The Case for Deference on Questions of Procedural Fairness

In a forthcoming essay, “Canada’s Bi-Polar Administrative Law: Time For Fusion“, I argue that courts should defer to administrative decision-makers on questions of procedural fairness. In this extract, I develop an argument from first principles; in subsequent extracts, I will make an argument specific to Canada, and detail how a deferential approach might operate. Download the whole essay here.

First, where resolving a procedural issue requires the administrative decision-maker to interpret a statutory provision “au centre de [sa] mission décisionnelle”,[1] the argument for deference can be based on legislative intent. Where authority has been granted to the decision-maker to interpret a particular provision, the argument for intrusive judicial review is dubious. As then-Professor Evans commented shortly after the Court began to advocate a policy of judicial deference to administrative interpretations of law:

The composition and institutional structure of the agencies, together with the expertise and the wide range of procedural tools available to them, apparently persuaded the courts that these bodies had indeed been given the primary statutory responsibility for implementing and elaborating the legislative mandate within their area of regulation.[2]

Second, even in the absence of a particular provision dispositive of a procedural fairness question, there will typically be compelling reasons for deference. An administrative decision-maker “knows the circumstances in particular proceedings before it, has “expertise in the dynamics” of a particular regulatory domain and “has policy appreciation”.[3] Resolving the competing interests of meaningful participation and effective decision-making may also be a delicate task: “Flexibility is necessary to ensure that individuals can participate in a meaningful way in the administrative process and that public bodies are not subject to procedural obligations that would prejudice the public interest in effective and efficient public decision-making”.[4] It may, moreover, turn on the appreciation of facts and the elaboration of the decision-maker’s policy agenda, matters traditionally calling for deference. As the Court has itself recognized: “The determination of the scope and content of a duty to act fairly is circumstance-specific, and may well depend on factors within the expertise and knowledge of the tribunal, including the nature of the statutory scheme and the expectations and practices of the [decision-maker’s] constituencies”.[5]

These practical justifications for deference are linked to legislative intent, because they are the reasons that decision-making authority was granted to administrative decision-makers in the first place;[6] the “natural inference” is that they influenced the legislative decision to create and empower the administrative decision-maker in question.[7] Closer to the parties and more sensitive to the dynamics of the regulatory environment than a reviewing court, the administrative decision-maker should benefit from deference in its resolution of procedural issues.

[1]Au dragon forgé, at para. 42.

[2]John M. Evans, “Developments in Administrative Law: the 1984-85 Term” (1986), 8 S.C.L.R. (2d.) 1, at p. 27.

[3] Maritime Broadcasting, at para. 50, per Stratas J.A.

[4] Re: Sound v. Fitness Industry Council of Canada, 2014 FCA 48, at para. 36, per Evans J.A.

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

[6]As I have explained :

If reasons which explain the delegation of power can plausibly be inferred from a proper consideration of the relevant statutory provisions, then it can be argued that they influenced the legislative decision to delegate power to a body other than a court, and are thus factors that a reviewing court ought to consider…Consistent with their obligation to give effect to legislative intent, if, by reference to the relevant statutory provisions, it can plausibly be inferred that the practical justifications [for deference] influenced the decision to delegate power, courts ought to look to [these reasons] in determining the appropriate degree of curial deference to accord to delegated decision-makers.

A Theory of Deference in Administrative Law: Basis, Application and Scope (Cambridge University Press, Cambridge, 2012), at pp. 71-72.

[7]Canada (Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748, at p. 772.

This content has been updated on September 2, 2014 at 11:18.