The signal is the truth. The noise is what distracts us from the truth. This is a book about the signal and the noise.
Nate Silver, The Signal and the Noise: The Art and Science of Prediction (London: Penguin, 2013).
There has been an unfortunate trend in recent Supreme Court of Canada administrative law cases. (1)
While academics, practitioners and lower-court judges try to establish coherent frameworks to understand the general principles of judicial review, the Court has been resolving cases one by one without, with respect, any serious attempt to explain how they fit into its existing body of administrative law jurisprudence. The institutional context in which the Court operates, explained in Part I, no doubt influences the Court's resolution of individual cases in this way.
Whatever the background institutional context, confusion has been the unfortunate result, as I explain in Part II. How should lawyers read these cases: as attempts to resolve one-off issues of substantive law (workers' compensation law, immigration law, discrimination law and so on) or as continual refinements to an already complex body of administrative law doctrine?
I argue that it is now necessary to distinguish between signal and noise, between those cases that do modify administrative law doctrine and those cases that simply deal with a particular substantive area of law. In Part III, I set out criteria which will help Canadian administrative lawyers to distinguish signal from noise.
This confusion seems to me, however, to be unnecessary. As I suggest in Part IV, the Court could take up judicial and academic proposals for a unified reasonableness standard that would allow it to resolve individual cases without creating uncertainty about whether it has also modified administrative law doctrine. Adopting this approach would obviate the need to distinguish signal from noise, because they would both fade into the comforting hum of reasonableness review.
The problem of distinguishing signal from noise must be understood in context.
The Court is an apex court, sitting athwart Canada's judicial hierarchy. With the exception of certain criminal cases where there is an automatic right of appeal, the Court deals only with questions of "public importance", important legal questions and other questions "of such a nature or significance as to warrant [its] decision". (2)
Moreover, its decisions are important not only for the parties that appear before it but also for the wider community: the reasons it gives lay down important guidance for lower courts, litigants and laypeople.
The Court itself is aware of this. In R v Henry, (3) Binnie J explained that the traditional common law distinction between ratio decidendi--those matters essential to the decision of a case--and obiter dicta--everything else--was a "supposed dichotomy" that is an "oversimplification of how the common law develops". (4) Rather:
The issue in each case ... is what did the case decide? Beyond the ratio decidendi which ... is generally rooted in the facts, the legal point decided by this Court may be as narrow as the jury instruction at issue in [Sellars v The Queen,  1 SCR 527] or as broad as the Oakes test. All obiter do not have, and are not intended to have, the same weight. The weight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative. Beyond that, there will be commentary, examples or exposition that are intended to be helpful and may be found to be persuasive, but are certainly not "binding" in the sense the Sellars principle in its most exaggerated form would have it. The objective of the exercise is to promote certainty in the law, not to stifle its growth and creativity. The notion that each phrase in a judgment of this Court should be treated as if enacted in a statute is not supported by the cases and is inconsistent with the basic fundamental principle that the common law develops by experience. (5) The result, though, is that even if the decisions of the Court are not treated as legislative pronouncements, there is a temptation to closely parse obiter statements for indications of changes in the law. The question is no longer "is this part of the ratio?" but rather "is this authoritative?"
The undoubted need to give general guidance is also a reason for enhanced collegiality on an apex court. It has been said that under the stewardship of McLachlin CJ, the Court has placed a premium on collegiality and the production of majority and even unanimous reasons. (6) This can increase certainty and clarity by committing all members of the Court to the same position. But it can also undermine certainty and clarity by achieving a narrow unified position at the cost of drowning out dissenting noises that may prove too loud to ignore in later cases. (7)
Signal or Noise?
A problem that can be traced to the institutional context in which the Supreme Court of Canada operates plagues the Canadian law of judicial review of administrative action. Because of the Court's role in answering important questions of law, it is often difficult to determine whether the reasons given for deciding a judicial review case are intended to have an effect on the general principles of administrative law. Administrative law consists of general principles that have to be applied to different areas of substantive law. Decisions in environmental law, discrimination law, workers' compensation law, immigration law and so on are, where taken by administrative decision-makers, subject to judicial review for legality, rationality and fairness. (8) These general principles exist at one remove from the substantive law that provides the context in which administrative decisions are taken.
As a result, the Court may grant leave to appeal (and may eventually decide a case) for one of two reasons: it may wish to answer a question or questions relating to the general principles of judicial review; it may wish to answer a question of substantive law; some combination of the two is also possible. Although reasons for granting or denying leave are not given, my experience is that the Court is much more interested in questions of substantive law than questions relating to the general principles of judicial review.
Indeed, as the judicial body of last resort, the Court has to give authoritative guidance on matters of substantive Canadian law to other actors (individuals, politicians, lawyers and lower-court judges), a task that might be impeded by consideration of the general principles of judicial review. According deference to administrative decision-makers, for instance, means favouring legal pluralism, permitting those decision-makers to put their own spin on rules of substantive and procedural law. But as court of final resort, the Court has an institutional obligation to set down clear substantive and procedural rules for courts and decision-makers across the country.
Few of the judicial review cases the Court agrees to hear provide meaningful guidance to lower courts on how to apply the general principles of administrative law. Sometimes the Court ignores the role of the administrative decision-maker entirely--Febles v Canada (Citizenship and Immigration), (9) which involved an important question of immigration law touching upon the interpretation of the United Nations Convention Relating to the Status of Refugees is an example; sometimes it dresses up its authoritative exposition of the law in the guise of reasonableness review--so-called "disguised correctness review", in which it says it is applying a reasonableness standard but in fact performs its own analysis of the law and the facts to reach an independent conclusion that it labels 'reasonable' or 'unreasonable' (10); and sometimes in its drive for coherence it undermines legal pluralism. (11) The techniques are not mutually exclusive, of course, and they are often deployed in combination.
These techniques might permit the Court to provide authoritative guidance on important questions of substantive law, but their use raises inevitable questions about their impact on the general principles of judicial review. When the Court ignores administrative law, engages in disguised correctness review, or otherwise plays fast and loose with administrative law doctrine to enable it to give guidance to the wider community on substantive law, it risks warping the administrative law framework and creating confusion.
Consider Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier Aerospace Training Center), (12) a case that was resolved decisively in favour of the exposition of national rules of substantive and procedural law.
Latif is a pilot who was denied training by Bombardier in 2004. The denial was based on a national security decision of the American authorities, a decision Bombardier applied because it did not want to imperil its standing with the Federal Aviation Authority. Latif is Pakistani. The Quebec Human Rights Tribunal found that Bombardier had discriminated against him. Although there was no direct evidence of discrimination by Bombardier, the Tribunal based its decision on an expert report and circumstantial evidence about racial profiling in the United States after 9/11.
At first blush, this looks like a straightforward administrative law case that required the Tribunal to weigh evidence and come to a conclusion. Moreover, it conducted the weighing exercise in a very particular context, one in which an individual like Latif is powerless in the face of an unreviewable decision. (13) In this sort of context, one can understand why the Tribunal was not especially impressed by Bombardier's automatic application of the American decision and why the Tribunal thought Bombardier should have been more proactive. (14) As a...