DEFERENCE OR PREFERENCE? THE ROLE OF DECISION-MAKER EXPERTISE WHEN REVIEWING FOR CORRECTNESS.

• Author: DeWare, Tracey K.
• Position: Canada

The Supreme Court has ushered in a new era of Canadian administrative law with the comprehensive Vavilov decision. Vavilov has elevated statutory appeal clauses, which has resulted in the application of the not-so deferential correctness standard of review wherever an administrative decision-maker, subject to a statutory appeal, is answering a question of law. Formerly, these decision-makers often enjoyed review on the deferential standard of reasonableness, even on questions of law, due in large part to the judicial recognition of the institutional expertise inhered in many administrative tribunals. This paper sets out to answer the question of whether courts are free to ignore decision-maker expertise when reviewing decisions on the standard of correctness; it's a matter of deference or preference. Correctness review is inherently non-deferential as there can only be one "correct" answer. If a decision-maker fails to reach the "correct" answer, no amount of expertise can save the incorrect decision. However, this doesn't mean that expertise has no role at all. Ultimately, expertise may lead a court to prefer the decision-maker's position, but it cannot result in a court deferring to it.

Introduction

The subject matter expertise of various administrative decision-makers has enjoyed a predominant position within the halls of deference in Canadian administrative law since at least the introduction of the not-so pragmatic and even-less functional approach, (1) spurred on by subsequent cases such as Pezim, (2) and cemented in Dunsmuir and its successive jurisprudence. (3) However, the Supreme Court's recent decision in Canada (Minister of Citizenship and Immigration v Vavilov necessitates a reconsideration of that position. (4) Due in large part to the changes ushered in by Vavilov with regard to statutory appeal clauses, many decision-makers, formerly afforded a degree of deference due in part to their institutional expertise, find themselves subject to an exacting standard of correctness where their expertise likely plays a much smaller role. That said, Vavilov does not change how we should conceive of decision-maker expertise, nor does it change how it factors in once a reviewing court finds itself in the "bucket" of correctness review, it merely removes it from the standard of review analysis.

Correctness review is inherently non-deferential; the reviewing court has the power to substitute its own views for those of the decision-maker below. Therefore, as a matter of law, a court reviewing an administrative decision on the standard of correctness must conduct a fulsome analysis of the legal question; however, this does not mean it must ignore decision-maker expertise: it's simply a matter of preference and not deference. This paper discusses the meaning of correctness review and where expertise can fit into that analysis. Vavilov has changed much, but much has remained the same, and in that regard certain pre-Vavilov cases are helpful to properly situate decision-maker expertise within correctness review. Ultimately, the reviewing court must decide on a case-by-case basis whether, and to what extent, expertise may help it determine the correct outcome.

The impact of Vavilov

Vasilov has, in many ways, simplified the process for determining the applicable standard of review; this is particularly true where the legislation incorporates a right of appeal. In such cases, the appellate standards articulated in Housen will apply. (5) This means correctness for questions of law and palpable and overriding error for questions of fact, or mixed questions with no extricable legal principle. In situations where there is an extricable legal issue, correctness will apply. (6) The majority justifies this position by couching it in terms of institutional design, stating:

Where a legislature has provided that parties may appeal from an administrative decision to a court, either as of right or with leave, it has subjected the administrative regime to appellate oversight and indicated that it expects the court to scrutinize such administrative decisions on an appellate basis. (7) The effect of this new mechanism is that decisions, from various administrative bodies, that would have been afforded some degree of deference under the Dunsmuir framework due to their subject-matter expertise, are now reviewed on the exacting standard of correctness. (8) This was clearly a live issue in Vavilov, although one the majority mostly sidesteps. (9) The issue features heavily in the concurring reasons delivered by Justices Abella and Karakatsanis. The Justices write "the majority's framework rests on a flawed and incomplete conceptual account of judicial review, one that unjustifiably ignores the specialized expertise of administrative decision-makers" and "the majority's reasons strip away deference from hundreds of administrative actors subject to statutory rights of appeal." (10)

Although Vavilov has changed how the standard of review is selected by elevating statutory appeal clauses, it does not fundamentally alter the meaning of "expertise", nor how it would or would not factor into correctness review. The majority is relatively silent on this point. Notably though, expertise remains important when conducting the substantive reasonableness review--and in that sense it operates much as it did. (11)

Abella and Karakatsanis JJ are not alone in their critique; noted administrative law professor Paul Daly express a similar point "... the Vavilov framework leads occasionally to unusual consequences. Some tribunals previously considered to be expert will be due less deference than decision-makers whose claim to expertise is much less compelling." (12) This is so, at least in part, because under the contextual approach, decision-makers with subject-matter expertise should have had that expertise considered when the reviewing court was deciding on the applicable standard of review. That said, many decision-makers would often be reviewed for reasonableness irrespective of whether they actually possessed the impugned expertise. (13) Regardless, courts were deferential to a decision-maker with claimed expertise that was subject to review on certain questions of law, such as the interpretation of their home statute or legal questions that are closely related to the decision-makers purpose, by applying the standard of reasonableness. (14) Now, those questions will invariably be decided on the correctness standard, at least where there is a statutory appeal clause. (15)

One might ask how Vavilov then represents such a marked departure from the status quo, if deference to expertise were required on correctness review. As I expand upon below, the answer is that deference to expertise cannot, as a matter of law, be a necessary or mandatory component of a properly conducted correctness review; although, it may yet serve a purpose. That said, the end result is what Justices Abella and Karakatsanis fear: certain expert decision-makers will have their expertise...