The Contextual Turn: Iacobucci's Legacy and the Standard of Review in Administrative Law
The complexity lies not with the conceptual framework of acknowledging that a spectrum of standards of review exists, but rather with its application to our complicated world of delegated powers. The complexity was created not by courts but by the legislatures, who wisely decided that not all administrative agencies would operate in the same way. It is a complexity that the courts must attempt to deal with and it would be irresponsible simply for judges to wish it away. . . . Having access to multiple standards of review across the full range of the deference spectrum allows courts to deal with these complexities in a sophisticated and, arguably, a more effective and practical way.1
I Introduction
No judge of the Canadian Supreme Court in a generation can claim the same level of influence over the development of administrative law as Justice Frank Iacobucci. His influence is particularly visible in the context of the standard of review: the degree of scrutiny a court will employ in reviewing an administrative decision (e.g., by an agency, board, commission, tribunal, minister, etc.). The standard of review raises the dilemma of how courts may simultaneously respect the legislative choice to delegate certain executive decision making to expert bodies and ensure that such bodies respect the limits of their statutory authority and the broader constraints imposed by the rule of law. Courts have long been tempted to treat administrative boards and tribunals as inferior beings. Furthering the legacy of John Willis, Justice Iacobucci's salient contribution has been to focus on the expertise of administrative agencies relative to the courts and to demand deference on the part of the courts even, in some circumstances, in the face of a statutory right of appeal. [End Page 581]
Here we explore unresolved tensions in the standard of review in Canadian jurisprudence and Justice Iacobucci's efforts, in several key judgments and writings, to piece the puzzle together. In response to the need for great contextual analysis, Justice Iacobucci developed a third standard of review (reasonableness simpliciter). In so doing, as indicated by the epigraph excerpted from his tribute to John Willis, he embraced the challenge of complexity through attention to context. He was, however, reluctant to extend this contextual approach to its natural conclusion because of a concern that such a path may provide cover for courts to show less rather than more deference to administrative decisions. We argue, whilet appreciative of his reservation, that the Supreme Court now needs to complete the contextual turn that Justice Iacobucci adroitly instigated and navigated during his tenure on the Court. We do not question the minefields that lie in the path of further reform, nor the possibility that, through greater contextual analysis, deference may become a whisper rather than a roar. But, we argue, this is likely to happen in any event if courts apply the standard of review as something of a formal label and blithely declare whether or not the standard has been obtained.
Justice Iacobucci's approach and enduring legacy was to deepen the Court's engagement with the complexity of administrative decision making, particularly in regulatory settings, and to do so on both principled and practical grounds. He urged the Court (and lower courts applying standard-of-review methodology) to resist the allure of formalism and bright-line categories. His legacy needs to be fulfilled. A commitment to contextualism leads not to fixed standards of review (such as the three standards currently recognized by the Supreme Court: correctness, reasonableness simpliciter, and patent unreasonableness) but to a true spectrum of review. Because the Court has opted for fixed standards,2 the pragmatic and functional framework risks replacing one brand of formalism with another.
We wish to emphasize at the...
