Threats to Stare Decisis: The Coherence Problem

This is the fourth and final post excerpting from my paper on stare decisis in Canadian administrative law for the Canadian Institute for the Administration of Justice’s 2015 National Roundtable on Administrative Law (Moncton, Friday, May 22*): Consistency in Tribunal Decision-Making. You can read the first, second and third posts here, here and here.

* This event will be rescheduled for the Fall.

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A final pressure point comes in the form of incoherence: what about an administrative decision that is a reasonable resolution of a particular case but which is reached by flawed logic? If the flawed logic is not sanctioned, it remains on the books and may influence future administrative decision-makers. Indeed, as we have seen, failing to follow a previous decision might subsequently be a basis for judicial intervention.

A good example is Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd.,[1] where the arbitration board had drawn a bizarre distinction between dangerous and ultra-dangerous workplaces: the paper mill in question was merely “dangerous” and imposing random mandatory alcohol testing of employees was impermissible, whereas similar testing would have been appropriate in an “ultra-dangerous” workplace such as a nuclear power plant – even though an accident at the mill could have been a human and environmental catastrophe. Although the ultimate outcome was reasonable – the evidence did not justify the imposition of mandatory testing – the underlying logic is surely flawed, because intoxicated employees can cause harm to themselves and others in both dangerous and ultra-dangerous workplaces. The distinction is unwarranted, but left unsanctioned it might infect arbitral decision-making for years to come.[2] I suspect that courts often intervene in just such instances because they are unwilling to sanction flawed logic.

What is a court to do in such instances? Deference suggests that reviewing courts should wring their hands — and then wash them: the reasonable decision should be upheld and the flawed logic should be worked out through the administrative process. Administrative decision-makers are no less canny than courts in recognizing problematic decisions and distinguishing them — indeed, they may be more capable of doing so while also respecting the overall fabric of the labour law system. Flawed logic alone does not invite judicial intervention: “For reviewing courts, the issue remains whether the decision, viewed as a whole in the context of the record, is reasonable”.^[3] Accordingly, the reviewing court must focus “on the outcome reached by the administrative decision-maker with due regard to any significant problems in its reasoning”.[4] In short, the real problem here is the Supreme Court of Canada’s continued insistence on distinguishing between the decision-making process and its outcome, treating both as independent bases for judicial intervention.[5]

For the most part, errors in the reasoning process will infect the final decision. For example, a failure to take a pertinent factor into account, or to analyze it appropriately, will occur in the reasoning process but will render the final decision unreasonable. Some errors in the decision-maker’s reasons will naturally be determinative. If so, the decision should be quashed. On other occasions, it is possible that the decision-maker would have reached the same result even if the error had been brought to its attention and corrected. Determining whether to uphold the decision in light of such an error is not a matter for substantive analysis but for remedial discretion.[6] Important error in the reasoning process will often justify a reviewing court in quashing an impugned decision, but is not a stand-alone basis for judicial intervention.[7] The siren call of coherence is another to be resisted.

Conclusion

Both courts and administrative decision-makers should treat stare decisis with nuance, a nuance that is entirely appropriate once the concept is properly understood. Courts should not insist on the rigid application of judicial principles of consistency to administrative decision-making; rather, they should take a more flexible approach, permitting decision-makers to find innovative means of ensuring consistency but also recognizing that when decision-makers go astray, it will generally be more efficient if corrections are made at the administrative level.

For their part, administrative decision-makers should not slavishly follow previous decisions and should remain relatively open to changing tack if the circumstances require it. Mutual adherence to nuance is necessary: administrative decision-makers should reassure courts that they respect the importance of consistency; and courts should reassure administrative decision-makers that they will not intervene to effect a change of course that may occur organically.

Above all else, judges should refrain from imposing their idealized views on the administrative process. Judicial clarion calls for ‘clarity’ echo down the history of the common law tradition. To my ear, they recall the zealous righteousness of Benthamites who deplored the common-law method and insisted that statutory codification should displace judicial ingenuity. Such zealotry has no place in a pluralistic legal environment that recognizes the valuable contributions administrative decision-makers can make.[1]

[1] See e.g. Roderick A. Macdonald, “On the Administration of Statutes” (1987), 12 Queen’s L.J. 488.

[1] [2013] 2 S.C.R. 458.

[2] One of the reasons cited by the Court of Appeal to justify its application of a correctness standard: (2011), 348 DLR (4th) 105, at para. 5.

[3] Construction Labour Relations v. Driver Iron Inc., [2012] 3 S.C.R. 405, at para. 3.

[4] Forest Ethics Advocacy Association v. Canada (National Energy Board), 2014 FCA 245, at para. 62.

[5] Matthew Lewans, “Deference and Reasonableness Since Dunsmuir” (2012), 38 Queen’s L.J. 59. See e.g. Agraira v. Canada (Public Safety and Emergency Preparedness), [2013] 2 S.C.R. 559, at paras. 89-90.

[6] Lemus v. Canada (Citizenship and Immigration), 2014 FCA 114, at para. 33.

[7] Libby, McNeill & Libby of Canada Ltd. v. United Automobile, Aerospace and Agricultural Implement Workers of America (1978), 91 D.L.R. (3d) 281 (Ont. C.A.).

This content has been updated on May 19, 2015 at 13:20.