Vavilov, at para. 135.

[22] Vavilov, at para. 133.

[23] Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, at para. 75.

[24] The phrase is that of the Rt. Hon. B. McLachlin, “The Roles of Administrative Tribunals and Courts in Maintaining the Rule of Law” (1998) 12 Canadian Journal of Administrative Law & Practice 171.

[25] “‘Alert, alive and sensitive’: Baker, the Duty to Give Reasons, and the Ethos of Justification in Canadian Public Law” in David Dyzenhaus ed., The Unity of Public Law (Hart, Oxford, 2004), p. 113, at p. 114.

[26] Responsive Legality: The New Administrative Justice (Routledge, Abingdon, 2019), at p. 3. As he explains:

When justifying decisions according to this type, public officials value responsiveness in that they cling to a generalisation of purpose that aims to distinguish what is truly necessary for each particular applicant, rather than what has come to be taken for granted in traditions and routines. They deeply value flexibility and adaptability and aim to deal with situations on a case-by-case basis, drawing firm justification for their decision from the extent to which they were able to adaptively respond to the overall set of circumstances that presented themselves in that particular case. In this sense, decision makers operating within this mode are chameleon-like and respond with enthusiasm to changed circumstances in the purposive pursuit of good outcomes.

[27] Vavilov, at para. 81. See the concurring reasons, at paras 291, 296.

[28] Vavilov, at para. 93, emphasis added.

[29] See e.g. Farrier c. Canada (Procureur général), 2020 CAF 25, at para. 10. Mattar v. The National Dental Examining Board of Canada, 2020 ONSC 403, at paras. 51-52; Walker v. Canada (Attorney General), 2020 FCA 44, at para. 10.

[30] I note the possibility, raised by Jennifer Raso, “Unity in the Eye of the Beholder? Reasons for Decision in Theory and Practice in the Ontario Works Program” (2020) 70 University of Toronto Law Journal 1, that reasons for administrative decisions are sometimes (and in some systems often) provided not for the benefit of the individual concerned but for purposes internal to the administrative decision-making structure. The culture of justification, as I am describing it, has been developed by those looking at public administration from the perspective of judicial review of administrative action. In determining the reasonableness or fairness of a decision, a court will look to the available material to try and discern a rationale; this is a function of the institutional role of courts in a common-law system of administrative law. The result is, in at least some situations, a degree of artificiality as judges treat as “reasons” internal communications which were never intended to be sent to an individual claimant, still less scrutinized by a court. More generally, proponents of a culture of justification should be aware that their prescriptions touch only the tip of the iceberg of public administration. In many administrative decision-making structures, front-line decisions are not judicially reviewed at all. It would be wrong to think that the culture of justification referenced in Vavilov guides this sort of decision-making. Equally, however, just because the culture of justification does not permeate all public administration does not mean that it has no relevance to administrative decision-making. In any decision-making structure a final decision, perhaps taken by a tribunal, will be subject to judicial review. In respect of these final decisions, it is entirely appropriate to speak of a culture of justification where exercises of state power have to be justified to the individual concerned (and, on judicial review, to the courts). It is also worth noting that the decisions of some front-line decision-makers, such as visa officers, are directly reviewed by the courts and, as such, might be coaxed into developing a culture of justification. But Raso’s excellent empirical work serves to remind administrative lawyers that there is a world of difference between the cloistered world of judicial review of administrative action and the sweaty front-lines of public administration.

[31] Saskatchewan (Energy and Resources) v. Areva Resources Canada Inc, 2013 SKCA 79, at paras. 36, 110.

[32] McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 SCR 895, at para. 72.

[33] Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 SCR 559, at para. 58.

[34] Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 SCR 458, at para. 54; Vavilov, at para. 102.

[35] Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 SCR 339, at para. 64; Vavilov, at para. 125.

[36] Vavilov, at para. 96.

[37] Vavilov, at para. 96.

[38] Canada v. Kabul Farms Inc., 2016 FCA 143, at para. 47, per Stratas JA.

[39] Paul Daly, “Reasons and Reasonableness in Administrative Law: Delta Air Lines Inc. v. Lukacs” (2018) 31 Canadian Journal of Administrative Law & Practice 209.

[40] And applied with gusto by the Supreme Court in Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 SCR 190, at para. 48 and Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708, at paras. 11-12.

[41] “Law as Justification: Etienne Mureinik’s Conception of Legal Culture” (1998) 14 South African Journal on Human Rights 11; “Dignity in Administrative Law: Judicial Deference in a Culture of Justification” (2012) 17 Review of Constitutional Studies 87.

[42] “The Politics of Deference: Judicial Review and Democracy” in Michael Taggart ed., The Province of Administrative Law (Hart, Oxford, 1997), p. 279, at p. 303.

[43] Ibid., at p. 304.

[44] Ibid., at p. 304. This component was, unfortunately, overlooked by the Supreme Court in the decade after Dunsmuir. See Mary Liston, “Deference as Respect – Lost in Translation?” in Paul Daly and Léonid Sirota eds., The Dunsmuir Decade/Les 10 ans de Dunsmuir (2018) Special Issue of Canadian Journal of Administrative Law & Practice(Thomson Reuters, Toronto, 2018).

[45] Vavilov, at para. 90. See the concurring reasons, at paras. 292-293.

[46] Vavilov, at para. 92.

[47] Vavilov, at para. 76.

[48] “The Politics of Deference: Judicial Review and Democracy” in Michael Taggart ed., The Province of Administrative Law (Hart, Oxford, 1997), p. 279, at p. 304.

[49] David Dyzenhaus, Murray Hunt and Michael Taggart, “The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation” (2001) 1 Oxford University Commonwealth Law Journal 5; David Dyzenhaus, “Proportionality and Deference in a Culture of Justification”, in Grant Huscroft, Bradley Miller and Grégoire Webber eds., Proportionality and the Rule of Law: Rights, Justification, Reasoning (Cambridge University Press, Cambridge, 2014), p. 234.

[50] David Dyzenhaus, Murray Hunt and Michael Taggart, “The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation” (2001) 1 Oxford University Commonwealth Law Journal 5; David Dyzenhaus and Evan Fox-Decent, “Rethinking the Process/Substance Distinction: Baker v. Canada”(2001) 51 University of Toronto Law Journal 193, at pp. 233-234.

[51] David Dyzenhaus and Evan Fox-Decent, “Rethinking the Process/Substance Distinction: Baker v. Canada”(2001) 51 University of Toronto Law Journal 193, at p. 238. See also David Mullan, “Baker v. Canada (Minister of Citizenship &Immigration) – A Defining Moment in Canadian Administrative Law” (1999) 7 Reid’s Administrative Law 145 at p. 151; and Mary Liston, “Transubstantiation in Canadian Public Law: Processing Substance and Instantiating Process” in John Bell et al eds., Public Law Adjudication in Common Law Systems: Process and Substance (Hart, Oxford, 2016), p. 213.

[52] See also Paul Daly, “The Unfortunate Triumph of Form over Substance in Canadian Administrative Law” (2012) 50 Osgoode Hall Law Journal 317.

This content has been updated on April 20, 2020 at 14:07.