Doré and Vavilov, A Surreply

Mark Mancini has posted a reply to my response to the paper in which he argues that Doré and Vavilov cannot be or are difficult to reconciled. I suppose this, then, is a surreply (civil procedure mavens should feel free to correct my terminology and hyphenation). I think Mancini shifts the goalposts in his reply and, in fact, advances a different argument to the one advanced in his paper.

As to selecting the standard of review, Mancini writes:

…the presumption of reasonableness outlined in Vavilov must necessarily exclude Doré -type issues. This is for two reasons. First, the presumption, rooted in legislative intent, cannot apply to Charter issues—the legislature cannot intend anything with respect to the depth of scrutiny used by a reviewing court on constitutional matters. Second, the standard of review applied to Charter issues should not depend on the context in which these issues are raised: either way, the Constitution is a fundamental constraint on government actors, requiring uniform interpretation by the courts (emphasis original).

The first argument is familiar to me. I made it in Chapter 5 of A Theory of Deference in Administrative Law: Basis, Application and Scope (pp. 188-190). If one wants to make a full-frontal attack on Doré this is the best way to do it: the animating idea is that the normative force of the Charter (and the rest of the Constitution) is such as to forbid any delegation of authority to infringe the Charter. But Maninci’s argument in his paper was about whether Doré and Vavilov can be reconciled. Mancini’s argument in his reply is a new argument — an attractive one, but a new one. As I noted in my response, to escape Vavilov’s presumption of reasonableness review, it is necessary to tackle Doré head on.

Mancini goes on to argue that all Charter issues raised in administrative law cases engage the rule of law basis for correctness review set out in Vavilov. But his second argument collapses into his first argument. He asserts, for instance, that “courts must render uniform interpretations of the Charter, even in cases of administrative discretion” (emphasis added). But this must be based on the idea that the Charter sits in a more elevated place in the hierarchy of norms than administrative discretion. It is Mancini’s first argument again, restated in different language. This argument has nothing to do with whether Doré can be reconciled with Vavilov. Similarly, he writes that the critical question “is whether there is some principled reason, besides administrative exigency, for a lower standard of scrutiny to be deployed when reviewing administrative decisions under the Charter“. Mancini adopts, notably, the perspective of an individual subject to an administrative decision affecting his or her Charter rights; I noted this perspective at the start of Part IV of my critique of Doré. It is a useful means of illustrating the normative force of the Charter. This is certainly fertile terrain on which to battle against Doré. But it is the terrain of the first argument.

In the remainder of his post, Mancini discusses the reasonableness standard. Justification certainly looms large in Vavilov — much larger than it did in Doré — but I find it difficult to accept that the “proportionate balancing” in Doré is flatly incompatible with the reasons-first approach demanded by Vavilov (and more so again when one considers the relatively undeferential ways in which Doré has been applied, at least by the Supreme Court). As long as an administrative decision-maker provides convincing reasons for a decision which engages the Charter, their decision can be upheld; but the standard of scrutiny will be exacting, with particular attention paid to the various contextual contraints set out in Vavilov. I think Vavilovian reasonableness review requires less deference than was required pre-Vavilov, but it is difficult to maintain that a ramping up in the intensity of scrutiny makes Doré and Vavilov flatly incompatible.

This content has been updated on May 21, 2020 at 20:46.