Wilson v Atomic Energy: a Case Study for Judicial Decision-Making in Canada

The Supreme Court of Canada recently handed down its much-anticipated decision in Wilson v Atomic Energy of Canada Ltd, 2016 SCC 29 [Wilson], confirming that federally regulated employees cannot be terminated without cause under the Canada Labour Code, RSC 1985, c L-2 [Code].

The implications of this decision for administrative and employment law were previously discussed by TheCourt.ca in a post by Zinedja Rita. The present post instead analyzes Justice Abella’s proposed approach to deference in the context of judicial review, specifically exploring how her reasons fit into our broader understanding of the role of judicial decision-making in an adversarial legal system.

The “Standard of Review Labyrinth” and Justice Abella’s Proposed Solution

While an excellent summary of the case can be found in the post referenced above, a very brief background on the subject matter of Justice Abella’s reasons—the standard applicable to judicial review of administrative decisions—is nevertheless worthwhile.

When judges are tasked with reviewing the substance of decisions made by administrative decision-makers (that is, government tribunals, agencies, and ministers), they must first decide the degree of deference owed to that decision-maker. Following the Supreme Court’s seminal judgment in Dunsmuir v New Brunswick, 2008 SCC 9, there are currently two standards: reasonableness (being the deferential standard) and correctness (being the non-deferential standard). Once the standard is set, the judge is to decide whether the decision was reasonable or correct.

While this may seem to be a simple enough task, determining the appropriate standard of review continues to be a troublesome area of law in Canada; in 2015 alone, issues relating to the standard of review featured in no less than ten of the sixty-five decisions of the Supreme Court.  In short, courts have continually  encountered difficulty in deciding exactly how much deference they should afford administrative decision-makers.  This was certainly a concern for Justice Abella in the Wilson appeal, given her statements at paragraph 20:

A substantial portion of the parties’ factums and the decisions of the lower courts in this case were occupied with what the applicable standard of review should be. This, in my respectful view, is insupportable, and directs us institutionally to think about whether this obstacle course is necessary or whether there is a principled way to simplify the path to reviewing the merits [emphasis added].

It is therefore unsurprising that a substantial portion of Justice Abella’s reasons seek to address some of the problems with the current standard of review framework. Drawing on relevant jurisprudence and academic literature, she proposed the collapse the reasonableness and correctness standards into one flexible reasonableness standard, so as to “simplify the path to reviewing the merits.” (The gist of her approach is articulated in paragraph 33 to 36 of her reasons.)

Much has been said about this new proposal; for more commentary on this, I suggest you consult Zinedja Rita’s post (which can be found here), as well as comments from Paul Daly (available here).

This post will not concern itself with the merits of Justice Abella’s proposal, but instead, will analyze her approach to this issue in the broader context of judicial decision-making in the adversarial dispute resolution model.

Judgment and Decision-Making in Canada

While a useful platform for discussion, it is interesting to note that Justice Abella’s comments about the standard of review analysis went beyond the immediate dispute between the parties. None of the factums on appeal raised any issues concerning the complexities of the post-Dunsmuir substantive review framework, and it does not appear as though any of the parties intended to use this dispute as a means to question and re-assess the standard of review analysis. Justice Abella’s obiter comments on the standard of review can therefore serve as a useful case study on the bounds and implications of judgment and decision-making—particularly at the Supreme Court of Canada

In Canada’s adversarial system of judicial dispute resolution, the traditional view is that the judge’s role is confined to deciding the matters in dispute between the parties. Unlike in the inquisitorial system, Canadian judges play a rather passive role, and make decisions only after hearing submissions from both sides on the issues raised before them. Our common law is said to advance only in incremental steps, through a reasoned consideration of the submissions of all parties (and any interveners) with a stake in the outcome of the dispute.

This has many implications on the legal system, one being that judges are generally prohibited from raising and investigating separate legal issues on their own accord, outside the scope of the parties’ submissions. (It is interesting to note, however, that certain courts in other countries do have sua sponte jurisdiction, which means, in short, that the court can raise and decide issues by commencing proceedings itself. The Supreme Court of Pakistan provides an example of this.) The rationale for limiting the extent to which a judge can raise new legal issues was succinctly summarized by Professor Angela Swan in a comment entitled “Would a Canadian Judge Say This?”:

The process of adjudication is characterized by the right of the parties to present proofs and reasoned arguments. This right presupposes that, inter alia, the standards of reasoned argument are known and that the judge will not consider points on which counsel have not had an opportunity to present either proofs (of facts) or to make representations on the law.

The above-cited passage implicitly references the fairness concerns associated with this kind of decision-making. Parties can rightly feel deprived of an opportunity to be heard if judges are making decisions on matters that were not the product of a litigated debate. This concern frequently arises when a judge takes judicial notice of a fact – that is, where the judge takes cognizance of a fact, through research or personal knowledge, without that fact actually having been proven or brought up at trial. (For an example of the concerns associated with judicial notice, see the Ontario Court of Appeal’s decision in Cronk v Canadian General Insurance (1995), 25 OR (3d) 505. The consequences of judicial notice on procedural fairness when parties have not been invited to make submissions on the issue was also recently discussed by Justice Gascon in his dissent in R v Lacasse, 2015 SCC 64)

For this reason, the fact that Justice Abella spent a significant portion of her reasons addressing a matter that was not brought up by the parties may raise some eyebrows. Nevertheless, her detailed discussion on the flaws of (and proposed solution to) our current standard of review analysis must be understood and analyzed in proper context. In my opinion, the structure and weight of her discussion minimizes concerns of “adversarial fairness,” while providing future judges, practitioners, academics, and students with a basis on which to question and debate the current framework for the substantive review of administrative actors. The reasons support this conclusion.

First, the issues addressed by Justice Abella are not the types of issues that would be raised by litigants as being central to any single dispute. Rather, they are of a more broad and fundamental nature, going to the structure of substantive review as a whole. Where a matter is of importance to the legal system but is unlikely to be raised by any one party in any individual dispute, improvements to the common law ought instead to be spurred on by scholars, students, and most importantly, judges.

Second, Justice Abella’s proposed approach to the standard of review does not advocate for an all-out overhaul of the substantive review analysis; instead, it merely suggests another method of determining the degree of deference with which courts should approach an administrative decision on judicial review. While the approach for which she advocates may have an effect on the steps undertaken by judges in reviewing these kinds of decisions, it will presumably have little to no impact on the substantive outcome. In other words, Justice Abella’s reasons should merely be viewed as a potentially more expedient route to the same final destination.

Finally, and most significantly, Justice Abella explicitly lays out the purpose of her obiter remarks within the broader debate on the standard of review analysis. At paragraph 19 of the decision, she notes as follows:

…it seems to me that some general comments about standard of review are worth airing, albeit in obiter. There are undoubtedly many models that would help simplify the standard of review labyrinth we currently find ourselves in. I offer the following proposal as an option only, for purposes of starting the conversation about the way forward. Because it is only the beginning of the conversation, which will benefit over time from submissions from counsel, this proposal is not intended in any way to be comprehensive, definitive, or binding. (Emphasis added.)

In short, this passage constitutes an express recognition that these reasons are not intended on being an abrupt change to the law, particularly since she did not have the benefit of submissions from council on that issue.  Instead, Justice Abella acknowledges that her comments are made in dissent, in obiter, and in a non-binding manner, purely for the purpose of sparking debate and discussion on this difficult point. As stated by Justice L’Heureux-Dubé in “The Dissenting Opinion: Voice for the Future” (at page 504), dissenting reasons of this nature provide “a valuable means of expressing new and alternative ideas and approaches, without going so far as to cause an immediate change to the status quo.”

Conclusion: An Example of Appropriate Judicial Activism

Few would dispute that judges ought not to “surprise” litigants by basing their decisions on issues and determinations not raised by the parties or addressed in oral or written argument―even more so if such determinations depart from widely accepted common law principles. On the other end of the spectrum, judges should not play a purely passive role in the adversarial system, and instead use their knowledge and experience to ensure that their decisions are just and reasonable in the circumstances.

Justice Abella’s reasons in Wilson are a positive example of a judge taking an active role in sparking healthy debate on a continually vexing problem. By clearly delineating the parameters of her discussion ―explicitly stipulating that they are non-binding and solely for the reason of sparking debate and conversation ―her proposal remained well within her judicial role, and will surely provide future lawyers, academics, practitioners, and judges with a basis upon which to re-think our approach to substantive review.