The Politics of Deference? Gehl v. Canada (Attorney General), 2017 ONCA 319

Deference doctrines have a tendency to wax and wane in their application. In Canada, exceptions to the general presumption of reasonableness review of administrative interpretations of law are stubbornly tenacious and, sometimes, reasonableness review is applied in such a non-deferential way as to invite accusations that the reviewing courts is engaged in “disguised correctness review”. Meanwhile, in the United States, the application of Chevron deference to questions of law is, at best, uneven.

Why is it that doctrine that seems clear on its face — defer where the legislature explicitly or implicitly accorded decision-making power to an administrative body — gives rise to divergent applications? One reason, as I have explored previously, is that institutional considerations might push apex courts to bend and warp deference doctrines so as to allow judges to give authoritative guidance on questions of law. A recent case from the Ontario Court of Appeal, Gehl v. Canada (Attorney General), 2017 ONCA 319, suggests that there may be deeper forces at play.

Dr Gehl wished to be registered as an “Indian” (a status that comes with important rights and privileges: para. 41) but standing in her way was her inability to identify her paternal grandfather through documentary evidence, as required by a policy of the Registrar for Aboriginal Affairs and Northern Development Canada. Dr Gehl contended that the policy was discriminatory, in that it penalized those with unknown fathers in their family trees (unknown mothers being much rarer: para. 44), and that she had provided enough evidence to justify a conclusion that her grandfather had Indian status (see para. 50).

Consider the reasons, beneath the doctrine, why judges might feel comfortable deferring to administrative interpretations of law.

First, it may simply be efficient to do so. Where statutory terms are ambiguous or vague, a judicial interpretation of law might only add little marginal value to an administrative interpretation of law. The front-line decision-maker’s interpretation may be ‘close enough for government work’ or, at least, not demonstrably wrong. Leaving the elaboration of ambiguous or vague statutory provisions to other bodies frees up judicial resources, which can be focused on matters the judges deem to be more important. In addition, a judicial interpretation of law will be set in stone and chiselling a new one would take many years of litigation, whereas an administrative body will have much more flexibility to adjust its view of a statutory provision in light of changed circumstances.

The efficiency rationale for deference might have been at work in Green v Law Society of Manitoba, 2017 SCC 20 (noted here). As Alice Woolley correctly observed, this case was unusual because the Law Society did not set out its “interpretation” of the provisions supporting its imposition of mandatory continuing education requirements on its members. But the Supreme Court of Canada nonetheless deferred to the Society (deference that would have been problematic had there been an adjudicative process). Why? Binding precedent required deference. And deferring was quite efficient.

Some judges will, moreover, have views of statutory interpretation that further support the efficiency rationale. Consider these comments of Morissette JA:

En ce sens, parler en matière de révision judiciaire d’une « erreur déraisonnable » risque de créer une fâcheuse confusion des genres. Il ne peut pas y avoir plusieurs réponses à la question 2 + 2 = ? Il n’y en a qu’une seule, toutes les autres sont erronées, aucune d’entre elles n’est « raisonnable » et qualifier les unes ou les autres de « déraisonnables » n’ajoute strictement rien à la compréhension des choses. Mais en matière d’interprétation juridique et de révision judiciaire, on est loin de l’arithmétique élémentaire.

Frères Maristes (Iberville) c. Laval (Ville de), 2014 QCCA 1176, at para. 9.

If this is so, there is little reason to preserve a judicial monopoly on interpretation of law, save for those questions of statutory interpretation that do involve the legal equivalent of “elementary arithmetic”.

Not all lawyers share Morissette J.A.’s views, of course. Those who consider that the interpretation of law is always part of Law’s Empire (see e.g. Luc Tremblay, (1996) 56 Revue du Barreau 141 and, of course, Professor Hamburger) will disagree profoundly.

Second, interpreting statutory provisions might be considered to be as much the elaboration of policy as the elaboration of law. This was an important premise of Stevens J.’s seminal opinion in Chevron. Holding that the statutory term “stationary source” could give rise to more than one meaning, he commented:

Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices — resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.

This way of thinking about statutory interpretation is well entrenched in the American legal mind, as recounted by Matthew Lewans in his recent book on judicial deference. And it has exerted some influenced due north; as the Supreme Court of Canada put it in Baker, at para. 53, “interpreting legal rules involves considerable discretion to clarify, fill in legislative gaps, and make choices among various options”. Furthermore, if one agrees with Morissette J.A.’s view of statutory interpretation, giving meaning to legislative provisions will often involve a discretionary choice between several equally reasonable alternatives.

But judges might equally take an opposing view, well expressed by the High Court of Australia in Corporation of the City of Enfield v Development Assessment Corporation [2000] HCA 5: “an essential characteristic of the judicature is that it declares and enforces the law which determines the limits of the power conferred by statute upon administrative decision-makers”. In Gehl, Lauwers and Miller JJ.A. were sympathetic to this view, quoting James Sprague:

Filling in legislative gaps and making choices among various options is not true discretion. That is trying to discern what the legislator meant to say. The legislator never said, or intended to say, that where there is a gap, the law is to be whatever a decision-maker may decide it should be. No, where the decision-maker has to fill in gaps or otherwise interpret law he or she is not exercising discretion. He or she is simply doing his or her best to ascertain what the law is – he or she is not a law-maker (or at any rate is not supposed to be) (“Another View of Baker” (1999), 7 R.A.L. 163 at 164, quoted at para. 86).

Mind you, Lauwers and Miller JJ.A. did not need to go so far as Sprague does, which is to doubt that the interpretation of law can ever involve the exercise of discretion. Rather, in the circumstances of this particular case, the decision-maker had to “get it right in accordance with the statutory criteria” and was reviewable on a standard of correctness, in part because there was a statutory appeal from his decisions to the ordinary courts (at para. 87). The reference to Sprague therefore suggests deeper-seated unease at the equation of law with policy.

Third, administrative bodies might be thought to have some expertise which gives them legitimacy to interpret statutory provisions, an argument developed in forthright terms by Lewans. The idea is that front-line decision-makers might, by virtue of their familiarity with an area of regulation, have insights that allow them to develop an interpretive position that is worthy of respect — and even adoption — by the ordinary courts. Angela Cameron and I explored the idea in the area of education law in “Furthering Substantive Equality through Administrative Law: Charter Values in Education“.

Sharpe J.A.’s reasons in Gehl are an example, albeit a contrario, of how a decision-maker might have useful insights on how statutory provisions are to be interpreted. As he put it, the decision-maker “was required to guard against an exercise of discretion that results in substantive inequality” (at para. 43). Here, the decision-maker’s interpretation “perpetuates the long history of disadvantage suffered by Indigenous women” (at para. 45). As a result, the decision-maker had failed to have regard to relevant “equality-enhancing values and remedial objectives” contained in legislation (underpinned by the Charter value of equality: para. 39) “and was therefore unreasonable” (at para. 53). As someone intimately familiar with the operation of the statutory scheme, the equality-enhancing amendments that have been made to the scheme over the years, of the profound consequences of his decisions and of the sensitive nature of the interests concerned, one might have thought that the Registrar would be in a privileged position to develop a interpretation informed by Charter values and worthy of respect from the courts.

For their part, however, Lauwers and Miller JJ.A. took the view that the decision-maker had no special legitimacy: “Although the Registrar, or more likely the officials working under the Registrar, might develop some kind of “field sensitivity” and facility in researching historical records, in no sense does the Registrar exercise discretionary power. Nor is any special expertise exercised by the Registrar in determining entitlement” (at para. 87). They were also broadly sceptical of the role of Charter values in statutory interpretation, worried that reliance on them might “unnecessarily inject subjectivity and uncertainty into the legal analysis” (at para. 76); reliance should only be placed on Charter values where the statutory provisions at issue are ambiguous (at para. 83). Again, Lauwers and Miller JJ.A.’s scepticism is limited to these particular circumstances, but their caution suggests deeper discomfort with the idea that administrative decision-makers might be in a privileged position to develop interpretations of statutes that courts ought to respect and adopt.

An anonymous reader of my “The Signal and the Noise” article no doubt had these issues in mind when evoking the “politics of deference” (a term coined by Professor Dyzenhaus) as an alternative explanation for the Supreme Court of Canada’s apparently lukewarm commitment to deference. I maintain that institutional considerations provide the most plausible explanation for the Supreme Court’s recent caselaw, but in view of the tendency of deference doctrines to wax and wane and provoke heated debate all over the common law world, one cannot discount the influence of the “politics of deference”, which certainly featured prominently in Gehl.

Comments welcome!

This content has been updated on July 25, 2017 at 22:04.