ADMINISTRATIVE LAW CONFERENCE—2007
PAPER 0.0
Some Properly Deferential Thoughts on Deference
These materials were prepared by The Honourable Mr. Justice Louis LeBel, Supreme Court of Canada, Ottawa,
ON, for the Continuing Legal Education Society of British Columbia, November 2007.
© The Honourable Mr. Justice Louis LeBel
1.1.1
SOME PROPERLY DEFERENTIAL THOUGHTS ON DEFERENCE∗
I.
Introduction ....................................................................................................................... 1
II.
What is Deference and Why Does it Exist in Administrative Law?..................................... 2
III.
Examples of Different Approaches to Deference................................................................. 5
A. Policy Making Powers ........................................................................................................... 5
B. Regulatory Powers ................................................................................................................. 7
C. Adjudicative Tribunals........................................................................................................... 8
IV.
What is the Position of the Courts in Relation to Other Decision Making Bodies?......... 10
V.
Judicial Review and Acceptance of Legal Pluralism .......................................................... 12
VI.
Conclusion........................................................................................................................ 12
I.
Introduction
The concept of “deference” has become a sort of watchword in administrative law, but I do not think
the concept or the theory that explains it has always been explored with sufficient depth in judicial and
academic writings. Some profound questions surface when we discuss the notion of deference in
administrative law, and I believe they require answers in order to arrive at a complete understanding of
judicial review. What exactly is deference? Why is it so central to administrative law? How does it
operate? How does the concept of deference assist in understanding the proper role of courts in
judicial review proceedings? These are the questions I wish to explore in this address.
An understanding of the reasons for and operation of deference in judicial review proceedings is
important for both theoretical and practical reasons. At the level of theory, exploring the notion of
deference provides insight into the purpose of judicial review and its constitutional roots. The concept
of deference assists us in defining the relationship between courts and other decision making bodies.
As I will explain, deference is central to understanding the situation of the various decision makers in
our constitutional model, both judicial and non-judicial. Our legal system, which I would describe as
one of legal pluralism, is one that is only possible if judges adhere to a proper conception of deference
and its role in judicial review.
In this regard, exploring the notion of deference also has practical relevance. Courts must understand
their duties when performing deferential review; administrative decision makers must know what
actions will be respected by courts and what exercises of power will be scrutinized; and counsel must
be aware, when bringing judicial review applications, of the aspects of a decision or its process that
demand judicial attention.
I begin with by a question so deceptive in its simplicity that we have rarely taken the time to pause
and answer it. Yet pausing to ask and answer the question forces us to reflect on the very foundations
of judicial review.
∗
The author wishes to thank Ms. Andrea Gonsalves, a law clerk, in the Supreme Court of Canada, for the
year 2006-2007, for her cooperation in the drafting of these notes.
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II.
What is Deference and Why Does it Exist in Administrative Law?
The decision of Justice Dickson (as he then was) in Canadian Union of Public Employees Local 963 v.
New Brunswick Liquor Corp.1 is commonly considered the starting point for the acceptance of the
notion of deference in Canadian administrative law and of its importance in framing the law of judicial
review. It might be somewhat surprising, then, to note that Justice Dickson did not actually use the
word deference in his reasons. Nonetheless, the CUPE decision is central to understanding the
concept of deference and why it exists in administrative law.
In CUPE, Justice Dickson ushered in a new era of administrative law in Canada by emphasizing the
need for judicial restraint in the review of labour board decisions. In deciding that the Labour
Relations Board was entitled to err in the interpretation of its enabling statute and that any such error
would be protected from review by the privative clause in the relevant legislation, Justice Dickson
relied on two factors that continue to inform the deference principle in administrative law: legislative
intent and expertise. First, Justice Dickson noted the legislative goal of striking a “delicate balance
between the need to maintain public services, and the need to maintain collective bargaining.”2 Then,
he highlighted the specialized nature of the Labour Relations Board, and that the provision the
interpretation of which was at issue lied at the heart of the Board’s specialized jurisdiction. For those
two reasons, he held that the Court ought not to interfere with the Board’s interpretation unless it was
“so patently unreasonable that its construction cannot be rationally supported by the relevant
legislation.”3 In the now common parlance, courts ought to defer to the determinations of law made
by tribunals in their areas of expertise.
Over nearly 30 years of jurisprudence, the principle of deference has been built on the foundations laid
by CUPE. Deference can be understood as the judicial response to the legislative choice to take a
matter out of the hands of courts and put it primarily in the hands of a specialized tribunal.
In addition, to properly frame the concept of deference and its role in judicial review proceedings, it is
helpful to explore some fundamental principles of administrative law and of the Canadian
constitutional structure. We can begin with two axioms: one, no public power can be exercised
without legal authorization; and two, the legislature has legally authorized powers that they may
delegate to subordinate bodies. The former maxim is embedded in our constitutional structure
through the rule of law principle. It is the duty of the judiciary, as “the guardian of the constitution,”4
to supervise state actors in their exercise of power to ensure they do not transgress the limits of their
legal authority. In short, through judicial review courts perform their constitutional duty of
preserving the rule of law. This function includes not solely defining the limits of powers, but also the
rationality and fairness of their exercise.
At the same time that we recognize the fundamentality of the rule of law and the courts’ duty to
protect it in our constitutional structure, we must acknowledge the second axiom⎯that state powers
exist and may be delegated to subordinate bodies. The courts neither govern the country nor do they
set its policy. They do not serve the electorate but rather the constitution. Although courts play a
part in the development of the law, especially, but not only in a common law system, courts are not
legislatures, but rather their function is to determine the constitutional validity of legislative and
executive action or their legality, and to interpret laws that are valid.
1
[1979] 2 S.C.R. 227.
2
Ibid., at 236.
3
Ibid., at 237.
4
Canada (Combines Investigation Acts Director of Investigation and Research) v. Southam, [1984] 2 S.C.R. 145
at 169.
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If we accept the courts’ constitutional duty to preserve the rule of law by supervising state action for
legal validity and, concurrently, that the development of law and policy primarily lie within the
purview of the legislature and executive, then we must also accept the need for a form of judicial
review of administrative action that is nonetheless exercised with restraint. The need for both judicial
review and restraint in its exercise requires that a balance be struck which safeguards the rule of law to
exist while allowing the legislature and executive to do their jobs. Too much judicial review and the
system risks collapsing into an autocracy of the courts. Too much restraint and the rule of law will
disappear with nothing to check illegal or arbitrary state action. Thus, it can be seen that achieving a
balance between review and restraint in turn preserves another fundamental principle of the Canadian
constitutional structure: the separation of powers. Too much of one or the other risks blurring the
dividing line between the roles of the executive and legislature of the reviewing court. As I explained
in Chamberlain v. Surrey School District No. 36, “[i]t is important to keep that line distinct, for it helps
to maintain the separation between the judiciary and representative government.”5
The notion of restraint within a system of judicial review, of which Justice Dickson spoke in CUPE, is
represented in the principle of judicial deference.
Deference has been central to the Supreme Court’s evolving view of the role of administrative bodies
in a modern Canadian state. Over the past 30 years, the Court has distanced itself from the Diceyan
conceptions that dominated judicial minds pre-CUPE. That era was exemplified by judicial suspicion
of administrative bodies and hoop-jumping to classify questions as jurisdictional so that courts could
have the final say. As Justice Wilson explained in National Corn Growers’ Assn. v. Canada (Import
Tribunal), the evolution of administrative law since CUPE:
[H]as involved a growing recognition on the part of courts that they may simply not
be as well equipped as administrative tribunals or agencies to deal with issues which
Parliament has chosen to regulate through bodies exercising delegated power, e.g.,
labour relations, telecommunications, financial markets and international economic
relations. Careful management of these sectors often requires the use of experts who
have accumulated years of experience and a specialized understanding of the activities
they supervise.6
Justice Wilson’s comments underscore CUPE’s emphasis on the expertise of administrative bodies and
show that the judiciary has come to accept the reality of the modern administrative state and the
necessity and legitimacy of administrative decision makers. The deference principle allows the court
system and the administrative system to co-exist through its instruction that administrative decision
makers may have the final say on matters that are within their expertise. But for curial deference, the
administrative system would be redundant⎯why create administrative bodies at all, if courts will just
do what they wish in the end anyway? Through adherence to the deference principle, courts give
effect to the rationales or hopes for administrative bodies, such as increased efficiency, decreased
costliness for parties, and more particularized expertise of the decision makers.
In light of the foregoing comments on the role of deference in the constitutional system by making
judicial review plus restraint possible, how can the principle of deference be defined in a useful, concise
and yet comprehensive way? David Dyzenhaus’s well-known article in Michael Taggart’s 1997 volume
The Province of Administrative Law7 explored the idea of deference as respect. According to his view,
“[d]eference as respect requires not submission but a respectful attention to the reasons offered in
support of a decision, whether that decision be the statutory decision of the legislature, a judgment of
5
[2002] 4 S.C.R. 710, at para. 205.
6
[1990] 2 S.C.R. 1324 at 1336.
7
“The Politics of Deference: Judicial Review and Democracy” in M. Taggart, ed., The Province of
Administrative Law (Oxford: Hart Publishing, 1997) 279.
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another court, or the decision of an administrative agency.”8 Professor Fox-Decent sees the principle
of deference as respect as being consistent with the notion that there may be more than one possible,
reasonable interpretation of a statute or more than one justifiable resolution to a dispute.9 The
Supreme Court has picked up on Dyzenhaus’s formulation of deference as respect in its
jurisprudence.10 It captures both the spirit and the letter of what courts should be doing when
reviewing administrative action.
A South African jurist, Cora Hoexter offers a conceptualization of deference that is consistent with
the notion of deference as respect. She describes deference as:
[A] judicial willingness to appreciate the legitimate and constitutionally-ordained
province of administrative agencies; to admit the expertise of those agencies in
policy-laden or polycentric issues; to accord their interpretation of fact and law due
respect; and to be sensitive in general to the interests legitimately pursued by
administrative bodies and the practical and financial constraints under which they
operate.11
I think the description is particularly helpful in linking the concept of deference with the functions of
administrative bodies in the modern state. As pointed out in that passage, administrative agencies are
often created to handle issues with policy and polycentric dimensions. Generalist courts are typically
ill-suited to answer those questions. I think particular attention should also be drawn to Hoexter’s
observation, that deference requires courts to show sensitivity to the circumstances in which
administrative agencies operate. They are not courts; nor were they ever intended to be courts. It is
therefore inappropriate for courts to hold them to identical standards as courts. Importantly, Hoexter
goes on to emphasize that her conception of deference does not disempower courts in fulfilling their
constitutional duties. To the contrary, it strikes the appropriate balance in that it:
[I]s perfectly consistent with a concern for individual rights and a refusal to tolerate
corruption and maladministration. It ought to be shaped not by an unwillingness to
scrutinize administrative action, but by a careful weighing up of the need for⎯and
the consequences of⎯judicial intervention. Above all, it ought to be shaped by a
conscious determination not to usurp the functions of administrative agencies; not to
cross over from review to appeal.
Hoexter’s formulation effectively conveys the meaning and operation of deference, and its role in
preserving an appropriate relationship between reviewing courts and administrative bodies.
If we speak of deference as respect, we must ask “Respect for whom or what”? I believe there are
multiple responses. Reviewing courts must have respect for administrative bodies, first in their
expertise at an institutional level and second, in their decision making process. Respect is owed to
their determinations of both fact and law because they have been charged with a specific decision
making task that is suited to their function and expertise. Third, reviewing courts must have respect
for the legislative choice to establish an administrative body and giving it responsibility over certain
matters. Finally, courts must have respect for the different roles of administrative bodies and courts in
the constitutional structure of our country.
8
Ibid., at 286.
9
Evan Fox-Decent, “The Internal Morality of Administration: the Form and Structure of Reasonableness” in
David Dyzenhaus, ed. The Unity of Public Law (Oxford: Hart Publishing, 2004) 143.
10
See, for example, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 65
per L’Heureux-Dubé J.; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at para. 49.
11
Cora Hoexter, “The Future of Judicial Review in South African Administrative Law” (2000) 117 S.A.L.J.
484, at 501-02.
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While defining deference as respect for all those things, we can also identify what deference is not. As
Hoexter cautions, deference does not mean subservience or blind reverence to legislative and
administrative choices. A system that respects the rule of law cannot tolerate power, though lawfully
granted, that is exercised in an arbitrary or capricious manner. It is for this reason that courts will
review administrative decisions for both rational justification and fair procedures.12 Deference requires
courts to reflect soberly on whether judicial intervention is called for, weighing its consequences and
considering its purposes.
Thus far, I have discussed the deference principle in general terms. In order to have a fuller
understanding of the concept and its role in judicial review, it is helpful to explore its operation in
different contexts. “Deference as respect” will take on different meanings depending on the type of
administrative body and the type of state action under review. I now turn to this topic.
III. Examples of Different Approaches to Deference
Because of the varied forms that administrative decision-making bodies can take, deference will require
different approaches from courts in different contexts. I will discuss the way deference operates in
judicial review proceedings in three of these contexts: policy making powers; regulatory powers; and
adjudicative tribunals. The unique features and functions of each of these contexts, and the types of
decisions that they involve, give rise to specific and unique reasons for deference from reviewing
courts. The rationale for deference in each context also shapes the way courts act in judicial review
proceedings in order to give effect to the deference principle.
A.
Policy Making Powers
Administrative action that is non-adjudicative and does not involve delegated legislation covers a vast
expanse of areas. These kinds of administrative action usually involve a statutory grant of
discretionary authority and inherently political choices. Lord Diplock explained the nature of
discretion as “a right to choose between more than one possible course of action upon which there is
room for reasonable people to hold differing opinions as to which is to be preferred.”13 Because there
is no objective way of determining the correct answer⎯and indeed no single correct answer⎯such
discretionary powers by state actors will attract deference from reviewing courts. Deference in this
context means refraining from interference with political decisions, which lie within the mandate and
function of the government and for which the courts are not well suited, provided they are legally
valid. The axiom that “no administrative body has untrammelled discretion”14 remains true and
judicial review is always available to ensure that the administrative action was legally authorized and
not unconstitutional.15
Certain grounds are available to courts for reviewing administrative action for alleged abuse of
discretion. Consistent with the deferential approach that courts take to the review of administrative
discretion under established jurisprudential principle, these grounds tend to not relate to the substance
of the decision, but rather to the manner in which is was reached. Discretionary administrative action
can be rendered a nullity where it appears unreasonable in that, for example, it is taken in bad faith or
on irrelevant considerations, or it is arbitrary or unsupported on the available evidence. In the famous
12
Toronto (City) v. Canadian Union of Public Employees, [2003] 3 S.C.R. 77, at para. 130.
13
Secretary of State for Education & Science v. Thameside Metropolitan Borough Council (1976), [1977] A.C. 1014
at 1064 (Eng. C.A.), aff’d (1976), [1977] A.C. 1014 (H.L.).
14
Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710 at para. 192.
15
Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441.
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case Roncarelli v. Duplessis,16 perhaps the Supreme Court’s most memorable decision on abuse of
discretion, Justice Rand stated in strong terms that the rule of law would not tolerate abuses of
discretionary power:
In public regulation of this sort there is no such thing as absolute and untrammelled
‘discretion,’ that is that action can be taken on any ground or for any reason that can
be suggested to the mind of the administrator; no legislative Act can, without express
language, be taken to contemplate an unlimited arbitrary power exercisable for any
purpose, however capricious or irrelevant regardless of the nature or purpose of the
statute. Fraud and corruption in the Commission may not be mentioned in such
statutes but they are always implied as exceptions. ‘Discretion’ necessarily implies
good faith in discharging public duty; there is always a perspective within which a
statute is intended to operate; and any clear departure from its limits or objects is just
as objectionable as fraud or corruption.17
Whatever the terms of a grant of authority, an abuse of discretion may result in an administrative
action being rendered a nullity by a reviewing court. Because it cannot be suggested that the legislature
granted a decision maker the power to act in bad faith, the courts will not defer to decisions that are
reached in an abusive manner.
In a line of cases beginning with Baker v. Canada (Minister of Citizenship and Immigration),18 our Court
has refined the approach to judicial review of administrative discretion. Baker marked the first time
the pragmatic and functional approach was used to determine the standard of review applicable to an
exercise of discretion. Justice L’Heureux-Dubé explained that although “discretionary decisions will
generally be given considerable respect, that discretion must be exercised in accordance with the
boundaries imposed in the statute, the principles of the rule of law, the principles of administrative
law, the fundamental values of Canadian society, and the principles of the Charter.”19 Even the
broadest grants of authority have limits but decisions that are taken within those limits will be
accorded deference by reviewing courts.
In Suresh v. Canada (Minister of Citizenship and Immigration),20 the Court cautioned against judges reweighing the factors considered by a decision maker in the course of exercising a broad statutory
discretion. It explained that Baker did not depart from a deferential approach to reviewing discretion,
under which a court “should not disturb a decision based on a ‘broad discretion’ unless the tribunal
has ‘made some error in principle in exercising its discretion or has exercised its discretion in a
capricious or vexatious manner.’”21 Where the discretion has been exercised in accordance with
legislative and constitutional constraints, and the decision maker has considered the appropriate factors
within those constraints, the court must defer to the decision.22 Suresh reiterated the holding in Baker
that there may be special situations in which it is appropriate to review discretionary decisions on a
standard less deferential than that which was universally applied to ministerial decisions in the past.23
Curial deference is appropriate in the review of discretionary decisions because of the legislative choice
to grant a broad discretionary power to the decision maker, and the policy nature of the decision.
16
[1959] S.C.R. 121.
17
Ibid., at 140.
18
[1999] 2 S.C.R. 817.
19
Ibid., at para. 56.
20
[2002] 1 S.C.R. 3.
21
Ibid., at para. 34.
22
Ibid., at para. 38.
23
Ibid., at para. 35.
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Courts ensure that decision makers do not exceed their grant of authority by acting in bad faith or
considering irrelevant factors but if no such abuse of authority was committed in reaching a decision,
the court cannot second guess the policy decisions of government.
B.
Regulatory Powers
As we know, Canadian legislatures often delegate ruling-making powers to cabinet, ministers,
municipal councils and other subordinate bodies. These delegates create subordinate legislation
through regulations, by-laws, orders-in-council and other directives.24 Those granted regulatory
powers derive their authority from statute and they may not stray from the scope of the statutory
grant of power when enacting rules and regulations. It is the role of courts in reviewing the exercise of
delegated powers to ensure that the regulatory body does not exceed its statutory mandate.
The primary function of judicial review in this context is to determine whether the body acted within
the limits of its grant of authority.25 If the regulatory action was authorized by law, in most cases
courts will defer to the decision maker’s choice. The rationale for the highly deferential stance that
courts usually adopt towards legally exercised regulatory powers stems from the fact that the decision
makers are often elected representatives. Particularly in the case of municipal councils or school
boards, courts should respect the responsibility that the decision making body to serve those it
represents and its democratic accountability to the community. It is not up to the courts to interfere
with the choices of elected representatives so long as they are legally valid and exercised in a proper
way.
Administrative action in the form of delegated legislative powers can be classified into broad
categories: the creation of orders-in-council and regulations by Cabinet and ministers; municipal bylaws and regulations or the same power exercised by delegated bodies like for example self-governing
professional organization. The law takes a different approach to each. Regulations and orders-incouncil may only be reviewed for constitutionality and compliance with statutory conditions
precedent to the exercise of power. 26 A court may not strike down a regulation that is authorized by
statute even if the action was motivated by bad faith.27
In contrast, as an example of another approach, the Supreme Court has stated in past cases that validly
enacted municipal by-laws may still be struck down in certain circumstances on broader grounds.
They are subject to attack on grounds of bad faith, for example, and in Nanaimo (City) v. Rascal
Trucking Ltd. the Court held that the intra vires actions of municipalities may be reviewed on a
standard of patent unreasonableness.28 Justice Major explained that a deferential approach was
warranted because “[m]unicipal councillors are elected by the constituents they represent and as such
are more conversant with the exigencies of their community than are the courts.”29 Similarly, Justice
McLachlin (as she then was) commented in Shell Canada Products Ltd. v. Vancouver (City) on “an
emerging consensus that courts must respect the responsibility of elected municipal bodies to serve the
people who elected them and exercise caution to avoid substituting their views of what is best for the
citizens for those of municipal councils.”30
24
See generally Sara Blake, Administrative Law in Canada, 4th ed. (Markham: LexisNexis Canada, Inc., 2006)
at 145-55.
25
Chamberlain, supra, at para. 191.
26
Canada (Attorney General) v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 725.
27
Thorne’s Hardware Ltd. v. Canada, [1983] 1 S.C.R. 106.
28
[2000] 1 S.C.R. 341.
29
Ibid., at para. 35.
30
[1994] 1 S.C.R. 231 at 244.
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Relief from unreasonable actions taken by municipal councils in the valid exercise of their delegated
legislative powers must primarily come through the ballot box. In a passage from a 1973 first instance
decision quoted with approval by Sopinka J. in Old St. Boniface Residents Assn. Inc. v. Winnipeg (City),31
Henry J. explained the role of municipal councils in the following way:
A municipal council is an elected body having a legislative function within a limited
and delegated jurisdiction. Under the democratic process the elected representatives
are expected to form views as to matters of public policy affecting the municipality.
Indeed, they will have been elected in order to give effect to public views as to
important policies to be effected in the community … They are not Judges, but
legislators from whom the ultimate recourse is to the electorate.32
Henry J.’s description nicely highlights how the role of the body under review shapes the appropriate
deferential stance from a reviewing court. Municipal councils make political decisions affecting their
constituents, based on a democratic mandate given to them through the electoral system. While courts
must supervise the exercise of powers by municipal councils to ensure that they are at all times acting
under legal authority, courts must defer to the choices made by councils within their legal parameters.
In the end, it is up to the voters, not the courts, to make changes when municipal councils make
decisions that they find costly, irresponsible or unreasonable.
C.
Adjudicative Tribunals
The deferential approach courts will take in reviewing decisions of adjudicative tribunals is notably
different than the approach used in the previous two contexts. Whereas the matters frequently dealt
with through ministerial discretion or regulatory powers are largely questions of policy, adjudicative
tribunals or bodies exercising adjudicative functions are often required to decide questions of law such
as the interpretation of legislation or contractual terms. The same rationale for deference therefore
does not hold true in the judicial review of decisions made by adjudicative tribunals. Nevertheless,
although the functions performed by adjudicative tribunals may at times resemble the functions of
courts, it will often be appropriate for courts to defer to a tribunal’s analysis of its legislative scheme
and factual issues. In this context, deference arises from the relative expertise of a tribunal in a given
subject matter as compared to generalist courts, and from the legislative decision to place the matter
within the authority of a tribunal.
Deference to the decisions of adjudicative tribunals began in the labour relations context after CUPE.
As I noted earlier, the presence of a privative clause in the relevant legislation and the specialized
nature of the labour relations board led to the holding in CUPE that the Court ought to defer to the
Board’s interpretation of the statutory provision at issue unless it was “patently unreasonable.” The
Court was not to ask whether the Board’s decision was right, but only whether it could be rationally
supported by the legislation. If the interpretation was rationally supported, the Court could not
intervene in the decision⎯even if it preferred a different construction.
In the present system of review of decisions of adjudicative tribunals, the deference principle takes its
highest form in the patent unreasonableness standard of review. When the patent unreasonableness
standard has been found to apply (through the pragmatic and functional approach), the court must
31
[1990] 3 S.C.R. 1170.
32
Re Cadillac Development Corp. v. City of Toronto (1973), 1 O.R. (2d) 20 at 43.
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defer to the tribunal’s decision unless it identifies a defect that “can be explained simply and easily,
leaving no real possibility of doubting that the decision is defective.”33 A patently unreasonable
decision has also been described as “clearly irrational” and “evidently not in accordance with reason.”34
The patent unreasonableness standard is closely related to the other deferential standard of review
developed in the jurisprudence of the Supreme Court⎯unreasonableness simpliciter. That standard
was developed in the context of statutory appeals from the decisions of adjudicative tribunals.35 It
operates in a similar way as the patently unreasonable standard, looking at whether the tribunal’s
decision is adequately supported by the reasons given.36 Indeed, I have expressed the opinion that the
two standards have no meaningful distinction at all.37
In this context, it is appropriate for courts to defer to the determinations of fact and of mixed fact and
law of adjudicative tribunals, as well as their interpretations of their own enabling statutes and statutes
that they encounter frequently in performing their duties.38 Courts should be more concerned about
the reasonabless of the decision making process and about its clarity or transparency than about their
own views of the particular issue brought before them.
The deferential standards of review lie in contradistinction to the standard of correctness. Unlike
decisions made through the exercise of policy making power or regulatory powers, some decisions of
adjudicative tribunals may be interfered with by courts on the basis that they are incorrect. In other
words, in certain circumstances courts will not show any deference to the determinations of
adjudicative tribunals. Correctness review is appropriate in manners where the rationales for
deference⎯legislative intent and expertise⎯do not apply, but where concerns about the integrity of
the basic structure of the legal system arise and must be addressed. So, for example, courts will not
defer to adjudicative tribunal’s determination of division of powers questions. Courts have claim to
the greater relative expertise over constitutional law issues. Similarly, questions of general law over
which divergent views will be problematic for the integrated legal system are frequently subject to
judicial review on a correctness standard.
Where the decision of an administrative tribunal is challenged on the ground that the tribunal’s
procedures were unfair, our Court has said that deference may be appropriate in assessing those
procedures. In the recent decision Council of Canadians with Disabilities v. Via Rail Canada Inc.,39 my
colleague Justice Abella wrote for the majority:
Considerable deference is owed to procedural rulings made by a tribunal with the
authority to control its own process. 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 Agency’s constituencies.40
33
Ryan, supra, at para. 52.
34
Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 at 963-64, per Cory J.;
Centre communautaire juridique de l’Estrie v. Sherbrooke (City), [1996] 3 S.C.R. 84, at paras. 9-12, per
Gonthier J.).
35
See Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748.
36
Ryan, supra, at para. 49.
37
See my concurring reasons in Toronto (City) v. Canadian Union of Public Employees (CUPE), Local 79, [2003]
3 S.C.R. 77; Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92, [2004] 1 S.C.R.
609.
38
Lévis (City) v. Fraternité des policiers de Lévis Inc., 2007 SCC 14.
39
2007 S.C.C. 15.
40
Ibid., at para. 231.
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Deference will be shown to an administrative tribunal’s choice of procedures so long as the reviewing court is
satisfied that the constitutionally required procedural requirements necessary to maintain the rule of law are
respected.
It can be seen from this discussion that the principle of judicial deference operates differently, and in different
degrees, depending on the decision and the decision maker under review. Nevertheless, deference is an
important part of the judicial review process in respect of all of them. The essential role played by the
deference principle relates to the roles of the court and other decision making bodies in the constitutional
structure. I turn to this topic next.
IV. What is the Position of the Courts
in Relation to Other Decision Making Bodies?
It is trite to say that there are institutional limits to the courts and their role in the constitutional system.
Although a court plays a considerable part in the development of the court, it is not a political or legislative
body. But certain functions lie uniquely within its competence. As I have already discussed, the
constitutional role of the court is to supervise lawful exercise of power by the other branches of government.
The courts also protect the essential coherency and integrity of the legal system.
Certain administrative decision makers have functions that overlap with those of the court, such as resolving
disputes between private individuals or between individuals and the state. For example, a body like the
Canadian Human Rights tribunal determines discrimination disputes between individuals and employers.
On the other hand, the courts hear discrimination claims against the government that arise under the
Canadian Charter of Rights and Freedoms. Other matters lie exclusively within the competence of the
legislature and executive, including subordinate bodies that exercise delegated powers. Those matters, as I
have discussed, are of a policy making or legislative nature. Courts must show deference to the choices that
lie within the exclusive purview of the other branches of government, so long as they are legally and
constitutionally valid. Deference may also be appropriate in matters that lie jointly within the competence of
the courts and administrative decision makers. But, in their exclusive areas of competence, especially when
their constitutional role and their obligation to maintain the rule of law are at stake, courts have the final say.
The position of the courts in relation to other decision making bodies is therefore at times one of partnership
and respectful deference, and at other times one of staunch constitutional guardian. But, though the courts
ensure the preservation of the rule of law and the structure of the system, there are not there to micromanage
it. Let me explain in greater detail what I mean by this. In a paper delivered at a conference in 1998, Chief
Justice McLachlin spoke about the rule of law principle as “a collection of broadly-accepted ideals” which
include “the notions that the state must be bound by the laws it prescribes; that substantive law should be
characterized by certainty, generality and equality; that the enforcement of the law must be impartial; that the
judiciary must be independent; and that the law must be respected as an organizing and civilizing force for
virtue in society.”41 She added further that “societies governed by the Rule of Law are marked by a certain
ethos of justification” which subsumes the aforementioned ideals in a democratic society.42 An ethos of
justification requires that exercises of public power be justified in terms of their rationality and fairness. This
rich conception of the rule of law gives decision making bodies other than the courts a role to play in
maintaining it. Thus, the courts oversee the preservation of the rule of law broadly, without micromanaging
all the details of the system.43 The courts exercise an analysis power on the justifications and processes leading
to a decision, rather than on its merits.
41
“The Roles of Administrative Tribunals and Courts in Maintaining the Rule of Law” (1998) 12 Can. J.
Admin. L. Prac. 171 at 173.
42
Ibid. at 174.
43
David Mullan also discussed this concept in his recent article “Section 7 and Administrative Law Deference
– No Room at the Inn?” (2006), 34 S.C.L.R. (2d) 227 at 236.
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The approach of reviewing courts to procedural fairness, so integral to a system that respects the rule
of law, demonstrates the point. Although courts will review the procedures followed by an
administrative body in reaching a decision, in International Woodworkers of America, Local 2-69 v.
Consolidated-Bathurst Packaging Ltd.,44 a majority of our Court deferred to the Labour Relations Board
in its choice of procedures to balance “the rights of the parties and the institutional pressures of the
Board,” which were found to be consistent with the nature and purpose of the rules of natural justice.45
So long as the principles of procedural fairness are respected, administrative tribunals may have a range
of acceptable options from which to choose in devising procedures that balance the rights of parties
with their own characteristics and exigencies. As Justice L’Heureux-Dubé confirmed in Baker, a
review of an administrative agency’s choice of procedures must “take into account and respect the
choices of procedure made by the agency itself, particularly when the statute leaves to the decisionmaker the ability to choose its own procedures, or when the agency has an expertise in determining
what procedures are appropriate in the circumstances.”46 Court-like procedures will not always be
appropriate or necessary, but the procedures followed must nonetheless respect the principles such as
the right to notice and the right to be heard.
Substantive review also demonstrates how courts supervise the big picture while restraining themselves
from micromanaging the administrative system. When reviewing the decisions of administrative
boards and tribunals with deference, on a reasonableness or patent unreasonableness standard, the
court protects the rule of law by ensuring that no capricious or arbitrary or unjustifiable decision will
be permitted to stand. However, the reviewing court recognizes that there are a range of reasonable
options from which the tribunal is entitled to choose. As Justice Iacobucci explained in Ryan, “there
will often be no single right answer to the questions that are under review against the standard of
reasonableness. … Even if there could be, notionally, a single best answer, it is not the court’s role to
seek this out when deciding if the decision was unreasonable.”47 So long as the determination of the
tribunal remains within the range of what is reasonable, the court must defer to that choice even if it
prefers a different answer. The rule of law, and therefore the constitution and, in turn the court, are
concerned with the justifiability of the rationality of the decision within an ethos of justification at a
macro-level. Provided that rationality is achieved, the tribunal can fulfil its mandate and respect the
legislative intention by making individual determinations according to its purpose and expertise.
Procedural review and substantive review are linked in the promotion of deference while preserving
the rule of law. If a reviewing court is satisfied that fair procedures were followed by the tribunal, it is
more likely that the determination was not arbitrary or unjustified and hence, deference to the
substance of the decision is more appropriate. There is, therefore, no inherent inconsistency in
engaging in more exacting review of the process of a decision, while being more deferential to the
substance. On the contrary, they are directed at the same goal of maintaining the rule of law while
supporting a functioning administrative system.
Administrative bodies, I believe, have taken up the challenge passed to them in CUPE and assumed
their role as a part of the constitutional framework, understanding that they too share a responsibility
to maintain the rule of law through an ethos of justification.48 In exchange for deference,
administrative tribunals generally try to present reasons that justify their decisions to the parties and
reviewing courts; and they often take care to ensure fair procedures, independence and accountability
of the decision makers.
44
[1990] 1 S.C.R. 282.
45
Ibid., at 341, per Gonthier J.
46
Baker, supra, at para. 27
47
Ryan, supra, at para. 51.
48
On this topic see McLachlin, supra, especially at 186-89.
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In short, despite the amount of litigation generated by the judicial review process, I hope that we have
reached a point where courts and administrative bodies understand the need for their co-existence and
have mutual respect for their roles within the Canadian legal and constitutional system. Although
they have unique functions, their work has a bearing on one another and through mutual respect and
understanding of their interrelation and their differences, courts and administrative bodies are part of a
coherent whole that provides justice for parties and realizes the will of the legislature.
V.
Judicial Review and Acceptance of Legal Pluralism
The mutual respect necessary to and evident in the modern administrative state requires of courts an
acceptance of a degree of legal pluralism. Simply put, courts do not hold a monopoly on the authority
to interpret laws and to determine disputes regarding individual rights and responsibilities. Courts
must accept that law-making is not purely hierarchical, nor completely centralized. There are various
different sources, meanings and applications of law in different areas, and decentralized bodies have the
responsibility and competence both to administer laws and contribute to the development of the law.
To understand legal pluralism, which is a very rich concept that cannot be fully explored here, we can
offset it against centralism. Legal centralism may be explained as “the classic jurisprudential model
which gives law an independence existence as a social and intellectual reality”; it looks to “the single
political system of a society which gives law its legitimacy and is the source of its authoritative
articulation.”49 Legal pluralism, on the other hand, acknowledges and focuses on the many varied
sources and forms of law.50 Administrative decision makers and non-judicial forums for dispute
resolution are central to legal pluralism.
The existence of administrative decision makers exercising delegated authority requires courts to
accept that law can have valid sources other than Parliament or the provincial legislatures. Law has an
existence and a role apart from the series of rules which govern the resolution of disputes; it is also “a
complex system of rules which serve to guide behavior in every form of human activity.”51 When we
consider the multitude and variety of decisions made by administrative bodies⎯the resolution of
employment disputes, the determination of rates for services, various licensing activities, immigration
decisions, just to name a few⎯one is left to wonder how modern society would continue to function
without them.
VI. Conclusion
We have indeed emerged from Dicey’s shadow where courts viewed administrative agencies with deep
suspicion. I believe we have reached a stage in our understanding of the administrative state and in our
jurisprudence where the function of judicial review is appropriately defined as not limiting
administrative action or struggling against it. Rather, judicial review is now understood as reinforcing
the administrative system by showing deference to the functions of and legal exercises of power by
regulators, municipalities, boards, tribunals and ministers.
Deference, as respect, means that courts look on administrative decision makers as valid sources of law
with an important perspective to offer in the constitutional structure. Though courts must at times
49
L. Kinvin Wroth, “Pluralism and Uniformity in the Common Law Legal Tradition” (1988) 37 U.N.B.L.J.
76 at 76; H. Moutouh, « Pluralisme juridique » dans D. Alland et S. Rials, Dictionnaire de la culture
juridique, Paris, Lamy, PUF, 2003, at 1158-62.
50
See Harry Arthurs, Without the Law: Administrative Justice and Legal Pluralism in Nineteenth-Century
England (Toronto: University of Toronto Presss, 1985).
51
Wroth, supra, at 82.
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nullify administrative action in the performance of their constitutional duties, those instances occur
where the decision maker has in some way acted beyond its legal authority, whether in the process of
reaching a decision or in the substance of the decision itself. However, even the decision to quash an
administrative determination must come from a posture of respect and sensitivity which bears in mind
that both courts and administrative bodies have roles to play in preserving the rule of law and our
constitutional framework.