Justice Abella’s Administrative Law Jurisprudence: Critical Analysis

For previous posts in this series, prepared for today’s University of Toronto symposium on Justice Abella, see here, here and here

In the scholarly literature on deference, one finds pro-deference arguments based on legislative intent,[1] relative institutional competence,[2] democratic legitimacy[3] and much else besides.[4] These arguments tend to be developed from the perspective of the courts and marshalled in favour of judicial restraint vis-à-vis administrative decision-makers. Enhancing autonomy is not, generally speaking, a focus of the scholarly literature. A notable exception is Professor Dyzenhaus whose “deference as respect” would accord administrative decision-makers a role in the elaboration of legal norms in the interests of furthering a more egalitarian conception of democracy. Even here, however, Professor Dyzenhaus is more interested in how an enhanced role for administrative decision-makers relative to courts would prompt the legal community to reconsider the nature of law and democracy, an objective which could be realized without necessarily enhancing the autonomy of administrative decision-makers. To situate Justice Abella’s administrative law jurisprudence, then, it is necessary to search for foundations beyond the well-known territory covered by the scholarly literature on deference.

Justice Abella is best placed, I think, in the functionalist school of administrative law which emerged in the 20^th century as the state took on a more expansive role in western liberal democracies. In my view, there are three aspects to this school.[5]

First, the functionalists were comfortable with the notion of legal pluralism, with autonomous islands of decision-making in legal systems regulated by their own internal norms rather than by a unified vision imposed by the judiciary.[6] An appropriate starting point is Justice Abella’s own extra-judicial reflection on her administrative law jurisprudence. In “Canadian Administrative Law: The Case for Judicial Humility”,[7] her thesis was as follows:

I see both the Courts and administrative decision-makers as equally responsible for, and capable of, interpreting the applying law within their  separate, assigned legal spheres. In other words, the rule of law and respect for the right of administrative decision-makers to decide questions of law are not binary concepts, they are parallel legal universes.[8]

This passage beautifully captures the essence of Justice Abella’s jurisprudence: it is not just about judicial restraint, it is about the recognition of “parallel legal universes” in which administrative decision-makers have the “right” to determine matters. Justice Abella’s “parallel legal universes” directly calls upon legal pluralism.

Second, progressives trusted in the inherent expertise of administrative decision-makers to achieve the policy goals set by legislatures.[9] Underpinning the passage quoted above is a high degree of trust on Justice Abella’s part in public administration, especially the ability of administrative decision-makers to effectively perform the functions in their assigned sphere. Indeed, this expertise left her “smitten” when she encountered it as Chair of the Ontario Labour Relations Board:

[O]ver time, sitting with and listening to people who spent every day of their professional lives wrestling with law to blend the statutory mandate with common sense and good labour relations, I was in awe. It was a tripartite process. A neutral but experienced lawyer presiding, flanked by two actual labour relations experts, one from labour and one from management, neither of them lawyers. The middle knew the law, the sides knew its real world implications and helped the lawyer in the middle make sure that the outcome was not just legally sound, it was labour relations sound. These synergetic deliberations— law blended with experience and seasoned with policy—gave the Board’s decisions credibility and protected its integrity in the labour relations community. The neutral lawyers in the middle met every week to discuss cases and to make sure we were developing consistent policies, and, every once in a while, the full board met if there was a profound issue that needed everyone’s input. The whole objective was to serve the public interest in the labour relations field and it was a wondrous thing to behold.[10]

Accordingly, from her Proprio Direct decision and beyond expertise appears throughout Justice Abella’s jurisprudence, not just in respect of the justification of judicial restraint but also in respect of empowering administrative decision-makers. Justice Abella leaned heavily on expertise in Doré. Indeed, it provided the “starting point” for her rearticulation of the approach to judicial review of alleged Charter violations.[11] Their expertise and specialization, indeed, give administrative decision-makers a “distinct advantage” in applying the Charter in their area of specialized expertise.[12] Given an administrative decision-maker’s expertise and “proximity to the facts”, deference is justified when it is necessary to balance Charter values in a specific factual setting.[13]

Third, progressive policies and functionalism went hand-in-hand. By “progressive” here, I mean the proposition that the state should play an active role in the provision of the necessities of life by establishing institutions capable of promoting the positive rights of the citizenry.[14] The functionalists saw in the administrative state a vehicle for achieving progressive policy ends.[15] In her extra-judicial writing Justice Abella recognized that administrative decision-makers exist so as to implement policies:

A Securities Commission to deal with stock markets, a Human Rights Commission for discrimination, an Environmental Assessment Board to prevent environmental pillaging, a Labour Relations Board to protect collective bargaining, and a Municipal Board to promote responsible urban growth. The list goes on. We were created to fill a vacuum. We were a policy response and a policy tool. Governments set us up and held us out as specialized experts to further their policy objectives by giving us the authority to make decisions exclusively in a particular area. They funded us, chose us, and defined our policy base. Go forth and decide, they said.[16]

It is notable that the policies listed here are (with the possible exception of securities regulation) are unabashedly progressive. In this regard, it is interesting to note that Justice Abella’s most high-profile contributions to constitutional rights jurisprudence came in fields – labour relations and equality law – replete with state action.[17]

Situating Justice Abella’s administrative law jurisprudence allows us to appreciate why she ended up jointly writing a set of concurring reasons in Vavilov which reflected profound disagreement with the majority of her colleagues.

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 Justice Abella found herself (along with Justice Karakatsanis) 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 applicable where required by the rule of law or respect for legislative intent. 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 Justice Abella 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 and concerns a question of general legal principle. As she and Justice Karakatsanis 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 Justice Abella’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.[18] True, on many points, Justices Abella and Karakatsanis 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”.[19]

Let us take the three features of functionalism in turn. First, legal pluralism is not anathema to Vavilov. In principle, an administrative decision-maker can chart its own course in relation to statutory interpretation[20] and even justify divergence from judicial precedent.[21] However, respect for legal pluralism is contingent on meeting the requirements of responsive justification set out in Vavilov: administrative decision-makers do not have a “right” to adopt their own approaches in an autonomous “sphere” of authority but must justify any such approach in reasons which are acceptable to a reviewing court.

Second, Vavilov removes expertise as a relevant consideration in selecting the standard of review.[22] Surviving the reasonableness standard requires an administrative decision-maker to demonstrate its expertise: there is no inherent judicial belief in the specialized knowledge and wisdom of administrative decision-makers.[23] Hence the charge by Justices Abella and Karakatsanis that the majority “accords no weight to the institutional advantages of specialization and expertise that administrative decision-makers possess in resolving questions of law”.[24]

Third, it became clear soon after the Supreme Court granted leave to appeal in Vavilov, with its invitation for detailed submissions on the standard of review, that progressive interest groups did not share the functionalist vision of administrative law.[25] In Vavilov, intervenors representing the environment, prisoners, immigration-status claimants, tenants and First Nations children all advocated for more intrusive judicial review and expressed scepticism about the inherent expertise of administrative decision-makers. It is difficult to avoid the conclusion that these interventions weighed heavily on the Supreme Court, memorialized most effectively in the admonition that administrative decision-makers “must adopt a culture of justification and demonstrate that their exercise of delegated public power can be “justified to citizens in terms of rationality and fairness””.[26]

The foundations of Canadian administrative law were functionalist, established in an era where the progressive concern was with overly intrusive judicial review of labour relations experts; functionalists were suspicious of judges who might draw on the individualistic common law tradition to undermine the achievement of collective goals by prioritizing private interests over the common good.[27] Times have changed. In particular, the scope of judicial review has expanded dramatically: policy decisions in relation to the environment;[28] prison decision-making[29] and immigration status determinations [30] are now uncontroversially subject to curial oversight. In these areas, the stakes for the individuals concerned are often very high and the expertise of the decision-maker (especially on matters of legal interpretation) is not self-evident. Furthermore, the rise of the “New Administrative Law” – statutory reason-giving requirements, access to information and ombuds dispute resolution schemes – has shed light on areas of public administration previously shrouded in darkness.  

In the result, nowadays, “it is not open to the government to say, “Trust us, we got it right.””.[31] Or, put more moderately, “Trust, but verify”. Judicial restraint and the promotion of administrative autonomy are now subordinate to the requirements of reasoned justification. On balance, I believe that the Vavilov majority was on firmer footing than Justices Abella and Karakatsanis. As long as the correctness categories are narrowly confined, and the standard of reasonableness is applied in the inherently deferential manner set out by the majority, Vavilov is better suited to contemporary judicial review – with its broad reach into all aspects of public administration – than a hands-off approach. Indeed, Vavilov’s emphasis on reasons as the wellspring of administrative legitimacy can underscore arguments for greater administrative autonomy: if deference is contingent on the demonstration of expertise, responsiveness and justification, then there is less reason to fear administrative decision-makers.

[1] See e.g. Paul Daly, A Theory of Deference in Administrative Law: Basis, Application and Scope (Cambridge University Press, Cambridge, 2012).

[2] See e.g. Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation (Harvard University Press, Cambridge, 2006).

[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.

[4] Gary Lawson and Guy Siedman, Deference: The Legal Concept and the Legal Practice (Oxford University Press, Oxford, 2020).

[5] See also Martin Loughlin, “The Functionalist Style in Public Law” (2005) 55 University of Toronto Law Journal 361, identifying no fewer than 10 basic elements of belief that shape functionalism in public law; Matthew Lewans, Administrative Law and Judicial Deference (Hart, Oxford, 2016).

[6] See especially Harry Arthurs, Without the Law: Administrative Justice and Legal Pluralism in Nineteenth Century England (University of Toronto Press, Toronto, 1985); See also Martin Loughlin, “The Functionalist Style in Public Law” (2005) 55 University of Toronto Law Journal 361, at pp. 391-397; Matthew Lewans, Administrative Law and Judicial Deference (Hart, Oxford, 2016), at pp. 134-135.

[7] (2020) 75 Relations industrielles/Industrial Relations 168.

[8] “Canadian Administrative Law: The Case for Judicial Humility” (2020) 75 Relations industrielles/Industrial Relations 168,at p. 169.

[9] The classic text in this regard is James Landis, The Administrative Process (Yale University Press, New Haven, 1938). See generally Martin Loughlin, “The Functionalist Style in Public Law” (2005) 55 University of Toronto Law Journal 361, at pp. 385-388.

[10] “Canadian Administrative Law: The Case for Judicial Humility” (2020) 75 Relations industrielles/Industrial Relations 168, at p. 171.

[11] Doré at para. 46.

[12] Doré at para. 47.

[13] Doré at para. 52.

[14] Matthew Lewans, Administrative Law and Judicial Deference (Hart, Oxford, 2016), at pp. 65-66.

[15] Martin Loughlin, “The Functionalist Style in Public Law” (2005) 55 University of Toronto Law Journal 361, at p. 370, 378-379.

[16] “Canadian Administrative Law: The Case for Judicial Humility” (2020) 75 Relations industrielles/Industrial Relations 168, at p. 172.

[17] Martin Loughlin, “The Functionalist Style in Public Law” (2005) 55 University of Toronto Law Journal 361, at pp. 398-400.

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

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

[20] Vavilov, at paras. 119, 122.

[21] Vavilov, at para. 112; Canada (Attorney General) v. National Police Federation, 2022 FCA 80.

[22] Vavilov, at para. 31. It is, instead, “folded into” the presumption of reasonableness review.

[23] Vavilov, at paras. 14, 81, 83 and 93.

[24] Vavilov, at para. 236.

[25] This point is brilliantly explained by Geneviève Cartier, « La perspective de l’individu dans les décisions des pouvoirs publics » (2022) 101 Supreme Court Law Review (2d) 449.

[26] Vavilov, at para. 14, citing the Rt. Hon. B. McLachlin, “The Roles of Administrative Tribunals and Courts in Maintaining the Rule of Law” (1998), 12 C.J.A.L.P. 171, at p. 174 (emphasis deleted).

[27] Matthew Lewans, Administrative Law and Judicial Deference (Hart, Oxford, 2016), at pp. 67-70.

[28] Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 SCR 3.

[29] R. v. Miller, [1985] 2 SCR 613.

[30] Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177.

[31] Tesla Motors Canada ULC v. Ontario (Ministry of Transportation), 2018 ONSC 5062, at para. 62.

This content has been updated on September 23, 2022 at 13:56.