CONTEXTUAL DETERMINATION OF STANDARD OF REVIEW: AN UNDESIRABLE RETURN TO THE PRAGMATIC AND FUNCTIONAL ANALYSIS
In a dissenting decision (written by Justices Côté, and Brown with Chief Justice McLachlin and Moldaver J. concurring) in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 CarswellAlta 2106, 2016 SCC 47 (S.C.C.) four justices of the Supreme Court of Canada proposed yet another revision of the standard of review analysis. This new analysis is not so much new as it is a reformulation of the old pragmatic and functional review analysis that was replaced in 2008 with the current Dunsmuir standard of review. Disappointingly (from the perspective of principled decision-making at the Supreme Court level) the dissent was predicated on an apparent change of mind on many of the premises underlying Dunsmuir standard of review analysis rather than being based on new insight or principle. In other words, the dissent’s view appears to be a simple “take back” of previously stated principles.
The dissent recognized that the Dunsmuir analysis is dominated by the nature of the question review question which identifies the standard of review according to the nature of the question which is at stake. (Dunsmuir also recognizes three other factors other than the nature of the question: the presence or absence of a privative clause; the purpose of the tribunal as determined by the interpretation of enabling legislation; and the expertise of the tribunal. However, these factors are employed far less frequently by the courts in the determination of standard of review. The expertise of the agency would likely be the most employed of the four while the presence of a privative clause has more or less been absorbed into the nature of the question. The purpose of the tribunal is now seldom referred to.) The dissent decision viewed an approach to the standard of review analysis “that relies exclusively on categories and eschews any role for context risks introducing the vice of formalism into the law of judicial review.” In its place the dissent decision would prefer an approach where: “In every case, a court must determine what the appropriate standard of review is for this question decided by this decision maker.” The dissent approach would be based on a contextual analysis in each case to determine the appropriate standard of review. (The dissent would still recognize an exception where the standard of review had been appropriated determined by earlier case law.)
The case in point dealt with whether a local Alberta assessment review board had the authority to increase (rather than simply decrease or confirm) a property assessment. The dissent settled on a correctness standard of review based on the existence of a statutory right of appeal, the fact that the decision-maker in question was only one of a number of local assessment boards across the province dealing with the issues, the need for consistency in decision-making, an assertion of lack of expertise in legal interpretation, and the fact that assessment review boards were not the only agencies which played a role in the application of different provisions of the Municipal Government Act.
The approach of the dissent to all of these factors appears somewhat problematic.
The fact that assessment review was carried out by different local assessment boards across the province and the need for consistency in decision-making appears inconsistent with the Court’s past approach to inconsistency. There appears to be little difference between the situation where a particular statute may be interpreted and applied by a number of similar agencies across a province and the situation where a particular statute may be interpreted and applied by different panels of a single agency in a province. This is the old consistency argument for correctness review which was rejected by the Supreme Court of Canada in Domtar Inc. c. Québec (Commission d’appel en matière de lésions professionnelles), 1993 CarswellQue 145,  2 S.C.R. 756, 105 D.L.R. (4th) 385 (S.C.C.) and just recently affirmed by the Court in Wilson v. Atomic Energy of Canada Ltd., 2016 CarswellNat 2998, 2016 SCC 29, 399 D.L.R. (4th) 193 (S.C.C.). The fact that the potential for inconsistency arises from the existence of several agencies rather than panels does not appear to me to add anything new to the consistency debate. There is not much difference in the ability of a number of similar agencies in a province from communicating and resolving discrepancies in the interpretation of a their common statute than there is between panels of a single agency. In both cases one is dealing with the situation where there is no central authority – whether in the agency or between the agencies to impose a particular interpretation. In asserting that “there is no overarching institutional body capable of promoting consistency in the interpretation and application of the Act between” [emphasis added] the different provincial boards the dissent’s view appears ignorant of the modern reality of inter-agency co-operation as evidenced through organizations such as the B.C. Council of Administrative Tribunals, the Society of Ontario Adjudicators and Regulators, and the Council of Canadian Administrative Tribunals let alone the simple mechanisms of ordinary conference and seminar and the increasing public access to agency decisions. In this sense the dissent view is clearly predicated on an outmoded view of isolated and insulated agencies.
To this mix the dissent added the consideration that it considered that the assessment review board lacked expertise in legal interpretation (at least relative to the courts):
“87 The question, then, is whether the Alberta legislature intended to recognize superior expertise in assessment review boards or in the courts with respect to the specific questions appealed pursuant to s. 470 of the Act. As the majority acknowledges, this case is, in part, about the interpretation of s. 467 of the Act. Statutory interpretation does not fall within the specialized expertise of the Board, since its day-to-day work focuses on complex matters of valuation of property. We note that the majority relies on this Court’s jurisprudence for the proposition that a court may not be as qualified as a board to interpret the board’s home statute given “the broad policy context within which” the board must work (para. 33). That may be true in the application of one’s governing statute. However, it is not so in these circumstances, where the matter is one of legal interpretation going to jurisdiction, not practical application. While the Board may have familiarity with the application of the assessment provisions of the Act, the legislature has recognized that the Board’s specialized expertise does not necessarily extend to general questions of law and jurisdiction. The Board’s decisions may, instead, be appealed on these questions of law and jurisdiction.
88 In light of this lack of relative expertise on questions of law and jurisdiction, it cannot be maintained that a presumption applies that the legislature intended that the review board’s determinations on questions of law and jurisdiction be owed deference. The legislature created a tribunal with expertise in matters of valuation and assessment. But the legislature placed that tribunal within a statutory scheme that would allow municipalities and assessed persons to appeal questions of law and jurisdiction, while still implicitly permitting judicial review on all other questions. This, in our view, is a clear signal by the legislature that the tribunal it created is not entitled to deference from the courts on questions of law and jurisdiction appealed pursuant to s. 470, while it must be afforded deference on other matters. Such clearly expressed legislative intent should be respected, by applying correctness review in this case.”
The dissent led into this discussion of the lack of legal interpretation expertise by noting that the assessment board in question did not have an exclusive administrative purview over the Municipal Government Act (under which the issue arose). The agency was “a composite assessment review board … with jurisdiction to only hear complaints about certain assessments by taxpayers and assessed persons, and to deal only with the issues listed.” There were many other agencies involved in the interpretation and application of different aspects of the statute. Thus, for the dissent the question was whether the Legislature intended to recognize a superior expertise in the local assessment review boards over the courts with respect to the statutory interpretation question at issue.
The dissent’s view respecting legal interpretation ability of the assessment review board is a startling departure from the Supreme Court’s approach to the ability of agencies to determine questions of law – including the interpretation of their own and other statutes that has emerged from Dunsmuir and the subsequent case law. It should first be noted that, in my view, the assertion that the assessment review board does not have exclusive purview over the Municipal Government Act a red herring. Deference to an agency’s interpretation over its own statute is based significantly on the agency’s experience and gained expertise over a piece of legislation. The fact that there may be other agencies dealing with different aspects of Municipal Government Act does not impact in any way on the fact that this agency may particularly deal extensively with particular provisions of the statute. There are many omnibus statutes which deal with different aspects of a very broad subject area and which assign jurisdiction of particular parts or divisions of the statute to individual agencies. This does not diminish the effect that particular sections are administered by a particular agency which, if one follows the logic of past Supreme Court decisions, will result in that agency having the experience and expertise in the interpretation and application of those particular sections that underlies Dunsmuir deference to agency interpretations of law.
Furthermore, the assertion that the assessment review board lacked expertise in legal interpretation – at least relative to the courts – appears to be a repudiation of the Dunsmuir era assertion that the law is not the exclusive purview of the courts as illustrated by decisions of the Supreme Court of Canada in Kerry (Canada) Inc. v. Ontario (Superintendent of Financial Services), 2009 CarswellOnt 4494, 2009 SCC 39,  2 S.C.R. 678, 309 D.L.R. (4th) 513 (S.C.C.) and Canada (Attorney General) v. Mowat, 2011 CarswellNat 4190, 2011 SCC 53,  3 S.C.R. 471, 337 D.L.R. (4th) 385 (S.C.C.) – and as particularly set out in the discussion in Mowat in paragraph 19 and following where the Court recognized the evolution in judicial deference towards agency’s expertise in legal interpretation beyond the earlier recognized areas of particularly technically complex subject areas and subject to the now well-know exceptions to reasonableness review respecting questions of law (constitutional validity of legislation, etc.). The Court had asserted in British Columbia (Securities Commission) v. McLean, 2013 CarswellBC 3618, 2013 SCC 67,  3 S.C.R. 895, 366 D.L.R. (4th) 30 (S.C.C.) the choice between multiple reasonable interpretation will usually involve policy considerations which it presumed the legislature desired the administrative decision-maker, not the courts, to make. The Court in McLean held that the resolution of unclear language in an administrative decision-maker’s home statute was a matter of interpretative discretion and part of an administrative decision-maker’s expertise.
Finally, with respect to the route by way a matter may come before a court, appeal or judicial review, should be a factor in determining the appropriate standard of review I have to say that the dissent’s view that the existence of a right of appeal is a factor that may affect standard of review is problematic from the perspective of the case law flowing in the past from Dunsmuir. While it is true that Dunsmuir itself left the door open to the question of whether the existence of a statutory appeal would operate in a reverse sort of way to the existence of a private clause the provincial superior courts, where they gave any role to the existence a right of appeal, tended to treat the existence of such a right of appeal at best as a very weak factor that was overruled in every case by the nature of the question at hand. Ultimately the Supreme Court in decisions such as Mouvement laïque québécois v. Saguenay (City), 2015 CarswellQue 2626, 2015 SCC 16,  2 S.C.R. 3, 382 D.L.R. (4th) 385 (S.C.C.) made it clear that the existence of statutory right of appeal did not operate as a factor that can displace an otherwise appropriate Dunsmuir standard of review.
“29 … Where, as in this case, a statute provides for an appeal from a decision of a specialized administrative tribunal, the appropriate standards of review are, in light of the principles laid down by this Court, the ones that apply on judicial review, not on an appeal.
38 … Where a court reviews a decision of a specialized administrative tribunal, the standard of review must be determined on the basis of administrative law principles. This is true regardless of whether the review is conducted in the context of an application for judicial review or of a statutory appeal (Proprio Direct inc. c. Pigeon, 2008 SCC 32,  2 S.C.R. 195 (S.C.C.), at paras. 13 and 18-21; Q. v. College of Physicians & Surgeons (British Columbia), 2003 SCC 19,  1 S.C.R. 226 (S.C.C.), at paras. 17, 21, 27 and 36; Ryan v. Law Society (New Brunswick), 2003 SCC 20,  1 S.C.R. 247 (S.C.C.), at paras. 2 and 21; Deputy Minister of National Revenue v. Mattel Canada Inc., 2001 SCC 36,  2 S.C.R. 100 (S.C.C.), at para. 27).
43 Contrary to what the first of the Court of Appeal’s approaches suggests, the existence of a right to appeal with leave does not mean that the Tribunal’s specialized administrative nature can be disregarded. Nor is the fact that the Tribunal does not have exclusive jurisdiction in discrimination cases and that a complainant can also turn to the ordinary courts determinative. Although the scope of a right to appeal and the absence of exclusive jurisdiction may sometimes affect the deference to be shown to decisions of a specialized administrative tribunal, this does not justify replacing the standards of review applicable to judicial review with the appellate standards (Commissioner of Competition v. CCS Corp., 2015 SCC 3 (S.C.C.), at paras. 35-39; British Columbia (Securities Commission) v. McLean, 2013 SCC 67,  3 S.C.R. 895 (S.C.C.), at paras. 23-24; Public Performance of Musical Works, Re, 2012 SCC 35,  2 S.C.R. 283 (S.C.C.), at paras. 14-15; Canada (Attorney General) v. Mowat, 2011 SCC 53,  3 S.C.R. 471 (S.C.C.) (“Mowat“), at para. 23).”
In making these comments I am not arguing that context has no role in the review of an agency’s interpretation of its statute. But, in my opinion, context comes into play after the determination of the appropriate standard of review in the application of the standard to the circumstances. This was the approach taken by the majority in Edmonton East (Capilano).
Nor am I arguing against a change in the standard of review respecting agency determinations of law or whether the existence of a right of appeal should be a factor in the determination of standard of review (although this is now less likely given the diminished role of privative clauses). I have argued extensively against general Dunsmuir reasonableness presumption respecting agency determinations of law. Similarly, I believe that the creation of a statutory right of appeal should operate as legislative direction for the application of traditional principles of appeal. In making the comments which I do here I am not saying that I would not be in favour of the Supreme Court of Canada’s reversal of its position on these two matters.
However, I am not in favour of a loosey-goosey maybe yes, maybe no approach where the same factor can used to argue for correctness or reasonableness depending on a particular judge’s reading of context. In Edmonton East (Capilano) the dissent essentially treated the same factors as the court as examined in the past as giving rise to reasonableness review and stated that, when read in context, these factors indicated correctness review. In other words, although each of the factors in the past indicated reasonableness review, when read together they indicated correctness review. This is nothing more than a return to the old pragmatic and functional approach to standard of review. As stated by the majority “[t]he contextual approach can generate uncertainty and endless litigation concerning the standard of review.” It brings us back to the situation where two thirds of the body of most review decisions were taken up with discussions of the appropriate standard of review and where that standard could not be said to be determined until the pragmatically and functionally based view of the Supreme Court of Canada was given on any particular question. And this view was inevitably simply a recitation of a broad list of factors that went in different directions followed by a “therefore I conclude the X is the appropriate standard.” Furthermore, a contextual approach to standard of review, in my view, makes it particularly difficult for the legislature to anticipate the standard of review that a court may settle on and to indicate standard of review outside of an express statement of what that standard of review should be (outside of the approach taken by the B.C. Legislature with the Administrative Tribunals Act as noted by the majority). While Dunsmuir’s nature of the question approach may be somewhat formalistic it does at least allow a legislature to know in advance the standards of review that will be applied to particular types of issues and to draft accordingly. A legislature needs some hints from a court as to the road signs to put into legislation. A constantly changing standard of review or an analysis where the meaning of road sign can vary depending on individual judge’s reading of context undermines a legislature’s ability to draft for standard of review other than for direct statement. Even then, as demonstrated by the history of the privative clause, a direct statement may be shaped by its “context”. Dunsmuir provides a number of road signs that allow a legislature to judge in advance how certain types of questions will be approached by the courts on review, the effects of certain provisions (such as shared jurisdiction by the courts and agencies), and whether express statutory direction is required in particular cases. This is not formalism. This is rationality and effectiveness.
I discuss this and other aspects of the Edmonton East (Capilano) Shopping Centres Ltd. decision in more detail in the upcoming release 2017-1 of Macaulay and Sprague, Practice and Procedure Before Administrative Tribunals published by Carswell.