Justice Abella and Judicial Restraint

I am working on a paper on Justice Abella’s administrative law jurisprudence. Here is the opening part, describing her approach to judicial restraint.

Justice Abella’s advocacy of deferential review of administrative decisions was a consistent theme throughout her tenure on the Supreme Court of Canada. I will address substantive review in this section but I will note that her views on standard of review are of a piece with her approach to procedural fairness – where “considerable deference” may be due to administrative decision-makers[1] – and to the scope of legislative authority to create administrative tribunals – where she preferred a “generous approach to the authority of provincial governments to make jurisdictional grants to provincial adjudicative bodies”.[2]

A similar devotion to judicial restraint can be perceived in her approach to substantive review. In her first set of majority reasons in a judicial review matter she applied a deferential standard: Association des courtiers et agents immobiliers du Québec v. Proprio Direct inc., 2008 SCC 32, [2008] 2 SCR 195. Proprio Direct offers an online platform in Quebec for residential property sales: the company charged vendors a membership fee to put their house on the Proprio Direct website and also took a commission. The discipline committee of the regulatory agency responsible for estate agents in Quebec disciplined the company for making the sale of property a statutory precondition to collecting commission. In the committee’s view, charging the membership fee before any sale was a violation of the obligations imposed on real estate agents, who were entitled only to collect commission on sales.

Abella J upheld the committee’s decision as reasonable. Notably, she applied a deferential standard of review even though there was a statutory right of appeal to the courts from decisions of the committee. She reasoned that the regulatory’s agency’s primary statutory role was “the protection of the public from breaches of ethical norms by members of the real estate profession” and that upholding these ethics was “at the core of the discipline committee’s mandate”.[3] She pithily summarized her analysis of the applicable standard of review:

The legislature assigned authority to the Association, through the experience and expertise of its discipline committee, to apply — and necessarily interpret — the statutory mandate of protecting the public and determining what falls beyond the ethical continuum for members of the Association.  The question whether Proprio Direct breached those standards by charging a stand-alone, non-refundable fee falls squarely within this specialized expertise and the Association’s statutory responsibilities.[4]

Proprio Direct was an early application of the revised standard of review framework set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190. There, Abella J agreed with the framework established by LeBel and Bastarache JJ.

She went on to make several major contributions to the application of the Dunsmuir framework, clarifying the nature of reasonableness review and the scope of its application.

Consider, first, Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708. The narrow issue on this appeal was whether a labour arbitrator had reasonably concluded that time spent as a casual employee before gaining permanent status counted towards vacation entitlements under a collective agreement. But this narrow issue of applied labour law was nested in a broader issue about the application of Dunsmuir. LeBel and Bastarache JJ had there defined the reasonableness standard as requiring two distinct inquiries: the presence of “justification, transparency and intelligibility” in the reasoning process; and an outcome which fell within the “range of possible, acceptable outcomes which are defensible in respect of the facts and law”.[5] Did this require two discrete inquiries on the part of the courts, one into the reasoning process and one into the outcome?[6] In addition, given that the obligation to provide reasons is (often) a requirement of procedural fairness, does it follow that a reviewing court should determine whether the reasons are sufficient without any deference to the decision-maker?[7]

Abella J answered both of these questions in the negative. Taking them in reverse order, whilst a failure to give any reasons could, indeed, be a breach of the duty of fairness, any question about the adequacy of reasons was to be assessed on the reasonableness standard: “Where there are no reasons in circumstances where they are required, there is nothing to review. But where, as here, there are reasons, there is no such breach.  Any challenge to the reasoning/result of the decision should therefore be made within the reasonableness analysis”.[8]

Second, reasonableness review is an “organic exercise” involving a holistic inquiry: “the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes”.[9] Indeed, a court could also look to reasons which could have been offered in support of the decision:[10] “courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome”.[11] Ultimately, “if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met”.[12] So much for the rhetorical flourish in Dunsmuir – justification, transparency and intelligibility meant, simply, that the reasons had to be comprehensible.[13]

Shortly after Newfoundland Nurses, Abella J produced another unanimous decision, this time on the scope of application of the reasonableness standard: Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395. Here, Maitre Doré had been disciplined by the Barreau for writing a vituperative personal letter to a judge. Before the discipline committee, he raised his Charter-protected right of freedom of expression as a justification for his conduct, to no avail. On judicial review, he sought again to vindicate his constitutional rights. Now, there had been some confusion in the Supreme Court of Canada’s jurisprudence about the standard of review of alleged infringements with Charter rights. Some cases indicated that a deferential standard could be appropriate.[14] But in Multani v. Commission scolaire Marguerite‑Bourgeoys, 2006 SCC 6, [2006] 1 SCR 256, a majority had applied the familiar proportionality test to determine the lawfulness of a school board’s refusal to allow a student to wear a kirpan, over the joint dissent of Deschamps and Abella JJ. Nonetheless, in Doré, Abella J held that where a Charter infringement has been raised in judicial review proceedings, the question for the reviewing court is whether “the decision reflects a proportionate balancing of the Charter protections at play”; as long as the decision-maker “has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable”.[15] The expertise of administrative decision-makers was a central feature of her analysis, just as it had been central in Proprio Direct.[16]

The deferential message of Doré was tempered somewhat by Abella J’s subsequent majority decisions in Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613 (where she stated, at para. 38 that where Charter rights are engaged, “reasonableness requires proportionality”) and Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293 (where she noted, at para. 81 that “if there was an option or avenue reasonably open to the decision-maker that would reduce the impact on the protected right while still permitting him or her to sufficiently further the relevant statutory objectives, the decision would not fall within a range of reasonable outcomes”). Nonetheless, there was no doubt that reasonableness was the applicable standard.

This was of a piece with the Supreme Court’s post-Dunsmuir jurisprudence, in which a thoroughgoing presumption of reasonableness review became central.[17] Justice Abella made another significant contribution in this regard in Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 (CanLII), [2015] 3 SCR 909, she applied the deferential reasonableness standard to the resolution of a certified question in an immigration law case. Under the Immigration and Refugee Protection Act, SC 2001, c 27, there is no automatic right of onward appeal from the Federal Court to the Federal Court of Appeal in most immigration matters: under s. 74(d), there is an appeal only where the Federal Court judge who renders judgment on the judicial review application certifies that “a serious question of general importance is involved”. The Supreme Court had previously taken the view that the certified question regime called for correctness review on certified questions of law: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 98, at para. 43. Pushpanthan was swept aside. Justice Abella reasoned that “the certification of a question of general importance may be the “trigger” by which an appeal is permitted” but that this could not determine the standard of review: “The subject of the appeal is still the judgment itself, not merely the certified question. The fact that the reviewing judge in this case considered the question to be of general importance is relevant, but not determinative. Despite the presence of a certified question, the appropriate standard of review is reasonableness”.[18]

Justice Abella made significant contributions, therefore, to the development of the Supreme Court of Canada’s administrative law framework after Dunsmuir. Deference had become synonymous with judicial restraint. However, the dominance of reasonableness as the standard of review of administrative decisions and uncertainty about the content of that standard prompted significant academic[19] and judicial debate.[20] Justice Abella’s contribution to this debate was made in her reasons in Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 SCR 770.

Prompted by the “substantial portion” of the written submissions and of the decisions below dedicated to navigating the standard of review “obstacle course”,[21] Abella J sought to forge a way out of the “labyrinth”.[22] In her view, “[m]ost of the confusion” was attributable to the process for selecting the standard of review.[23] Her solution was to adopt “a single reviewing standard of reasonableness”, containing[24] “a wider range for those kinds of issues and decision-makers traditionally given a measure of deference, and a narrow one of only one “defensible” outcome for those which formerly attracted a correctness review”.[25] This solution operationalized, for Abella J, the animating principles of the Dunsmuir framework – the rule of law, on the one hand, and legislative supremacy, on the other – but “in a way that eliminates the need to sort cases into artificial categories”.[26] Reasonableness would become the all-encompassing standard of review in administrative law matters.

Justice Abella’s colleagues did not take up her invitation, their responses suggesting significant divisions on the Supreme Court of Canada about whether and how to make any changes. One group, whose members agreed with her disposition of the appeal in Wilson, commended her “efforts to stimulate a discussion on how to clarify or simplify our standard of review jurisprudence to better promote certainty and predictability”.[27] Another group, dissenting on the disposition of the appeal, commended Abella J’s thoughtful suggestions but admitted they “harbour[ed] concerns about their merits”.[28] For his part, Justice Cromwell expressed the view that the “basic Dunsmuir framework is sound and does not require fundamental re-thinking”.[29]

As is well known, the journey which began with Abella J’s reasons in Wilson terminated in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 where, notwithstanding Cromwell J’s views, a majority of the Supreme Court overhauled Canada’s administrative law framework. Plenty of ink has been spilled over Vavilov – much of it from my pen – and I do not propose to set the case out in detail. Suffice it to say that Abella J found herself (along with Karakatsanis J) essentially in dissent about the new approach set out by the majority. On the one hand, the majority set out a new rules-based approach to selecting the standard of review, with reasonableness as the starting point but with correctness review envisaged where the rule of law or respect for legislative intent required it. On the other hand, the majority set out a methodology for conducting reasonableness review.

Given the content of the majority reasons, it was no surprise to find Abella J in dissent. Her all-encompassing reasonableness standard was roundly rejected, with correctness review becoming the standard whenever an administrative decision is subject to a statutory appeal. As she and Karakatsanis J rightly observed, Vavilov caused a sea change in that regard. The rationale behind Proprio Direct was discarded. And the reasonableness standard articulated by the majority repudiated Newfoundland Nurses, rejecting Abella J’s holistic, organic inquiry in favour of an approach which requires both a reasonable outcome and a reasonable line of analysis leading to the outcome.[30] True, on many points, Abella and Karakatsanis JJ did not diverge radically from the majority, but the new emphasis on responsive justification – and an insistence on the contemporaneity of the reasons provided in support of administrative decisions – with its implication of more intrusive judicial review explains why they saw the majority’s reasons as “an encomium for correctness and a eulogy for deference”.[31] The majority kept her bon mot – that judicial review does not involve a “line-by-line treasure hunt for error”[32] – but rejected the underlying raison d’être of deference.

One of the goals for the rest of the paper is to explain this rejection!

[1] Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 SCR 650, at para. 231.

[2] Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27, at para. 311.

[3] Association des courtiers et agents immobiliers du Québec v. Proprio Direct inc., 2008 SCC 32, [2008] 2 SCR 195, at paras. 17-18.

[4] Association des courtiers et agents immobiliers du Québec v. Proprio Direct inc., 2008 SCC 32, [2008] 2 SCR 195, at para. 21.

[5] Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, at para. 47.

[6] See e.g. Clifford v. Ontario Municipal Employees Retirement System, 2009 ONCA 670, at para. 32, distinguishing between challenges to the reasoning process and challenges to an outcome. See also Public Service Alliance of Canada v. Canada Post Corporation, 2010 FCA 56.

[7] See e.g. Clifford v. Ontario Municipal Employees Retirement System, 2009 ONCA 670, at para. 24.

[8] Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708, at para. 22.

[9] Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708, at para. 14.

[10] Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, at para. 48, citing David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in Michael Taggart, ed., The Province of Administrative Law (Hart, Oxford, 1997), 279, at p. 304.

[11] Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708, at para. 15.

[12] Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708, at para. 16.

[13] See e.g. Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 SCR 559, at para. 89.

[14] See e.g. Chamberlain v. Surrey School District No. 36, 2002 SCC 86, [2002] 4 SCR 710.

[15] Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395, at paras. 57-58.

[16] See especially Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395, at paras. 35, 46-54.

[17] See especially Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 SCR 654; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 SCR 293.

[18] Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 SCR 909, at para. 44.

[19] See e.g. Matthew Lewans, “Deference and Reasonableness Since Dunsmuir” (2012) 38 Queen’s Law Journal 59.

[20] See e.g. The Honourable David Stratas, “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency” (2016) 42 Queen’s Law Journal 27; The Honourable Joseph T. Robertson, Q.C., “Identifying the Review Standard: Administrative Deference in a Nutshell” (2017) 68 University of New Brunswick Law Journal 143.

[21] Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 SCR 770, at para. 20.

[22] Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 SCR 770, at para. 19.

[23] Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 SCR 770, at para. 24.

[24] Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 SCR 770, at para. 28.

[25] Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 SCR 770, at para. 33.

[26] Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 SCR 770, at para. 37.

[27] Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 SCR 770, at para. 70.

[28] Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 SCR 770, at para. 78.

[29] Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 SCR 770, at para. 72.

[30] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 96.

[31] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 201.

[32] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 102, citing Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 SCR 458, at para. 54).

This content has been updated on June 9, 2022 at 19:59.