Dunsmuir and the Demise of Deference - or - why Ministers just can't get no respect
In a judgment illustrating how the Dunsmuir analysis is to be applied to ministerial decisions, Mainville J.A. for the unanimous Federal Court of Appeal (the “FCA”) ruled that a Minister is not entitled to the same level of deference as an administrative tribunal when interpreting their ‘home’ statute(s). This decision arises out of an appeal brought by the Minister of Fisheries and Oceans (the “Minister”) of the Judgment of Justice Russell of the Federal Court (the “FC”) in 2010 FC 1233, in which Russell J. found the Minister’s discretion does not “‘legally protect’ critical habitat under s. 58 of the Species At Risk Act, SC 2002, c.29 (“SARA”).” Russell J. determined that it was unlawful “…for the Minister to have cited discretionary provisions of the Fisheries Act, RSC 1985, c. F-14 (the “Fisheries Act”) in a protection statement concerning the critical habitat of the northeast pacific, northern and southern populations of killer whales.”
These issues arose since s.58(5) of the SARA provides that the Minister must make an Order under ss.58(1) and (4) to protect the habitat of endangered or threatened aquatic species, where their habitat is not protected by another Act of Parliament. The Minister determined that the Fisheries Act legally protected certain aspects of the critical habitat of killer whales. Therefore, according to the Minister, the Fisheries Act could be used as a substitute for a protection order for the benefit of killer whales issued by the Minister. Russell J. disagreed, in particular holding that the Minister could only choose not to issue a critical habitat protection order if another Act provided the same protection.
Issues on Appeal
The Minister’s appeal concerns (i) whether or not ministerial discretion legally protects critical habitat within the meaning of s.58 of the SARA; and (ii) whether it was consequently unlawful for the Minister to have cited discretionary provisions of the Fisheries Act in the killer whales’ protection statement.
The Minister argues that he is entitled to deference when interpreting the SARA and Fisheries Act. Secondly, the Minister submits that he lawfully invoked the Fisheries Act in the killer whales’ protection statement.
The Standard of Review
The primary issue on appeal was the meaning of the words “legally protected by provisions in, or measures under, this or any other act of parliament” found in s.58(5) of the SARA. The Minister submitted that parliament entrusted him to manage the regulatory schemes under SARA and the Fisheries Act and that his statutory interpretation should therefore be entitled to review based on the “correctness” standard.
The FCA held that no deference was owed to the Minister. The two guiding principles of the British Constitution (on which the Constitution of Canada is modelled) are sovereignty of parliament and the rule of law. The Courts have always maintained a right (though limited) “to control administrative decisions on the ground that the rule of law required it in certain appropriate circumstances, notably in cases of excess of jurisdiction, abuse of power, or failure to comply with principles of natural justice.”
At paragraph 85, Mainville J.A. quotes Dunsmuir, saying “… determining the applicable standard of review is accomplished by establishing legislative intent.” Further, Mainville J.A. notes “judicial review is intimately connected with the preservation of the rule of law and with maintaining legislative supremacy”. Despite merging the standards of patently unreasonable and reasonableness simpliciter together, Dunsmuir still requires a standard of review analysis be conducted. There will not be deference:
… where the administrative body whose decision or action is subject to review, is not acting in an adjudicative tribunal, is not protected by privative clause, and is not empowered by its enabling legislation to authoritatively decide questions of law.
In a review of case law subsequent to Dunsmuir, Mainville J.A. concludes at paragraph 96 that “this analytical framework in this presumption must be understood in the context in which they were developed: they concern adjudicative tribunals.”
In the present case, the Minister was inviting an expansion of the Dunsmuir analytical framework to all administrative decision makers. This Court found that this was unacceptable, and would hearken back to “… the time before the Bill of Rights of 1689 where the Crown reserved the right to interpret and apply parliament’s laws to suit its own policy objectives.” Since neither SARA nor the Fisheries Act contained a privative clause and the language of both statutes greatly restricted the Minister’s discretion, and the Minister acted in an administrative capacity only and was not an expert in interpreting statutes, the decision of the Minister respecting statutory interpretation had to be reviewed from a standard of correctness.
Section 36 of the Fisheries Act is aimed at preventing the pollution of water frequented by fish by preventing the dumping of pollutants. Section 36(4), however, provides for the deposit of waste as authorized by regulation. At trial, Russell J. ruled that s. 36 of the Fisheries Act could not be relied on by the Minister for the purpose of a protection statement under s. 58 of the SARA. The Court of Appeal disagreed, writing “the compliance with s. 36(3) of the Fisheries Act cannot be waived by the Minister to a licenced permit or other authorization.” Accordingly, the Court of Appeal held at paragraph 138 that measures under this section and the regulations were legally enforceable. This meant that the Minister was permitted to rely upon the regulations made under s. 36 of the Fisheries Act. Accordingly, on this point, the decision of the Federal Court was overturned.
The Regulation of Fisheries
In his Killer Whales Protection Statement, the Minister relied on the existing Salmon Fishery Management Scheme to ensure sufficient supply of salmon prey for the killer whale populations. The FCA determined that the Minister’s reliance on these regulations was misguided, as they did not seek to prohibit destruction of salmon prey, but only manage salmon fisheries under a licensing scheme. The FCA held that they could not approve of the substitution of a non-discretionary and compulsory scheme for a discretionary one. Given the wording of the SARA, mandatory licensing is required.
The most important aspect of this case involves the reluctance of the FCA to extend the Dunsmuir standard to a Minister’s interpretation of his or her statutory obligations. Dunsmuir, and the cases applying it, clearly govern in the case of an administrative tribunal exercising adjudicative functions in the context of an adversarial process.
The question in this appeal was whether the executive could also rely Dunsmuir, which recognized that administrators “working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime”.
In the view of the FCA, the Minister’s position that such deference was automatically warranted implied that the standard of review analysis ends as soon as Parliament confers on a minister the responsibility to administer a federal statute. Such a conclusion would have significantly insulated ministers from judicial review of their interpretations of their own jurisdiction and of their statutory obligations. Rather, the FCA held that the reasonableness standard of review does not apply to the interpretation of a statute by a minister responsible for its implementation unless Parliament has provided otherwise. Thus, such interpretations are far more likely to be reviewed on a correctness standard, and will thus provide interested parties with a better opportunity to hold the executive responsible for incorrect interpretations of its statutory responsibilities.
This decision, which was not appealed to the Supreme Court, will be of particular importance when considering discretionary licensing schemes and how they will interact with legislation providing for compulsory regulation of particular sectors in particular provincial or federal environmental legislation.
Court Docket: A-2-11
Date of Judgment: February 9, 2012
applicable standard of review critical habitat deference discretionary licensing schemes endangered or threatened aquatic species legislative intent ministerial decisions protection order Species at Risk Act