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| Sara Blake |
The prior standard of review, continued by Dunsmuir, presumed that statutory authorities were experts in their regulatory subject and allowed them to interpret their statutes in accordance with their knowledge of the practical realities of their administrative scheme (Dunsmuir v. New Brunswick [2008] 1 S.C.R. 190). As a result of that approach, courts upheld as reasonable statutory interpretations that were not based on principled statutory analysis.
This standard of review coincided with a time when statutory authorities actively persuaded the ministers to whom they reported to grant them more independence. They cited judicial rulings that a lack of independence from ministerial influence could potentially give rise to a reasonable apprehension of bias. Many tribunals were granted independence.
It was a low point for the rule of law.
Greater independence allowed for problems that can result from freedom to act without supervision. No doubt, tribunal members are genuinely committed to serving their public interest mandates, but it would be a rare member who regards their statute as perfect. Most members have views as to how the regulatory regime could be improved. They may disagree with some of the enacted provisions. They may hold a view as to how competing interests should be balanced, which is different from the legislative choice. They may believe that, in order to effectively regulate, they need more powers or their authority should be extended to address problems on the margins of the regulatory field. These personal views can give rise to an inclination, which may be unconscious, to interpret the statute so as to change the law to be more consistent with their views. However, that interpretation might not be what the legislature intended.
If not accountable for their statutory interpretations to their minister or to the court, to whom are they accountable for their exercise of statutory authority? The rule of law requires accountability.
In Vavilov, the court reinstated accountability to the courts for statutory interpretations. Now tribunals must justify their statutory interpretations in accordance with the established principles of statutory interpretation rather than their personal views of what the law ought to be. The dissent in Vavilov clung to the “practical realities” approach, but the majority overruled it, saying that judicial review “is not a ‘rubber-stamping’ process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review.” Further, they ruled that it “does not give administrative decision makers free rein in interpreting their enabling statutes, and therefore does not give them licence to enlarge their powers beyond what the legislature intended.”
Now all statutory interpretations, including those done by administrative decision-makers, must be consistent with the established principles of statutory interpretation. This requires analysis first, of the text of the statutory provision, second, of the provision’s context within the statute, and third, of the purposes of the provision and the statute. And this statutory analysis must be done in that order. But not necessarily done in the tribunal’s reasons for decision — the analysis may be in a prior decision or in the responding factum, as was done in Vavilov, or otherwise apparent from the record. The tribunal’s expertise, reflected in an understanding of practical realities, may inform the analysis of statutory purposes and the exercise of discretion, if granted.
It has taken time for the statutory decision-makers and reviewing courts to adjust to this new approach. It is more work for the tribunal to justify its interpretations by principled statutory analysis. It is more work for the reviewing court to review the tribunal’s statutory analysis to ensure that it is based on proper statutory analysis. But most have adapted and now interpret their statutes in accordance with the established principles.
Since Vavilov, I have received requests from statutory decision-makers to deliver a seminar providing a basic primer on how to do statutory interpretation. I find that they are eager to learn the proper process.
Vavilov also addressed the standard of review of other questions, but I leave that for other commentators.
Sara Blake is the author of Administrative Law in Canada, 7th edition, LexisNexis Canada. Her practice is restricted to clients who exercise statutory and regulatory powers.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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