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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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JR - SOR - Statutory Range of Decision-Maker

. Mason v. Canada (Citizenship and Immigration)

In Mason v. Canada (Citizenship and Immigration) (SCC, 2023) the Supreme Court of Canada notes how appellate deference varies with the underlying 'statutory range' [my term] (characterized as 'context') of the statute under consideration:
[67] Whether an interpretation of the governing statutory scheme is justified will “depend on the context, including the language chosen by the legislature in describing the limits and contours of the decision maker’s authority” (para. 110). Narrower and more precise language imposes a greater constraint on the decision maker, while “broad, open-ended or highly qualitative language” affords greater flexibility (para. 110). What matters is whether the decision maker has “properly justified its interpretation of the statute in light of the surrounding context” (para. 110).
. Mikisew Cree First Nation v. Canadian Environmental Assessment Agency

In Mikisew Cree First Nation v. Canadian Environmental Assessment Agency (Fed CA, 2023) the Federal Court of Appeal considered the statutory 'range' (also the 'executive' range) of the decision-maker as an indicator of JR deference, here in relation to a dismissed judicial review of the then federal Minister of Environment and Climate Change declining "to designate an extension of the Horizon Oil Sands Mine (the Horizon Mine) owned by the respondent, Canadian Natural Resources Limited (CNRL), as a reviewable project under subsection 14(2) of the now-repealed Canadian Environmental Assessment Act":
[114] In Vavilov, the Supreme Court of Canada held that the statutory provisions applicable to a particular decision are an important factor in considering the reasonableness of the decision. The majority noted at paragraph 108 of Vavilov that, “… the governing statutory scheme is likely to be the most salient aspect of the legal context relevant to a particular decision”. It continued by stating, “[t]he statutory scheme … informs the acceptable approaches to decision making: for example, where a decision maker is given wide discretion, it would be unreasonable for [the decision-maker] to fetter that discretion”: at para. 108, citing to Delta Air Lines Inc. v. Lukács, 2018 SCC 2, [2018] 1 S.C.R. 6 at para. 18. In paragraph 110 of Vavilov, the majority made the following comments that are particularly relevant to the case at bar:
Whether an interpretation is justified will depend on the context, including the language chosen by the legislature in describing the limits and contours of the decision maker’s authority. If a legislature wishes to precisely circumscribe an administrative decision maker’s power in some respect, it can do so by using precise and narrow language and delineating the power in detail, thereby tightly constraining the decision maker’s ability to interpret the provision. Conversely, where the legislature chooses to use broad, open-ended or highly qualitative language — for example, “in the public interest” — it clearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language. Other language will fall in the middle of this spectrum. All of this is to say that certain questions relating to the scope of a decision maker’s authority may support more than one interpretation, while other questions may support only one, depending upon the text by which the statutory grant of authority is made. What matters is whether, in the eyes of the reviewing court, the decision maker has properly justified its interpretation of the statute in light of the surrounding context. It will, of course, be impossible for an administrative decision maker to justify a decision that strays beyond the limits set by the statutory language it is interpreting.

[Emphasis added]
[115] In other words, administrative decisions are easier or harder to set aside depending on their legislative context that may liberate or constrain a particular decision maker: Vavilov at paras. 88–90; Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100, aff’d 2022 SCC 30 at para. 24 [Entertainment Software FCA].

[116] Administrative decision-makers are less constrained where they act under broad statutory wording that is capable of an array of meanings: Vavilov at para. 110; Canada (Attorney General) v. Heffel Gallery Limited, 2019 FCA 82, [2019] 3 F.C.R. 81 at para. 33; Canada (Attorney General) v. Boogaard, 2015 FCA 150, [2015] F.C.J. No. 775 (QL) at para. 42, leave to appeal to SCC refused, 36621 (7 April 2016) [Boogaard]; Forest Ethics Advocacy Association v. Canada (National Energy Board), 2014 FCA 245, [2015] 4 F.C.R. 75 at para. 69 [Forest Ethics]. Administrative decision-makers are similarly less constrained by provisions that vest them with a broad scope of discretion: Vavilov at para. 108; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5; Katz Group Canada Inc. v. Ontario (Health and Long Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810.

[117] Thus, the broad discretion afforded to the Minister under subsection 14(2) of CEAA, 2012, and the absence of any statutory or regulatory recipe prescribing the parameters of the advice the Agency was required to give the Minister in respect of a designation request, are important factors to keep in mind when considering the reasonableness of a ministerial decision under subsection 14(2) of CEAA, 2012.

[118] Further, decisions that can be considered executive in nature—because they involve public interest determinations based on wide considerations of policy and public interest, assessed on “polycentric, subjective or indistinct criteria and shaped by the administrative decision makers’ view of economics, cultural considerations and the broader public interest”— are very much unconstrained: Vavilov at para. 110; Raincoast Conservation Foundation v. Canada (Attorney General), 2019 FCA 224, [2020] 1 F.C.R. 362 at paras. 18–19, leave to appeal to SCC refused, 38892 (5 March 2020) [Raincoast Conservation Foundation]; Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573 [Emerson Milling] at paras. 72–73; Gitxaala Nation at para. 150; Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at paras. 30 and 31.

[119] These principles were recently applied by this Court in Raincoast Conservation Foundation, which is somewhat analogous to the case at bar. There, the applicants argued that a GIC decision to approve the Trans Mountain Pipeline project was unreasonable and that the Crown did not adequately consult with Indigenous peoples and First Nations on the approval. Stratas J.A., writing about reasonableness review in this context, found that the GIC should be given the “widest margin of appreciation” over its decision since it is equipped with the expertise to consider and weigh the competing economic, cultural, environmental, and broader public interest concerns at play in relation to the approval of a given project: paras. 18-19, citing Gitxaala Nation at paras. 142-143, 150, 155; Tsleil-Watuth at para. 206.

[120] Indeed, this Court has repeatedly held that “[when] decisions made by administrative decision makers lie more within the expertise and experience of the executive rather than the courts, courts must afford administrative decision makers a greater margin of appreciation”: Gitxaala Nation at para. 147, citing Delios v. Canada (Attorney General), 2015 FCA 117, [2015] F.C.J. No. 549 at para. 21; Boogaard at para. 62; Forest Ethics at para. 82; see also guidance in Paradis Honey Ltd. v. Canada (Attorney General), 2015 FCA 89, [2016] 1 F.C.R. 446 at para. 136, leave to appeal to SCC refused, 36471 (29 October 2015).


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